Suspected al Qaeda operative Abu Anas al-Libi was captured by U.S. forces Sunday, not struck down by a drone, and he is expected to stand trial despite objections from Congress' more hawkish members. 
Abdullah al-Raghie (L) and Abdul Moheman al-Raghie (C), the sons of al-Qaeda suspect Abu Anas al-Libi point at the house next to the scene where their father was kidnapped by U.S. special forces in a commando raid in Nofliene, not far from the Libyan capital of Tripoli on Oct. 6, 2013, sealing a 15-year manhunt for him. (Photo by STR/AFP/Getty Images)
The U.S. capture and detention of a top al Qaeda official this weekend in Libya will again test of the Obama administration’s “hybrid” approach to dealing with terrorism, which Republicans have criticized as insufficiently tough and human rights activists say violates’ suspects’ due process rights.
Nazih Abdul-Hamed Nabih al-Ruqai’I, also known as Abu Anas al-Libi, is suspected of playing a key role in the 1998 bombings of U.S. embassies in Kenya and Tanzania which killed more than 200 people. He was captured by U.S. forces in Libya on Sunday and is being held on a Navy vessel somewhere in the Mediterranean, U.S. officials told NBC News.
While thousands have been killed in U.S. strikes targeting suspected terrorists abroad since President Obama took office, Al-Ruqai’l would one of the few to see the inside of a courtroom. Officials said that following interrogation by an elite team of military, FBI and CIA experts, he will be brought to stand trial—though the administration would not confirm whether that would be in federal court or military commission. “Both [civilian and military commissions] systems are potentially viable options that must be evaluated based on the facts of each individual case,” said Caitlin Hayden, a spokesperson for the National Security Council.
Despite the perception that the administration has come to rely on lethal force from deadly flying robots, Al-Ruqai’l's capture is consistent with past administration policy, says Robert Chesney, a law professor at the University of Texas and former member of the Obama administration’s detention policy task force.
“People say that’s not really their policy. It’s to kill people with drones, well ‘no,’” Chesney said. Obama’s policy has been that “if the stars align such that you can plausibly pull off a capture and it seems sufficiently worth the risk, then you’ll try do it.”
Nevertheless, only one other terrorist has been captured abroad and brought to trial in the United States. That was Ahmed Abdulkadir Warsame, a former member of the Somali al Qaeda affiliated group al Shabaab. In 2011, Warsame was held and interrogated on an aircraft carrier for two months before being brought to the United States for trial in federal court. He pleaded guilty as part of a plea agreement with prosecutors. The administration argues that it is legal for the U.S. to place terror suspects in military detention prior to prosecution because the U.S. is at war with al Qaeda and its affiliates.
While this approach seems almost designed to mollify critics, it does not.
Republicans generally want all foreign terrorists sent to the Guantanamo Bay military prison and tried by military commission, based on an unfounded belief that civilian interrogators are inferior to military ones. Most will oppose Al-Ruqai’l transportation to the U.S., as well as a federal trial if the administration seeks one. Sen. Lindsey Graham, who serves on the Armed Services Committee, promptly tweeted his desire that the suspect head straight to Gitmo.
I believe the most responsible course of action would be to hold al-Libi as an enemy combatant at Gitmo for intelligence gathering purposes.— Lindsey Graham (@GrahamBlog) October 7, 2013
Graham, however, is one of the few Republicans who would support a trial in federal court. Senate Minority Leader Mitch McConnell of Kentucky on the other hand, argued that the acquittal of Casey Anthony in 2011 proved that non-military courts would not be able to deliver reliable verdicts. “We just found…how difficult it is to get a conviction in a U.S. court,” McConnell said. “I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts.”
Even if al-Ruqai’l is tried in federal court, human rights and civil liberties activists see this approach as a kind of legal Calvinball, where the administration selectively follows whatever rules meet its objectives. By holding a suspect in military detention first, the administration can pressure a suspect without a lawyer present, then go through the motions of a criminal trial in which the suspect cannot hope to prevail. The ACLU accused the Obama administration in 2011 of having “put a criminal conviction at risk by holding Warsame in unlawful military detention for over two months.”
Yet, because Warsame pleaded guilty, it’s unknown what would happen if someone held in military detention abroad in this manner and then brought to trial in the U.S. actually tried to fight the charges. The trial of Ahmed Ghailani, another suspect in the 1998 embassy bombings and a former Gitmo detainee, was viewed as setting back the administration’s efforts to close Gitmo because he was acquitted of most of the charges after a judge threw out evidence he said was obtained through torture at a CIA black site. Ghailani was still sentenced to life imprisonment.
“There’s no guarantee that people will plead guilty in these settings. You could end up with a really serious battle on the hands of prosecutors,” said Chesney. Pointing to what happened with Ghailani, Chesney says, “could you have that situation or worse? Sure, we’ll find out. They also may have this guy dead to rights.”