Breaking News: Overseas Military Capture, Extended Interrogation, and Civilian Criminal Prosecution in New York City: US v. Warsame as the Model Case?

By Robert Chesney
Tuesday, July 5, 2011, 6:25 PM

This is, I think, a big deal. Hot on the heels of the fascinating testimony last week from Admiral McRaven and General Allen regarding disposition options for terrorism suspects captured overseas but outside Afghanistan, we learned today about a new case involving an overseas capture of a terrorist carried out by the U.S. military, followed by an extended period of no-Miranda interrogation, followed finally by civilian prosecution in the United States.  On the face of things, this is a perfect illustration of the fact that one need not take a one-size-fits-all approach in which you must either embrace a military  or a law enforcement model from start to finish; these elements can and should work in combination in at least some instances, and this looks (at first blush at least) like a textbook example of how to do just that.

According to a press release issued this late this afternoon, Ahmed Abdulkadir Warsame "was captured in the Gulf region by the U.S. military on APril 19, 2011, and was questioned for intelligence purposes for more than two months.  Thereafter, Warsame was read his Miranda rights, and after waiving those rights, he spoke to law enforcement agents for several days.  Warsame arrived in the Southern District of New York early this morning, and was arraigned...."  (emphasis added)   Warsame now faces a variety of charges, including conspiracy to provide material support to al Shabab and AQAP (18 USC 2339B), actually providing such support, carrying a firearm in connection with a crime of violence (18 USC 924), conspiracy to teach the making of explosives (18 USC 842(p) - always an interesting charge), conspiracy to receive military-style training from a designated FTO (18 USC 2339D), and actual receipt of such training.  The indictment is here.

Now here is the thing: Congress seems to be doing its level best to prevent the executive branch from carrying out precisely this sort of operation.  How so?  In two ways.  First, by contemplating an extension of the current law that precludes anyone from GTMO being brought into the United States for any purpose, making the same rule apply generally to all overseas captures (notice that Warsame appears not to have been taken to GTMO, no doubt at least in part in order to avoid the GTMO "tar pit" effect in which Congress won't let anyone get out anymore; ironically, in fact, it may be that Congress's efforts to force the executive branch to use GTMO actually incentivized it not to do so in this instance).  Second, Congress is contemplating making military custody mandatory (in conjunction with a military commission option), enabling ordinary prosecution only in limited circumstances).  See here for Ben's critique of that one.

So, now we have a concrete example against which to weigh the wisdom of such initiatives.  Let's hope that this helps people to see that tying the executive branch's hands is a bad idea.  And at the same time, let's take care not to assume that the prosecution option will be equally realistic in other such cases, and thus that there is no policy justification for maintaining the military detention model for AUMF-covered individuals.  The lesson here is likely to be that what makes the most sense, from a CT policy perspective, is to ensure that the executive branch has the right array of options on hand, and that when free to use those options the government can bring them to bear in coordinated fashion that gives due account both to the imperative of acquiring intelligence and the goal of ensuring that a dangerous person can be incapacitated for the long term in the end.