My favorite take on this is Michael Goldfarb’s, who calls it a near-parody of Obama’s penchant for ducking tough decisions by dismissing them as “false choices.” Are you opposed to secret prisons for jihadis? Are you also concerned that federal criminal procedures might be too soft to obtain vital intel?
Well, have I got a compromise for you.
The U.S. military captured a Somali terrorism suspect in the Gulf of Aden in April and interrogated him for more than two months aboard a U.S. Navy ship before flying him this week to New York, where he has been indicted on federal charges…
“What we’re seeing in this case is a government that is conflicted about the legal nature of its counterterrorism operations,” said John Sifton, a human rights attorney with extensive experience in detainee cases.
“On the one hand, it detains persons indefinitely, without access to counsel, using questionable Bush-era interpretations of the laws of war. On the other hand,” he said, “it embraces a more sophisticated approach, by indicting suspects, knowing that the Justice Department is better suited to prosecute them than the military.”…
Warsame was questioned aboard the ship because interrogators “believed that moving him to another facility would interrupt the process and risk ending the intelligence flow,” one senior administration official said.
True to recent unilateral form, knowing that a fuss would be made about sending jihadis to prisons on mainland America, the White House didn’t even notify Congress that they were transferring this guy to the U.S. for trial until he was already on his way. Cue the angry letter from Republican senators, soon to end up in a WH trash can.
As for Warsame’s treatment, he was caught on April 19 and immediately locked up on a military ship as a de facto POW. He was questioned for weeks, without a lawyer present and surrounded by U.S. sailors, about Al Qaeda/Shabab operations in Somalia. At some point the questioning ended and he was left alone for a few days. The next time they went to question him, they gave him his Miranda warnings, which he waived; suddenly, as if by magic, he had transformed into a criminal defendant, with any answers he provided during the new round of interrogation admissible as evidence in court. A question, then: While the feds’ priorities here were sound — get the counterterror intel first and worry about the prosecution later — how can a suspect who’s been spilling secrets for months while held incommunicado in a military prison seriously believe he has the right to remain silent during that second round of law-enforcement questioning? He’d already given up “very valuable” information by that point, according to one senior administration official, which may or may not have been used in the recent U.S. drone strike against Shabab in Somalia.
Lacking a sophisticated understanding of American criminal procedure, Warsame must have assumed that he’d already incriminated himself during the POW phase of the questioning and therefore might as well keep talking to interrogators once they Mirandized him. I.e. he didn’t really think he had the right to remain silent. And even if he did think had the right, clamming up during the law-enforcement questioning wouldn’t have saved him since Obama’s made it clear that he won’t turn jihadis loose for lack of usable evidence. If you’re a terror threat and we can’t prosecute you, you don’t go free; you get indefinite detention until we figure out a way to deal with you. Warsame’s choice here, once the feds knew he was a dangerous guy, was thus either to play ball and cooperate in hopes of getting a civilian trial or to go silent and risk being thrown in Gitmo for who knows how long due to lack of triable evidence. Heads we win, tails he loses, which makes the Miranda warnings (and long-delayed right to counsel) meaningless. Not what the Hopenchange fans signed up for when they voted for Obama three years ago, I’d imagine.
The NYT, meanwhile, notes that while the White House says Warsame’s detention was justified by the laws of war, it’s a bit hazy as to which congressional statute authorizes this particular detention. Was it the AUMF after 9/11? Some sort of ipse dixit from Obama? Something else? Gabe Malor, Ace’s co-blogger, points to Article 22 of the Third Geneva Convention, which says this:
Art 22. Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries.
Oh well. See now why I think, if push came to shove, the big O would let the CIA look the other way at his ban on enhanced interrogation?