Thursday, July 7, 2011

Obama Under Fire Over Detention of Terror Suspect on US Navy Ship/U.S. May Have Violated Domestic and International Law in Capturing and Holding Somali for Months at Sea

Obama Under Fire Over Detention of Terror Suspect on US Navy Ship

Somali man taken to New York to face criminal court trial after being questioned for two months without a lawyer

by Ed Pilkington

The Obama administration approved the secret detention of a Somali terror suspect on board a US navy ship, where for two months he was subjected to military interrogation in the absence of a lawyer and without charge.

The militant Somali group al-Shabab is one of the organisations Ahmed Abdulkadir Warsame is said to have joined. There is some evidence that the US government is turning to detention at sea as a way of avoiding legal and political impediments in the treatment of terror suspects, both domestically and on the international stage. (Photo: AP) The capture and treatment of Ahmed Abdulkadir Warsame has rekindled the debate within the US about the appropriate handling of terror suspects. Republicans in Congress have objected to Warsame being brought to New York this week to be tried in a criminal court – an attempt by the Obama administration to avoid sending the prisoner to Guantánamo Bay, which it has promised to close.

From the opposite viewpoint, civil rights groups have objected to the secret questioning of Warsame on board a navy vessel, an innovation that they fear could see a new form of the CIA's widely discredited "black site" detention centres around the world.

There is some evidence that the US government is turning to detention at sea as a way of avoiding legal and political impediments in the treatment of terror suspects, both domestically and on the international stage.

Last week Admiral William McRaven, soon to become head of US Special Operations Command, told his confirmation hearing that militants captured outside Afghanistan were often "put on a naval vessel" to be held until they could be sent to a third country or a case was compiled against them for prosecution in the US courts.

Legal documents show that Warsame was captured on 19 April on a boat between Yemen and Somalia. Administration officials told the Washington Post that they had intercepted the boat after being given information that it might be carrying important terrorists.

Warsame was flown to New York on Monday and now faces nine charges, including conspiracy and providing support to two groups closely monitored by the US: the militant Somali group al-Shabab and al-Qaida in the Arabian Peninsula in Yemen. He is also accused of weapons offences including conspiracy to teach and demonstrate the making of explosives, and having been given military training by the al-Qaida group.

Warsame, who faces life in prison if convicted, has pleaded not guilty to all charges.

Officials told the Washington Post that Warsame was interrogated on "all but a daily basis" on board the ship. The rules governing the questioning were those set out in the army field manual which prohibit controversial techniques used by the CIA after 9/11 such as waterboarding.

But the right to a lawyer was withheld along with other habeas corpus rights known in the US as Miranda rights. Officials claimed Warsame did not need to be given those because he was being interrogated for intelligence purposes rather than in preparation for his prosecution.

Civil rights groups have said the secret interrogation was a blatant violation of the Geneva conventions that prohibit prolonged detention of suspects at sea. Article 22 of the third Geneva convention states that combatants can be kept at sea only for as long as needed to transfer them to land.

Had Warsame been taken to Guantánamo, he would have immediately been entitled to a lawyer and to benefit from the other rights that were withheld from him on board the ship.

Wells Dixon, a senior lawyer at the Centre for Constitutional Rights who has represented several Guantánamo detainees, said the Obama administration, like the Bush one before it, was selectively borrowing principles from the laws of armed conflict. "And it is always to the detriment of the detainee."

Officials in Washington said they gave Warsame a four-day "break" from interrogation to separate the intelligence from the criminal part of his questioning. The intelligence portion, they said, had been "very, very productive".

After the interlude, he was questioned with an eye to preparing a criminal case against him. At this stage he was read his rights before each session, though officials said he waived them voluntarily.

The justice department hopes this separation will avoid legal difficulties further down the line. Specifically, it wants to prevent crucial information being deemed inadmissible to the New York criminal courts on the grounds that it was obtained from the defendant without his having been given his full rights.

But Dixon said the distinction between portions of the interrogation was spurious. "We know from experience representing detainees in Guantánamo that it is very easy to break an individual who is held incommunicado. It is, by contrast, very, very difficult to undo the damage, so providing a person with a 'few days off' in no way establishes that they voluntarily waived their rights."

Leading Republicans have also objected to the handling of Warsame, accusing the Obama administration of attempting to bypass the will of Congress.

The Republicans have blocked the transfer of detainees in Guantánamo for trial in civilian courts on the US mainland, claiming that to import terror suspects poses a risk to the American public. "The administration has purposefully imported a terrorist into the US and is providing him all the rights of US citizens in court," said Mitch McConnell, leader of the Republicans in the Senate. "This ideological rigidity being displayed by the administration is harming the national security of the United States of America."

© Guardian News and Media Limited 2011


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July 7, 2011
2:35 PM

CONTACT: Center for Constitutional Rights (CCR)


U.S. May Have Violated Domestic and International Law in Capturing and Holding Somali for Months at Sea

NEW YORK - July 7 - In response to reports that the Obama administration had flown a Somali man accused of ties to terrorism to New York to face prosecution after holding and interrogating him at sea for more than two months, the Center for Constitutional Rights issued the following statement:

While we join with those praising the Obama administration for charging Ahmed Abdulkadir Warsame before a federal court rather than a flawed and lawless military tribunal, and rather than holding him indefinitely without charge, we condemn the administration for holding and interrogating Mr. Warsame incommunicado for more than two months on a U.S. naval ship. Under our domestic and international law, he should have been treated like a civilian criminal suspect and brought to the U.S. for trial immediately.

Moreover, according to The New York Times, the administration did not notify the International Committee of the Red Cross of Mr. Warsame’s capture until approximately two months after his detention. This is illegal and inexcusable. It means in effect that Mr. Warsame was disappeared for this period with all the attendant dangers such hidden detention engenders.  It is reminiscent of early Guantánamo Bay and CIA “black site” detention.

We also question under what authority Mr. Warsame was captured and detained. The administration must clarify whether it claims authorization to capture and detain him under the 2001 Authorization to Use Military Force.  Such authority only extends to those involved with the 9/11 attacks, and his relationship to those attacks seems remote or nonexistent. Rather, it appears that the administration is stretching the meaning of that law to capture and detain, perhaps indefinitely, anyone it claims is a terrorism suspect anywhere in the world. Such actions undercut the important criminal protections to which every suspect is entitled. Those protections kick in upon arrest and not two months after the fact.

Even accepting the administration’s argument of laws of war, it is illegal under any circumstance to hold people at sea except pending transfer to land and not for purposes of interrogation outside the law. That provision was written into the Geneva Conventions and U.S. military regulations, most likely in response to Japanese abuses of American prisoners aboard ‘Hell Ships’ in World War II.
The administration must answer a host of questions surrounding this action:

First are questions regarding the legal authority for Mr. Warsame’s capture and detention.

  • Under what legal theory and under what power was the administration operating to justify his capture and detention?  
  • If the administration claims authority under the AUMF, how would that have justified the detention given that there is supposed to be an explicit tie to 9/11 in those cases?
  • Does the administration believe we are engaged in armed conflict in Somalia sufficient to trigger application of the laws of war? With the Shabab?
  • If Mr. Warsame was purportedly held in connection with an armed conflict, what does the administration claim his status was under the laws of war?
  • Does the administration claim that Congress has authorized armed conflict with the Shabab?

Second are questions concerning his treatment once captured.

  • Under what authority  does the administration claim it may hold a person beyond fourteen days without notifying the Red Cross?
  • How long does the administration claim they may hold a person without procedural protections (e.g., access to counsel and being informed of the right to habeas corpus) before they are prosecuted?
  • How can Mr. Warsame’s Miranda waiver have been genuinely voluntary if he was only read his rights two months into his incommunicado detention and interrogation, even after a supposed “break”?
  • Was Mr. Warsame allowed contact with his family?
  • Separate and apart from authority to detain, what authority did they have to interrogate him?

Third are questions regarding how widespread is the practice under which Mr. Warsame was held.

  • How many other people are floating around on U.S. prison ships?
  • How many of those are unknown to the Red Cross?

The proper way to handle Mr. Warsame was the way the U.S. handled other pirate cases in 2009 and 2010: suspects were brought to the U.S. to face criminal charges in New York and Virginia within days of capture at sea. The Obama administration appears to have created a floating legal black hole, just as Guantánamo Bay was originally conceived: no Red Cross, no lawyers, no habeas – no rights.



The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.


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