The prosecution of Abu Anas al-Libi (a.k.a. Nazih Abdul-Hamed al-Ruqai), captured by U.S. special forces in Tripoli on October 5, in New York federal court would likely offer further proof that the government doesn't need military commissions for new terrorism trials, says legal scholar Stephen Vladeck. "We've had plenty of these [federal civilian terrorism] trials already," he says, "so the uncertainty is not about the forum, but merely about the details." Vladeck says the handling of al-Libi fits the Obama administration's protocol for new captures: a short period of military detention and interrogation followed by transfer to civilian court system. "The one question that I think has folks a little bit concerned is just how long a period can they hold him before you start that criminal process," he says.
How do you view the recent counterterrorism raids in Africa?
We still don't know everything, and so we should be careful about forming deeply held conclusions. But if this signals a shift in the [Obama] administration's approach to counterterrorism, it's an important one. The administration has received a lot of criticism for the perceived uptick in drone strikes and there's a lot to be said, at least as a matter of domestic law, for operations that can and do result in the capture of terrorism suspects and, as seems likely in the al-Libi case, in the criminal prosecution of terror suspects.
Were the raids legal?
As a matter of domestic law, the Libya operation is on far sounder footing. We already had a criminal indictment against al-Libi, and the FBI has the power to arrest individuals overseas in such cases. Al-Libi appears to be a senior al-Qaeda operative, and that brings him within the auspices of the 2001 Authorization for Use of Military Force. But I think it's an interesting political development insofar as it appears to be the first time we've used the AUMF in Libya.
The international law question really depends to a large degree on whether Libya consented to the operation. The public record has suggestions from U.S. officials that Libya did consent, and reports from Libyan officials that they did not. The public may never know what really happened. The critical point for present purposes is that the legality of the raid under international law shouldn't—and almost certainly won't—bear on the ability of the United States to try al-Libi in a criminal court.
There's one legal issue here that I think is largely underappreciated outside the world of law professors, which is something called the Ker-Frisbie doctrine, which stands for the proposition that criminal suspects cannot object to how they got into court—even if there are international law concerns with the means by which they are captured.
How significant is al-Libi's capture?
He's a pretty big fish. The government doesn't necessarily rank these guys anymore. But here's someone who we've been looking for since before September 11—there really aren't that many people who fall into that category. I don't think we as the public know just what kind of continuing operational influence he had on al-Qaeda, but certainly, if what's public is true, he was intimately involved in the [1998 East Africa] embassy bombings.
So how does this capture and interrogation process work now?
With so much focus on Guantanamo, folks have not necessarily appreciated the very profound shift in the Obama administration's approach to new [terrorism] cases. And really, since President Obama took office in 2009, this has been the modus operandi for new captures: some period of short-term military detention for interrogation purposes, followed by transfer to the civilian criminal court system for trial under our normal rules. That was one of the [Special Task Force on Interrogations and Transfer Policies'] recommendations back in 2009. It's one the administration has followed in just about every case. The one question that I think has folks a little bit concerned is just how long a period can they hold him before you start that criminal process.
So what was prior U.S. practice?
There was no formal process before. Before 2009, when the Bush administration would capture a terrorism suspect overseas, it would do any one of four things: send him to Guantanamo; send him to Bagram (U.S. military base in Afghanistan); bring him to the U.S. for trial; or send him to be detained by some other country and perhaps tortured.
So they captured [al-Libi] and now reportedly have him onboard the USS San Antonio. Apparently, the same process was used with [Ahmed Abdulkadir] Warsame in 2011. So what happens now? This elite interrogation team questions him for a period of time before they Mirandize him?
My understanding is that there's no fixed time period—that the real question is to what extent, and for what duration of time, the detainee is yielding valuable information. In Warsame's case, he was held for about six weeks on the Navy ship before he was transferred to civilian criminal custody. This hasn't been litigated, but there's at least some suggestion that much longer and you'd start running into serious problems legally. That sort of short-term detention incident to capture is perfectly fine under domestic and international law, but long-term detention incident to capture raises concerns—and so Warsame is the only precedent we have.
Was there a federal indictment out for him, as well?
Not when he was captured, but shortly thereafter.
Did that make difference at all?
It might. The only case where there has been a serious claim about this so far was the [Ahmed] Ghailani case. Ghailani was the Guantanamo detainee who was transferred [in 2009] to civilian custody to stand trial. He challenged his military detention as part of the criminal prosecution in a speedy trial claim. He said his rights were violated by being held by the military for so long. But the federal judge in the case said, "No," military detention does not start the speedy trial clock. And so the question would be whether that's true across the board, or whether that's only true in cases where there was no outstanding indictment. That's an open question.
At what point do they decide to Mirandize him—how does that work?
The government can't use things he says subsequent to his being Mirandized unless he waives his rights. Miranda is an important dividing line with regard to the admissibility of his statements. With regard to things he says before he's Mirandized, that's trickier. Courts have recognized something called a public safety exception to Miranda; and one could argue that in cases like these that's what those interrogations are.
But the government could also just completely avoid that issue by not seeking to use anything he says—before he's Mirandized— against him at trial. But Miranda is not a bar on interrogation. The question is not whether the government can talk to him without a lawyer, the question is what they can do with what he says.
And so you expect al-Libi to be transferred to New York City to stand trial?
Yes. I think there's about a 99 percent chance of that happening.
And should he stand trial, what are your expectations?
I don't know. I don't think we know yet just how strong a case the government has, or, for example, if they're going to try to pursue the death penalty—if they might try to use that as leverage to get him to plea. But the more important thing to understand is that we've had plenty of these [federal civilian terrorism] trials already. So the uncertainty is not about the forum, but merely about the details.
I imagine if he has information that can be helpful to the intelligence community, it would factor into any deal that he works out.
Sure, it's entirely possible that the government is already in negotiations with him where what they charge him with and how they try him might actually depend on his cooperation while he's in custody.
And at what point does he have access to an attorney?
That's an interesting question. In theory, once he is advised of his Miranda rights that's the point at which he should also be allowed to consult with counsel. Indeed, the whole point of Miranda is that once he's advised of his rights they can't use anything he says until he's had a chance to meet with counsel.
And how does that work? If you're held on a Navy ship, who do you pick up the phone and call?
It's possible that the government flies out a public defender. I think he won't be Mirandized until pretty darn close to the time that he's going to be transferred.
And what about the Libyan government pushing for him to stand trial there?
I don't think there's any reason the U.S. would defer. There's an old saying that possession is nine-tenths of the law; and certainly in cases like this that's true.
What are the broader legal implications of a case like this?
It's just further evidence of how exceptional the Guantanamo [military] commissions are, and further proof that the government doesn't really need them in new cases. The common refrain of some policymakers that we have to send these guys to Guantanamo so that we can interrogate them, is just not true—as the Warsame case proved, and as I suspect this case will prove. Nothing stops the government from interrogating these guys and then pushing them into the civilian criminal justice system.