Abducted Libyan arrives in US to face terrorism charges, Are We Still “Under the Laws of War?”

Having spent a week aboard a US warship being interrogated without access to a lawyer under “the laws of war,” Nazih Abdul-Hamed al-Ruqai, known as Anas al-Libi, has arrived in New York to face terrorism charges, reports the Associated Press. The US Attorney for the Southern District of New York has confirmed that al-Libi was “transferred to law enforcement custody over the weekend.” As only the second terror suspect to be captured alive under the Obama administration, not killed by a drone or a raid, al-Libi’s case, rather than displaying reform of the United States’s approach to counter-terror operations overseas is further evidence of the White House’s willingness to act with impunity. The continued favored tool, which is knighted “Rule of Law:” the Executive Order.

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Libya’s government has objected to the United States’ abduction of a man from a street in Libya by commandos (later they asked for “clarification,” and hoped the circumstance would not harm their strategic relationship with the United States). The Prime Minister has called for al-Libi to be tried at home.

“We emphasize that Libyan citizens should be judged in Libya and Libya does not surrender its sons,” Zeidan said at a press conference with his Moroccan counterpart Abdelilah Benkirane during a three-day visit to Rabat. He said the justice minister has been examining “different legal options to solve this problem in a wise and reasonable manner taking into account Libyans’ rights and preserving relations.”

Secretary of State John Kerry cautioned the world against “sympathizing” with wanted terrorists.

“I think it’s important for people in the world not to sympathize with alleged terrorists but to underscore the importance of the rule of law,” he added, when asked about the Libyan government’s complaint that the seizure amounted to kidnapping.

Kerry almost chants the lawful nature of US actions in his statement:

“I hope the perception is in the world that people who commit acts of terror and who have been appropriately indicted by courts of law, by the legal process, will know that United States of America is going to do anything in its power that is legal and appropriate in order to enforce the law and to protect our security”

John Bellinger  has a post on Lawfare attempting to answer whether the Geneva Conventions apply to al-Libi 

As I have previously noted with respect to Warsame, because Article 22 of the Third Geneva Convention states that prisoners of war “may be interned only in premises located on land,” 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.”

While the Obama administration has made it very clear through proclamation that it respects the Rule of Law,  disavowing the practices of the first years of the “Global War on Terror” and promising clarity and transparency, their willingness to interpret the law as favorably as they like (without review) and apply whichever law is expedient betrays an impunity of the very same color as the last horse, if you will.

It seems to me if you indict someone who resides outside of the US and intend to follow due process, you obtain a warrant for their arrest, and certainly if the state in which the suspect is residing can pluck him from the street in broad daylight and subject him to a lawful extradition hearing, this is arranged – as opposed to sending Delta Force to black-bag him on his way home from prayer and hold him without a lawyer on a warship for a week.

That said, the statement above from PM Zeidan seems to indicate that extradition would be a less than expedited process at the least. The arrest of al-Libi by Libya would be incredibly inconvenient for his use by the Obama administration, which is the case at times with due process of law.  Acting with impunity now and putting resources into framing later is less of a hassle.

A briefing held October 11 by new Department of State deputy spokeswoman Marie Harf, veteran of the CIA and Obama’s presidential campaign, is very revealing about the plasticity of the Law under the Obama administration: it can be “laid out” in Executive Orders, and the international community is being asked to take the US’s word about al-Libi’s lawful and humane conditions of a detention.

The journalist, who Ms. Harf calls Arshad, is to be credited for exposing lack of international humanitarian or consular access for al-Libi.  Harf repeatedly asserts that the US is operating under established law, both US and International, but never refers to legislation or international convention, only Executive Orders.  All the while she wishes us to give them credit for telling us they have him at all. This whole excerpt merits reading.

QUESTION: Have you – I’m sorry if you asked this and I missed it, Said, but have you yet arranged consular access?

MS. HARF: I don’t have any update for you on consular access.

QUESTION: And has the ICRC yet been allowed to see him?

MS. HARF: I don’t have any update for you on that either.

QUESTION: And do you concede the point that your assertions that he’s been treated humanely would be buttressed if there were independent observers like the ICRC who are able to talk to him and confirm that?

MS. HARF: Well, I think we’ve said that when it’s appropriate we’ll comply with our obligations to the ICRC and also with consular access. But I think we’ve been very clear, the rules governing his detention and interrogation right now, and those have been spelled out since the beginning of the Administration, and have been very crystal clear.

QUESTION: But —

QUESTION: There is – the reason I keep asking this, though, and I’ve raised it three or four days in a row is that – and this is not at all a commentary on the current Administration in any way, but you’re up there speaking for the United States of America.

MS. HARF: Absolutely.

QUESTION: And in at least two highly public instances in the last decade, right – one, the waterboarding and so on —

MS. HARF: Mm-hmm.

QUESTION: — which has been well-detailed, and two, Abu Ghraib — the United States Government has not humanely treated prisoners in its custody. And so when you have somebody like Mr. al-Libi, whatever may be his alleged crimes —

MS. HARF: Mm-hmm.

QUESTION: — in the indictment against him and so on, and you hold him incommunicado and you assert that he’s being treated humanely, but you do not allow either his representatives of his government or of the international community in the form of the ICRC to visit him, it is understandable why people might be skeptical about the assertion of humane treatment.

MS. HARF: Well, I appreciate the question, Arshad, and I do know why it’s important. And I think – I know I keep going back to the Executive Order but there’s a reason I do so. Because in one of the first acts this President did when he came into office, to underscore how important it was to him, was on his second full day in office signing that Executive Order that said we’re not going to do things like we have been doing them, that we’re the United States of America – we operate under certain principles, values, and that going forward, this will be the rules governing how we can detain and interrogate people.

And he very plainly laid that out. When we talk about the Army field manual, when we talk about humane treatment, we try to lay it out as specifically as we can, and he made that point very clearly, that this is how it’s going to operate in this administration, and that’s exactly how it’s operating right now. I take the point. And as much evidence and insight into that as we can provide, we’re happy to. But right now, suffice to say, we’re operating under the very clear guidance that this president out when he very – at the beginning came into office.

QUESTION: But why not provide an external, respected, international body whose very job is to inspect and check such things, including for American soldiers, for example, access? It would be a way to show that what you say is true. So why not – what is the underlying reason why it has not —

MS. HARF: Well, I’m not saying we’re not going to.

QUESTION: No. But it hasn’t happened so far. And so there’s a question in my mind, and I think it’s a reasonable question: Why not do that?

MS. HARF: Well, there’s a lot of factors that play into this, in terms of our obligations to both the ICRC and our consular obligations. I just don’t have anything further for you on exactly what the timing is or what’s underpinning that, but as we have more to share on this, I’m happy to do so.

QUESTION: But you’re kind of almost asking – when you say that this Administration is operating under what the President said – you’re asking the international community to just take your word for it.

MS. HARF: No, I’m asking the international community to say that – to know that when we’re a nation of laws and when we lay those out very clearly in an executive order what’s governing – very clearly and publicly in an Executive Order talking about detention and interrogation, which let’s be clear, in the previous administration we didn’t talk about publicly – right? – when these were first put into place, that that should be a sign that business is going to be done differently now. And that’s why we very publicly came out and said this is what we’re going to be operating under.

Briefing excerpt via allAfrica Libya: U.S. State Department Daily Press Briefing: Libya, Egypt.  11 OCTOBER 2013

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