Pre-Abu Khattala: Yunis, That 1987 Shipboard Terrorist Interrogation Case

By Jane Chong
Tuesday, July 1, 2014, 10:00 AM

Ahmed Abu Khattala is not the first person to be whisked onto a ship in the Middle East by U.S. forces, interrogated aboard, and then dropped in a U.S. court. There are some recent famous cases, of course, but there are also some older ones---one of which, in particular, may have precedential value for the coming litigation over Abu Khattala's capture and interrogation. Over at Just Security, Jonathan Hafetz suggests that because Abu Khattala's case lacks the al-Qaeda-or-associated-forces element needed to trigger LOAC detention under the AUMF, his June 15 capture and detention aboard the USS New York may more closely resemble pre-9/11 cases in which the U.S. arrested suspects abroad than that of Ahmed Abdulkadir Warsame or Abu Anas al-Libi. Specifically, Hafetz cites the first time U.S. law enforcement officials arrested a suspected terrorist overseas: in 1987, as part of “Operation Goldenrod,” FBI officials lured Lebanese citizen Fawaz Yunis onto a yacht anchored in international waters off the coast of Cyprus with the promise of a lucrative narcotics deal and then arrested him, pursuant to a warrant, for his role in the 1985 hijacking of a Jordanian airliner. Hafetz is right that the naval-ship-interrogation method is not an Obama administration creation. But Abu Khattala hardly marks, even in a limited sense, a return to “the traditional use of ships to transfer suspects arrested in extraterritorial law enforcement operations.” At issue in Abu Khattala’s case will be his secret capture by U.S. military forces in foreign territory and his pre-Miranda detention and interrogation while in military custody. Yunis, in contrast, entered international waters of his own physical accord ("voluntarily," the Justice Department emphasized at the time) before being seized by law enforcement officials and transferred to the USS Butte. Indeed, it was only after Yunis was read his Miranda rights and signed a form on which Miranda warnings were printed in Arabic that FBI agents interrogated him for nine sessions, or about twelve hours, aboard the American munitions ship. He was then transferred to an aircraft carrier, the USS Saratoga, and flown to Andrews Air Force base for trial in a federal court in D.C. A major issue in Yunis’s case was the validity of his waiver of his Fifth and Sixth Amendment rights and the admissibility of his shipboard confession in civilian court. The D.C. Circuit conceded that the government's interrogation was not "a model for law enforcement behavior" but determined that Yunis had voluntarily and knowingly waived his constitutional rights. It thereby reversed the district court’s ruling that the waiver was invalid because of errors in the Arabic translation of the Miranda-warnings form given to Yunis, the defendant’s seasickness aboard the Butte, the "detailed and exhaustive questions" posed to Yunis over four days, Yunis's alienage to the extent it rendered him "not conversant with Miranda," and the FBI's failure to record its interrogation sessions. Yunis may not really hark back to “traditional” shipboard detention but is nonetheless useful in analyzing the Abu Khattala case. The D.C. Circuit visited Yunis’s case no fewer than three times. First, the court reversed the trial court’s order to suppress statements Yunis made while aboard the Navy ship. United States v. Yunis (Yunis I), 859 F.2d 953 (D.C. Cir.1988). On a second interlocutory appeal as to discovery of evidence, the D.C. Circuit reversed the district court's order for the government to disclose to the defense classified transcripts of conversations between Yunis and a government informant. United States v. Yunis (Yunis II), 867 F.2d 617 (D.C. Cir.1989). Lastly, the D.C. Circuit affirmed Yunis’s convictions, of conspiracy under 18 U.S.C. § 371 (1988), hostage taking under the Hostage Taking Act, 18 U.S.C. § 1203 (1988); and air piracy under the Antihijacking Act, 49 U.S.C. App. § 1472(n) (1988). United States v. Yunis (Yunis III), 924 F.2d 1086 (D.C. Cir. 1991). All in all, the court conducted a pretty thorough vetting of shipboard interrogation issues. Many of those issues are distinguishable from those at stake in the Abu Khatalla case, but Yunis offers guidance in at least two areas. First, Yunis sheds some light on Wells’s question as to whether Abu Khattala's transport via the USS New York constituted an "unnecessary delay” to presentment before a magistrate and more general speculation as to whether the court will object to Abu Khattala's "relatively slow mode of transport.” Yunis sought to suppress his confession on these very grounds, arguing that the delay between his arrest and arraignment was an unreasonable one in violation of 18 U.S.C. Sec. 2501(c). As the D.C. Circuit specifically observed in Yunis I, that provision was passed by Congress to mitigate the effects of two Supreme Court rulings that together came to stand for the proposition that confessions obtained after "unnecessary delay" in violation of Federal Rule of Criminal Procedure 5(a) must be suppressed. See McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957). But the D.C. Circuit ultimately rejected the trial court's conclusion that the government had "purposely" delayed Yunis's transit by not utilizing a faster mode of transport as lacking evidence to support it. Moreover, the D.C. Circuit found that there was no "unnecessary delay" in Yunis's journey to the United States "notwithstanding that the Butte might have shaved thirteen hours off of its travel time had it proceeded at top speed on a more direct course." It’s worth noting that the D.C. Circuit appeared to credit the government’s strategic and pragmatic arguments for why it had chosen to initially transport Yunis by sea instead of by air---the court cites a federal agent’s testimony that the Defense Department did not have sea planes that could have transported Yunis directly from the site of the arrest and could not afford to delay the arrest, as well as the government’s interest in avoiding extradition problems. All of this suggests the D.C. Circuit may be amenable to the Obama administration's argument that it was easier to transport Abu Khattala through international waters than to transport him by helicopter to a foreign airport. Of course, the question may matter less to Abu Khattala’s prosecution than in that of Yunis. Whereas the “unreasonable delay” question was key to Yunis’s efforts to have his confession suppressed, by all accounts in the case of Abu Khattala, the government's interrogation was likely for intelligence and not prosecution purposes. This brings me to my second point. Yunis is instructive insofar as in it the D.C. Circuit reaffirmed the "Ker-Frisbie doctrine," under which even if the U.S. breaks domestic or international law in bringing a criminal defendant within a court’s jurisdiction, this fact does not impair the court’s power to try the person (as noted by Steve Vladeck and Jennifer Daskal way back in October as to potential hurdles in the criminal prosecution of al-Libi). Yunis, whose wrists had been fractured in the course of his arrest, was unsuccessful in asserting the applicability of the exception to that rule. As expressed in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), the exception applies where the government violates due process by subjecting the defendant to “torture, brutality, and similar outrageous conduct.” The available information regarding the conditions of Abu Khattala’s detention aboard the USS New York does not suggest that he falls within the Toscanino exception. One additional note: Hafetz also cites United States v. Purvis, 768 F.2d 1237, 1238-39 (11th Cir. 1985), as an example of the “traditional model” of shipboard detention. There, the Eleventh Circuit affirmed the convictions of appellants who were arrested in international waters for possession of marijuana with intent to distribute after their vessel was searched and seized by the U.S. Coast Guard. The case seems to offer less to Abu Khattala’s arrest and detention than Yunis, since there the defendants were found aboard a marijuana-filled vessel in international waters, a federal statute empowered the Coast Guard to "stop and board any American flag vessel" on the high seas even in the absence of suspicion of criminal activity, the appellants pressed no claims concerning their post-Miranda interrogation aboard the Coast Guard patrol boat, and the delay from arrest to arraignment was necessitated by the fact the arrest was made so far from port.