Interrogation: Criminal

A Bad Idea Recycled

By Benjamin Wittes
Wednesday, October 9, 2013, 11:56 AM

If a capture comes, can calls to send the terrorist to Guantanamo be far behind?

Apparently not.

ABC News is reporting that GOP Senators Lindsey Graham, Kelly Ayotte, and Saxby Chambliss are calling for Abu Anas al-Libi to be taken to Guantanamo Bay:

Republican Senators Lindsey Graham, Kelly Ayotte and Saxby Chambliss said today it was a mistake to interrogate recently captured al Qaeda operative Abu Anas al-Libi on a Navy ship rather than sending him to the prison at Guantanamo Bay, Cuba.

“The bad decision is not to put him in a permanent confinement facility that will allow long-term interrogation,” Graham said. The South Carolina Republican used Guantanamo Bay as an example of an appropriate detention facility.

“A Navy vessel is not a substitute for a detention facility like at Guantanamo Bay, which is a top-rate detention facility,” said Ayotte, who took criticized the Obama administration for not having a plan in place to deal with high-profile terrorist captures.

“We’ve had a lack of policy with this administration as demonstrated by the fact that we do have someone like al-Libi on a Navy vessel right now, instead of a long-term detention facility,” the New Hampshire senator said.

There are at least three reasons why the insistence on bringing new captures to Guantanamo remains wrongheaded.

First, as I've argued before, no sane administration is going to bring anyone to Guantanamo as long as it's nearly impossible to get people out of Guantanamo.

Second, the guy in question is under indictment, and while it is perfectly reasonable to expect a period of strategic interrogation before dumping him into the criminal justice system, it is really not a good idea to give no thought to the system that is going to backstop detention authority when the AUMF lapses. We're not yet at the stage where detention power is atrophying, but any administration that failed to consider the long-term vitality of its detention authority with respect to new captures would, at this stage, be committing malpractice. The criminal justice systems is one of the safest ways to make sure that high-value terrorists stay behind bars for the long term.

Third, the Warsame case showed that a system of temporary military detention combined with relatively quick resort to the criminal justice system can put detainees in a cooperative posture and preserve the government's interest in long-term detention. This will not always be the case, but it's not analytically sound either to assume that failing to put someone in long-term military detention necessarily gives up major opportunities for intelligence exploitation. These questions are highly fact dependent and vary a lot depending on the individual detainee. Sometimes, you can have your cake and eat it too.