The New York Times is reporting that the U.S. Navy is holding and questioning captured al-Qaida member Abu Anas al-Libi on a Navy ship before transferring him to federal law enforcement officials for prosecution in the United States. Assuming that al-Libi is currently being held as a combatant under the laws of war, this is similar to the detention/interrogation process the Obama Administration used for Ahmed Abdulkadir Warsame in 2011. I agree that this combined law-of-war/criminal law enforcement model has some advantages (and minimizes the disadvantages of either approach used alone), but it does raise questions regarding what international legal rules the Administration has applied to Warsame and al-Libi during the period of their detention and, in particular, whether the Administration believes the Geneva Conventions apply.
As I have previously noted with respect to Warsame, because Article 22 of the Third Geneva Convention states that prisoners of war “may be interned only in premises located on land,” Obama Administration lawyers must have concluded that the Geneva Conventions do not apply to Warsame and al-Libi, or that they are not POWs, or that they are not being interned.
The Bush Administration, of course, was much criticized (including by officials now in the Obama Administration) for holding al-Qaida detainees under the laws of war (rather than as criminal suspects) and for not applying the Geneva Conventions to them. The Bush Administration was accused of “cherry-picking” among the laws of war — relying on the laws of war for detention authority but not applying the Geneva Conventions. But, as I have explained previously, despite affirming its commitment to the Geneva Conventions, the Obama Administration has not applied the Conventions as a legal framework differently than its predecessor and, in particular, has not treated al-Qaida detainees as POWs under the Third Convention or as Protected Persons under the Fourth Convention.
As with its drone program, if the Administration wants domestic critics and U.S. allies to support unprecedented counter-terrorism policies, it should explain the legal rules it is applying, and why the combined law-of-war/criminal law enforcement model is permissible under international law.