Speaking of Evolving Approaches to Counterterrorism II

Further to the topic of how the U.S. can/should combat terrorism without, as President Obama puts it, “keeping America on a perpetual wartime footing,” Marty Lederman and Mary DeRosa have a post up at Just Security highlighting the recent U.S. operations in Somalia and Libya as examples of what that future might look like. Among its features, a preference for capture, interrogation and criminal trial in U.S. federal courts over more lethal forms of targeting. (This has indeed been the Administration’s position on how it approaches counterterrorism operations overseas for the past several years.)

Jack Goldsmith is skeptical about how much of a model captures like Al-Libi’s can be; he argues, among other things: “Capture operations in foreign countries will only be attempted when the foreign government consents (or its non-consent will not be a large political problem), and the target is high-value, and the threat of troop and civilian casualties is quite low. They will be attempted, in other words, very rarely, and thus the Article III criminal process for foreign terrorists will be used very rarely.”

On this point, I have to disagree with Jack. It was only a few months ago we were talking about, for example, the foreign capture and federal criminal prosecution of Sulayman Abu Ghaith, Osama bin Laden’s son-in-law. Then there was Ibrahim Suleiman Adnan Adam Harun, an al Qaeda operative captured in Italy and extradited to the United States last year. And Somali Ahmed Warsame the year before that. These cases were probably most unusual in that they drew any press attention at all. According to the Department of Justice, the United States has prosecuted hundreds of cases related to international terrorism since 9/11 — including 67 cases involving defendants captured abroad.
To the extent this approach can be carried out transparently and consistent with U.S. and international law – and it is certainly possible to do so – it is plainly superior to lethal targeting, indefinite (non-criminal) detention or military commission prosecution in terms of its tactical and strategic advantages for counterterrorism (retaining the ability to gather intelligence while incurring fewer costs in local public opinion) and in its ability to safeguard individual rights.

That said, the al-Libi case and others like it are not without concern. Set aside for the moment the very important questions of foreign nation consent to the conduct of such operations. (Where we undertake it without state consent, serious questions arise about compliance with international law. Since the 1990’s, part of the U.S. response to those questions has been to simply excuse the FBI from having to comply with customary international law in its snatch and grab operations overseas. Hardly an ideal solution.) Al-Libi is currently being detained, it appears, pursuant to the same statutory AUMF authority that has supported the Guantanamo detentions and many others post-2001. But most of those detainees – indeed, most “wartime” captures – are conducted without necessary contemplation of criminal prosecution. More to the point, they are conducted without the certainty of a pending criminal indictment. How long, as a matter of U.S. law, may he be held under these circumstances before being presented to a federal court? Criminal courts have been generous in tolerating substantial presentment delays – permitting lengthy interrogation without the presence of lawyers – in AUMF detention cases before the suspect is advised of his rights and questioning for purposes of gathering evidence that may be admissible in criminal trial is begun again. But the law here is not exactly crystal clear. As long as the AUMF remains on the books, the possibility of such detention remains. How long should uncounseled interrogation continue? Even assuming detainee treatment in such detention is ideal, what principles cabin its duration?

Then there’s the shelf-life of the AUMF itself. With apologies as ever for shameless self-promotion, I’ve just posted a piece on SSRN arguing that the AUMF must be construed according to IHL, that IHL under these (admittedly by-analogy) circumstances should be understood to permit detention only for “the duration of hostilities,” and that the “hostilities” authorized by that statute may soon be understood – as a matter of law application to facts – as at an end. Existence-of-war conditions are justiciable, I argue. They already matter – and are being litigated – with respect to the beginning of the conflict for purposes of charging defendants with war crimes in the military commissions. They will soon start to matter more when it comes to the important AUMF.