National Security and Court Deference: Ramifications and Worrying Trends

Published in Reimagining the National Security State: Liberalism on the Brink, (Cambridge University Press, December 2020)

National Security and Court Deference: Ramifications and Worrying Trends

Laura Pitter

In re-imagining the national security state, US institutions would see threats realistically and characterize them fairly, and courts would end the excessive deference given to government national security claims. In the seventeen years since the September 11, 2001 attacks, these claims have undermined fair process for defendants and others detained by the US in a myriad of ways.[1] Courts have rejected valid claims brought by US victims of torture on grounds that litigating the cases would interfere with national security or expose state secrets,[2] and they have permitted national security exceptions to normal procedural protections in criminal cases that reinforce secrecy, ex parte communications, evidentiary restrictions, and onerous conditions of pre-trial detention.[3] Entire treatises have been written about various aspects of these developments[4] but in the space of this limited article I am going to focus on two.

The first discusses the detention standard developed by the D.C. Circuit in the Guantanamo Bay habeas litigation and expands upon what has been learned about how it was applied and to whom, over the eight years since the standard was first articulated. Though many scholarly articles and books were written about the standard at the time it was developed,[5] more information has come to light in recent years about many of the detainees to whom it was applied, illuminating to an even greater degree the harm done and mistakes made in using this standard to indefinitely detain men at Guantanamo. It is important to take a fresh look at this standard now because it is possible that it could be applied to future detainees; and Brett Kavanaugh, newly appointed to the US Supreme Court, is one of the judges most responsible for adoption of a core element of the standard.

The second discusses the development and attempted normalization of a two-step interrogation process, known to have only been used in a few cases thus far. In this two-step process the government delays informing individuals charged with crimes in their custody of their right to remain silent and to a lawyer, holding them in military detention aboard ships and interrogating them for intelligence purposes first before US law enforcement personnel read them their rights, as required in the criminal context by Miranda v. Arizona, and interrogate them for the purposes of criminal prosecution. This approach provides US law enforcement and intelligence agencies with flexibility when carrying out overseas counter-terrorism operations, but circumvents long-standing procedural protections put in place in the criminal context, as well protections in the military context, to help guard against government abuse, incommunicado detention, mistreatment and torture.

The US already circumvents these protections regularly when arresting individuals in international waters in drug interdiction cases.[6] In hundreds of cases since 2012, the US has held defendants in incommunicado detention for long of periods of time on board US Coast Guard boats before bringing them to US shores and prosecuting them. In many cases, the defendants have reported serious mistreatment, but because defendants in most of these cases plead guilty shortly after the US brings them to US shores, the defendants, as explained below, have no real opportunity to challenge the abuse. These drug interdiction cases have received much less public attention than the US overseas counter-terrorism cases, but they are an example of why judges should be wary of finding this two-tier interrogation process permissible.

1. Guantanamo Detention Standard – A Fresh Look

After hundreds of detainees had been held at Guantanamo Bay for roughly six years, the US Supreme Court, in Boumediene v. Bush, finally granted those held there the right to habeas corpus, allowing them to challenge their detention in federal court.^[7] The Supreme Court did not articulate any particular standard of review that lower courts should use but merely stated that review should be “meaningful.”[8] The review standard that the US Court of Appeals for the D.C. Circuit came up with however was not meaningful. While District courts granted many Guantanamo detainees habeas relief, the D.C. Circuit Court reversed nearly all of those decisions that came before it and imposed upon lower courts a standard of review that made it virtually impossible for detainees to win their cases.[9] The standard was justified, the D.C. Circuit wrote, because it is permissible to “plac[e] a lower burden on the government defending a wartime detention--where national security interests are at their zenith and the rights of the alien petitioner at their nadir.”[10] One district court judge, citing this passage, made no secret that he disapproved but was nevertheless bound: 

[O]ne might reasonably ask, how can Guantanamo detainees -- locked up for years on a remote island, cut off from the world, without resources, with only such access to intelligence sources and witnesses as the government deigns to give them -- how can such people possibly carry the burden of rebuttal, even against weak government cases? The answer, unfortunately for detainee petitioners, is that they are indeed at a considerable disadvantage, and that successful rebuttals of credible government cases will be rare events. The Court of Appeals has acknowledged this imbalance and approved it.[11]

This approval first came in Al-Bihani v. Obama, when the D.C. Circuit required lower courts to use a preponderance of the evidence, or a “more likely than not” standard, in evaluating whether detainees were members of al-Qaeda, the Taliban, or associated forces or purposefully and materially supported such forces.^[12] A preponderance of the evidence standard is already one of the lowest standards of proof permitted for evidence in US cases.[13] But next in Al-Adahi v. Obama, the D.C. Circuit went further to note that though they believed an even lesser standard of just “some evidence” would be permissible, they were left with no choice but to impose a preponderance of the evidence standard since the government had not requested any lower standard be applied.^[14] In fact, there is reason to believe that the court may have even applied this lower standard of “some evidence,” in later cases even though the government had not asked for it.[15] Under the Al-Bihani and Al-Adahi line of cases, of which the newest US Supreme Court justice Brett Kavanaugh was a part, the court held that the government can rely on facts derived entirely from hearsay[16] and courts must apply a “conditional probability,” also known as a “mosaic theory” analysis. The “mosaic theory” was a tool of analysis that the intelligence community did not use much prior to the September 11, 2001 but afterwards federal agencies began asserting it aggressively, mostly in the context of Freedom of Information litigation.[17] Under this theory, disparate items of information, though individually of limited or no utility, can take on added significance when combined with other information. Combining this information “illuminates interrelationships and breeds analytic synergies, so that the resulting mosaic of information is worth more than the sum of its parts.”[18] The D.C .Circuit Court adopted this theory of analysis as part of its detention standard holding that the court could not discard pieces of evidence merely because they deem them unreliable, they must look at all the evidence as a whole, even if on its own some pieces of evidence may be unreliable.[19]

Using this standard, with one exception,^[20] the D.C. Circuit denied every case that Guantanamo detainees brought before it, claiming that they were being unlawfully held, including claims that had been won at the lower court level.^[21] Later in Latif v. Obama, the D.C. Circuit further lowered the review standard by requiring courts to presume the accuracy of the government’s evidence, subject to rebuttal, prompting dissenting Judge David Tatel to ask what was left of Boumediene’s requirement that federal court review of detentions at Guantanamo be “meaningful.”^[22] Since Latif , the D.C. Circuit has continued to deny all unlawful detention claims brought by Guantanamo detainees. Use of the “conditional probability” analysis in Guantanamo cases have also been cited in other cases, not related to detention at all, in support of similar lenient evidentiary standards.^[23]

The decision to give the government’s evidence great deference is particularly troubling given that over the years the US government has detained inmates at Guantanamo based on inaccurate analysis of evidence,^[24] misinformation,^[25] evidence derived from torture or that is unreliable in other ways,^[26] and mistaken identity.^[27] An independent assessment of US government intelligence files on Guantanamo detainees in 2011 showed that much of the information used against 235 detainees there at the time was obtained from just eight other detainees that themselves were deemed unreliable by US intelligence agencies.[28] We now know that as a result of the Obama administration arguing for, and the D.C. Circuit Court applying its Guantanamo detention standard, the US held hundreds of men for years based on an exaggerated threat of the danger posed by their release, and discouraged others to even pursue their habeas cases.

This includes men like Mohamedou Ould Slahi who the US once claimed was one of the most dangerous men held at Guantanamo[29] but who we now know was held based on evidence derived from torture, and objectively overstated claims about his dangerousness.[30] While still held in Guantanamo, after fighting for years for release, his lawyers were able to get a manuscript Slahi wrote that deftly conveyed how overstated claims of his dangerousness were, which eventually was published as Guantanamo Diaries, a New York Times best-selling book.^[31] Slahi initially won his habeas case but the D.C. Circuit court remanded after the Obama  administration appealed.^[32] Slahi remained at Guantanamo for 14 years until the US government finally released him in October 2016. It also includes men like Adnan Latif, a Yemeni who maintained that he did not train or fight with the Taliban as claimed but traveled to the region to seek medical treatment from a charity for problems stemming from a head injury he had sustained in a car accident.[33] A district court judge found Latif’s claims “supported by corroborating evidence provided by medical professionals” and granted him habeas,[34] but after the Obama administration appealed, the D.C. Circuit Court reversed, holding that the lower court was required to presume the government’s evidence countering Latif’s claims was accurate.[35] Latif had gone on hunger strikes repeatedly at Guantanamo and had been placed on suicide watch.[36] Three months after the US Supreme Court refused to hear the D.C. Circuit Court’s denial of his habeas case, he committed suicide. By that point, Latif had been held at Guantanamo for more than 10 years. “Every hope held out to him was dashed,” Latif’s lawyer David Remes said. “He felt that his spirit was dying, that he couldn’t continue to bear his conditions.”[37]

Slahi and Latif are just the tip of the iceberg. In addition to these two who had their habeas cases rejected, many others, like Sharqawi al-Hajj, one of 40 men still held at Guantanamo, stopped pursuing their habeas claims after the D.C. Circuit Court precedent was set.^[38] Though a District Court judge had ruled that statements al-Hajj made in Jordan or at a US prison in Afghanistan were coerced, unreliable, and could not be used against him,[39] al-Hajj lost faith in the US judicial process after the Latif decision, dropped his habeas case, began regular hunger strikes, and became depressed and physically weak.[40] Last fall his lawyers reported that al-Hajj was frail and in despair.[41] He was hospitalized in August 2017 after he fell unconscious in his cell and his lawyers reported at that time that he weighed 104 pounds. In September 2017 his lawyers filed an emergency motion seeking an outside medical examination and his medical records.[42] In January 2018, at the urging of his counsel, al-Hajj joined many other detainees in filing a new mass habeas appeal—an appeal that gives US courts a chance to revisit the legality of Guantanamo detentions.[43] Others, though no longer at Guantanamo, like Mustafa al Shamiri, who was just 16 or 17 when initially detained, and Abdul Zahir, both of whom were cases of mistaken identity, were only released from Guantanamo after 14 years of detention.[44] Comprehensively assessing the full failure of Guantanamo is difficult because citizens of 49 different countries[45] have been held at Guantanamo and the US has released detainees slowly over the course of the past 17 years to 59 different countries around the world.[46] Though with each release new facts come to light about their cases,[47] this happens piecemeal. Unlike the Japanese Americans wrongly detained during and following World War II, former Guantanamo detainees have no constituency in the US and no network connecting them.

Still the US government and the courts need a post-Korematsu v. United States[48] style reckoning about what has gone on and continues to go on at Guantanamo­—though they don’t need to wait 60 years to have it. They need to acknowledge that the standard used in Guantanamo cases was wrong and resulted in the unlawful prolonged detentions of hundreds of men who would have been released had courts applied the fairer and more just standards of the lower courts. My organization, Human Rights Watch, has long taken the position that the vast majority of the 800 men held at the facility since 9/11 were never legitimate “law of war” detainees to begin with and should never have been held there.^[49] Clearly the US government disagrees with this position and given that current US policy, under President Donald Trump, is to keep Guantanamo open and possibly send even more men there,[50] such a reckoning is important both for the 40 men who remain at the facility and for potential future detainees.

2. Normalizing Two-Tier Interrogations:

A trend developing in national security cases is the government’s use and attempted normalization of a two-tiered method for interrogating defendants. Under this method the government first holds a suspect in military detention and interrogates them for intelligence purposes without informing them they have a right to remain silent and to an attorney under Miranda v. Arizona.[51] Afterwards law enforcement sends in a civilian law enforcement so-called “clean team,” unconnected to the prior intelligence gathering team to conduct a second interrogation during which the defendant is given Miranda warnings. Law enforcement only intends that the information obtained from this second set of interviews be introduced as evidence in the prosecution’s case against the defendant (though prosecutors generally also attempt, and have been largely successful at, preserving the right to use the information for impeachment purposes).

The argument in support of using this system is that the government needs to obtain information for intelligence purposes—information about the alleged armed group or associations the person is a part of, its membership, structure, and means of generating income and support, for example—and that warning the individual of their rights and permitting them to consult a lawyer ahead of such an intelligence interview would interfere with that process.

Many professional military and law enforcement interrogators argue that informing individuals that they have a right to remain silent—which other than being required to provide basic information about their identity, law of war detainees are entitled to do—[52] and also that they have the right to an attorney, would not significantly impede the ability of intelligence teams to gather such information.[53] But putting that argument aside for the moment, one problem with this method is that unless suspects challenge the admissibility of evidence derived from these “clean team” interviews or challenge their delay in being brought to court—challenges only available at later stages in their criminal cases—it permits interrogators and prosecutors to circumvent procedural protections put in place to guard against government abuse—such as mistreating defendants in custody, keeping them in incommunicado detention, or delaying their being presented before a neutral arbiter or a judge without delay.[54] Even when individuals bring such challenges, they are substantially delayed and often do not result in sanction when it should.

The US government used these “clean teams” before the September 11, 2001 attacks but mostly to assist prosecutors in obtaining evidence for prosecution from people previously detained and mistreated by other governments.[55] After September 11, 2001 US agencies used them to try to obtain statements from people that the US had mistreated and tortured in US military or Central Intelligence Agency custody. They did so in the hopes that courts would find the “clean team” statements sufficiently attenuated from the torture that they would be admissible in US federal courts that normally bar use of evidence derived from coercion. More recently, the two-tiered method using clean teams has been pre-planned—integrated into operations to apprehend and detain someone suspected of terrorism offenses that the US also wishes to interview for intelligence purposes.[56] It is cases involving this more recent use that I intend to focus on here. US officials have said that this pre-planned two-step process is a new approach to overseas counter-terrorism operations.[57]

Only three individuals are publicly known to have been subjected to this new two-tiered approach: Ahmed Abdulkadir Warsame, Abu Anas al-Liby and Ahmed Abu Khatallah. All three were apprehended by US forces overseas, detained onboard US military ships for prolonged periods, interrogated by intelligence officials, and then interviewed by US law enforcement before being transferred to US federal court.[58]

Not much is known about how Warsame was treated during the nearly three months he was held on board a US Navy vessel because he pled guilty shortly after he was transferred from the ship to a US federal court. That was when the public first learned about his apprehension and detention. He has been cooperating with US officials against other defendants and on intelligence matters ever since.[59] For this reason, he never challenged the admissibility of any statements or evidence obtained from this interrogation period, or delays in being brought to court—the main means available to criminal defendants to test the legality of their detentions and treatment in the US judicial system.

After US forces apprehended him on April 19, 2011 in international waters between Yemen and Somalia, he was held aboard a US Navy vessel for nearly three months in secret detention. After two months Warsame’s interrogators gave him a four-day break and let the International Committee of the Red Cross have access to him before letting a “clean team” on board to conduct a second interrogation for law enforcement purposes.[60] This team informed him of his right to remain silent and to an attorney, rights which he waived, and he continued to talk to his then law enforcement interrogators. On July 5, 2011, he was transferred to the US and made a brief appearance in a federal court in New York on July 5, 2011.^[61] In December 2011 he pled guilty to terrorism-related charges.^[62]

Unlike Warsame, Abu Anas al-Liby alleged he was mistreated during the course of his criminal case.[63] Al-Liby was apprehended in a surprise early morning raid by US forces outside his home in Tripoli, Libya on October 5, 2013.^[64] A defense department press release on that same day said he was being held under the laws of war but also mentioned allegations from a 2000 criminal indictment charging him and 19 other people with involvement in the 1998 bombings of the U.S. embassies in Kenya and Tanzania.[65] After his apprehension, he was taken to the U.S.S. Antonio and held on board for eight days from October 5 to October 12.

According to court papers, al-Liby’s allegations of mistreatment included the US using excessive force during his arrest, holding him incommunicado without access to a lawyer, family, or anyone other than his interrogators, for eight days in a windowless cell with no furniture, including a bed, with lights on 24 hours per day.[66] He said he did not know when a day ended and began because he was not exposed to sufficient natural light, creating disorientation and confusion. His guards forced him to sleep on a blanket on the floor and interrogated him constantly. They gave him a blanket to cover himself and he was able to use another blanket as a pillow but said he was cold the entire time. The US forces did not provide him with a Koran or tell him which direction was east to enable prayer. They warned him that their initial questioning would be the easiest part and that things would get progressively harder. He said he saw little to no distinction between his CIA and FBI interrogators. He was aware that the US had tortured prisoners in CIA and Guantanamo detention facilities and therefore was in “morbid fear of [his] imminent death where its only precursor would be torture.”[67] Whenever he was moved, his interrogators repeatedly placed ear muffs, blindfolds, and handcuffs on him.[68] Al-Liby filed a motion to suppress statements obtained from him during the course of his interrogations, but he died from complications related to liver cancer, hepatitis C, and other medical conditions, before the court ruled on the motion, which was just one week before his trial was set to begin.^[69] For this reason his allegations of mistreatment were never addressed by the court.

Khatallah is the only one of the three held and questioned in this way who raised the legality of his detention and treatment aboard a US warship and litigated his claims.[70] He was apprehended in Benghazi, Libya in a surprise raid on June 16, 2014 for his alleged role in the September 11, 2012 US Benghazi Embassy attack where four people were killed, including US Ambassador Chris Stevens. Khatallah was blindfolded, hooded, gagged, and fitted with special noise-blocking headphones and then transported by different vessels to a larger Navy war ship, the U.S.S. New York, where he was held for the next 13 days. He was beaten badly during the operation, allegedly because he resisted, causing a two-inch cut to his head requiring staples and leaving his face bloodied and black and blue.[71] Once on the ship, he was placed into a windowless 7 x 8 cell, with lights on continuously, and told not to address his captors with any words other than “bathroom” and “water.”[72] His access to a shower and meals were limited and he was not allowed continuous sleep—roused or moved every two hours for five days. Khatallah was masked for any movement outside his cell, even to the bathroom, so he could not see his guards’ faces. He was continuously shackled. He was held in these conditions for five days and interrogated by an intelligence-gathering team.[73]

After five days, his conditions changed and a new Federal Bureau of Investigation team, intended to be separate from the first intelligence-gathering team, led the questioning. Khatallah got a mattress, pillow, prayer rug and writing materials.[74] He went from two meals a day to three, was allowed to shower, and got a tracksuit as a change of clothes. He was told that the new FBI team had no knowledge of what was learned during the prior interrogation. After this, he was read his Miranda warnings for the first time, and told he had a right to remain silent and to a lawyer. He then repeatedly asked if a lawyer was present on board, but each time was told that one was not. He answered FBI’s questions anyway but each day on a form he indicated he was only doing so “due to there not being a lawyer available.”[75] Khatallah had been charged in a secret indictment in July 2013,^[76] which was unsealed the day after he was apprehended. On June 26, 2014 a federal grand jury issued a new indictment.^[77] He was arraigned in a Washington D.C. federal district court on June 28, 2014.^[78] On November 28, 2017, he was ultimately convicted at trial on terrorism charges but was acquitted of multiple counts of murder. On June 27, 2018 he was sentenced to 22 years.^[79]

Prior to his conviction, in a motion to suppress, Khatallah  alleged that the statements he made after his military detention were coerced – the product of his mistreatment during the intelligence phase of his 13-day detention on a US warship, in violation of his right to a lawyer which he argued he was entitled to and had requested.[80] District Court Judge Christopher Cooper rejected Khatallah’s claims finding that his treatment did not rise to a level that would require exclusion. Prior cases where coercion had been found, he wrote, involved a “substantial element of coercive police conduct” such as “physical beatings, and the use of drugs akin to truth serum.”^[81] By contrast, Khatallah was treated “respectfully and humanely while in custody,” Cooper wrote.”^[82] On his request for a lawyer, Cooper found that Khatallah did not unequivocally ask for one.[83]

It is hard to understand how Judge Cooper came to his decision. Perhaps the key to this is contained in a classified annex referenced in his opinion but not publicly available. Still many facts about the way Khatallah had been treated came out during a hearing and in the press.^[84] Not permitting Khatallah to get more than two hours of consecutive sleep every day for five days should be enough to constitute mistreatment, leading to sanction. But that, coupled with incommunicado detention, lack of access to family or to a lawyer, certainly seems to warrant such a step. When informed of his right to a lawyer, only half way through his detention on the ship, it seems clear that he wanted one, and only continued to answer questions without one because he assumed that one was not available. Regardless, if these circumstances do not rise to the level of warranting sanction, it should.

The purpose of issuing the warnings required by Miranda is to deter police abuse, guard against the inherent coercive nature of incommunicado detention, and ensure that statements obtained from the accused were voluntary.^[85] Impermissible coercion, the Miranda court warned, can be “mental as well as physical … the blood of the accused is not the only hallmark of an unconstitutional inquisition."[86] “Without proper safeguards,” the court had warned, “the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.”[87] Setting this kind of precedent undermines the safeguards that have been put in place to protect against this abuse in future cases.

Khatallah also argued that holding him on board a ship for 13 days violated his right to be promptly brought before a judge and informed of the charges against him – commonly referred to as the “right to presentment.” Under Rule 5 of the Federal Rules of Criminal Procedure, an arresting officer must "take the defendant without unnecessary delay before a magistrate judge."[88] The rule does not specify what constitutes “unnecessary delay” and one purpose of the rule is to "avoid all the evil implications of secret interrogation of persons accused of crime."^[89]

Courts can consider the means of transportation and the distance that needs to be travelled but delay for the purpose of interrogation "is the epitome of [an] unnecessary delay."^[90] Like the Miranda rule, the remedy for a presentment violation is also exclusion of the evidence derived from the period of delay, even if the statements were voluntary.[91]

The US had admittedly planned the Khatallah two-step interrogation months in advance. However, Cooper accepted prosecution arguments that they had exhausted all other options in trying to get him to court earlier. Transporting Khatallah by air, prosecutors argued, would have required the cooperation of other governments—cooperation that they could not obtain in the one request they made. Other requests would have compromised national security or the mission itself, they argued.[92] Ordering the nearest aircraft carrier, which at the time was in the Arabian Gulf, to Khatallah’s location, or transporting Khatallah to the carrier, was untenable.[93]

The fact that the only way for defendants to challenge the lawfulness of these detentions is through a motion to suppress or challenges to presentment is a problem that, if left unaddressed, leaves open the possibility for serious government abuse without recourse. It is already happening in other contexts, and in at least one case, with reliance on U.S. v. Khatallah for support.

Last year the New York Times reported that the US has apprehended hundreds of individuals suspected in drug smuggling crimes off the Pacific coast and were detaining them in conditions they allege are inhumane for weeks or months on board mostly US Coast Guard ships.[94] Over the past six years, the US has arrested roughly 2,700 people in such operations. Two of those apprehended, Johnny Arcentales and Carols Quijije, from Ecuador, said they were held on board various US ships for 77 days, at one point with 20 others, before they were brought to the US for trial. According to their accounts, and the accounts of others collected from court cases, detainees held as part of these operations are shackled by their ankles to the decks of ships for weeks sometimes months at a time, often exposed to the rain and sun, forced to defecate in buckets, sleep when they could on rubber mats, and deprived of food.[95] Arcentales said during this period he lost 20 pounds. Another detainee held with Arcentales and Quijije for a period of time said he lost 50 pounds.[96] During this period, they were not charged with crimes, held incommunicado, not read Miranda rights, and not permitted to speak to friends or family members, who in many cases were not informed of their loved ones’ whereabouts or whether they were alive or dead.[97]

These types of detentions and arrests are becoming more common. Between 1990 and 2000 such detentions averaged about 200 per year.[98] Then, in 2012, the Department of Defense’s Southern Command launched “Operation Martillo” or “hammer” aimed at shutting down drug smuggling routes.[99] This effort was largely ushered in by Trump’s current Chief of Staff John Kelly who, from 2012 to 2016 served as the head of the Southern Command and in that position also oversaw Guantanamo Bay.[100] In 2016, the US arrested 585 suspected drug smugglers and brought them to the United States to face charges, up by a third from 2012, 80 percent of whom were taken to the US to face charges. In the 12 months that ended in September 2017, the Coast Guard captured more than 700.[101] Prior to 2012 the US would send most of those apprehended in international waters and suspected of drug smuggling back to their home countries for prosecution, but since 2012, they have been sending more to the US for prosecution.[102]

The vast majority of those apprehended in these operations appear to plead guilty at early stages of their cases which never reach a point where they would file motions challenging their conditions of confinement and extended detentions. All seven of those interviewed for the New York Times story, for example, pled guilty and filed no such motions.[103] A search for cases filing such challenges turned up few results.

In one case, United States v. Mero, in which a defendant did file such motions, Judge Kimberly C. Priest Johnson, citing U.S. v. Khatallah, rejected the defendant’s motion to suppress due to his 12-day delay in presentment but expressed concern about what she said was credible testimony about the conditions in which the defendant was held.[104] Like Arcentales and Quijije, the defendant, Byron Mero, was “cable cuffed” the entire time he was on board US boats to either the vessel or other detainees, and held on the top deck where he was “exposed to the elements at sea.”[105] He was never told where he was being taken, even after asking, and did not learn of his destination until he finally arrived at Guantanamo Bay from where he was flown by air to the US.[106] Further, after being detained for twelve days at sea, a special agent interviewed him and told him that if he spoke to him he would receive a lower sentence. “Precedent dictates that although these conditions may reasonably put a defendant in a stressful, uncomfortable, and/or vulnerable position, the distance between the site of the arrest and the nearest magistrate judge leads to unavoidable delays in presentment,” she wrote, citing Khatallah.[107] If the US had the capacity, she suggested that it should consider arranging appearance by video for these defendants. “If the government is determined to detain defendants found in international waters and spend a long journey to bring them to the United States in order to prosecute them, some adjustments arguably should be made—particularly with the advancements in available technology.”[108]

In another case, United States v. Cheme-Ibarra, the defendants made not only a motion to suppress, but argued a new theory that conditions in which the government held the defendants constituted “outrageous government conduct” such that the entire case should be dismissed.[109] Judge M. James Lorenz said he was troubled by detainees’ accounts of “inadequate nutrition, weight loss, lack of privacy for toilet use and lack of sufficient protection from the elements.” Even so, he said, the conditions were not sufficient to meet the “steep burden” of demonstrating outrageous government conduct sufficient to dismiss the indictment.”[110] “This is not to say that such treatment of detainees is condoned by this court,” he added. “Far from it.”^[111] But whether “the physical discomfort, and psychological challenges could be avoided by the government agencies working to provide better accommodations is a question for another forum,” he wrote.[112]

The following year, in United States v. Giler et al., several other defendants who had been detained on US ships for 31 days in similar conditions without charges being filed, tried to get their cases dismissed on speedy trial grounds, arguing that they were entitled to such relief because charges had not been filed within 30 days of their arrest as required.[113] The prosecution argued that the time to start counting the 30-day requirement did not start until the defendants were brought to the US. The court, apparently for the first time in such a case, finding the indictment had been filed 37 days after the arrest of the defendants, and granted their motion to dismiss the charges.[114] However, the judge did so without prejudice and as a result, prosecutors were able to refile the charges so that the 30-day deadline was met.[115] Still, Judge James I. Cohn noted a concern that should be apparent in these drug interdiction case. “If government’s argument is taken to its logical extreme, an individual could be detained indefinitely for a federal crime as long as the government did not file a formal complaint.”[116]

Federal courts have been granting longer and longer delays in these drug interdiction cases, cases upon which Judge Cooper in Khatallah relied to find no presentment violation. Five days in the Caribbean in 1985, 16 days in 2006, and 19 days in 2012.[117] The average detention time is now 18 days and an official told the New York Times that men have been held up to 90 days.[118]

US treatment of prisoners on board these ships may violate US and international law, including treaties to which the US is a party, requiring the US to treat prisoners humanely.[119] International law also bars incommunicado detention and US law contains safeguards to prevent use of the practice.[120] Canada’s navy and air force provide support for US drug interdiction missions in international waters, though Canadian officials say they do not detain any prisoners on board their ships.[121] After the New York Times exposed abuse on board US Coast Guard ships, high-level Canadian military officials opened an investigation into Canadian complicity but ultimately found that no Canadian forces had witnessed or been involved in abuse. Still, they issued a statement that the allegations of mistreatment were “of grave concern to us.”[122] Under international law anyone subjected to this kind of abuse is also entitled to an effective remedy.[123] But if the only way to challenge the treatment is through motions to suppress or motions challenging presentment, an effective remedy in the US does not exist.

Over the course of the past several decades, US courts have permitted a greater number of exceptions to the right to presentment and Miranda requirements. These carve-outs increase the risk that prisoners in US custody will be subjected to abuse. The US should consider whether denying defendants these rights is necessary and worth potentially creating a space for abuse to foster without recourse. As stated above it is not clear that failing to read defendants their Miranda rights or presenting them to a court in a timely fashion really inhibits interrogation and intelligence gathering to any degree at all, let alone one that would justify, even for practical reasons, removing these safeguards against abuse. In the alternative, however, the US should consider, at least in cases where intelligence gathering is not the reason to delay, reading defendants their Miranda warnings at earlier stages. It should also consider the alternative proposed by the judge in United States v. Mero—arranging for defendants to appear via video conference from the ship, or going further, permitting defendants to consult with a lawyer or family via video or phone conference. Some scholars who have written about the two-tiered interrogation process suggest that bolstering habeas rights by not mooting petitions upon a detainee’s transfer to criminal process applying speedy trial rules more robustly and genuinely; or recognizing clearer damage remedies, currently woefully inadequate in a variety of government abuse contexts, are other solutions.[124] Bolstering the possibilities for dismissal in the case of mistreatment is another.[125] Regardless, current remedies are inadequate and without reform a dangerous loophole exits that is clearly too permissive of abuse.

3. Conclusion

Courts have permitted the US government to assert national security claims in a variety of ways that have eroded rights for those in the criminal justice system and others detained for different reasons. Seventeen years after 9/11 it is important that US government institutions and the courts evaluate some of these decisions and policies and consider fairer alternatives. This article has only touched on two discrete aspects, but a more thorough review is long overdue and required.