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Khatalla Transitions from Military to Civilian Custody

Robert Chesney
Saturday, June 28, 2014, 12:00 PM
[Update:  A colleague writes in to say that Khatalla may have been in "civilian" custody, formally speaking, all along.  That may be; I recall a statement after the capture to the effect that the raid was conducted in some fashion under color of FBI authority, albeit with substantial SOF involvement under that umbrella.  This approach, if sustained throughout the voyage, has the virtue of reducing questions regarding what the affirmative authority for the detention might have been (assuming the AUMF did not apply, as officials have asserted it did not).  That said, the part that really int

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[Update:  A colleague writes in to say that Khatalla may have been in "civilian" custody, formally speaking, all along.  That may be; I recall a statement after the capture to the effect that the raid was conducted in some fashion under color of FBI authority, albeit with substantial SOF involvement under that umbrella.  This approach, if sustained throughout the voyage, has the virtue of reducing questions regarding what the affirmative authority for the detention might have been (assuming the AUMF did not apply, as officials have asserted it did not).  That said, the part that really interests me here is the handling of the interrogation during the voyage.  On that front, it seems very likely that there has been a transition from a non-prosecutorial interrogation phase into an ordinary criminal justice model at least by this point.] Just a quick news update:  Benghazi suspect Ahmed Abu Khatalla's transatlantic voyage has ended, as has his time in military custody.  The Washington Post reports he is now in civilian custody in DC, and likely will be arraigned shortly.  It is safe to assume that an FBI clean time sometime recently has taken over any ongoing interrogation, that Khatalla has now been Mirandized, and either has met or soon will meet with counsel.  The interesting question, about which I've seen nothing in the public record, is whether he was being cooperative with interrogators before that stage and whether, if so, he will continue to cooperate going forward.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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