Obama grants foreign combatant American legal rights.
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.
Rep. Buck McKeon (R-CA) issued a statement that virtually accused the administration of trying to circumvent the will of congress which “has spoken clearly multiple times — including explicitly in pending legislation — of the perils of bringing terrorists onto U.S. soil.” McKeon is referring to legislation passed by the House that prohibits the transfer of detainees from Guantanamo to the US.
McKeon also pointed to the surreptitious manner in which Warsame was brought into the country: “It is unacceptable that the administration notified Congress only after it unilaterally transferred this detainee to New York City,” he said in a statement. The Washington Post reports that the president wanted to avoid a fight over Warsame's status with congress, pointing out that by flying Warsame to New York before announcing his capture, "the administration circumvented likely congressional objections to his transfer here."
Senate Minority Leader Mitch McConnell (R-KY) lambasted the president for bringing Warsame to New York and giving him the same rights as an American citizen despite the fact that he is a foreign national. "The administration has purposefully imported a terrorist into the U.S. and is providing him all the rights of U.S. citizens in court," McConnell said. "This ideological rigidity being displayed by the administration is harming the national security of the United States of America."
Rep. Peter King (R-NY), Chairman of the House Homeland Security Committee, also questioned granting a terrorist constitutional rights, saying "He is not an American citizen, nor did his criminal acts or his detention occur in the U.S. He is a Somali who traveled to Yemen for terror training. Warsame is a foreigner and an unlawful enemy combatant."
Nor did the putative friends of the president agree with his new policy. John Sifton, a human rights attorney who has represented detainees, pointed out the obvious; that the administration was "conflicted" in its policy. He added, that the new policy still "detains persons indefinitely, without access to counsel, using questionable Bush-era interpretations of the laws of war." Sifton did praise the administration for its efforts to use civilian courts to try terrorism suspects.
White House spokesman Jay Carney responded to the criticisms by employing a very selective memory: "Wherever possible, first priority is and always has been to apprehend terrorist suspects and preserve the opportunity to elicit valuable intelligence that can help protect the American people."
Mr. Carney obviously has forgotten about Umar Farouk Abdulmutallab, the "Underwear Bomber" who tried to blow up a plane landing in Detroit on Christmas Day, 2009. After he was apprehended, he was interrogated only a few hours before being read his Miranda rights. This led to heavy criticism of Attorney General Eric Holder for halting the interrogation long before significant intelligence could have been acquired.
The debate over what to do with captured terrorists will continue no matter what happens to Warsame in federal court. It is extremely unlikely that even if he is acquitted he will ever taste freedom again. The same holds true for virtually all the remaining detainees at Guantanamo. Why try them in civilian courts if the results are pre-ordained? Will it really lead to the rest of the world thinking better of us for the effort?
Former Bush-era Attorney General Michael B. Mukasey wrote in a Wall Street Journal editorial from October of 2009:
[C]ritics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.
In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents.
That is a heavy price to pay for trying to get the rest of the world to like us.