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In a move that is sure to revive the controversy over trying dangerous terrorists on U.S. soil, the Obama administration brought a Somali man, captured in transit between Yemen and Somalia in the Gulf of Aden, to New York City to stand trial in a federal court on terrorism charges.
Ahmed Abdulkadir Warsame, portrayed by some in government as a “senior operational commander” of the Somali terrorist group al-Shabbab, has been indicted on nine counts of conspiracy and providing material support to terrorists. Warsame had significant ties to both Shabbab as well as the Yemeni group Al-Qaeda in the Arabian Peninsula (AQAP), having helped train terrorists in Yemen and plan attacks in Somalia. It is believed he was a major conduit between the two al-Qaeda affiliates and was in a position to harbor vast amounts of intelligence that would be helpful in heading off the increasing danger to the United States both organizations represent. Significantly, he was not accused of targeting America or American interests.
The case is seen as a test of President Obama’s new policy regarding foreign terrorists captured overseas. It is a policy, as the Washington Post suggests, that “splits the difference” between holding a terrorism suspect indefinitely, and trying him using a military tribunal, and solely using the federal courts to adjudicate the case.
Warsame’s capture on April 19th of this year was followed by two months incarceration aboard a US Navy warship where he was first interrogated by intelligence professionals in accordance with the Army Field Manual (revised to prohibit waterboarding and some other “stress techniques”) and the Geneva Convention.
Reports suggest that Warsame was very cooperative and provided the CIA with valuable information — some of which might have been actionable. He was not read his rights or given an opportunity to talk to a lawyer, although the Red Cross was informed of his capture and he was allowed to meet with representatives of the group.
Following a break of a few days, FBI interrogators began questioning Warsame with the specific intent of gleaning evidence for his trial. Every day the FBI questioned Warsame the terrorist was read his Miranda rights and legal representation was offered. Each day, he waived those rights and continued to cooperate with the FBI.
Obama’s new policy seeks to avoid the “tainted fruit” charges made by defense attorneys for terrorists who argued that some evidence used in court or offered during the military tribunals was the result of interrogations where the suspect was not apprised of his rights, or illegal methods were used to obtain the evidence.
This was the major problem during the 2010 trial of Ahmed Khalfan Ghailani, charged with more than 280 counts of murder and conspiracy in the bombing of our embassies in Africa in 1998. A pre-trial ruling by the judge denied the prosecution the testimony of a key witness who sold the explosives to Ghailiani, because the government learned of the sale when interrogating the witness at Guantanamo. Ghailiani was acquitted of all but one charge of conspiracy to destroy government property.
There were many who argued at the time that Ghailiani had no business being tried in a civilian court anyway, and that a military tribunal would have worked much better at bringing him to justice. Whether or not that supposition is true, it is a fact that Ghailiani was sentenced to life in prison without parole and is currently incarcerated at the “Supermax” detention facility in Colorado, along with other participants in the embassy bombings. His fate was ultimately no different than if he had been tried at Guantanamo, which raises serious questions about the efficacy of civilian trials in the first place.
But by keeping Warsame’s interrogations separate, with a clear wall between the CIA’s national security interrogations and the FBI’s efforts to gather evidence for trial, the administration is hoping to avoid the problems that emerged in the Ghailiani case, and that they can satisfy critics who worry that placing a terrorist in the court system is a wasted opportunity to glean significant intelligence from suspects. They also hope to satisfy their own supporters who believe Guantanamo should be closed and all terrorism suspects tried in federal court.
Judging by the reaction from both sides to Warsame’s indictment, it appears that the administration has failed to convince anybody that their new policy is the answer.
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