Detention: Proxy Detention

Proxy Detention in Somalia and the Next Front in the Habeas Wars

By Robert Chesney
Tuesday, July 12, 2011, 5:21 PM

An article today in The Nation, by Jeremy Scahill, alleges that the CIA operates a proxy detention facility in Mogadishu (the article also alleges a CIA-sponsored training operation for Somali government forces, but treats the allegations of a proxy detention facility as a distinct matter):

As part of its expanding counterterrorism program in Somalia, the CIA also uses a secret prison buried in the basement of Somalia’s National Security Agency (NSA) headquarters, where prisoners suspected of being Shabab members or of having links to the group are held. Some of the prisoners have been snatched off the streets of Kenya and rendered by plane to Mogadishu. While the underground prison is officially run by the Somali NSA, US intelligence personnel pay the salaries of intelligence agents and also directly interrogate prisoners.

The article does not claim that the CIA renders prisoners to this facility, but does allege that it gave information to Kenya that resulted in the seizure and rendition to Somalia of an al Qaeda figure--Ahmed Abdullahi Hassan--in Nairobi (quoting an anonymous U.S. official as denying U.S. involvement in the rendition, but conceding that the "United States provided information which helped get Hassan--a dangerous terrorist--off the street."

Not surprisingly, perhaps, a habeas petition appears to be in the works:

Hassan’s lawyers are preparing to file a habeas petition on his behalf in US courts. “Hassan’s case suggests that the US may be involved in a decentralized, out-sourced Guantánamo Bay in central Mogadishu,” his legal team asserted in a statement to The Nation. “Mr. Hassan must be given the opportunity to challenge both his rendition and continued detention as a matter of urgency. The US must urgently confirm exactly what has been done to Mr. Hassan, why he is being held, and when he will be given a fair hearing.”

So what's likely to become of this?  Well, there are two issues: proxy detention, and extraterritoriality.

Proxy Detention: The proxy detention issue arises because, concededly, this is not a situation of formal U.S. custody, and hence it is not obvious that an American court would have jurisdiction even if Hassan were an American citizen (which he is not).  In this respect, the case will be akin to Abu Ali v. Ashcroft, which involved a U.S. citizen who sought habeas review in the United States while in the formal custody of Saudi Arabia, on the theory that the Saudi custody was proxy detention under the actual control of the United States.  The government moved to dismiss the petition in that case for lack of jurisdiction, rather than offering evidence rebutting the claim of proxy control.  Judge Bates denied the motion, reasoning that the allegations of control had to be credited absent a contrary showing, and toward that end he ordered limited jurisdictional discovery.  The issue then became moot when Abu Ali was repatriated to the United States and prosecuted, but the key point is that the government was going to be put to the test on the question of its control.  In theory, the same might happen here...except there is the second issue, to which I turn now.

Extraterritoriality and Boumediene - As Hassan is not a U.S. person, his claim to habeas jurisdiction is uncertain at best. One assumes that he will argue that Boumediene requires extension of habeas jurisdiction to this circumstance, while the government will argue that this fact pattern--even if it involves Somalians taking custody of a person at the request of the U.S.--differs sufficiently from GTMO.  The D.C. Circuit's decision in al-Maqaleh, notably, will not necessarily control the outcome even if this case ends up in that circuit. First, Somalia, for all its horrors, is not necessarily the war zone that is Afghanistan--and hence a judge who is so inclined might distinguish al Maqaleh on that basis.  At the same time, it is important to bear in mind that the D.C. Circuit in al Maqaleh held the door open for a claim (even in Afghanistan) involving a person captured abroad and brought into Afghanistan well after the time it became clear that habeas extended to GTMO.  A habeas petition by Hassan might present that open question, if the proxy detention hurdle is overcome.  It would be hard, in short, to predict how this one would turn out.

The Larger Context: Fewer and Fewer Options Other than Death, Prosecution, and Observation - A succesful, or even potentially successful, proxy detention habeas action will not necessarily redound to the long-term benefit of persons such as Hassan (i.e., suspected al Qaeda members whom the U.S. government concludes need to be incapacitated to prevent terrorist attacks).  To be sure, one alternative to proxy rendition and proxy detention is to seek custody of such persons and prosecute them ourselves (as is happening now with Ahmed Warsame, captured in this very region).  But let's not kid ourselves, as the lethal force option remains on the table as well, and almost certainly will prove more attractive than criminal prosecution in some instances (and certainly more attractive than mere surveillance in some instances). Indeed, Scahill's own story notes that Hassan's ostensible boss, Saleh Ali Saleh Nabhan, was killed in a JSOC operation in Somalia in September 2009, not long after Hassan was taken to Mogadishu (raising the question whether Hassan provide information that led to Nabhan).  Of course, the lethal force option in turn reminds us of the ongoing debate as to the scope of AUMF authority, and the parallel issue of Article II self-defense authority separate and apart from the AUMF.