It is now well-known that Abu Anas al-Libi was seized in front of his home in Tripoli on Saturday, October 5 and transported to a U.S. ship in the Mediterranean, where he is reportedly now being interrogated by officials from the High-Value Intelligence Group (HIG), a cross-section of intelligence experts from the FBI, DOD, and CIA, among other agencies.   Despite some calls to contrary, it is also widely expected that al-Libi will eventually be brought to the United States to face criminal charges on a longstanding indictment arising out of his role in the 1998 embassy bombings in Tanzania and Kenya. If so, al-Libi’s case will track the treatment of Ahmed Warsame, who was captured in 2011 in the Gulf of Aden, held for 60 days aboard a navy ship, and then transported the U.S. for prosecution.  Al-Libi would also become the sixth person to be prosecuted for the embassy bombings, the first four of whom were convicted in 2001 and sentenced to life imprisonment. The fifth, Ahmed Ghailani, was convicted and sentenced to life imprisonment by a federal civilian court in 2011, following years of detention in CIA-run black sites and at Guantánamo Bay.

While the Warsame case provides the most obvious factual precedent for the presumptive plan of action here, it left most of the key legal questions under domestic U.S. law unsettled.   After all, Warsame ultimately pled guilty (after entering into a cooperation agreement and reportedly providing the United States with extensive intelligence), meaning that what would have been the likely pre-trial challenges related to his  detention and pre-trial treatment were never adjudicated by any court.  In this post, we identify the key domestic law legal issues, dispel some of the myths, and highlight the unresolved questions going forward. (Ryan and Sarah already offered a similar analysis of the international law issues.)

As we explain in the (lengthy) post that follows, we expect that the government will prevail in response to challenges related to al-Libi’s military detention and treatment prior to being transferred to federal court for trial, thereby showcasing once again the utility of existing authorities and civilian prosecutions in incapacitating terrorism suspects.  That said, we worry about the erosion of fundamental criminal procedure rights in the name of “intelligence collection.” Simply put, we think that, like Warsame, al-Libi presents an exceptional case, and we must be careful not to let the exceptions swallow the rules.

I.                   The AUMF as a Source of Capture and Detention Authority

While there is a separate and long-standing debate about the government’s power to detain terrorism suspects without charges under international law, it is clear that the government has the domestic authority to detain those it establishes are “part of” al Qaeda.  As Marty pointed out, al-Libi is alleged to be an al Qaeda member who was described in a 2000 indictment as having helped conduct surveillance of the Nairobi embassy in advance of the 1998 attacks.   Unless he has since renounced his membership in al Qaeda (a difficult standard to satisfy under the D.C. Circuit’s Guantánamo jurisprudence), there is little doubt under current law that he can be detained without trial under the 2001 Authorization for the Use of Military Force (AUMF).  In this regard, his situation is no different, and arguably a lot less complicated, than that of Ahmed Ghailani, who was held in a combination of CIA and Department of Defense custody for more than five years before being transferred to federal civilian court for criminal prosecution. And as a potentially important footnote, it’s not even clear whether al-Libi would be entitled to bring a habeas petition to challenge such detention, given that he is a non-citizen being held outside the territorial United States and not at Guantánamo. At least in the context of non-citizens held at Bagram, the D.C. Circuit has held, thus far, that no such entitlement exists.

II.                Duration of Military Custody

Having established that his capture and short-term military detention is likely permissible under current U.S. law, the next question is: how long can he be held?  The answer: until the end of hostilities—a potentially long time. Ghailani, for example, was held for five years before being transferred to federal court; meanwhile many other Guantánamo detainees are now well into their twelfth year of military detention.  There is, of course, an activedebate about whether and when the conflict with al Qaeda might end—and whether detention authority will end at the same time, or soon thereafter.  For the time being, though, the courts, Congress, and the executive are all operating on the view that such authority persists at least until some fundamental shift in the status of hostilities.

But while an extended period of military detention may be permissible in the abstract, the complicating factor in al-Libi’s case is the Obama administration’s clear preference that he is ultimately prosecuted in a civilian, federal court. While the duration of permissible military detention is governed by the length of the relevant hostilities, extended pre-trial detention implicates a host of constitutional provisions, federal statutes, and rules of criminal procedure, including the rights to a prompt presentment and a speedy trial.

III.             Prompt Presentment & Speedy Trial Rights

Under Rule 5 of the Federal Rules of Criminal Procedure, the government, when “making an arrest outside the United States, must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.”   Here, it is not clear whether or not there has been an “arrest”—a term that at least in other contexts has been interpreted as referring to an “arrest or detention for a violation of federal law.”   As described above, al-Libi was arguably taken into custody pursuant to the ongoing armed conflict with al Qaeda; if the government can establish that was the basis for detention, there may not even have been an “arrest” that would trigger the application of Rule 5.

If, however, he is deemed “arrested,” a finding that seems possible, if not probable, given U.S. statements that he was taken into custody with the intent of bringing him to criminal court for prosecution, then the key question turns to the notion of “unnecessary delay.”  The rule does not provide any specificity, although Department of Justice guidelines suggest that at least for arrests within the United States, presentment should generally occur on the day of arrest, and rarely, if ever, more than 24 hours from the time of arrest. Presentment, in this context, is more than just a formality; at presentment, the judge advises the defendant of the charges against him, the right to remain silent, the right to counsel, and pretrial release procedures.  The defendant may of course waive his right to prompt presentment if he does so knowingly and voluntarily.

In 2009, the Supreme Court (in Corley v. United States) called “delay for the purpose of interrogation” the “epitome of unnecessary delay” under Rule 5. And in 2010 guidance, at the same time that the Attorney General suggested the need for “significantly more exhaustive public safety interrogation [in terrorism cases] than would be permissible in a criminal case,” he also made clear that  “in all cases, presentment of an arrestee should not be delayed simply to continue interrogation, unless the arrestee has waived prompt presentment.” 

But the facts of the al-Libi case are arguably distinguishable.  In Corley, the defendant was taken into custody by law enforcement officials and subject to police interrogations about the crime for which he was ultimately charged during the period of delay; the court ruled those statements inadmissible.  Al-Libi, by contrast, was taken into custody by the military and is reportedly being interrogated by the High-Value Intelligence Group, presumably for the exclusive purpose of gathering intelligence—not evidence.  The Supreme Court has never addressed the question as to whether and in what circumstances presentment delay for intelligence gathering—rather than evidence collection—is permissible.  Moreover, parts of the Attorney General’s guidance are redacted, leaving open the possibility that it does not apply when there is independent detention authority or to the type of overseas intelligence interviews being done in this case.  (Nor is the Attorney General guidance binding as a matter of law.)

But even if the delay is unreasonable, the remedy for a violation of Rule 5 is not dismissal of the charges, but rather suppression of any statements obtained during the unreasonable pre-presentment period.  Here, the government is unlikely to seek to introduce statements obtained during the intelligence interviews, meaning that there will be nothing for al-Libi to seek to suppress.  He could, however, argue that subsequently collected statements or evidence have been so tainted by the presentment violation that they too should be suppressed. At least so far, though, the Supreme Court has not yet held that the suppression remedy extends to such derivative evidence—and we are doubtful a federal court would be quick to do so in this case.

The presentment question also dovetails with the separate question whether a prolonged period of military detention implicates a criminal defendant’s speedy trial rights. It appears, however, that al-Libi’s case is likely to be heard by Judge Kaplan, who was the presiding judge in Ghailani’s case. In Ghailani, Judge Kaplan ruled that even a five-year delay between the time Ghailani was taken into U.S. custody and brought to federal court did not violate his speedy trial rights since, among other things, the delay was in part justified by national security interests and did not result in Ghailani being subjected to a longer period of incarceration than he would otherwise have experienced.  The same arguments will likely prevail in al-Libi’s case, particularly if he is only held in military custody for several weeks, as compared to years.  Similarly, while mistreatment of a detainee prior to presentment may also be so grave as to “shock the conscience,” and thereby require dismissal under the Due Process Clause, it is hard to see how a short-term delay in presentment for the purpose of conducting intelligence interviews would meet this standard, absent additional factors, such as torture or abuse.  And in fact, Judge Kaplan rejected such a due process claim in Ghailani’s case, even when presented with colorable claims of torture. 

At some point, however, the intelligence interviews will end, and, assuming the prosecution is going forward, al-Libi will be transferred into FBI custody.  Once that happens, it seems clear that the prompt presentment rules kick in.   A delay in presentment at that point would seem to us to raise serious concerns that would, and should, lead to suppression of any statements made to the FBI agents. And, at a more fundamental level, concerns about presentment and speedy trial arguments will likely—and in our view, correctly—exert ever-increasing pressure on the Obama administration to transfer al-Libi from military to civilian custody sooner rather than later.

IV.              The Sixth Amendment Right to Counsel

Al-Libi has been under indictment for well over a decade, and is thus protected by the Sixth Amendment right to counsel (as well as the separate Fifth Amendment right against self-incrimination).  This gives al-Libi the right to have counsel present at all “critical” stages of the criminal proceedings related to the case, including interrogations.  Importantly, however, the Sixth Amendment is offense-specific, meaning it only protects al-Libi if the officers question him about the offense for which he has been charged.  There is, for example, no Sixth Amendment problem if the intelligence officers question him about current operational plans or network structures unrelated to the relevant pre-indictment conduct.  Again, this only becomes an issue if the government seeks to introduce uncounseled statements—or their fruits—into evidence.

Moreover, even if questioning strays into conduct for which he was indicted, the government is likely to argue (and has a strong case) that intelligence interviews are not interrogations related to the criminal proceedings and therefore do not trigger the Sixth Amendment.  

Complicating matters, there is even an open question as to the extent to which the Sixth Amendment protects non-citizens apprehended abroad.   While it is well-established that non-citizens are entitled to trial rights when being prosecuted in U.S. federal courts, the Sixth Amendment is not deemed a trial right—meaning that any alleged violation occurs at the time questions are asked, i.e. overseas, not when the statements are admitted at trial.  (This is an important, and often overlooked, distinction between the Fifth and Sixth amendments.)  While we would be deeply concerned about any effort to deny Sixth Amendment protections to a non-citizen who has been formally charged by a U.S. court, it is also worth noting that the legal issue is unsettled.

V.                 Miranda

According to media reports, the initial intelligence interviews of al-Libi are likely being conducted without the provision of Miranda warnings.   But unless the government intends to rely upon statements elicited during such interrogations at trial, this is perfectly permissible as a matter of domestic law.   Failure to give Miranda warnings is not a constitutional violation; the violation occurs only if and when the government seeks to introduce un-Mirandized statements into trial.   Depending on the details, some non-Mirandized questioning might also be admissible under the so-called “public safety” exception to Miranda, although we would need to know a lot more before deciding whether there is a valid basis for invoking the public safety exception here. (Even in the case of Omar Farouk Abdulmutallab—the “underwear” bomber—the public safety-based questioning lasted just 50 minutes.)   Being charged with a decade-old terrorism charge should not, in our opinion, justify application of the public safety exception; by contrast, credible intelligence suggesting that he is actively engaged in attack planning would.

If al-Libi’s statements are involuntary—as opposed to merely un-Mirandized—then the issue become a bit trickier.  In that case, both the statements and the fruits would be inadmissible at trial under federal law.   Thus, in order for subsequent Mirandized statements to be admissible, the government would have to establish a break in the taint created by the initial round of coercive interrogations.

In the Warsame case, for example, a team of FBI agents gave Warsame his Miranda warnings and conducted a second round of interviews once the non-Mirandized intelligence interviews were completed.  Assuming the same procedure is followed here—and assuming the government seeks to introduce statements made—the government will need to establish that the second set of interviews are not “tainted” by the first.  Among the factors  likely be considered are (1) the length of time between the two sets of interviews; (2) whether or not the second team of interviewers had access to information obtained from the initial intelligence interviews; and (3) al-Libi’s treatment and mental state.

Again, none of these issues arise if the government does not need or intend to introduce at trial any statements arising out of al-Libi’s current detention and interrogation, or take any future investigative steps based upon those statements.  But lest it seem too easy, the government may well wish to introduce such statements and additional evidence.  After all, in the most recent prosecution for the embassy bombings, Ghailani was acquitted of more than 280 charges and convicted of just one.

VI.              Ker-Frisbie

As the above suggests, although there are some potential minefields  if and when the government brings al-Libi to trial in a civilian federal court, most of them can be sidestepped if the government is careful in choosing which evidence it does and does not seek to introduce at trial. Analogously, the complicated questions concerning the legality of al-Libi’s capture and military detention under international law are not likely to interfere with a subsequent criminal prosecution, thanks largely to the “KerFrisbie” doctrine. Named after the pair of Supreme Court decisions from which it derives, Ker-Frisbie stands for the simple (ifcontroversial) proposition that criminal defendants cannot seek to dismiss the charges against them on the ground that their presence was secured unlawfully. In other words, even if al-Libi was “kidnapped,” or was otherwise captured in violation of international (or U.S.) law, it is extremely unlikely that such a claim would have any bearing on his amenability to civilian criminal prosecution—whether or not one thinks it should.

Per the discussion above, and as Beth explained over the weekend, there is an exception to Ker-Frisbie for “conduct that shocks the conscience,” but again, cases in which those arguments have succeeded are few and far between—and have almost always included severe mistreatment of the defendant while he was in custody. Absent some evidence of such mistreatment here, it seems unlikely that any flaws in al-Libi’s capture and detention would preclude the criminal case from going forward.

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To be clear, we are not saying that the precedents potentially set by al-Libi’s case are something to be celebrated.  The rules we’ve outlined above exist for a reason, and we worry about the potential scope of an “intelligence gathering” exception to settled principles of criminal procedure. But inasmuch as these rules generally take the form of exclusionary rules—and not outright bars on government conduct—it drives home a point we’ve made before, and which is too often lost on certain members of Congress: Federal courts are, and have proven to be, a highly effective tool for the long-term incapacitation of dangerous terrorists.  So long as the government is not interrogating suspects for intelligence purposes and then trying to use the fruits of such interrogations as evidence against them in subsequent criminal prosecutions, U.S. law grants the government a wide degree of latitude.  And so long as there is independent detention authority for doing so (and here the AUMF provides that authority), defendants like al-Libi can be held for an initial period of intelligence gathering, and then transferred to civilian court for prosecution. Moreover, in Warsame’s case—as in many others—cooperation and intelligence gathering continued long after the transfer to civilian custody took place.

Reasonable minds can disagree about the wisdom of such government conduct as a matter of policy and prudence. But two critical points emerge on which we believe there should be consensus: (1) capture is, and should be, the preferred disposition of terrorist suspects, providing, in the President’s words, the “best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist plots”; (2) federal civilian courts are responsive and adaptive—they can handle cases like al-Libi. Indeed, given the expansion of substantive criminal law to cover a range of inchoate terrorism offenses, whether committed at home or abroad, cases like al-Libi drive home the extent to which the civilian courts are both a possible and preferred avenue for the long-term incapacitation of terrorism suspects.