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Abu Khattalah and the Evolution of Ship-Based Detention

The N.Y. Times reports that Ahmed Abu Khattalah arrived in Washington, D.C., this morning by helicopter following his transport across the Atlantic on a Navy warship.  Khattalah, who was arrested nearly two weeks ago in a raid in Libya, is a suspect in the 2012 Benghazi attacks.   He is expected to be arraigned in Washington as early as this afternoon on terrorism-related charges.   Khattalah’s case raises a host of legal issues, domestic and international.  (Marty previously flagged some here).  In this post, I will attempt to situate Khattalah’s case in the larger and evolving framework of extraterritorial ship-based detention.

After 9/11, the United States initially used naval ships to detain and interrogate individuals seized in Afghanistan.  The practice ceased after several months, however, when the U.S. started bringing detainees to Guantanamo for law of armed conflict (LOAC) detention under the 2001 Authorization for Use of Military Force (AUMF) and possible prosecution before a military commission.  The one U.S. citizen held on a ship, John Walker Lindh, was brought to the United States for prosecution rather than to Guantanamo for LOAC detention.

More recently, the United States began detaining terrorism suspects on naval ships for a temporary period of LOAC detention prior to bringing them to the United States for federal prosecution.  In 2011, U.S. forces captured Somali terrorist suspect Ahmed Abdulkadir Warsame off the coast of Yemen and held him for more than two months aboard a naval ship in the Gulf of Aden before flying him to the United States for prosecution in New York.  Last year, the U.S. captured Abu Anas al-Libi during a raid by U.S. special forces in Libya and held him under similar circumstances—incommunicado aboard a navy ship in international waters—before transferring him to New York, where he had previously been indicted for his role in the 1998 attacks against U.S. embassies in Kenya and Tanzania.  Although al-Libi’s detention at sea lasted only eight days, the lack of adequate medical facilities to treat his preexisting health condition reportedly motivated his prompter transfer to civilian custody.

In both the Warsame and al-Libi cases, the government’s invocation of LOAC-based detention authority avoided triggering criminal law-based presentment and Miranda requirements, effectively carving out a space for a period of extrajudicial confinement.  Like the criminal prosecution of former Guantanamo detainee Ahmed Khalfan Ghailani, the Warsame and al-Libi cases illustrated the dual-track approach to counterterrorism detentions in which the government moves suspects freely between LOAC and criminal law detention regimes.  But whereas Ghailani was held in LOAC detention for more than five years before his transfer for Article III prosecution, Warsame and al-Libi’s LOAC detentions were relatively brief and, moreover, served more as a prelude to Article III prosecution than a substitute for it.

Khattalah represents a further variation on ship-based detention.  Unlike Warsame and al-Libi, Khattalah is being held exclusively under domestic criminal law authority because he lacks the required nexus to al Qaeda or an associated force to trigger LOAC detention under the AUMF.  In that sense, Khattalah’s ship-based detention resembles prior, pre-9/11 cases in which the U.S. arrested suspects overseas and transported them by sea to the United States.  (See, e.g., United States v. Yunis, 867 F. 2d 617, 618-19 (D.C. Cir. 1989) (transfer of a terrorism suspect captured by the FBI in international waters); United States v. Purvis, 768 F.2d 1237, 1238-39 (11th Cir. 1985) (temporary detention of a narcotics suspect on a Coast Guard patrol boat prior to his transfer to the U.S. and presentment before a federal magistrate)).

Yet, the Khattalah case arguably differs from this traditional model in that his ship-based detention may have served to delay presentment and facilitate interrogation without counsel.  According to the Washington Post, the government questioned Khattalah pursuant to the “public safety” exception to Miranda.  On one level, the government’s expansive interpretation of the public safety exception in Khattalah’s case resembles its application in recent domestic terrorism arrests, such as that of Umar Farouk Abdulmuttalab (for the attempted 2010 Christmas Day airline bombing) and Dzhokar Tsnarnaev (for the 2013 Boston Marathon bombing).  While the government is presumably operating in Khattalah’s case pursuant to the 2010 Justice Department Guidelines setting forth that expansive interpretation, it is worth flagging that those guidelines technically apply only to custodial interrogations of operational terrorists arrested inside the United States.  (Whether the government did not want to acknowledge Miranda’s applicability to overseas arrests in formulating the guidelines or whether it views the public safety exception more broadly in that extraterritorial context is unclear).  In any event, detention at sea tends to create a more coercive environment than detention in a fixed facility on land.

Most significantly, ship-based detention may be serving as a means to delay presentment.  Federal law mandates that a defendant arrested outside the United States be brought before a magistrate judge “without unnecessary delay.”  The Supreme Court, moreover, has described delay for the purposes of interrogation as “the epitome of unnecessary delay” and emphasized the importance of prompt presentment as a check against coercive interrogation.  According to the N.Y. Times, Obama administration officials have suggested that the delay in transporting Khattalah was not “unnecessary” because bringing him through international waters is easier than transporting him by helicopter to an airport in a country in Europe or North Africa, which would require the permission of the host country.   It remains to be seen how much flexibility there is in the “without unnecessary delay” requirement for an overseas arrest like Khattalah’s.  It is worth noting that in Yunis, the Navy munitions ship took the defendant to a U.S. aircraft carrier, from which a U.S. aircraft transported him to the U.S.  Ultimately, any presentment issues in Khattalah’s case will likely turn on the exigency of the circumstances, the feasibility of more rapid means of transport, and, relatedly, whether the government deliberately used transport by sea to gain a leg up in interrogating the defendant.  (The transfer reportedly took longer than expected because of “minor engineering issues.”).

Key facts about Khattalah’s ship-based detention remain unknown, and it is uncertain how these legal issues will be resolved in his case.  But a few general points seem clear.  First, ship-based detentions for at least some terrorism suspects seized overseas will continue.  Second, to the extent there is no AUMF nexus, those detentions will more closely resemble the traditional use of ships to transfer suspects arrested in extraterritorial law enforcement operations.  In that respect, Khattalah’s arrest and transfer to the United States represents a welcome return to normalcy.  Third, those detentions, due to their inherent isolation and inaccessibility, nonetheless create a risk of diluting presentment and Miranda rights, particularly given the government’s increased latitude to gather intelligence in terrorism cases.  Finally, the government faces little litigation risk, at least as long as it is not relying on the statements the defendant made during his ship-based detention in its criminal prosecution since the traditional remedy for presentment violations is exclusion of the evidence.   In short, while conducting detentions at sea under a law enforcement paradigm substantially reduces the risks of the type of abuses associated with extrajudicial detention, questions and concerns remain.

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About the Author

is Associate Professor of Law at Seton Hall University School of Law. Follow him on Twitter @JonathanHafetz