A Dangerous Somali Fudge

July 8, 2011

Late Monday night the Obama administration reported that it had transferred a Somali national called Ahmed Abdulkadir Warsame from detention on a US warship somewhere in the Persian Gulf to the jurisdiction of the New York federal court.

Warsame is accused of having provided material support to the radical Somali Islamic group Al Shabab and Al Qaeda in the Arabian Peninsula. He was reportedly detained on a fishing trawler somewhere in international waters between Somalia and Yemen. Another individual detained with him has since been released.

On the face of it, the Obama administration’s decision to refer Ahmed Abdulkadir Warsame’s case to be heard in federal court is to be welcomed. The criminal justice system is both the most appropriate and best-equipped venue to adjudicate such cases.

However, what makes little sense is why they waited so long before they reached this decision. Prior to his arrival in the United States, Warsame was held for two months on the amphibious assault ship USS Boxer where he was subjected to an extended intelligence interrogation.

Ahmed Warsame has apparently become the first guinea pig for a new hybrid approach to terrorism suspects in which the Obama administration hopes to both have its cake and eat it too.

The idea is that a detainee can be picked up as a prisoner of war, undergo interrogation for intelligence purposes within the constraints of the US Army Field Manual on Human Intelligence Collector Operations, magically transmogrify into a criminal suspect, be interviewed again by law enforcement officers, and then be sent for trial in a normal civilian court.

The administration’s presumption – fueled by the remarkable leaway granted the government in the Ahmed Ghailani case – is that the two months of non-judicial interrogation will have no legal impact on the admissibility of the suspect’s subsequent testimony.

This is deeply problematic on several levels.

The first issue is why Warsame was treated as a Prisoner of War at all. He was not detained on a battlefield nor was he captured in the heat of combat. He was in fact many 100s of miles from any theater of war in which the United States could even be said to be tangentially engaged.

If the US authorities had reason to suspect Warsame was connected with criminal activity of any kind he should have been handed over to law enforcement officials at the earliest reasonable opportunity and charged.

But that is not what happened. Instead, in a chilling parallel to the well-documented use of US naval vessels as black detention sites by the Bush administration, he was held in the USS Boxer’s brig for two months and interrogated in secret.

It doesn’t sound like “that hopey-changey thing” worked out particularly well for Mr. Warsame either.

The second concern is that the decision to treat Mr. Warsame in this manner gives further credence to the deeply flawed narrative that military-style interrogations are somehow more productive than law enforcement ones.

Law enforcement techniques have led to most of the major breakthroughs against Al Qaeda including the location of both Khalid Sheikh Mohammed and Musab Al Zarqawi. In contrast, almost no actionable intelligence has come out of the endless cycle of military interrogations at Guantanamo Bay.

Finally, the US Army Field Manual permits the use of techniques – such as sleep deprivation – that simply should not tolerated by any properly constituted court and may amount to the kind of cruel, inhuman, and degrading treatment outlawed internationally by the UN Convention against Torture.

If military interrogators are able to bend civilian rules to get a subject to talk, a cooling off period of a couple of days should not be considered sufficient to launder this testimony. Coercing confessions has no place in our democracy. If we allow it in this instance, sooner or later it will inevitably bleed over into other areas of our criminal justice system.

It is difficult to escape the conclusion that instead of simply acting out of principle the Obama administration is playing politics with Warsame’s case. They are trying to be all things to all people. A little military confinement to appeal to national security hawks on the right, then a civil trial to silence civil libertarians on the left.

With every passing day our judicial process is becoming more and more corrupted by political interference. Congress wants to tie prosecutors’ hands so that they are not free to dispose of cases as they judge best. The White House has chosen to ignore judicial rulings in a slew of habeas cases and the Senate minority leader wants to deport residents of Kentucky to Guantanamo.

Politics and justice make poor bedfellows. So, even though the arrival of Ahmed Abdulkadir Warsame in federal court is a positive step, it is still difficult to escape the conclusion that the Obama administration has faced another test of its core values and that once again they have fudged their answer.