- By J. Dana StusterJ. Dana Stuster is a policy analyst at the National Security Network.
On Saturday, U.S. Navy SEALs captured Nazih Abdul-Hamed al-Ruqai, better known by his nom de guerre, Abu Anas al-Libi, in a brazen raid on his home in Tripoli, Libya. Libi was indicted in New York in 2000 for his role in al Qaeda’s bombing of U.S. embassies in Kenya and Tanzania in 1998 and is believed to have played a role in revitalizing al Qaeda’s operations in North Africa in recent years. The SEALs whisked Libi to the USS San Antonio, which was waiting offshore, where he is "currently lawfully detained under the law of war" as an enemy combatant, according to the Pentagon.
"Warsame is the model for this guy," an unnamed official told the New York Times. That would be Ahmed Abdulkadir Warsame, an al-Shabab military commander seized in Somalia on April 19, 2011. He was then held and interrogated by a special American interrogation team comprised of representatives from the Department of Justice, the intelligence community, and the military aboard the USS Boxer for two months, before being read his Miranda rights and turned over to the FBI. After another week of interrogation, Warsame was indicted on June 30, 2011 and formally arrested on July 3. While only the testimony he gave the FBI was admissible in court, the intelligence he shared with U.S. interrogators before being read his Miranda rights could be used to inform U.S. military strikes or CIA operations against terrorist groups. Warsame later pleaded guilty and elected to cooperate with U.S. officials.
While detentions like this one are part of established practice, they do present some tricky legal wrinkles. Some critics, for instance, have pointed out that Warsame and Libi’s indefinite detention aboard a ship violates the Geneva Conventions, which specifies that prisoners of war "may be interned only in premises located on land."
"If the Administration considered al-Libi to qualify as a POW, then, under Article 22 of the Geneva Conventions, they should not be detaining him on a ship for any extended period of time that would be considered ‘internment,’" John Bellinger, a lawyer and former State Department and National Security Council legal advisor who writes for the security law blog Lawfare, told Foreign Policy by email. "My guess is that the Obama Administration does not consider al-Libi to qualify as a POW because al-Qaida is not a party to the Geneva Conventions," which apply only to countries, not necessarily non-state actors. Bellinger has referred to the Obama administration’s approach to Warsame and Libi as the "combined law-of-war/criminal law enforcement model." According to the Times, Libi’s interrogators aboard the USS San Antonio still must adhere to the Army Field Manual, which prohibits torture.
Another challenge associated with Libi’s detention — and the raid that seized him in the first place — is a matter of timing. Deborah Pearlstein, a law professor at Yeshiva University and a contributor to the law blog Opinio Juris, notes that "Most scholars recognize an international law requirement that responses in self defense be timely." It’s been 15 years since the bombings Libi allegedly helped orchestrate. "[H]ow long could the U.S. plausibly use attacks from 1998, or even 2001, to justify new ‘self-defense’-related uses of force?" Pearlstein asks.
When Libi makes it to the United States, he’ll face an additional legal point of contention: whether or not he’ll be tried in a civilian court. Libi was indicted in New York, but trying terrorists in civilian courts has been a sore point with several politicians. Earlier this year, Sens. John McCain, Lindsey Graham, and Kelly Ayotte released a joint statement, saying that "A foreign member of al Qaeda should never be treated like a common criminal and should never hear the words ‘you have a right to remain silent.’" It’s a stance Graham and Ayotte reiterated on Monday, with Graham arguing that Libi should be treated as an enemy combatant and sent to the U.S. detention center at Guantánamo Bay. "U.S. Navy ships were never intended to be confinement and interrogation facilities in the War on the Terror," Graham said in a statement. "The use of ships, instead of Guantanamo Bay, will greatly compromise our ability to gather intelligence from captured terrorists."
Warsame pleaded guilty in New York to several terrorism related charges in December 2011, and several other terrorism trials in civilian courts have followed since then. If Libi does appear in a civilian court, though, the delay in reading the Libyan his Miranda rights and providing access to a lawyer could be used to "challenge the legal basis for his initial detention," Bellinger tells FP.
The fight over whether to try Libi in a civilian court or military tribunal is likely to be far more contentious than the international law arguments. Both Secretary of State John Kerry and Secretary of Defense Chuck Hagel have defended the legality of the raid. "We will continue to maintain relentless pressure on terrorist groups that threaten our people or our interests, and we will conduct direct action against them, if necessary, that is consistent with our laws and our values," Hagel said in a statement.