The capture of alleged al-Qaeda operative Abu Anas al-Libi by American forces last weekend in Tripoli raises a range of troubling questions. But the answer to one of them -- what to do with him now -- is clear. He should be transferred to a civilian court in the United States to face trial.
Reportedly under interrogation on a U.S. Navy warship in the Mediterranean, al-Libi now faces questions from a team of intelligence experts from the FBI, CIA, and other agencies. It's not clear how long interrogators will hold him at sea, but the government claims Congress authorized the abduction and interrogation with its 2001 Authorization for the Use of Military Force. That legislation authorized the president to use military force against those who attacked the United States on September 11, 2001, and anyone who harbored them. The Obama administration has since interpreted the law as an authorization for military force against the Taliban, al-Qaeda, and unnamed "associated forces."
Libyan officials have claimed the United States failed to inform them or seek their consent prior to abducting al-Libi outside his home in Tripoli, and call it an unlawful "kidnapping." If true (the Americans deny it), then the U.S. military action violated Libya's sovereignty. It would also violate al-Libi's rights under international human rights law -- the International Covenant of Civil and Political Rights -- to kidnap him, hold him incommunicado during his interrogation, and deny him a hearing before an impartial judge.
On the other hand, the abduction might have been justified if al-Libi was actively plotting attacks against the United States with al-Qaeda and Libya refused to arrest him. Some period of questioning before informing him of his rights, to ascertain any immediate security threats, might be lawful as well. At this point, we don't have enough information to know for sure.
What's clear now, though, is that the United States should transfer al-Libi to the United States for a civilian federal court trial as soon as possible.
Believed to be an al-Qaeda computer specialist, al-Libi was indicted in 2000 for his alleged role in the 1998 U.S. Embassy bombings in Kenya and Tanzania that killed 224 people, and in attacking U.S. forces in Saudi Arabia, Yemen, and Somalia.
Given that U.S. federal courts have handled hundreds of terrorism cases since 9/11, trying him in New York, where he's been charged, shouldn't be controversial. But as often happens when an alleged Qaeda operative is captured abroad, national security hawks have come out fighting, excoriating the Obama administration for not sending al-Libi to Guantanamo Bay.
"I believe the most responsible course of action would be to hold him as an enemy combatant at Guantanamo Bay for intelligence gathering purposes," said Senator Lindsey Graham (R-SC) this week. Although Graham also said he'd support a federal court trial for al-Libi, once at Guantanamo, al-Libi would likely be stuck there: current restrictions imposed by Congress likely make transfer to the United States for trial impossible.
Senator Kelly Ayotte (R-NH) has similarly chimed in: "As an al-Qaeda leader who is suspected of involvement in deadly terrorist attacks against American embassies in Africa, al-Libi should be treated as an enemy combatant, detained in military custody, and interrogated to gather information that will prevent future attacks and help locate other al Qaeda terrorists."
Mike Rogers (R-MI), chairman of the House Intelligence Committee, meanwhile said he was "profoundly concerned" that prosecuting al-Libi in a civilian court would prevent authorities from obtaining "the intelligence we need from him to help prevent future attacks and to break up terrorist networks." He added: "Enemy combatants should be tried in a military commission."
So far, the Obama administration doesn't seem to be taking those criticisms seriously. And it shouldn't. There's no question the civilian U.S. federal justice system has been the most effective way to question, prosecute, and convict terrorists accused of heinous crimes against the United States and its citizens. Since September 11, 2001, the government has successfully prosecuted nearly 500 individuals on terrorism-related charges, including members of al-Qaeda, in U.S. federal courts. U.S. federal prisons now hold more than 300 men convicted of terrorism related-offenses, including Zacarias Moussaoui, Faisal Shahzad, Ramzi Yousef, and Richard Reid. The Guantanamo military commissions, in contrast, have convicted only seven terrorists, and only three of those are still at Gitmo.
In fact, much of the evidence against al-Libi came from previous FBI investigations and trials brought in U.S. federal court arising out of the 1998 embassy bombings. Four al-Qaeda operatives were convicted for their involvement in that attack in 2001. Another was convicted and sentenced to life in prison in 2011.
Those cases produced a key government witness, a former al-Qaeda member who testified to al-Libi's involvement. The FBI investigations also uncovered a terrorism manual in al-Libi's home in Manchester, England that's been introduced as evidence in the earlier trials.
The few cases handled by military commissions at Guantanamo Bay, by contrast, have been a fiasco. There hasn't been a single contested trial on the merits yet. Two convictions have been reversed on appeal. And the 9/11 case is still stuck in a circus of pretrial hearings focused on which government agents are eavesdropping on defense lawyers' confidential communications with their clients and whether the defendants can talk about their torture at the hands of U.S. officials before receiving the death penalty. The Obama administration would be wise to avoid bringing any more cases in that venue.
The administration will still need to grapple with how best to lawfully capture and question suspected terrorists overseas going forward. But the method chosen in this case -- rendition to justice -- represents huge progress over the Bush administration's use of so-called "extraordinary rendition," which amounted to kidnapping for torture. And it's a far better solution than sending out a drone to conduct a summary execution.
In the meantime, whether or not the exact method used in al-Libi's case was lawful isn't going to affect the government's ability to bring him to trial. The U.S. Supreme Court has ruled that even an illegal rendition will not bar the government from prosecuting a defendant in federal court.
Now that he's in U.S. custody, that's exactly where al-Libi's fate should be determined.
An earlier version of this article was posted on Foreign Policy in Focus.