I just wanted to address a few more issues regarding the two-month seaborne detention of terrorism suspect Ahmed Abdulkadir Warsame.
Legal Authority: The U.S. is arguing that Warsame is subject to military detention under the 2001 Authorization to use Military Force because he is a member of al Shabab.
“The detention of an individual covered by the AUMF is not considered different from a legal perspective if they're held on a U.S. Naval ship or if they're held on a U.S. Naval base," says Ken Gude, a human-rights and national-security expert at the Center for American Progress. "If they’re covered by the AUMF, they can be held by the U.S. military.” Gude points out that the U.S. has been conducting military operations in the region since the Bush administration.
The ACLU's Ben Wizner, however, argues that this interpretation of the AUMF is strained. “It’s hard to fathom that Congress in 2001, was giving authority to hold without charge or trial, someone part of a group that did not exist at the time,” Wizner says. “This wasn’t anything we used to question. If you arrest someone involved in criminal activity overseas, then you brought them to a judge and put them on trial.”
Geneva Conventions: AUMF aside, there's some question as to whether seaborne military detention violates the Geneva Conventions. The Third Geneva Convention states unequivocally that "prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness." But both the Obama and Bush administrations have questioned the degree to which the conventions apply to members of terrorist organizations.
"An argument could be made that a temporary detention at sea could be justified in a theater of conflict in which no actual land-based detention facilities exist," Gude says, although that means accepting the premise that the Horn of Africa constitutes a theater of conflict. The administration itself hasn't answered this question, and I'm not sure if they've even been asked. Unlike the Bush era CIA black sites, the International Committee of the Red Cross was given access to Warsame.
Prosecution: The Obama administration's decision to detain Warsame militarily prior to Mirandizing him could have implications for his prosecution should he not plead guilty. Although a "clean team" of interrogators was brought in to interrogate Warsame after months in military custody, the courts could decide that information is nevertheless tainted by his being detained and interrogated beforehand. During the trial of convicted Tanzania U.S. Embassy bomber Ahmed Ghailani, Judge Lewis Kaplan threw out evidence collected by an FBI "clean team" because he was tortured. Ghailani received life in prison for his crimes, but Republicans argued that the exclusion of the evidence proved federal courts were unprepared for terrorism trials, despite the fact that the relevant evidence would likewise have been excluded in a military commission.
While Warsame does not appear to have been abused, his post-Miranda interrogation could be seen as coerced in part by his prior detention. Gude argues that "if this issue is litigated in the court the administration should be pretty confident of prevailing,” but according to Wizner, interrogating Warsame this way was entirely unnecessary.
"This whole debate is premised on the unfounded assertion that unwarned military interrogation is superior to warned FBI interrogation,” Wizner says, adding that there's no discrepancy between gathering intelligence and evidence towards conviction. "The notion that you're either holding them for criminal purposes, or you're holding them for intelligence purposes, is false."
The decision to hold Warsame overseas under military detention for "intelligence purposes," than transfer him to a civilian court for prosecution, is a decision with all the maddening hallmarks of Obamaism. He meets Republicans halfway by detaining Warsame militarily and interrogating him without Miranda, then transfers him into civilian court for trial. As with every other decision Obama has made to "split the difference," it unnecessarily capitulates to Republican arguments without placating them in the slightest.
Still, Wizner says, the decision to try Warsame in federal court was nevertheless a brave one.
"It has to be said, what the administration did wascommendable, given that there's possibly majorities in Congress to prevent theadministration from doing this," Wizner says. "It is a forcible statement to bring a case like this in federal court."
