Paul Pillar

Ideology Confronts Justice Again

In thinking about the Obama administration's handling of the latest case of a detained accused terrorist, it is useful to recall the arguments—at least, the relatively more cogent ones—on each side of earlier debates about the proper forum for disposing of such cases. On one hand, trial in a regular federal court involves applying the rule of law in one of the fairest and most time-tested forums for passing judgment on the accused. It is a forum that has well-established legitimacy and procedures, unquestioned jurisdiction in applying the criminal laws involved, and an excellent record of providing secure venues, protecting sensitive information, and not least, convicting many terrorists. On the other hand, there are individuals who are very likely bad guys who may pose some degree of threat to the United States even if it would be difficult to assemble a strong prosecution case against them that would stand up in court. The existence of such people is the reason that President Obama has not yet been able to make good on his objective of closing the detention facility at Guantanamo—a worthy objective, given that the facility will always be a stain on America's commitment to the rule of law because the very location of the facility was chosen to try to evade the rule of law. Another relevant consideration is that part of the purpose of detention of such individuals is not just to administer justice but also to try to obtain information that may help, directly or indirectly, to prevent a future terrorist attack.

Now consider the latest case, involving a Somali named Ahmed Abdulkadir Warsame, who is associated with the militant group Shabab in Somalia and accused of aiding the Yemen-based group al-Qaeda in the Arabian Peninsula. Warsame was captured at sea when sailing between Somalia and Yemen and then interrogated for intelligence purposes during two months in a brig aboard a U.S. Navy ship. After a four-day break, during which he was visited by a representative of the International Committee of the Red Cross, a second set of interviews began, this time conducted by an FBI-led team whose objective was to build a criminal case against Warsame. The FBI interviewers began by reading Warsame his Miranda rights; he waived those rights and continued talking. The case was built. Now Warsame is being brought to New York to stand trial in federal court for providing material support to a terrorist group.

It is hard to imagine how this case and its handling so far could have gone any better. As a first priority, the suspect is milked for all he is worth as far as intelligence was concerned. Then after a clean break that keeps anything involving that stage of interrogation from becoming an issue in court, a separate interview team questions the suspect to make a convincing prosecution possible. With the suspect having been Mirandized for that stage two, the prosecution avoids possible problems of inadmissibility of what the suspect says. There is even a Red Cross visit thrown in, so all the appropriate bases are touched whether one considers the suspect a military or a civilian prisoner. Now he will be tried in a court where—unlike with military tribunals—the jurisdiction to prosecute under the material support statute is well established. There are also none of the other procedural or jurisdictional uncertainties associated with military tribunals. Not every case can go this smoothly, of course, especially when the detainee is less cooperative with his interrogators—although someone who is inclined to clam up is likely to do so whether he is headed to Guantanamo or to New York. And any final assessment of the handling of this case will have to await a verdict in court. But as for Warsame's case to date, what's not to like? None of the reasonable pro-Guantanamo and pro-military tribunal arguments heard in the earlier general date apply to, or are validated by, this case.

But somehow that doesn't stop the reflexive criticism. Senate Republican leader Mitch McConnell commented on the case by saying, “The administration's actions are inexplicable, create unnecessary risks here at home, and do nothing to increase the security of the United States.” McConnell's comments are inexplicable as they relate to the case on which he was ostensibly commenting. They are comments that are driven not by any attention to what works and what doesn't work in the handling of suspected terrorists, but instead by some vague ideological imperative—something about fighting terrorists being a “war” and all that. Oh, and of course there is the political imperative of undermining the president. That latter driver should not be surprising with Senator McConnell, who has been honest enough to admit that his number-one mission is not to administer justice or provide security or to do anything else that advances the broader national interest, but instead to see to it that Barack Obama loses the next election.