Team Obama Tries Capturing a Terrorist Instead of Droning Him

Since President Obama stepped into the White House, his administration has had a rather consistent reaction when it located an accused terrorist: drop a Hellfire missile on the guy's head. Saturday was different. U.S. forces got the drop on an al-Qaeda operative named Nazhi Abdul-Hamed al-Ruqai. But rather than drone him, those forces put him in cuffs. That not only marks a rather dramatic departure from what has been standard Obama administration policy. It could open a new chapter in the struggle against Islamic terror.

Al-Ruqai, better known by his nom de guerre Abu Anas al-Liby, is accused of helping plan the bombings of two U.S. embassies in Africa in 1998. He was captured on Saturday "under military authorities" and "is currently lawfully detained under the law of war in a secure location outside of Libya," Pentagon spokesman George Little said in a statement. The operation was approved by President Obama and was reportedly carried out with the assistance of FBI and CIA personnel. "Wherever possible, our first priority is and always has been to apprehend terrorist suspects, and to preserve the opportunity to elicit valuable intelligence that can help us protect the American people," Little said.

Capture may be the priority, but it's not the norm. The Obama administration has killed far more suspected terrorists and militants with drones and special operations strikes than it has brought back to face justice in the U.S. courts system. Indeed, on the same day that U.S. forces were capturing al-Liby, special operations commandos launched a strike in Somalia aimed at a senior leader of the terrorist group Al Shabab, which has claimed responsibility for the audacious assault against a shopping mall in Nairobi. The dual operations provided a stark example of the breadth of U.S. counterterrorism policy, which can encompass law enforcement actions as well as clandestine attacks.

Al-Liby would be only the second person allegedly involved in the 1998 embassy bombings to be tried in the United States since the September 11 attacks. That first, Ahmed Khalfan Ghaliani, was convicted in 2009 and has the distinction of being the only person held in Guantanamo Bay to be brought to the United States to stand trial in a criminal court. No accused conspirators in the 9/11 attacks have faced trial in the United States. The alleged mastermind, Khalid Sheikh Mohammed, is being tried in a military court in Guantanamo Bay, Cuba.

Obama administration officials have long expressed a preference for prosecuting terrorists in U.S. courts. But privately, they've said there are few places to keep them imprisoned while they await trial. A decision to try Mohammed in a U.S. court and keep him incarcerated in New York during the trial met with outrage from local, state, and congressional officials.

It's not clear whether Al-Liby's capture signals a new interest in prosecuting suspected terrorists in U.S. criminal courts. But in recent months the administration's use of lethal drone strikes has been evolving, to the point where they can no longer be seen as the default option for going after terrorists.

The number of strikes hasn't exactly dropped off--there has been a resurgence in Yemen in recent months. But the administration has taken drone strikes off the table in Iraq, where Iraqi officials have floated the idea of using drones to hit al-Qaeda militants there.

Little, the Pentagon spokesman, said the capture of al-Liby was "a clear sign that the United States is committed to using all the tools at our disposal to bring to justice those who commit terrorist acts against Americans."

National security experts said the capture of al-Liby appears to rely on the authorization to use military force against al Qaeda that Congress passed in 2001, which is the same legal doctrine that the Bush and Obama administrations have used to justify lethal strikes.

"Assuming [al-Liby] has not since abandoned his role in al Qaeda, then, he is almost certainly covered by the AUMF," Marty Lederman, a former senior Justice Department official, wrote on the new national security affairs blog Just Security. "Moreover, even if he weren't, the FBI likely had the statutory authority...to capture him overseas in order to bring him back to the U.S. for trial..."

If that's the case, capturing Al-Liby would not involve "any assertion or exercise of new or expanded legal authority," Lederman wrote.

Robert Chesney, a national security expert and co-founder of the blog Lawfare, also saw the authorization as "plainly relevant" to the capture. "That said, don't expect al-Liby to stay in military custody for more than a few weeks. This situation will unfold just like the capture of Ahmed Warsame a few years ago, meaning that after a period of no more than, say, 6-8 weeks, al-Liby almost certainly will be flown to the United States to face a criminal trial." Warsame, a Canadian citizen accused of aiding terrorists, was arrested in 2003 and held and questioned for more than a month before he was indicted.

The al-Liby operation also signals that the "battlefield" of the war on terror, as the United States sees it, is broadening.

"The invocation of the ‘law of war' rationale overtly extends the battlefield for the war on Al Qaeda, such as it is, to Libya," Phillip Carter, a senior fellow at the Center for a New American Security and a national security lawyer, told Foreign Policy. "That's significant at a time when we are drawing down in Afghanistan, after successfully dismantling Al Qaeda there and in Pakistan. The threat is metastasizing, and we are following it."

Carter said that if al-Liby is ultimately brought to trial, "This would mirror what has been done in recent cases, and reflect the evolution of a post-war CT model where military forces work in concert with other elements of national power." Phillips pointed to the recent criminal prosecution of two al Qaeda members in New York as cases where the administration could have used lethal force, but chose a law enforcement route.

Officials in Libya's interim government have demanded an explanation for the U.S. operation, which they described as a "kidnapping of a Libyan citizen." The United States has never asserted that it needs the permission of a host government to conduct anti-terrorism operations on its soil, although in some cases it does seek out and receive that blessing. But officials have stressed that if a government is unwilling or incapable of rounding up terrorists plotting attacks against the United States, American forces will act in the nation's defense -- a notion that traditionally recieves broad support in Congress

 "These raids show the President will use force when necessary to combat al-Qaeda threats wherever they may be," Rep. Eliot Engel, the ranking Democrat on the House Foreign Affairs Committee, told FP." Terrorists who have threatened the homeland should know that U.S. will not rest until they have been brought to justice or otherwise neutralized. We will never give up the hunt for those with American blood on their hands." 

Al-Liby has been indicted in the Southern District of New York in connection with his alleged role in the embassy bombings. He is accused of conducting photo surveillance of the embassies. Those photos were shown to Osama bin Laden, who gave instructions about where to place truck bombs to do the most damage, according to an ex-al Qaeda member who pled guilty for his role in the attacks.

Al-Liby was also once known as Al Qaeda's top computer expert. He spent time with bin Laden in Somalia in the mid-1990s. The embassy attacks were partly in retaliation for U.S. military strikes in Mogadishu in 1993. The charges against al-Liby include planned attacks against U.S. forces stationed in Saudi Arabia, Yemen, and Somalia.

Four other men were convicted for their role in the embassy bombings, in a trial that ended in August 2001. They are currently serving life sentences in the supermax prison in Colorado.