The Interrogation of Abu Anas al-Libi

In a time when the current administration appears to favor kills over capture as well as “catch and release“, last Saturday Abu Anas al-Libi (Zawahiri’s man in Libya) survived President Obama’s kill list to be captured instead of droned upon:

Since President Obama stepped into the White House, his administration has had a rather consistent reaction when it located an accused terrorist: drop a Hellfire missile on the guy’s head. Saturday was different. U.S. forces got the drop on an al-Qaeda operative named Nazhi Abdul-Hamed al-Ruqai. But rather than drone him, those forces put him in cuffs. That not only marks a rather dramatic departure from what has been standard Obama administration policy. It could open a new chapter in the struggle against Islamic terror.

Al-Ruqai, better known by his nom de guerre Abu Anas al-Libi, is accused of helping plan the bombings of two U.S. embassies in Africa in 1998. He was captured on Saturday “under military authorities” and “is currently lawfully detained under the law of war in a secure location outside of Libya,” Pentagon spokesman George Little said in a statement. The operation was approved by President Obama and was reportedly carried out with the assistance of FBI and CIA personnel. “Wherever possible, our first priority is and always has been to apprehend terrorist suspects, and to preserve the opportunity to elicit valuable intelligence that can help us protect the American people,” Little said.

Capture may be the priority, but it’s not the norm. The Obama administration has killed far more suspected terrorists and militants with drones and special operations strikes than it has brought back to face justice in the U.S. courts system.

Purportedly, al-Libi is being detained and interrogated aboard the USS San Antonio. Given that President Obama upon his 2nd day in office “killed” the CIA interrogation program, what kind of interrogation process do you speculate the HVT to be going through?

The NYTimes labeled him an “intelligence gold mine, possessing perhaps two decades of information about Al Qaeda” in an article last Sunday. Apparently, al-Libi’s rendition is modeled after the 2011 capture and prosecution of Warsame, who was interrogated for about a week aboard a black site naval ship (the USS Boxer) before being read his Miranda Rights, and then successfully moved from military detention to criminal prosecution, as well as apparent cooperation, thanks to standard interrogation techniques (which is what HVTs under the Bush-era CIA interrogation program typically went through, as well; EITs were only applied to about 30 of 100 who were resistant to standard techniques).

Secretary of State John Kerry is justifying the “kidnapping” of al-Libi as “legal”.

Do the Geneva Conventions apply to the detention of al-Libi? Not if the Obama Administration is following the Bush team definition for “unlawful enemy combatant”:

Obama Administration lawyers must have concluded that the Geneva Conventions do not apply to Warsame and al-Libi, or that they are not POWs, or that they are not being interned.

The Bush Administration, of course, was much criticized (including by officials now in the Obama Administration) for holding al-Qaida detainees under the laws of war (rather than as criminal suspects) and for not applying the Geneva Conventions to them. The Bush Administration was accused of “cherry-picking” among the laws of war — relying on the laws of war for detention authority but not applying the Geneva Conventions. But, as I have explained previously, despite affirming its commitment to the Geneva Conventions, the Obama Administration has not applied the Conventions as a legal framework differently than its predecessor and, in particular, has not treated al-Qaida detainees as POWs under the Third Convention or as Protected Persons under the Fourth Convention.

As with its drone program, if the Administration wants domestic critics and U.S. allies to support unprecedented counter-terrorism policies, it should explain the legal rules it is applying, and why the combined law-of-war/criminal law enforcement model is permissible under international law.

More:

“My guess is that the Obama Administration does not consider al-Libi to qualify as a POW because al-Qaida is not a party to the Geneva Conventions,” which apply only to countries, not necessarily non-state actors. Bellinger has referred to the Obama administration’s approach to Warsame and Libi as the “combined law-of-war/criminal law enforcement model.” According to the Times, Libi’s interrogators aboard the USS San Antonio still must adhere to the Army Field Manual, which prohibits torture.

Speaking of the NYTimes‘ Monday piece in speculating on Obama-era interrogation practices:

Q. Who is conducting it?

A. The interrogation is almost certainly being conducted by a high-value interrogation group, which includes members from various government agencies. The F.B.I. leads the group, with help from specialists from other agencies like the C.I.A., the State Department and the Defense Intelligence Agency. The groups were conceived in 2009 as part of President Obama’s revisions to the interrogation policies that he inherited from President George W. Bush. Such panels are made up of regional specialists with expertise in the language, culture and background of the suspect, and they may be assisted by agents and analysts who were already tracking him.

Q. What techniques may they use?

A. Under an executive order issued by Mr. Obama in 2009, they must obey the restrictions of the Army Field Manual, which was written to comply with the Geneva Conventions and forbids torture and lesser forms of cruel, inhuman and degrading treatment. The manual largely permits a variety of “rapport building” techniques, including direct questioning, the “good cop, bad cop” routine, tricking a detainee into revealing more information, inducing him to brag about his exploits, appealing to his emotions or threatening him with severe legal consequences (though threats of torture are not allowed) and offering incentives for cooperation. It requires that a detainee receive at least four hours of continuous sleep every 24 hours.

The article notes what Mata often used to point out- that President Obama was using Bagram as Club Gitmo Eeast:

Q. Why did the United States put him on a ship?

A. The Obama administration lacks a clear place to house newly captured Qaeda detainees for intelligence interrogations. It still wants to close the prison at Guantánamo Bay, Cuba; though Congress has blocked it from doing so, the administration has held the line at adding any new detainees there. For a time, the United States brought some detainees to the prison at Bagram Air Base, in Afghanistan, but it has now largely transferred that facility to the control of the Afghan government, which does not want to deal with detainees from elsewhere. Were Mr. Ruqai to be brought to a military base on land somewhere, it could raise legal issues with the host government, and were he to be brought onto United States soil, he could arguably have an immediate right to a lawyer. Holding him — and possibly transporting him — on an American vessel in international waters avoids potential diplomatic and legal headaches.

So because the administration shot itself in the foot by closing down CIA black sites, it’s now using Naval ships to conduct its own brand of interrogation. And because of all the public debates and outcry, Congressional lawmakers demagoguing the issue, al-Libi is most likely aware of the self-imposed boundaries and constraints we are under in dealing with HVTs, and might have received training in interrogation resistance. The Army Field Manual is certainly freely available for his reading pleasure; and because the OLC Memos were released, the old EITs that were approved during the Bush Administration would be largely ineffective today because they are no longer secret. Terrorists would know what to expect, and realize that it’s mostly “smoke and mirrors” bluff- even though the moral high ground walkers prefer to label it as “torture”.

After the intelligence interrogation and debriefing, comes the criminal interrogation team:

Q. What will happen next?

A. If the Obama administration follows the model it set in 2011 in the case of a Somali man, Ahmed Abdulkadir Warsame, after the intelligence interrogation is finished, it will give Mr. Ruqai a break of several days, allow the Red Cross to visit him and send in a “clean team” of fresh F.B.I. interrogators who have not been briefed on what he said to the interrogation group. The new team will read him a Miranda warning, including whether he waives his right to be questioned with a lawyer present, then ask him a new round of questions intended to gather evidence that could more clearly be used against him in court.

Mr. Ruqai is likely to be transferred to the Southern District of New York, where he has been indicted on conspiracy charges stemming from the 1998 embassy bombings in Africa. The same court was used for several other defendants in that conspiracy. Mr. Ruqai’s case is part of the same series of indictments on which the government prosecuted Ahmed Khalfan Ghailani, the first Guantánamo detainee to be tried in the federal system, and on which two others suspected of being Qaeda operatives were extradited from Britain last year and are now facing trial.

Marc Thiessen supposes that al-Libi could be a treasure-trove of information regarding ties between Sunni al Qaeda and Shia Iran:

The Obama administration has killed scores of high-value al-Qaeda terrorists with drone strikes, so the live capture of Abu Anas al-Libi is a big deal. When terrorists are vaporized from the sky, all the intelligence in their brains is vaporized with them. Now, for only the second time since Barack Obama took office, we have captured a senior al Qaeda leader alive outside of Iraq or Afghanistan. We thus have a rare chance to interrogate a “core al Qaeda” leader.

So what can al-Libi tell us? Much of the commentary has focused on what he knows about al Qaeda’s operations in Libya and north Africa, which is certainly important. But al Libi is also a potential treasure trove of intelligence on one area of al Qaeda’s operations about which we know little: al Qaeda’s network in — and relationship with — Iran.

Al-Libi worked directly for Osama bin Laden and Ayman al Zawahiri in Sudan in the early 1990s, where he helped plot the US Embassy bombings in Kenya and Tanzania — an attack that was carried out in direct collaboration with Iran. In 2011, the US District Court for the District of Columbia found the government of Iran liable for those bombings, declaring that the attacks would not have been possible without “direct assistance” from Iran, which trained al Qaeda on how to blow up buildings.

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Since 9/11, we have been able to strike al Qaeda with drones and special operations forces in Afghanistan, Iraq, Pakistan, Yemen, and East Africa. But the one al Qaeda network that has been virtually unmolested, and about which we know little, is al Qaeda’s network in Iran.

By 2006, over half of what we knew about al-Qaeda arose out of the CIA interrogation program, including the standard interrogation of around 70 HVDs in the program, and EITs upon 30 others, only 3 of which were ever waterboarded. Information and knowledge was gleaned, opening up avenues to obtaining even more information and knowledge (which weren’t gleaned from EITs- yet might trace its success back to the original CIA program).

I have no problem with “rapport-building” interrogation techniques among others preferred by most professional interrogators in law enforcement and intelligence agents, as the line of first resort (someone remind these Islamists– as if they care- that the current administration runs a softer, kinder, gentler approach to interrogation). But after that, should an HVD prove resistant to standard techniques and trained against their effectiveness, what then? There are no additional tools in the toolbox, thanks to EO 13491.

I also have no problem with “Enhanced Interrogation Techniques”, as defined by the Bush-era OLC memos, for those hardened terrorists that do not fall for standard interrogation techniques.

I pray that Obama-era interrogation practices successfully yield valuable intelligence information out of al-Libi.

Innocent lives depend upon it.

If he doesn’t break, maybe he truly is just an innocent pizza worker?