The Legal Nether-Region Of Proxy Detention.

Yesterday Nick Baumann spoke to Gadeir Abbas, who is representing Somali-American Gulet Mohamed, who has been detained in Kuwait and was allegedly abused by Kuwaiti authorities. Abbas says that Mohamed was recently interrogated by the FBI, who were so heated with him that the Kuwaitis had to intervene:

At one point during Wednesday's interrogation, Abbas said, the FBI agents performing the interrogation stood up and started shouting and physically crowding Mohamed. They also reached for his pockets—a move that Mohamed's brother and uncle believe was an attempt to confiscate the cell phone Mohamed has been using to communicate with the press and his lawyer. At that point, Abbas says, "a Kuwaiti official came into the room and directed the FBI agents to sit down and calm down and told them not to treat Gulet like that."

Here's Mark Mazetti's account:

The interrogation grew steadily more hostile when the agents pressed the teenager, Gulet Mohamed, on his travels to Yemen and Somalia and began calling him an “embarrassment to his country,” accusing him of lying about his contacts with militants overseas, he said.

Mr. Mohamed said the agents began yelling the name “Anwar al-Awlaki” at him, prompting Kuwaiti officials to intervene and request that the agents end the interrogation.

The question is whether this interrogation was legal. At the moment, civil-liberties groups are accusing the government of using the "no-fly list," which is secret, as a kind of blacklist that allows the authorities to place Americans in a kind of proxy detention abroad. The U.S. contends that Mohamed is in Kuwaiti custody and that he is not being held on their request, which means he only has the legal rights he would be allowed under Kuwaiti law. Still, it's not as though the United States is incapable of deploying any kind of leverage against Kuwait on behalf of an American citizen.

Whose custody he's actually in is the key question, because the U.S. cannot condition a citizen’s absolute right of return on whether or not they answer questions from law enforcement. A similar question was addressed by Judge John Bates in 2004, when an American named Ahmed Abu Ali alleged that he was being tortured and held by Saudi Arabian authorities at the behest of the United States. The government said he was in a foreign prison, so they couldn't do anything about it. 

What Bates ultimately decided was that Abu Ali's circumstances did not "extinguish the fundamental due process rights of a citizen of the United States to freedom from arbitrary detention at the will of the executive," and refused to dismiss his petition for habeas corpus. Ali was later brought to the U.S. and convicted of material support for terrorism and conspiring to assassinate George W. Bush, but the key point in the Bates ruling is that "the United States may not avoid the habeas jurisdiction of the federal courts by enlisting a foreign ally as an intermediary to detain the citizen."

Here's the tricky part: The U.S. says Kuwait wants to hold him, but Kuwait has placed him in a deportation facility, which suggests they don't want to hold him. If Kuwait is actually holding him, the U.S. court system can't help him. The U.S. can also cause problems for Mohamed by simply saying he can't be flown home safely, which could be illegal if he has no other means to do so. But if Kuwait is holding on to him on the behest of the U.S., then he has a pretty strong habeas case. Which partially explains why the government is being so tight-lipped about it -- in order to keep him in a kind of "portable Gitmo," they can't admit to having anything to do with his detention.

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