Ahmed Abdulkadir Warsame and the Paper Trail Preventing Floating Ghost Prisons

Given the defeat of the Udall Amendment, it looks likely the Defense Authorization will include provisions mandating military detention for most accused terrorists (though the Administration has already doubled down on their veto threat).

So I’d like to look at an aspect of the existing detainee provision language that has gotten little notice: the way it requires the Administration to create a paper trail that would prevent it from ghosting–disappearing–detainees. In many ways, this paper trail aspect of the detainee provisions seems like a justifiable response to the Administration’s treatment of Ahmed Abdulkadir Warsame.

The Administration unilaterally expanded detention authorities in its treatment of Warsame

As you recall, Ahmed Abdulkadir Warsame is a Somali alleged to be a member of al-Shabab with ties with Al Qaeda in the Arabian Peninsula. When the Administration detained Warsame, al-Shabab was not understood to fall under the 2001 AUMF language. The Administration effectively admitted as much, anonymously, after he was captured.

While Mr. Warsame is accused of being a member of the Shabab, which is focused on a parochial insurgency in Somalia, the administration decided he could be lawfully detained as a wartime prisoner under Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks, according to several officials who spoke on the condition of anonymity to discuss security matters.

But the administration does not consider the United States to be at war with every member of the Shabab, officials said. Rather, the government decided that Mr. Warsame and a handful of other individual Shabab leaders could be made targets or detained because they were integrated with Al Qaeda or its Yemen branch and were said to be looking beyond the internal Somali conflict.

And while he had no problem extending the AUMF to include al-Shabab in the war on terror detention authorities, one of the big SASC champions of these detainee provisions, Lindsey Graham, clearly believed Warsame was not included in existing detention authorities.

Senator Lindsey Graham, Republican of South Carolina, said in an interview that he would offer amendments to a pending bill that would expand tribunal jurisdiction and declare that the Shabab are covered by the authorization to use military force against Al Qaeda.

So to begin with, Warsame was detained under AUMF authority that one loud-mouthed, hawkish member of the SASC didn’t believe was actually included under it.

And then there’s the way the Administration ghosted Warsame for 2 months.

The US captured Warsame on April 19, then whisked him away to the amphibious assault ship, the Boxer, where he was interrogated by members of the High Value Detainee Interrogation Group (which, remember, includes DOJ, Intelligence, and military members) for two months. Around about June 19, the government gave him a 4-day break and told the Red Cross they had him. Then they had the FBI interrogate him for about a week; each day, they gave Warsame a Miranda warning. Finally, on June 30, Warsame was indicted (based on his confession to the FBI) and formally “arrested” on July 3. When he was assigned a judge, the prosecutors submitted a very broad request that Warsame’s indictment and related documents be sealed “until the defendant is sentenced or further Order of the Court.” The judge did sign the request, but by the end of that same day, his indictment was unsealed.

So the US captured this guy, floated around in a boat interrogating him long beyond the time–14-days–when we have agreed to give the Red Cross access to notice we have detainees [corrected per Charlie Savage–he also thinks ICRC did get notice w/Warsame]. When we finally brought him to the US, the Administration at least considered keeping his capture secret until such time as he was convicted.

That’s the kind of thing the Administration has been doing more and more of, of late, hiding dockets and civilian detainees. Which means in some ways it might be easier to ghost a detainee in civilian custody than in military custody.

In a statement echoing a lot of the language she has used in the last week to oppose the detainee provisions, Dianne Feinstein made it clear the Administration told her they had Warsame floating around on a ship being interrogated (or at least they told her about the intelligence they were getting from him).

The Senate Intelligence Committee has been kept informed on the intelligence being produced by Warsame’s interrogation since his capture.

Warsame has provided valuable and actionable intelligence in response to interrogation consistent with the Army Field Manual, and the Administration’s national security team has determined that a federal criminal court is the best venue in which to prosecute Warsame. He will be charged with nine separate counts that can mean a mandatory sentence of life in prison.

I have been in favor of allowing the President to make these decisions on a case by case basis, and there is good reason to support the decision of the executive branch in this case.

And while he seemed to have no complaint about the treatment of Warsame–even going so far as arguing the earlier version of the SASC detainee provisions would accommodate his treatment–Carl Levin didn’t say that he had been briefed.

It appears likely, incidentally, that then-JSOC head and now SOCOM Commander William McRaven knew about Warsame. He testified while Warsame was floating around secretly that that was the plan for important detainees, to float them around secretly while they were being interrogated.

SENATOR GRAHAM:  … If you caught someone tomorrow in Yemen, Somalia, you name the theater, outside of Afghanistan, where would you detain that person?

ADMIRAL MCRAVEN:  Sir, right now, as you’re well aware, that is always a difficult issue for us. When we conduct an operation outside the major theaters of war in Iraq or Afghanistan, we put forth — we — and again I’ll defer to my time as a JSOC commander — we put forth a concept of operation. The concept of operation goes up through the chain of command — military chain of command and is eventually vetted through the interagency, and the decision by the president is made for us to conduct a particular operation. Always as part of that CONOP are options for detention. No two cases seem to be alike. As you know, there are certain individuals that are under the AUMF, the use of military force, and those are easier to deal with than folks that may not have been under the authority for AUMF. In many cases, we will put them on a naval vessel and we will hold them until we can either get a case to prosecute them in U.S. court or…

SENATOR GRAHAM: What’s the longest we can keep somebody on the ship?

ADMIRAL MCRAVEN: Sir, I think it depends on whether or not we think we can prosecute that individual in a U.S. court or we can return him to a third party country.

SENATOR GRAHAM: What if you can’t do either one of those?

ADMIRAL MCRAVEN: Sir, it — again, if we can’t do either one of those, then we’ll release that individual and that becomes the — the unenviable option, but it is an option.

Note, there are several reasons why the Administration needed to prosecute Warsame in civilian court. He is charged with material support, which has a much sounder basis in civilian law than military law. He appears to be working under a cooperation agreement (which is one reason for the secrecy); military detention has no accommodation for that. And, as Charlie Savage describes (though to some degree this sounds like the Admin hiding its unilateral expansion of the AUMF behind secrecy) to justify including Warsame under existing military commission authority would require disclosing classified information.

The paper trail the detainee provisions would impose on the Warsame treatment

Regardless of who was surprised by this treatment and who wasn’t, the detainee provisions would make it harder for anyone to be similarly surprised in the future.

It would do so in three ways:

  • Require written procedures outlining how the Administration decides who counts as a terrorist
  • Require regular briefings on which groups and individuals the Administration considers to be covered by the AUMF
  • Require the Administration submit waivers whenever it deviates from presumptive military detention

The detainee provisions give the Administration 60 days to put together–and share with Congress–some coherent procedures on how they decide whether someone is covered under the presumptive military detention category. As part of that, the Administration will need to make clear who gets to decide whether someone is a terrorist or not.

Procedures designating the persons authorized to make the determinations under subsection (a)(2) and the process by which such determinations are to be made.

We don’t really know how these decisions were made with Warsame, or at what level. But if and when the Administration writes such procedures, they give Congress some standards to audit to. At the very least, such procedures would make it hard for some cowboy JSOC member to start collecting detainees as terrorists and hiding them for months at a time on their own say-so.

In addition, the defense authorization requires the Administration keep Congress apprised of who it considers to be covered under detainee authorities.

The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be “covered persons” for purposes of subsection (b)(2).

It’s not entirely clear who counts as “Congress” here, but later provisions require notice of detainee transfers to the Armed Services Committees, the Appropriations Committees, and the Intelligence Committees–I guess suggesting the Judiciary Committees have no jurisdiction over things like the law.

This provision, IMO, is long overdue. It prevents the Administration from just making up shit in secret OLC memos that it will then hide under using State Secrets. And it would presumably make it impossible for Lindsey Graham to first learn we had declared war on al Shabab–at least for the purposes of detention–only when the Administration revealed they had been floating an al Shabab member around as a ghost detainee for two months.

Finally, there are the written waivers the Administration must seek when it chooses some course aside from military detention.

The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

Now, I’m actually not sure when the Administration would have had to give Congress a waiver in this case, though it’s clear they would have. At the very least, when they brought in the FBI Clean Team 2 months into his detention, the Administration had made the decision to try him in a civilian court, so presumably that’s when the waiver would be required.

Perhaps the goal of this language is to prevent the 2-month ghosting to happen in the first place, which would be a good thing. The military presumably gets exposed to all sorts of legal trouble serving as the instrument of the President’s disappearances.

But one thing the waiver system would prevent is the secret transfer of someone like Warsame to civilian custody and continued secret detention–as it appears the Administration considered doing–without at least notifying Congress (or at least some committees in Congress).

All that is admittedly weak tea, an inadequate exchange for making military detention the default for such ill-defined categories as terrorists.

But in important ways these provisions–particularly the mandatory briefing on who exactly the Administration believes falls under these provisions–are a huge improvement over the secret unilateral decisions the Executive has been allowed to make for a decade.

20 replies
  1. Eric Jaffa says:

    “Ghosting–disappearing–detainees” means that the prisoner’s friends and family don’t know where he or she is.

    The White House briefing Congress has nothing to do with that.

  2. emptywheel says:

    @Eric Jaffa: Except to the extent that procedures require some regularity from the Admin, putting legal risk for doing so on them rather than on the folks driving the ship, it makes it less likely it’s going to happen.

  3. phred says:

    It prevents the Administration from just making up shit in secret OLC memos that it will then hide under using State Secrets.

    I disagree with this point EW. Although I think addressing the issue legislatively is a good thing, there is no evidence that this administration, like its predecessor, feels constrained by the rule of law. And I highly doubt that future administrations will be constrained either. Unless there are serious consequences for those in the executive branch from the President on down for their lawless behavior, what will stop them from continuing to abuse their power? Nothing.

  4. MadDog says:

    Where to begin? EW, like usual, you’ve produced another monster of a post.

    Ok, I’m still gathering my thoughts here, but let me start out by saying I disagree with your theory that:

    “…Perhaps the goal of this language is to prevent the 2-month ghosting to happen in the first place…”

    Well, maybe disagree is too strong of a word. Consider my statement re-written to say I’m not seeing a set of congressional legislative instructions that make the ghosting impossible or no longer allowed.

    As a matter of fact, after reading the existing detainee provision language in its entirety, my impression is that the ghosting itself is not a topic addressed in the language at all. In fact, I get the impression from not only the legislative language, but also from Levin’s speech and Graham’s commentary, that Congress is entirely pleased to have the ghosting continue just as it is.

    What am I missing that drives your conjecture about ghosting?

  5. MadDog says:

    @MadDog: Ok, I now see your comment at #2 to Eric which I hadn’t previously seen while busy writing my own comment.

    I do agree with you that the legislation puts some procedural processes in place as well as mandates that the Executive branch describe how they come up with said procedures, and I even agree with you that one aspect of this part of the legislation puts the onus on other Executive branch people rather than that ship-driver, but nowhere do I find any Congressional disapproval of the ghosting itself.

    Instead, I still have the impression that Congress thinks ghosting is just fine, thank you ma’am!

  6. emptywheel says:

    @phred: Dunno. But it does place a legal requirement to establish a paper trail when it asks the military to engage in war crimes.

    Congress may never use that paper trail, but if it gets to an international court, they may be forced to.

  7. Mary says:

    “At the very least, such procedures would make it hard for some cowboy JSOC member to start collecting detainees as terrorists and hiding them for months at a time on their own say-so”

    Great post, but based on the excerpts (and I admit I haven’t read the proposed legislation) I don’t buy that this will make it, on a practical basis, harder for men and women now fully formed in a culture of consequence free kidnap, torture and assassination, to keep on keeping on. Are there substantive changes to the exec branches ability to declare what they share with committees to be classified? Are there punitive provisions and assertions of congressional power to override detention decisions? Required judicial review of any aspects?

    When you look at what congress And the courts have allowed since the GWB presidency, with very open (now) public exposure of the criminality involved, I don’t see any brakes on the triain, at least in what has been discussed so far. I’m sure there is a lot more that I don’t know about, but let’s look at things congress has done nothing about and at how the culture has evolved in dc and throughout the nation on those issues.

    Congress has allowed the president and CIA to operate as assassination directors and approvers in South American ventures, before 911, that resulted in the CIA specifically lying to congress about their directed “kills” (plane shoot downs) in general, and congress has gone so far as to publically piss on the family and memory of the us victims of the cia’s Latin assassination program. No accountability of any kind for the publically disclosed CIA directed killing of an American infant, in his mother’s arms, and while she was killed as well, with her husband and other child bearing witness. That’s before we even get to 911 and that’s with US victims who are as far from being alleged terrorists as you get.

    The public disclosures on Arar, Errachidi, the Uighurs, el-Masri, Abu Ghraib, GITMO, black sites, torture murders, hundreds of deaths from drone assassinations gone wrong, openly plotted assassinations of American dissidents abroad and the aftermath assassinations of their US citizen children, the disappearances of the children of Siddiqui and Ksm, etc., – all these things and more have resulted in one constant from Congress, a constant cry for the exec to be more funded, to be given more power, to be more secretive and to insure immunity for exec branch crimes and criminals.

    What I don’t see is any provision that gives innocent victims a voice or recourse and without that, I don’t think you will have any lessening of the now popularized kidnap, torture and assassination policies. Instead you will have more assassination, which appears to have the least oversight, and I can see an even more blasé approach to disappearing (from the rest of the world) people, because now there is another level if insulation from responsibility – congressional committees will be notified and if they don’t like it they will do something about it, but if they don’t break classification and push for a release remedy they don’t even have under the legislation,the cowboy is even better protected than they were. I think the field response will be – better to be criticized for going too far than not far enough (especially when the field is now occupied by people who have knowingly and willingly worked for torture and assassination and who didn’t bat an eye over the American infant their bretheren had sent to a hopefully quick death in a Latin American jungle)

    I think it’s just another out from responsibility (let the committees say something if they don’t like what we are doing) that may make it more, not less, likely to encourage the current kidnap or kill and classify the consequences culture. Jmo, fwiw which isn’t much based on the fact I’m just reading posts here and there and not fighting through the legislation. I just do not believe legislation with no victims remedies ever does much to lessen the problem and that more layers of people who are “informed” (whether they have the power to do anything or not) makes it more difficult to ever prosecute anyone

  8. emptywheel says:

    @MadDog: I actually think SASC is appropriately focused on protecting the armed services from legal exposure for shit the President does. And ghosting gets you into possible war crimes. Congress as a whole went apeshit in 2005 because they were ghosting prisoners in Iraq. Whether or not they like the idea of disappearing people, I do think they believe the military should be protected if they are ordered to do so (and I do think they believe, rightly or wrongly, that laying this paper trail makes this legal).

  9. emptywheel says:

    @Mary: Agree across the board with your comment. No one–not the pro-Levin-McCain people, not those opposed–are doing a damn thing about the fundamental structure of the out of control executive.

  10. Mary says:

    Eric – ghosting ias congress has used it in the mccAin hearings, for example, is different than just disappearing. Disappearing involves the families, press, maybe foreign goes for their nationals, etc. not knowing. Ghosting involved a deliberate process of the gov, internally, keeping someone off the records so that other parts of gov could never find out what happened to the person.

  11. Eric Jaffa says:

    Mary –

    Thanks for telling me that some people distinguish between ghosting prisoners & disappearing prisoners.

    However, both undermine justice.

    Governments should have to promptly inform the public about whom they’re holding prisoner so that the friends and family of prisoners know where they are.

    The 2011 Defense bill won’t help them to know.

  12. Mary says:

    EW I think it sounds like you and pared and I are basically on the same page. If the legislation really results in establishing a record, naming the ghost as it were, then that will at least be something. Not something that will change things, just something that will be a record that might slip through destruction at some point in a real examination.

    You have to wonder how this whole concept plays with all our extradition treaties and sofas. It seems to me that someone facing extradition would be able to raise the fact that the doj is definitionally unable to make assurances for some kinds of persons, because once extradited the president might decide that the person held has some connection with terrorism that would statutorily require him to transfer them to the military and make them subject to commissions that do not follow any reality or rules and to executions that cannot be opted out of by any doj agreement.

    In the past, too, the concept used to sell the sofas was that the us had a firm rule of law and soldiers who committed crimes against the local population would be dealt with by us military law. Now us military law has reformed to encourage the us military to engage in worldwide kidnap, torture and assassination, with assurances that victims can be disappeared or forever detained in places far away from their home country or original kidnap site.

    I brought up the accused Kuwaiti member of parliament the other day as an example – but is Kuwait (whose sofa is classified for gosh sakes) really wanting to move kidnap and assassination squads in country when they will have an almost affirmative duty to start grabbing Kuwaitis suspected and disappearing them into military detention, all with no recourse by Kuwait.? Seems an odd exercise in sovereignty.

  13. emptywheel says:

    @Mary: Right–as I suggested, the pending extradition of Sajir Khan from the Netherlands will test some of these immediately.

  14. MadDog says:

    @emptywheel: Ok, I buy your explanation about SASC protecting the military and putting the onus via paper trail on the Executive branch decisionmakers.

    @Mary: I think your definition of ghosting is correct, but let me add something to the mix. There is ghosting as you’ve defined it, and then there is something quite close to it that the US government is going to continue to use for the express purpose of extracting intelligence via “interrogation”.

    I don’t know what to call that 2nd thingee, but for the purposes of our discussion, let’s call it “half-ghosting”.

    As I suspect the US government would argue, with “half-ghosting”, there is no particular objective on the part of the US government from preventing the “eventual” disclosure of the detainee and his inclusion into a judical proceeding for trial (either Federal court or Military Commission).

    Again as I suspect the US government would argue, their primary objective with this “half-ghosting” is to conduct an interrogation for the purpose of getting actionable and/or confirming intelligence. If evidence is also acquired that benefits a US judicial proceeding, that is fine too, but that is not the primary purpose of the “half-ghosting”.

    As far as I can tell, there is nothing in this legislation nor in the existing Executive branch policy that prevents the US from maintaining the secret detention of prisoners for the express purpose of extracting intelligence via “interrogation”.

    As far as I can tell, without the re-establishment of “black sites”, the US is going to continue to secretly detain prisoners (half-ghosting) for the express purpose of extracting intelligence via “interrogation” in places like aboard Navy ships, or transfer to Bagram, or rendition to accomodating 3rd-party countries.

  15. KWinIA says:

    @emptywheel: Are they wanting to protect the military from responsibility for doing things the president ordered them to do? The president doesn’t do these things on his own. Even though we see Americans offering up the Nuremberg defense doesn’t make it right to do so. We’re supposed to be better than this. If this is where we’re going, shouldn’t we just cancel our ratification of the Geneva Convention and the the Convention Against Torture (signed by the blessed Ronald Reagan).

  16. rugger9 says:

    @KWinIA: #17
    Or, if/when one of the other signatories prosecutes under the same treaty. It makes that kind of allowance, and also prohibits the “following orders” defense. Right now it’s not politically expedient for our allies [think Spain here w/ Pinochet] to put the hammer down when they might need some greenbacks to cover the euro. But Russia and China are signatories as well, I believe, as are the Swiss. I remember one of the Bu$hies had to cancel a trip there because someone was going to file a torture case there.

  17. Jeff Kaye says:

    But one thing the waiver system would prevent is the secret transfer of someone like Warsame to civilian custody and continued secret detention–as it appears the Administration considered doing–without at least notifying Congress (or at least some committees in Congress).

    Yeah, that Congressional notification and/or oversight has really made a difference! When they asked for notification of transfers of any detainees, they got their notification of an Algerian detainee against his wishes back to the country where he feared arrest by the State (he was), torture (we don’t know about that), or attack by AQ-types. This violated the non-refoulement provisions of treaties that the US is signatory to, but that didn’t bother Congress, who only admitted to notice when I finagled the fact from them.

    Btw, I have a new article at Truthout analyzing the Ayotte Amendment on adding a secret, “classified annex” regarding interrogation techniques-cum-torture to the Army Field Manual. I guess no one told Sen. Ayotte there is already a torture annex that is part of the AFM! But then, some of these creatures fetishize the EITs.

    Forgive my cynicism, but Congress appears to have been totally suborned to the National Security state apparatus. I think you had it right, that it’s “weak tea.” More like water coloring if you ask me.

    Please keep up the great analysis!

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