July 7, 2011, New York – 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.