The CIA no longer has any overseas "black site" prisons where they used to carry out "enhanced" interrogations far away from the soil (and civil rights laws) of U.S. prisons. But if Americans are holding an al-Qaeda leader on a U.S. Navy ship in international waters, what's legally stopping them from performing similar work there?
That's essentially what the American Civil Liberty Union is asking today. We know longtime suspected al-Qaeda leader Abu Anas al-Libi was captured by American commandos over the weekend and is now being interrogated off the Mediterranean coast on board U.S.S. San Antonio, without being read his Miranda Rights or in the presence of a lawyer. He will eventually be tried before a federal court in New York for the 1998 embassy bombings in Kenya and Tanzania, but until then he'll be held under the laws of war. As the Pentagon and legal experts explained over the weekend, that's the same legal justification used to authorize military force against al-Qaeda at the beginning of the war on terror. But until al-Libi makes it to New York, he's free of a lawyer and the protection usually offered by the civilian court system, adrift in the middle of the sea.
"It appears to be an attempt to use assertion of law of war powers to avoid constraint and safeguards in the criminal justice system," Hina Shamsi, the director of the American Civil Liberties Union's national security wing, told the Associated Press. "I am very troubled if this is the pattern that the administration is setting for itself."
Government officials were keeping mum with regards to the interrogation techniques being used on the San Antonio right now. "He is in our custody and he will be treated like anyone else," Rep. Dutch Ruppersberger, the top Democrat on the House Intelligence committee, told CNN Monday morning. He wouldn't say whether "enhanced interrogation techniques" were being used, cryptically saying that "If he does not want to talk, he will go through our system," Ruppersberger said.
The model for al-Libi's detention was written in 2011, when the administration captured Ahmed Abdulkadir Warsame, a Canadian-Somali citizen accused of aiding terrorists, and held him aboard a U.S. warship for about two months before he was delivered to New York to face terrorism charges. He eventually plead guilty and agreed to tell authorities everything he knew.
Some legal experts expect al-Libi's situation to play out in the exact same way. "Don't expect al-Libi to stay in military custody for more than a few weeks," predicted Robert Chesney, co-founder of the blog Lawfare, over the weekend. "This situation will unfold just like the capture of Ahmed Warsame a few years ago, meaning that after a period of no more than, say, 6-8 weeks, al-Libi almost certainly will be flown to the United States to face a criminal trial." But some legal observers think the administration should probably hurry unless they want another human rights headache on their hands. Just Security's Meg Satterthwaite explains:
So long as he is not held outside the regular U.S. legal system, al-Liby is presumably not at risk of refoulement (though a transfer to Guantánamo or Bagram would raise refoulement issues). Al-Liby’s detention on a ship, and his interrogation by the High-Value Detainee Interrogation Group without judicial oversight or legal assistance, will quickly run afoul of human rights law concerning due process, however, and if prolonged and under incommunicado circumstances, could amount to an enforced disappearance. The United States should transfer al-Liby to the United States and bring him under judicial protection without delay.
The administration, for now, is keeping mum about what's happening aboard that ship. "As a general rule, the government will always seek to elicit all the actionable intelligence and information we can from terrorist suspects taken into our custody," National Security Council spokeswoman Caitlin Hayden told the AP.