Warsame: An Emerging New Model for Terrorism Cases?

By Richard H. Pildes
Tuesday, July 5, 2011, 9:40 PM

As Bobby notes, the recently announced criminal prosecution of Ahmed Abdulkadir Warsame, captured overseas almost three months ago by U.S. military forces, could be an important test of an emerging hybrid model for handling alleged terrorism cases that offers an alternative to the stark war v. crime dichotomy. Consistent with the laws of war, Warsame was detained in military custody and interrogated initially for two months, presumably for intelligence purposes, without Miranda warnings. But if his case were fully handled by the laws of war model, he would remain in detention, in long-term military custody (although where he would be detained for more long-term purposes would be an enormous problem for the administration). Instead, he is now being moved into the criminal justice system for a conventional civilian criminal trial. This hybrid model is a means to try to avoid pitting government's intelligence gathering function against its criminal justice function. Put another way, this is an effort by the Obama administration to show it does not need to put people into a regime of long-term military detention in order to ensure that alleged terrorists are adequately mined for whatever intelligence value they might have.

How much of a test for this hybrid model the case will be will depend on how the courts answer a crucial, novel threshold question: does Miranda apply at all to individuals captured overseas, by military forces, and held in military custody pursuant to the AUMF (assuming the AUMF applies to these facts). If Miranda doesn’t apply at all, then this hybrid model will probably be successful, but only in the context of military captures overseas. Indeed, even incriminating statements made to military interrogators might be admissible in the criminal prosecution – though there would still be a question of whether due process standards would apply to these interrogations, in which case, while Miranda would not apply, the courts would still have to be satisfied that the statements were sufficiently “voluntary.”

If the courts instead conclude Miranda does apply to the military phase of the interrogations, then the issues in this case become relevant to all terrorism cases – whether the capture takes place within the United States or not, and whether the capture is by ordinary law enforcement organizations, such as the FBI or the New York City police. The question will be whether a prolonged period of detention and interrogation for intelligence-gathering purposes in alleged terrorism cases, without Miranda warnings or a waiver of them (so far, there is no indication of such a waiver for the period of military interrogation), can still yield a valid criminal prosecution, if the government seeks to admit incriminating statements or evidence that emerges in the course of a conventional law enforcement interrogation, preceded by Miranda warnings, that takes place, perhaps with some break in time, after an initial period of non-Mirandized intelligence interrogations. That oversimplifies the issues somewhat, but provides the gist of what could be at stake as the courts respond to this criminal prosecution. These issues might not get fully tested in this case, but initial appearances suggest this case could, potentially, be the most important test thus far of whether hybrid models can be developed, and legally sustained, for harmonizing intelligence investigation and criminal prosecutions in terrorism cases.