Detention & Guantanamo

On Al-Liby, and the Transition from Military Detention to Criminal Prosecution

By Wells Bennett
Tuesday, October 8, 2013, 4:13 PM

Abu Anas Al-Liby's detention aboard the U.S.S. San Antonio raises a host of issues regarding his eventual handover to the criminal justice system.  A biggie is the extent to which criminal procedural rules---Miranda and presentment, in particular---will undermine the United States's prosecution of the Libyan for, among other things, his role in the 1998 bombing of the U.S. embassy in Kenya.

Over at Security StatesI predict that Al-Liby's defense won't succeed in getting the case tossed out, chiefly because suppression is the usual remedy for Miranda and presentment violations. And so far as concerns Al-Liby, the long-running Embassy Bombings prosecution likely does not depend on any statements he might make during detention, but instead on other evidence gathered before or since the indictment's issuance some years back. As a consequence---and for better or worse---there likely won't be much for a trial judge to suppress.

Here's the piece's opening:

The United States’ handling of Al-Qaeda operative Abu Anas Al-Liby, seized over the weekend, broadly resembles its handling of another high-profile counterterrorism capture, in 2011: that of Ahmed Abdulkadir Warsame, a commander in Somalia’s al Shabaab and a broker of weapons transfers to that group from Al-Qaeda’s Yemeni affiliate. Like Al-Liby, Warsame was captured abroad, detained on a U.S. Navy ship under the laws of war, and interrogated by military and intelligence personnel. And like Warsame was, Al-Liby will—after some period of detention—presumably be moved to the criminal system. It’s a one-two combination of military detention and civilian criminal justice, which the Obama administration has pioneered.

As it happens, Politico's Josh Gerstein has an article up on these issues, too---which I came by only after the Security States article was posted.  Gerstein's piece begins as follows:

The fact that alleged Al Qaeda operative Abu Anas Al-Liby is under indictment in federal court in New York City could complicate officials' efforts to conduct a prolonged interrogation of him following his capture in a U.S. military raid in Libya Saturday.

After his detention, Al-Liby was whisked out of Libya and reportedly taken to a U.S. ship believed to be in the Mediterranean for interrogation.

National security experts and U.S. officials are comparing the treatment of Al-Liby to that of Somali Ahmed Abdulkadir Warsame, who was captured off Africa in 2011 and held for more than two months before being flown to New York and taken to court. In a secret court proceeding later that year, he pled guilty to being an intermediary between Al Qaeda and Al Shabaab. Warsame is awaiting sentencing.