Speaking of Evolving Approaches to Counterterrorism II

by Deborah Pearlstein

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.


3 Responses

  1. Serious problems exist with the law of war rationale, because under international law the U.S. simply cannot be at war or in an armed conflict with al Qaeda.  The alternative expressed previously by the Executive is the law of self-defense, the self-defense paradigm, which permits targetings of those who are DPAA as well as their capture.
    Another problem is that a U.S. warship is the equivalent of U.S. territory under international law and the Constitution.  Boumediene and the many cases cited therein, plus Toscanino and Tiede, the recognitions in Ex parte Milligan and Reid v. Covert that our govt. is entirely a creature of the Const. and can take no action, anywhere, outside the Const., should limit what is permissible under the AUMF no matter how long it is operative and, in any event, should restrain Executive conduct abroad.
    However, under either the law of war paradigm or the law of self-defense paradigm, consent of the foreign state in which the person who is a DPH or DPAA is not required.  As in Hamdi, what the law of war, and presumably the law of self-defense, permits is (per Charming Betsy, etc.) “appropriate” under the AUMF.  However, in case of an unavoidable clash between the two, the Const. must prevail over the AUMF.

  2. p.s. In Hamdi, the U.S. Supreme Court nearly so ruled — ruling that: the word “appropriate” in the AUMF should be construed according to relevant laws of war (quoting me and others), that “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities” (quoting me and others), and that “the duration of these hostilities … [against “Taliban combatants” “who … [are] ‘engaged in an armed conflict against the United States'”) will last as long as “United States troops are still involved in active combat in Afghanistan.”  That day is coming to an end and, importantly, the United States cannot be at war with al Qaeda [ http://ssrn.com/abstract=2165278
    But, can detention rightly occur under the law of self-defense? subject to Article 9 of the ICCPR, which merely prohibits “arbitrary” detention.  See the Harv. Int’l L. J. article quoted elsewise in Hamdi. 

  3. I’m curious.  How does Mirandizing a captured Jihadist and giving him a public defender while preparing for a trial in federal district court facilitate  “retaining the ability to gather intelligence?”  Am I missing something?  Or are you suggesting that the prosecutors might be able to induce an AQ commander to give up valuable and timely intelligence information in exchange for a lesser sentence?  Has that ever happened? 

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