But Detained 2 Months without Court Appearance, Access to Lawyer, Violates Rights
July 7, 2011
The decision to try Warsame in federal court rather than at Guantanamo demonstrates a commitment by the Obama administration to fair process and the rule of law. People accused of federal crimes belong in time-tested federal court instead of the discredited military commissions.
Andrea Prasow, senior counterterrorism counsel

(Washington, DC) ­- The Obama administration's decision to prosecute a Somali terrorism suspect apprehended abroad in federal court demonstrates the importance of US civilian courts in countering terrorism, Human Rights Watch said today. However, Ahmed Abdulkadir Warsame should not have been held by the US military for more than two months without basic due process rights, Human Rights Watch said. 

On July 5, 2011, the administration announced it had obtained a federal indictment against Warsame in New York for nine counts of terrorism-related offenses. Warsame, in his mid-20s, was reportedly captured on April 19 in international waters between Yemen and Somalia. He was then held on a US Navy vessel and interrogated by the military for more than two months before being transferred to a civilian detention facility in New York. 

"The decision to try Warsame in federal court rather than at Guantanamo demonstrates a commitment by the Obama administration to fair process and the rule of law," said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "People accused of federal crimes belong in time-tested federal court instead of the discredited military commissions."

Warsame's reported detention for more than two months on a Navy ship before being charged, however, raises serious concerns under international law, Human Rights Watch said. Fighters captured in an armed conflict can be interrogated for intelligence purposes in accordance with the laws of war. However, those apprehended in a conflict between a state and a non-state armed group or outside the context of an armed conflict altogether retain their rights to due process under international human rights law. 

This includes being promptly brought before a judicial authority to be informed of criminal charges and having access to legal counsel. Reports suggesting that the International Committee of the Red Cross was notified of Warsame's detention and visited him would have been consistent with the laws of war but do not address the due process concerns.

"Warsame was interrogated at sea for over two months and like any criminal suspect he should have been brought before a judge during that time," Prasow said.

Members of Congress have pressed the Obama administration to use the military commissions at Guantanamo to try non-US citizens captured abroad on terrorism-related offenses. Bills now before Congress threaten to take away from the executive discretionary powers to prosecute terrorism suspects, including US citizens, in the appropriate forum and require by law the use of military commissions. 

The Obama administration has sought to maintain executive authority over prosecution powers, threatening to veto legislation that would interfere with these powers.

"The administration is right to insist on maintaining its authority to use federal courts to try terrorism suspects," Prasow said. "Congressional representatives should finally recognize that providing a fair process helps, not hinders, counterterrorism efforts."