A few weeks ago, during the Senate Armed Services Committee hearing on the nomination of Vice Admiral William McRaven to run the Joint Special Operations Command, Senator Lindsey Graham put forth a hypothetical. " If you caught someone tomorrow in Yemen, Somalia -- you name the theater outside of Afghanistan -- where would you detain that person?" Graham asked.
McRaven responded that in many cases, "regarding individuals covered under the 2001 Authorization to Use Military Force, we will put them on a naval vessel, and we will hold them until we can either get a case to prosecute them in a U.S. court." McRaven didn't answer Graham's question about how long someone could be held, but he did say that if they "could not be prosecuted" or transferred to a civilian country, they could be released.
The exchange highlighted the difficulty the administration faces as it remains rhetorically committed to closing Gitmo even as Congress has cut off all avenues of doing so.
Yesterday, we learned that the situation McRaven described wasn't so hypothetical. Even as McRaven testified to the Senate committee on June 28, a Somali national named Ahmed Abdulkadir Warsame had been detained on a Navy ship for more than a month. He was transferred to U.S. soil and indicted in the Southern District of New York for providing material support to Somali terrorist group al Shabab and al-Qaeda in the Arabian Peninsula. His indictment claims that after two months detained at sea, where he was interrogated "for intelligence purposes," he was read his Miranda rights by federal agents before waiving them and continuing to talk to investigators.
Republicans in Congress are furious with the administration for transferring Warsame into the civilian system, even though trying him in federal court has fewer legal hurdles and the commissions themselves have proved woefully ineffectual. As Robert Chesney notes, "Congress seems to be doing its level best to prevent the executive branch from carrying out precisely this sort of operation," by constraining the president's ability to "forum shop" between military commissions and federal courts, because Republicans believe any Muslim suspected of terrorism should face a military commission. The "bipartisan compromise" in the Senate has gone as far as authorizing the military detention of American citizens, and making mandatory the transfer of civilians suspected of terrorism from federal into military detention.
In a saner world, we might be asking how someone detained on a ship at sea for two months without a lawyer can possibly waive his Miranda rights, or how someone in such a situation could genuinely understand that they have a right not to incriminate themselves. We might be wondering how any information given under those circumstances could possibly be admissible, with the shadow of indefinite, secret detention at sea looming over them. We might be wondering under what legal authority the U.S. military is authorized to detain individuals secretly and indefinitely outside a zone of active combat.
Instead, these events, rather than highlighting the irrelevance of Miranda to intelligence collection, or the effectiveness of federal courts in incapacitating terrorists, may provide Republicans with new fodder for arguing that Gitmo should be reopened. The center as it is, with no place to take terrorism suspects captured abroad, does not seem likely to hold. Republicans will argue that rather than the seemingly ad-hoc practice of detaining suspects on Navy ships, the administration should abandon its goal of closing Gitmo and opening a detention center on American soil, and instead embrace the most visible symbol of George W. Bush's legacy on national security. McRaven's hypothetical having become a reality, Republicans will act quickly to constrain this option as well.
