Al-Qaeda operative Abu Anas al-Libi was captured last weekend in Tripoli by U.S. forces and taken to the U.S.S. San Antonio for temporary detention and interrogation for intelligence purposes. Once intelligence officials finish their interrogation of al-Libi, he will be brought to the United States to face trial for his role in the 1998 U.S. embassy bombings in east Africa.
His case raises a number of recurring policy and legal questions.
The legal authority to detain al-Libi stems from the 2001 Authorization for Use of Military Force, which, as we explained in our testimony before the Senate Armed Services Committee this spring, authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.”
Both the Bush and Obama Administrations have concluded that our country is at war—as has the Supreme Court and lower federal courts—and that the enemy is al-Qaeda, the Taliban, and affiliated forces. The law of armed conflict, also known as the law of war, authorizes a country at war to target, detain, and/or interrogate the enemy.
Even though al-Libi is under federal indictment, he is not being held as a criminal suspect at the moment but rather as an unprivileged enemy belligerent (called an “unlawful enemy combatant” during the Bush Administration). As such, he may be lawfully interrogated for intelligence purposes. Any statement he makes—if he even chooses to speak—will be used for intelligence purposes only, not his subsequent criminal trial.
What about his Miranda rights? As we said before, Miranda is applicable to criminal suspects who are (1) in custody and (2) subject to official interrogation. Once intelligence officials finish their interrogation, law enforcement officials may decide to question al-Libi. If they do so, they will then read him his Miranda rights. If al-Libi waives his rights and talks, those statements may be used in the government’s case-in-chief against him at his federal trial.
The al-Libi case and the legal issues it raises are similar to the case of al-Qaeda operative Ahmed Warsame. In 2011, Warsame was detained and interrogated aboard a Navy ship for 60 days and then transferred to federal court for prosecution, where he received a life sentence. That hybrid approach—detain/interrogate as law of war detainee then transfer to federal court—is apparently the plan for al-Libi.
Do the Geneva Conventions preclude temporary detention aboard ship for al-Libi? No, not according to the Bush or Obama Administrations. The Third Geneva Convention (Article 22) states that prisoners of war may be interned only in premises on land. As we explain, al-Qaeda members, when captured, do not qualify as prisoners of war.
As a legal matter, any delay in bringing al-Libi to federal court will likely not harm the government’s criminal terrorism case against him.