In a Bloomberg feature, Noah Feldman explains the instructive problems posed by the case of captured Somali terrorist Ahmed Abdulkadir Warsame.
What do you do with a captured terrorist? Throw him in the brig. That's what was done with Ahmed Abdulkadir Warsame, the Somali who in April was plucked from a fishing boat off the East African coast between Yemen and Somalia.
Once you've got him, though, the legal troubles begin. Because the U.S. Supreme Court rejected the Bush administration's vague plan of indefinitely detaining “enemy combatants” in Guantanamo without any hearing, the U.S. government was left with three lawful choices for what to do with Warsame:
It could have determined at a simple military hearing that he was part of al-Qaeda, with which the U.S. is at war, and detained him as a prisoner of war. It could have charged him with war crimes before a military tribunal. Or it could have filed terrorism charges against him in a civilian court -- which is what the Justice Department did to Warsame last week.
In bringing criminal charges against Warsame in New York City, the Justice Department no doubt meant to avoid adding another prisoner to Guantanamo, which President Barack Obama would like to close. But even this decision poses serious problems for the Obama administration -- and for the rule of law.