In broad terms, the United States faces two choices that often compete with each other when a terrorist is captured overseas: bring the person back to the United States immediately to face trial—with all of the procedural and legal protections that go along with such a trial—or hold the person in military detention as an enemy combatant, where prosecutions have been difficult and slow-moving and the process has been rife with criticism.
The choice often revolves around whether or not Miranda warnings are provided to the captured terrorist. If a person is detained by law enforcement officers, the officers must typically provide Miranda warnings before they can begin an interrogation. If the officers interrogate a detainee without Miranda warnings in an effort to stop the next attack, and the suspected terrorist does make statements about future plots, they could potentially save lives. However, it is possible that the statement may not be admissible in court because, in the absence of Miranda warnings or other curative measures, a criminal court almost certainly would rule that the accused had been denied a fundamental trial right, the right against self-incrimination. In this case, the suspected terrorist likely would be released soon, and therefore able to resume planning new attacks against the United States.
This thesis sought to determine which policy best allows the United States to reduce the threat posed by a terrorist captured overseas, takes into account the need to obtain information about looming attacks, preserves the opportunity for prosecution, and maintains the credibility of the United States. This thesis used a policy options analysis method, based on the premise that the most important objective after the detention of a person for terror-related offenses is to obtain information to preserve life and to stop a future terror attack. This thesis examined three different approaches for handling terror suspects captured overseas: law of war detention, two-step intelligence and law enforcement interrogations, and arrest and extradition. The criteria for evaluation were
• Legality: whether or not the suggested approach is currently legal to conduct without further litigation.
• Threat reduction: determined by observing how long terror subjects are detained under each policy (the longer a terror subject is detained, the greater the presumed reduction in threat).
• Opportunity to gain intelligence: determined by evaluating if the course of action provides the United States with an opportunity to gather intelligence information.
• Opportunity to prosecute: whether or not the course of action provides the United States with an opportunity to prosecute a terror suspect.
• Credibility: determined by assessing whether or not the United States maintains moral and legal credibility with both allies and enemies.
A. LAW OF WAR DETENTION
Law of war detention was found to be lawful under the Authorization for the Use of Military Force (AUMF), which was enacted by Congress after the 9/11 attacks. The Supreme Court’s decision in Hamdi v Rumsfeld affirmed the ability of the executive branch to seize and hold persons under the AUMF. As of approximately 2018, the detainees at Guantanamo Bay being held under law of war detention authority served, on average, a term of ninety-seven months. This estimate is based on the calculation of the sentence for 392 of the approximately 780 Guantanamo detainees. Because the estimation is based on only about half of the total detainee population, it is made with medium confidence. As evidenced by hundreds of Combatant Status Review Tribunal (CSRT) summaries, a great deal of information was collected about each detainee, including the detainee’s background, associates, details of travel, and circumstances of capture. A review of these CSRT summaries revealed that many details were corroborated by other detainee summaries. It is clear that thousands of intelligence interrogations took place at Guantanamo Bay. Of the approximately 780 persons who have been held at Guantanamo Bay under law of war detention, eight have been prosecuted and seven are currently being prosecuted. These fifteen people constitute approximately 2 percent of the total population of Guantanamo Bay. While effective at keeping detained persons from reentering the fight against the United States, the use of Guantanamo Bay as a detention center has been marked by scandals, including allegations of physical mistreatment.
B. TWO-STEP INTELLIGENCE AND LAW ENFORCEMENT INTERROGATIONS
Two-step intelligence and law enforcement interrogations derive their authority in part from the AUMF. The detainees studied for the thesis were seized by U.S. military forces and held in military detention overseas. The recent successful prosecution of alleged Benghazi attacker Ahmed Abu Khattala provided the first judicial review of the practice of conducting an intelligence interrogation, followed by a Mirandized law enforcement interrogation. The judge in this case found that Abu Khattala’s statements were knowing, willing, and voluntary. The other cases profiled for two-step intelligence and law enforcement interrogations provide a small sample by which to evaluate threat reduction. Abu Khattala was convicted and was sentenced to twenty-two years in prison. Ahmed Abdulkadir Warsame has plead guilty and is cooperating with the U.S. government.
Two-step intelligence and law enforcement interrogations for the three cases examined (Abu Khattala, Warsame, and Abu Anas al-Libi) provided between one week and two months to conduct intelligence interrogations before law enforcement interrogations were started. Statements from the U.S. Attorney for the Southern District of New York described the later cooperation of Warsame as extensive. There is no data about intelligence provided by Abu Khattala, Warsame, or al-Libi during their intelligence interrogations, but they did have the opportunity to provide intelligence. Two-step intelligence and law enforcement interrogation as a policy is a new development, and critics question the voluntariness of the process. Additionally, some countries believe it is questionable for the United States to use military force to capture persons in sovereign countries that the United States is not at war with.
C. ARREST AND EXTRADITION (LAW ENFORCEMENT INTERROGATION ONLY)
Arrest and extradition is a policy that has been practiced for decades. The United States has extradition agreements with approximately 107 countries. Countries enter into agreements to detain and extradite persons suspected of certain crimes. The agreements are reciprocal and are limited to only the crimes that the two countries agree to extradite for. Arrest and extradition can reduce the threat of terrorism through the prosecution and incarceration of terrorists. As with intelligence and law enforcement interrogations, arrest and extradition’s effectiveness is based upon federal conviction terms. Looking at federal terrorism convictions in general, 627 convictions for federal terrorism or terrorism-related offences were reviewed. The average sentence was found to be approximately 116 months. For arrest and extradition, intelligence is only gained if a person in custody decides to make a statement or decides to formally cooperate with the government. All of the cases reviewed regarding extradition—Abu Hamza Al Masri, Babar Ahmad, Syed Talha Ahsan, Abid Naseer and Ali Charaf Damache—resulted in a successful prosecution. Extradition is typically based on a treaty and is often accompanied by other assistance, such as access to witnesses and evidence. Because so many countries willingly enter into these agreements with the United States and because the agreements are reciprocal, there is widespread support for this approach.
To improve the viability of law of war detention to address captured terrorists, the United States should use prosecution as a tool to keep individuals in custody—not only those who have taken up arms against the United States but also those who have committed crimes while doing so.
Many steps have already been taken to improve the credibility of law of war detention; for instance, coercive interrogation techniques have been banned, public release of information regarding detainees and detention facilities has been required, and groups such as the International Red Cross are now permitted to access detainees. Additional transparency, such as the declassification and release of some detainee statements, can improve public knowledge and perception of the nature of law of war detention.
The United States should further refine the two-step intelligence and law enforcement interrogation policy to ensure that intelligence interrogations remain viable and reasonable. Examples studied in this paper relied upon the authority of the AUMF to hold detained suspected terrorists for the intelligence interrogation. This authority must be maintained in order for these interrogations to continue.
The varied situations encountered by the United States during the war on terror demand varied responses. It is critical that decision-makers have options available to fit these circumstances. The advent of irregular, asymmetrical threats such as those from al Qaeda and ISIS make clear that the line between law enforcement and military operations is often difficult to discern. Terrorists exploit this vulnerability by attacking the United States, then sheltering under U.S. law. Each of the policies evaluated in this thesis depend on specific circumstances, including whether or not the military is able to take custody of a suspected terrorist, the cooperation of foreign countries, and many other factors. Having each of these policies as continued viable options will help leaders choose the best course of action based upon circumstances.