President Obama is extending full constitutional due-process rights to a Somali terrorist. This sets a troubling precedent. Ahmed Abdulkadir Warsame was captured sometime in April on a boat traveling between Yemen and Somalia. He was detained on board a U.S. warship for two months and interrogated by intelligence officials. He reportedly revealed a great deal of valuable information regarding his connections to the Somalia-based al-Shabab militant group and the Yemen-based al Qaeda in the Arabian Peninsula. So far, so good.
The world first heard of Mr. Warsame when he appeared on U.S. soil facing a nine-count federal indictment in the Southern District of New York. After his first series of shipboard interrogations, he was handed over to FBI agents who read him a Miranda warning and commenced a fresh round of questioning, seeking to build a federal criminal case. There is no evident compelling reason for Mr. Warsame to be given a civil trial. He is not a major terrorist leader, and he did not conduct operations on U.S. soil or against U.S. citizens. He is accused of "providing support" to al-Shabab and al Qaeda in the Arabian Peninsula, which could describe any other member of those organizations. The Obama administration seems to have taken this step only to establish a precedent for more such trials.
The Warsame indictment is an end run around Congress, which last year voted to bar the transfer of terrorist detainees to the United States for trial or any other purpose. The 2011 National Defense Authorization Act stipulated that no Department of Defense funds "may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions" any detainee who "is not a United States citizen or a member of the Armed Forces of the United States" and was held at Guantanamo Bay, Cuba. In his Jan. 7 signing statement, Mr. Obama called the restrictions "a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests" and maintained that the "prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us." He pledged that his administration would "work with the Congress to seek repeal of these restrictions" and "seek to mitigate their effects."
Because Mr. Warsame was never held at Guantanamo, the law as written does not apply to him. The administration secretly transferred the suspect to the United States without informing Congress, presenting the legislative branch with a fait accompli. This blindsiding tactic demonstrates a lack of good faith in abiding by the spirit of the law. It's also a signal to Congress of the need for more expansive language to keep foreign terrorists out of American courts. The pending Detainee Security Act of 2011 would close the loophole by specifying that "no individual who is eligible for detention pursuant to the Authorization for Use of Military Force may be transferred or released to or within the United States, its territories, or possessions." Mr. Warsame's may be the first such trial. It ought to be the last.
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By Elaine Donnelly
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