Wednesday, July 06, 2011

Sorting Through the Somali Case

Deborah Pearlstein

Cross-posted at Opinio Juris

Big news in the past day is the Obama administration’s announcement that a Somali national captured by the U.S. military somewhere in the Gulf has been transferred to New York for federal prosecution on terrorism-related charges. According to the Justice Department (DOJ), the man, Warsame, was “questioned for intelligence purposes for more than two months” after his capture on April 19, 2011. The Times is here. Bobby Chesney has a link to the indictment and some analysis here.

Between ongoing debates on the Hill about the need to clarify the domestic authority for the President’s use of force against Al Qaeda et al., largely unrelated but similarly vigorous debates about the legality of operations in Libya, and this, an already busy summer on matters U.S. law and security-related just got a lot busier. Still trying to digest what is known/not known about the latest case, but for now it might be helpful just to highlight some of the questions relevant to assessing the legality of the U.S. actions.

(1) Initial capture. A first question under international law: did the United States violate the territorial integrity of another state to affect the capture? DOJ seems to say only that the man was captured in the Gulf region, but the Times reports that the capture was made in international waters. If true, the U.S. may avoid this issue, but hard to assess the finality of the Times’ report (it seems sourced only to one U.S. official).

(2)Detention. Here there are questions of both domestic and international law. (A) Did the U.S. military have domestic authority to detain this guy? Presumably it was acting under the statutory AUMF we’ve been discussing so much of late (e.g. here), on the theory that the statute authorizing the President to use force against those persons and organizations he deems responsible for the attacks of 9/11. That such persons or organizations may be captured outside the confines of the Afghan/Pakistan battlefield has long been a (more or less explicit) part of both Bush and Obama administrations’ readings of that statute, a reading informed (in this administration) by the understanding that the international law of armed conflict (the law of war, IHL) does not prohibit otherwise authorized security-related detention. The courts have not foreclosed this reading, but neither, I believe, has it been conclusively upheld outside the Afghan/Pakistan setting. (Someone will correct me if I’ve missed a case here…?) Probably a greater issue in this case: to what extent are the terrorist groups Warsame is alleged to be supporting – Al Qaeda in the Arabian Peninsula (AQAP) and al Shabab – within the scope of the AUMF? Al Shabab is most obviously a domestic Somali insurgent group, and its links to Al Qaeda are, at least from what one can glean in the open literature, uncertain at best. AQAP’s connection with the Al Qaeda of the attacks of 9/11 is plausible, but still pretty murky. As I’ve noted here before, the State Department lists Al Qaeda and AQAP separately as designated foreign terrorist organizations. AQAP was added to the list in 2009.

(B) As for international law, the law that applies depends in the first instance on whether one buys the idea that this detention came as part of an armed conflict. If AQAP and al Shabab are in an IHL sense associated with Al Qaeda (not an insubstantial if), then the theory that the lHL applies is nothing new from the U.S. government. And there is nothing in IHL that prohibits the detention of individuals other than those entitled to, for example, formal POW status. The critical thing IHL requires in circumstances of non-international armed conflict (a conflict between a state party and another identifiable party, not a state) is that the United States abide by the protections of Common Article 3 of the Geneva Conventions. Central there, CA3’s prohibition against torture and any “outrages upon personal dignity, in particular humiliating and degrading treatment.” The most reassuring signal on this would be whether the International Red Cross (ICRC) had access to Warsame during any of the two months he was held in ship’s custody. If, however, one is not convinced of the relationship of these groups to those who perpetrated the attacks of 9/11, and/or one has never bought into the idea that the United States is in a non-international armed conflict with those groups in the first place, then it is international human rights law and not IHL that applies. There, the most important treaty is the ICCPR, especially Article 9, which prohibits arbitrary arrests and requires a certain amount of process promptly upon capture. (ICCPR also of course prohibits torture, etc.) No indication what if anything Warsame was told during these two months about why he was being held.

(3)Prosecution. Now that Warsame has been brought to the United States for criminal prosecution, a separate set of questions arise under U.S. constitutional law. There are potentially many, so I’ll just flag a few here. One must assume that some pretty smart and experienced federal prosecutors already walked through these in far greater detail and concluded they’re surmountable obstacles before moving ahead with this particular case. Take the 6th amendment speedy trial right. There’s now precedent from the successful Ghailani prosecution in federal court holding that the period during which the defendant was held for intelligence-gathering purposes should be excluded from the speedy trial analysis. This ruling was not without caveats, and I think it reasonable to expect that this conclusion turns at least in part on an assessment that the intelligence-related detention was lawful in the first instance (see questions about the legality of this detention above). So defense counsel will have some argument here. But I wouldn’t put money on defense prevailing on this one. Then there’s the two month delay in the reading of Miranda rights (you have the right to an attorney, etc.). Miranda becomes relevant only if the government seeks to introduce un-Mirandized evidence in at trial. Mr. Warsame presumably has a strong argument that any statements he made pre-Miranda should not be considered admissible in trial. But I’ll be surprised if the government seeks to introduce any of those statements into evidence. Odds seem high that the government thinks it can make its criminal case without any of the pre-Miranda statements. Among other things, evidently Mr. Warsame waived his rights continued to talk even after Miranda was read.

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