By Annica Mae Mattus
It is around four weeks since the Department of Defense announced an American citizen is being detained by American forces as an enemy combatant after surrendering to Syrian Democratic Forces, but no additional details have since been made. This is not the first time that an American citizen has been detained overseas as an enemy combatant, but there are interesting developments from the legal perspective.
The first issue is that it is unclear whether the President has the authority to detain American enemy combatants captured in Syria. According to the confirmation given by the Department of Defense, the American citizen surrendered as a fighter for the Islamic State (ISIS). The Supreme Court held in Hamdi v. Rumsfeld that the President of the United States has the authority to detain persons captured fighting for the Taliban in Afghanistan under the 2001 AUMF. From the reports given thus far, however, the recently-detained American citizen surrendered as an ISIS agent, and the courts have not determined whether ISIS is covered by the 2001 AUMF. Thus, lacking an AUMF for the current military action against ISIS, Presidential authority detain this individual remains unclear.
Two other issues presented by the facts released by the Department of Defense include presentment and Miranda rights of the detainee. Addressing presentment, Rule 5 of the Federal Rules of Criminal Procedure mandates that “[a] person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge unless a statute provides otherwise.” The Supreme Court has stated that presentment is necessary to “avoid all the evil implications of secret interrogation of persons accused of a crime,” and that the violation of presentment excludes incriminating statements (even if made voluntarily) and that even short delays of presentment present a violation should the arresting officers case the delay in order to interrogate the detainee. Congress has responded to Supreme Court rulings under 18 U.S.C. § 3501(c). This statute created a six-hour grace period following an arrest wherein incriminating statements are not inadmissible. Should incriminating statements be made outside of the six-hour window, such statements are inadmissible unless the delay is found to be reasonable by a trial judge based on the mode of transportation and distance to destination. Meanwhile, Miranda v. Arizona protects the Fifth Amendment right against self-incrimination for arrestees by requiring arresting agents to advise arrestees of their rights to silence and an attorney, thus limiting the prosecution’s use of statements attained in “unwarned” interrogations.
Both of these matters are discussed in United States v. Ahmed Salim Farah Abu Khatallah, regarding an individual who was suspected of being involved in the attack on the U.S. Special Mission Compound in Benghazi, Libya, was thereafter was detained and questioned. Khatallah moved to suppress the statements he gave after being given Miranda warnings based on (1) the thirteen-day journey violating Federal Criminal Procedure Rule 5(a) and (2) the two-step interrogation process imposed by the Government “undermined the voluntariness of his Miranda waiver,” among other arguments.
The United States District Court for the District of Columbia has ruled that Khatallah’s statements made during interrogations on a thirteen-day journey to the United States from the Libyan coast were admissible. In addressing the violation of prompt-presentation, the court found that circumstances, including mechanical problems of the ship transporting Khatallah, were reasonable and did not violate the presentation requirement. Additionally, Judge Cooper’s ruling held that the Mirandized statements Khatallah made were not undermined by the two-step process he underwent because the initial, unwarned, interrogation addressed investigating future and imminent terror attacks while the second, warned, interrogation concerned the attack on the American compound in Libya. Therefore, Khatallah’s statements are admissible for his trial in U.S. District Court, which began on Monday, October 2, 2017.
Applying Judge Cooper’s ruling to the situation of the recently-detained American enemy combatant, there is a high potential for a prompt-presentment violation. Khatallah had been detained for approximately 2 weeks in transport, and the District Court found no violation due to circumstances preventing a speedier presentment. It is close to four weeks since this individual has reportedly been detained by American personnel. Additionally, we do not know if interrogation is taking place, the nature of the interrogation if it is taking place (and Congress may not, either, as required by the Non-Detention Act 18 U.S.C. § 4001(a)), or whether this individual has access to an attorney.
These issues presented by this detainment of an American citizen as an enemy combatant, on top of the questions of where to detain this American enemy combatant and for how long, could be crucial to the development of national security law and the rights of detainees.
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[1] American who surrendered in Syria detained as “enemy combatant,” Defense Dept. says, CBS News (Sept. 14, 2017, 8:36 PM), https://www.cbsnews.com/news/possible-american-citizen-fighting-for-isis-surrenders-pentagon-says/.
[2] Robert Chesney, An American Enemy Combatant Case? The News Out of DOD, and What Might Happen Next, Lawfare (Sept. 15, 2017, 12:33 PM), https://www.lawfareblog.com/american-enemy-combatant-case-news-out-dod-and-what-might-happen-next.
[3] Jennifer K. Elsea and Michael John Garcia, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, Congressional Research Service (Sept. 9, 2014), https://fas.org/sgp/crs/natsec/R41156.pdf#page=6.
[4] Chesney, supra note 2.
[5] Federal Rules of Criminal Procedure, Rule 5.
[6] Mallory v. United States, 335 U.S. 449, 455-56 (1957); Upshaw v. United States, 335 U.S. 410, 413 (1948); McNabb v. United States, 318 U.S. 332, 344 (1943).
[7] 18 U.S.C. § 3501(c).
[8] Id.
[9] Miranda v. Arizona, 384 U.S. 436, 478 (1966).
[10] United States v. Khatallah, No. 14-cr-00141, 2017 U.S. Dist. LEXIS 130185 (D. D.C. Aug. 16, 2017).
[11] Id. at *3.
[12] Id. at *51-64.
[13] Id. at *70-79.
[14] Zachary Cohen, Benghazi suspect set for trial, details of secret raid revealed, CNN (Oct. 1, 2017, 9:50 AM), http://www.cnn.com/2017/10/01/politics/benghazi-suspect-abu-khatallah-trial-preview/index.html.
[15] 18 U.S.C. § 4001(a).