US politicians continue to press for detainees captured overseas to be tried in military courts [EPA]
When Ahmed Warsame was captured by US forces in April, he didn’t know that he would be interrogated on a ship at sea, then rendered to trial in New York City nearly three months later. It also probably didn’t occur to the twenty-four-year-old Somali that he was to become a political football of national proportions.
Yet that is precisely what he has become. And Warsame’s ordeal might be but the first public illustration of one of the options the Obama administration wishes to retain, as it wages its version of the global war on terror.
Observers foreign and domestic – myself included – are often amazed at how oblivious political discourse in the United States has become to fact and principle. Conservatives such as Senator Mitch McConnell and Representative Peter King lambast the administration for bringing Warsame to the United States, thereby affording him “all the rights and privileges of US citizens”.
Conveniently omitted from their tirades is the fact that, in the United States, non-citizens rightly enjoy the same protections as citizens in criminal trials, even when they are accused of heinous crimes.
Those same politicians clamour for Warsame to be sent to Guantánamo for trial before a military commission and demand an explanation for his presence in a civilian courtroom – as if the real world had caught up with their curious fantasies and Guantánamo had already become the norm, not the exception.
One hopes that such outrage is feigned, lest it be indicative of grave intellectual deficiency. It sidesteps the reality that military commissions likely lack jurisdiction over this sort of case – and ignores the staggering number of terrorism convictions in federal court, as well as the sad truth that the government can now indict a falafel sandwich under the material support for terrorism laws.
Suspects once were tried in civilian courts
Amid all the commotion, it becomes easy to lose perspective on how this very scenario might have unfolded in the past. A suspected terrorist captured overseas likely would have been rendered to justice in a US courtroom as quickly as possible. A civilian law enforcement agency would have been involved, not the military. Any other course of action, albeit possible in covert practice, would have been publicly disavowed by the US government and certainly not proclaimed openly as a legitimate and superior option.
Is today’s confirmed shift away from the historical norm surprising? Hardly. From the outset, the current administration has been careful to preserve many questionable options, while paying lip service to the notion that it would roll back some of its predecessor’s excesses.
The Bush administration is widely thought to have interrogated prisoners on ships and the Obama administration has made no secret of its adoption of the practice, along with many other Bush-era aberrations. When Osama bin Laden was killed, officials explained – rather cryptically – that, had he managed to surrender successfully, the plan would have been to imprison him on a naval vessel, at least temporarily. And when Admiral William McRaven recently testified before the Senate, he acknowledged that captives had been held on ships before.
While it is difficult to properly analyse this development with limited facts, the available data is certainly troubling. Warsame was held incommunicado on a ship for two months. During that time, he was apparently subjected to non-stop intelligence interrogations, drawing on techniques outlined in the Army Field Manual – which include isolation and prolonged sleep deprivation. These conditions could meet the legal definition of cruel, inhuman and degrading treatment.
What this episode teaches is that the current administration is as determined as its predecessor to retain the ability to take some detainees away from process and justice, not towards it. Warsame was imprisoned on a floating version of Guantánamo as it existed in 2002.
The administration would argue that no US court could oversee what happened to Warsame on that ship and that he could be kept there indefinitely, with no need to bring him before a court. Ever. That Warsame was eventually charged with a crime was merely an exercise of executive discretion, the US government would claim, not a step taken in compliance with legal obligations.
More broadly, it is now clear that this administration reserves the right to capture people of interest anywhere on the planet, for secret reasons, to sequester and interrogate them at sea, and to bring them to court when officials believe a conviction is all but assured.
In Warsame’s case, he was given a break after the initial, two-month-long intelligence interrogation, and was then handed over to a “clean team” of FBI interrogators who read him his Miranda rights and took his statements afresh for prosecution purposes. It would be fair to infer that those statements include a confession because Senator McConnell referred to Warsame as an “admitted terrorist”, something the senator might have learned in a briefing.
The view that the executive branch is directing a global war unfettered by law or meaningful oversight appears to have taken as firm a hold of this administration as it did the last. Democrats’ repeated rejection of that paradigm has been revealed as mostly rhetorical – and it seems to matter little that the 2001 congressional authorisation for use of military force did not cut the president a blank cheque to wage global war against all.
Distracting though it may be, politicians’ posturing should not blind us to the fact that many of this administration’s “options” in its war on terror were once known as abuses and violations of established norms.
Ramzi Kassem is Associate Professor of Law at the City University of New York. He teaches national security law and represents Guantánamo and Bagram prisoners before federal courts and military commissions.
The views expressed in this article are the author‘s own and do not necessarily reflect Al Jazeera‘s editorial policy.