Federal Prosecution is a Viable Option for Enemy Combatants

Last Thursday at the Aspen Security Forum—an annual gathering of current and former government policymakers, foreign officials, foreign policy experts, and journalists hosted by the Aspen Institute—Assistant to the President for Homeland Security and Counterterrorism Thomas Bossert told the audience that there are three viable options for taking an enemy combatant off the battlefield: “we can kill him, we can catch him and release him after a few weeks, maximum, or we can outsource our responsibility and send him to a third party.” Bossert noted that he would like to see military commissions work, lamenting appropriately that Khalid Sheikh Mohammed has been pending military commission trial for his role in the 9/11 planning for years, with no trial date yet in sight. And he deplored as “wrong-headed” the Supreme Court’s decision in Boumediene v. Bush, which extended habeas corpus rights to law-of-war detainees at Guantanamo Bay. Bossert concluded that unless we can “come up with an Article III approach that works, or a military commission process that works more quickly and fairly,” we are “stuck with” outsourcing the ultimate disposition of newly captured enemy combatants to third parties.

What was unclear from Bossert’s comments was why he does not consider prosecution in a U.S. federal court established under Article III of the U.S. Constitution to be a viable long-term disposition option for enemy combatants, or what currently doesn’t “work” about prosecution in Article III courts. This option has been successfully used hundreds of times both before and after 9/11 to prosecute not just terrorism-related offenses committed within the United States, but also terrorism-related offenses occurring outside the country by those who Bossert presumably would characterize as enemy combatants.

Indeed, prosecution in Article III federal courts arguably has proved to be the most successful long-term disposition option for enemy combatants (a term that has commonly referred to those who are part of or support the Taliban, al Qaeda, or associated forces engaged in hostilities against the U.S. or its coalition partners). And the day after Bossert’s Aspen comments, an Algerian alleged to be an al Qaeda recruiter, Ali Charaf Damache, made his initial appearance in a federal court in Philadelphia following his extradition from Spain on terrorism-related charges. It’s unclear whether Bossert was aware of this case, or whether it indicates a change in the Trump Administration’s views, especially as the charges date from 2011 and it is unlikely Spain would have transferred custody for Damache to go to Guantanamo Bay. But to the extent that Bossert and others in the Administration still do not believe prosecution in Article III courts is a viable option for enemy combatants—as Bossert’s comments just last week suggest—they should consider the following:

1. The Department of Justice and the United States Attorneys’ Offices have an almost perfect record of convictions in cases charging enemy combatants. Among just a handful are the convictions of Osama bin Laden’s son-in-law and al Qaeda spokesman Sulaiman Abu Ghaith, who was convicted of multiple terrorism offenses, including conspiracy to murder Americans, and was sentenced to life imprisonment; Ahmed Khalfan Ghailani, an al Qaeda operative who was convicted for his role in the 1998 bombings of the U.S. embassies in East Africa, and was sentenced to life imprisonment; Ibrahim Suleiman Adnan Adam Harun, an al Qaeda operative who was convicted for his participation in attacks on U.S. and coalition troops in Afghanistan that resulted in the deaths of two American service members and for conspiring to bomb the U.S. embassy in Nigeria, and who is awaiting sentencing; Ahmed Abdulkadir Warsame, an al Shabaab operative who also received training from al Qaeda in the Arabian Peninsula, and who pleaded guilty to multiple terrorism offenses and became a government cooperator; and Saddiq Al-Abbadi and Ali Alvi Al-Hamidi, al Qaeda members who engaged in attacks against U.S. military forces stationed in Afghanistan and helped an American citizen gain entry into al Qaeda so he could fight against U.S. troops in Afghanistan and U.S. citizens in the homeland.

   And although Bossert’s focus was on enemy combatants detained at least initially on foreign soil, rather than on terrorists—foreign or otherwise—arrested initially in the U.S., the success of prosecutions of the latter in Article III courts is further indication of the significance of this option for the former. Indeed, there is general (but not complete) consensus as to the appropriateness of prosecuting those arrested in the U.S. in Article III courts, even though their presence here makes them arguably the most dangerous. Among just a few of the more notable convictions in this category are those of Richard Reid, who attempted to explode a shoe bomb on a flight from Paris to Miami and is now serving a life sentence; Zacarias Moussaui, who participated in the 9/11 conspiracy and is now serving a life sentence; Mohammad Mansour Jabarah, who participated in a plot to bomb U.S. embassies in Singapore and the Phillipines, and is now serving a life sentence; Faisal Shahzad, who attempted a car bombing in New York City’s Times Square, and is now serving a life sentence; Umar Farouk Abdulmutallab, who attempted a Christmas Day 2009 bombing of Northwest Airlines flight 253, and is now serving a life sentence; Adis Medunjanin, Nijibullah Zazi, and Zaein Ahmedzay, who plotted to carry out a coordinated suicide attack on New York City subways for which Medunjanin received a life sentence and the other two await sentencing while cooperating with the government; and Dzhokhar Tsarnaev, who was found guilty of the bombings of the Boston Marathon and was sentenced to death.

   By comparison, there have been only eight military commission convictions to date, of which three have been overturned on appeal.

2. The government has achieved these federal court victories relatively swiftly. Abu Ghaith was convicted just over a year after he was transferred to U.S. custody; Ghailani was convicted a year and a half after his transfer to New York from Guantanamo Bay; and Warsame pleaded guilty within eight months of his capture from the Gulf of Aden. By contrast, as Bossert pointed out in Aspen, the military commission trial of the 9/11 perpetrators, including Khalid Sheikh Mohammed, has been mired in pre-trial motions since 2012, with no trial date yet set. There is little doubt that this case would have been resolved years ago had it proceeded in an Article III court.

3. The sentences that have been imposed by Article III courts have been more predictable and substantial than those imposed by military commissions. As noted above, many defendants convicted of terrorism-related offenses in Article III courts have received life sentences. Of the military commission convictions that have gone to sentencing (two are awaiting sentence), for all but one defendant, the sentences ranged from five and a half years (with credit for most of it based on time served at Guantanamo) to 14 years, (with 12 of those years suspended pursuant to the defendant’s guilty plea). In the sole case in which a life sentence was imposed—that of Osama bin Laden’s personal assistant, Ali Hamza Ahmad Suliman al Bahlul, the 2008 conviction has been pending on direct appeal for nearly a decade, having been reversed (at least in part) twice by D.C. Circuit panels, followed each time by fractured en banc decisions reinstating the conviction (although on only one of the three charges). Bahlul’s petition for a writ of certiorari is currently pending before the Supreme Court.

So why didn’t Bossert include Article III prosecution as a viable disposition option for enemy combatants? He didn’t say, but various critics over the years have made arguments that have not been substantiated by experience.

One line of argument holds that providing enemy combatants with Miranda warnings hampers the U.S. from gaining valuable intelligence. But this has not proven to be the case, not only because intelligence interviews can precede Miranda warnings, but also because Miranda warnings have not stopped detainees from talking.

Our government rightfully has always made the collection of intelligence its highest priority when dealing with detained enemy combatants, and the Supreme Court’s decision in Miranda does nothing to prevent intelligence authorities from interrogating detainees before Miranda warnings are provided in advance of law enforcement questioning. Although a non-Mirandized interview may result in the government’s inability to use certain of the prisoner’s statements against him at trial, federal courts have upheld the admissibility of non-Mirandized statements under the public safety exception and in cases in which the interview was conducted by a foreign law enforcement agency. Moreover, with a period of attenuation after an intelligence interview, prisoner statements thereafter made to a new team of law enforcement officials should be admissible after appropriate Miranda warnings that make clear that the slate is clean and any statements or admissions previously made to intelligence officials likely can’t be used in a subsequent criminal proceeding. This was the sequence of events in the case of Ahmed Abu Khattala, currently pending trial in federal district court in the District of Columbia for multiple offenses relating to the attack on the U.S. mission in Benghazi, Libya, which resulted in the deaths of the U.S. Ambassador and three other Americans.

Experience has shown that even when Miranda warnings are given, foreign terrorists often willingly waive those rights and make incriminating statements, as Abu Ghaith did during his flight from Jordan to the U.S. in the company of FBI agents. Significantly, federal criminal charges can also be very effective leverage in persuading enemy combatants to continue providing valuable intelligence long after they come into U.S. custody, as has been the case for Warsame, whose information has helped build cases against numerous other terrorists, several of whom have pleaded guilty, possibly based on their knowledge that his testimony against them at trial would be too damaging.

Another frequent criticism stems from the misconception that enemy combatants charged in Article III courts have far greater rights and protections than those charged by military commission or held in law-of-war detention. But as Bossert implicitly acknowledged with his reference to Khalid Sheikh Mohammed and Boumediene, that also has not proved to be the case. Under the Military Commissions Act of 2009 (MCA), those charged by military commission have almost all of the same procedural rights as those charged in federal court, but because of the unique provisions of that Act, there are many legal challenges they can and have brought that are not available to those charged in Article III courts and whose novelty have contributed to the literally years of pretrial proceedings. In the case of Abd Al Rahim Hussayn Muhammad Al Nashiri, the alleged mastermind of the attack on the U.S.S. Cole, unique questions—such as whether the military commission has jurisdiction over conduct that occurred before 9/11 and whether a rule requiring military commission judges to move to Guantanamo Bay created an appearance of unlawful command influence prohibited under the MCA—have contributed to years of interlocutory and collateral challenges. And under the Supreme Court’s decision in Boumediene, detainees held at Guantanamo Bay have the right to lawyers and to seek their release through habeas corpus proceedings in federal court, which are often quite expensive and protracted.

Finally, the position that it is too dangerous to bring enemy combatants to trial in the U.S. and that federal prisons are ill-equipped to safely detain them is wholly unfounded. There have been no instances of retaliatory attacks on the courts or cities in which foreign terrorists have been charged under our federal criminal code. This is so even for cases like that of Ghailani, brought to New York City after being detained at Guantanamo Bay, and Moussaui, whose charging and trial in Alexandria, Virginia, received intense media scrutiny over the course of several years. And the U.S. Bureau of Prisons has an excellent record of safely detaining not just convicted foreign terrorists, but also convicted domestic terrorists and other prisoners who have committed heinous violent crimes. To the extent there are those who think that federal prison is too cushy for enemy combatants, this also is not the case. While those sentenced to the most secure federal prisons may have severe restrictions on their access to outside communications and recreation, and may receive no special accommodations with respect to their food and practice of religion, even the least compliant detainees at Guantanamo Bay are provided with two to eight hours a day of recreation, quarterly meetings with the International Committee of the Red Cross (ICRC), ICRC messages, mail, skype, and phone access, Halal meals with several menu choices, prayer beads, prayer rugs, and other religious accommodations, as well as a library, 178 satellite TV stations, 79 satellite radio stations, classes, movies, and video games. And the cost of housing a detainee at Guantanamo Bay far exceeds the cost of housing a person in federal prison. According to a January 2017 Obama administration report on its efforts to close the Guantanamo Bay facility, the Fiscal Year 2015 cost to operate Guantanamo Bay was approximately $445 million.

It is true, of course, that the United States will not have an Article III option in every case in which it has the opportunity to take custody of an enemy combatant. Law enforcement officials may lack the quantum of admissible evidence necessary to bring criminal charges in good faith and in accordance with Department of Justice policy. But in cases in which the evidence is available, prosecution in an Article III federal court is not just a viable option, it has been the most successful long-term option since 9/11. Bossert, and the Trump administration, should not foreclose it.