Ahmed Abu Khattala and the Miranda-Rights Question

"With Khattala, Warsame and Ghaith, the administration is trying to have it both ways. It is a clever theory that may prove to be untenable—legally and perhaps morally."

The September 11, 2012 attacks on U.S. diplomatic facilities in Benghazi, Libya were, according to U.S. law enforcement and intelligence sources, designed and led by Ahmed Abu Khattala, a Libyan jihadist. Recently, Khattala was captured by U.S. special-operations forces and transported to a U.S. Navy ship in the Mediterranean for debriefing, presumably by intelligence community (CIA and FBI) interrogators. Khattala was then transferred to FBI custody from military detention, even though he remained on the U.S. Navy ship for transit. He was flown off the ship and transported to the United States to answer a June 26, 2014 federal criminal indictment, alleging a single count of conspiracy to provide material support to terrorism. He remains in pretrial criminal detention after his initial appearance before a U.S. magistrate in the U.S. District Court for the District of Columbia on June 28.

Given the intensity of the political squabbling over how the Obama administration handled the Benghazi incident, there has been surprisingly little attention paid to Khattala’s arrest and detention. There has been unsurprising, yet irresponsible, insistence from some quarters that he be sent to Guantanamo Bay for extended detention as an unlawful enemy belligerent. The usual suspects have expressed concern that Khattala was turned over to law enforcement too quickly, allowing insufficient time to extract all the valuable intelligence he may have had to offer. Absent compelling evidence otherwise, we’re prepared to trust the judgment of intelligence professionals over grandstanding politicians on that score.

Our concern is the opposite one: that the intelligence interrogation may have violated Khattala’s due process rights, thus tainting the upcoming criminal trial. It is a longstanding principle of American law that the government may not use evidence gathered in violation of the United States Constitution against defendants in criminal cases. The Exclusionary Rule denies authorities the ability to use “evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment . . . improperly elicited self-incriminatory statements gathered in violation of the Fifth Amendment, [or] evidence gained in situations where the government violated defendants’ Sixth Amendment Right to Counsel.”

Nearly a century ago, the Supreme Court extended this principle with the Fruit of the Poisonous Tree doctrine, which renders evidence gathered as a result of bad conduct inadmissible in court. Since even if the direct evidence from an unlawful search or involuntary confession were excluded, investigators informed by that unlawfully obtained information would have a much easier time building a case, that evidence is usually considered tainted and inadmissible.

Yet Khattala’s handling follows a recent pattern of similar detentions. Ahmed Abdulkadir Warsame of Somalia was captured in April 2011 and interrogated shipboard for about two months before being offered a rights advisement. He later pled guilty in federal court and is awaiting sentencing. Sulaiman Abu Ghaith, a relative of Osama bin Laden, was detained in Jordan in 2013 and handed over to the FBI for transit to the United States, where he was convicted by a federal jury. Ghaith may have been interrogated by FBI and CIA personnel while in Turkish custody, prior to his arrest in Jordan and his subsequent rights advisement on the flight to the United States for judicial proceedings. In both cases, Miranda warnings were issued only after the intelligence community had conducted tactical interrogations designed to glean time-sensitive, perishable information that could be processed and analyzed for intelligence value.