With the capture of Ahmed abu Khatallah, a suspected ringleader of the 2012 Benghazi attack, the United States has reaffirmed its increasing reliance on Special Forces units. Recent estimates suggest that these “special operators” are currently deployed in roughly 134 countries across the globe. And despite an ever-dwindling budget, U.S. Special Operations Command (SOCOM) is the only facet of the U.S. military projecting growth. This shift has allowed these operations to move at what is often called “the speed of war.” But with this newfound speed come questions: particularly, what happens once we capture these individuals?
The question of what, if any, legal rights should be afforded to detainees has been repeatedly raised during the ongoing War on Terror. While both the Supreme Court and the public have weighed in heavily on the issue, there still lacks clarity. Gone are the “Black Sites” of years past, but strangely, the measures in their stead have managed to evade similar scrutiny. The High Value Interrogation Group, a team composed of FBI, CIA and Defense Department personnel, now questions these individuals aboard Navy ships. Bound by the Army Field Manual, these interrogators operate outside the shadow of the American justice system. Detainees are not afforded counsel, nor does it seem that they are informed of their legal rights until after they are brought to the United States. In Khatallah’s case, he will be brought to the District of Columbia to face his preexisting indictment once, and only once, his interrogation has ceased.
But Khatallah’s case is not unique. Similar high-value targets have been captured and held for up to two months before being afforded counsel. Most recently, Abu Anas al-Libi, who had been indicted for his involvement with the American embassy bombings in Kenya and Tanzania, was captured in Libya by the Army’s Delta Force and brought to the U.S.S. San Antonio for interrogation. Once in custody, David Patton, top attorney at the Federal Public Defenders of New York, made repeated requests for the court to appoint counsel for al-Libi, as he had been indicted in and was ultimately destined for a New York court. Citing the prematurity of their requests, the Manhattan U.S. Attorney’s Office replied in a series of letters and argued that the government was under no obligation to bring al-Libi to the court at that time. Patton’s requests were denied.
In sharp contrast to these practices stand the constitutional protections against unrestrained interrogation, especially after indictment and without counsel. Founding its judgments on both the Fifth and Sixth Amendments, the Supreme Court has repeatedly reaffirmed these rights. For the purposes of the Sixth Amendment's right to counsel, the indictment has routinely been treated as a bright line indicating the start of the “formal” judicial process. Once this process has begun, the inalienable right serves to protect defendants in the "critical" stages of prosecution. And while the broader rights of the Fifth Amendment are subject to exception—for example, situations where public safety requires expedience over formality—it is unclear whether these detentions qualify for similarly weighty exemptions, especially after being formally indicted. In fact, the Supreme Court’s willingness to acknowledge "public safety exceptions" grows from its inherently limited scope—only where there is an objective need to protect against immediate public danger will the duty to inform a defendant of his or her rights be waived, temporarily. Further, to argue that these rights fail to inhere in the extraterritorial nature of this situation would be to, again, miss a greater point. Not only are these individuals being indicted and returned to the United States for prosecution in a civilian court, but the ships on which they are held and interrogated are treated as sovereign U.S. territory. Despite repeated promises that these individuals will be brought to justice, we now bring the American justice system to them.
As we near the bounds of an aging Authorization for Use of Military Force, we find ourselves at a point where the speed of war is overtaking the speed of our justice system. There was once a time where the line between law enforcement and national security was clear; this is no longer the case. What is clear, as was once famously said, are the unknowns. We do not know if information gained during these interrogations can later be used in court, nor do we know how long these individuals can be detained. In a move that would make even the most seasoned PR firm weak at the knees, the United States has successfully rebranded its secret interrogation program; the misdeeds of years past have evolved aesthetically, not substantively.
The national security of our country is, indeed, a consideration of preeminent importance. But as the pace of war overtakes the operating speed of our justice system, the integrity of that system hangs in the balance. There is undoubted significance in policing danger beyond our borders, but doing so at the risk of returning to a deleteriously changed home is truly an issue of national security. Should these individuals be brought to justice? Unequivocally, yes. But justice cannot exist until those who are not injured are as indignant as those who are. These individuals should be brought to a system of justice that can bear the weight of scrutiny and stand the test of time.
Joshua Fiveson is a graduate of Harvard Law School and an Officer in the United States Navy Reserve. He has worked extensively with the Department of Justice’s Counter-Terrorism Section. These views are that of the author and publication of this piece does not constitute endorsement by the Department of the Navy or the U.S. Government.
Image: Flickr/Official U.S. Navy/CC by 2.0