Case Of Terrorism Suspect Raises Legal Questions

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Melissa Block speaks to former deputy national security adviser Juan Zarate about the Somali man flown to New York on Monday and indicted on nine counts of aiding two Islamist militant groups.

BLOCK: For more on this case and the questions of detention and jurisdiction, we're joined by Juan Zarate. He worked as a counterterrorism specialist under President Bush and served as a federal terrorism prosecutor during the Clinton administration. Juan Zarate, welcome back to the program.

Mr. JUAN ZARATE (former deputy national security advisor): Thanks, Melissa.

BLOCK: Do you agree in this case with the administration's position that the best venue for this case is in U.S. criminal court, not a military commission?

Mr. ZARATE: I certainly agree that the criminal court should be a venue of choice in any of these cases. And, I think, looking at these case by case and applying the appropriate venue makes a lot of sense. I think also we're advantaged now by the fact that we don't have a lot of these cases cropping up and so the administration has the luxury of being able to sit back, determine what they have on their hands, what kind of intelligence they can get from somebody, what kind of case they can make and where best to do that.

I think, in this particular case, the Obama administration is probably quite pleased because not only did they get good intelligence from this individual, but they got prosecutable evidence that they can now present in New York and try him and no longer worry about his status moving forward. So I think this is a good case for the administration to make in terms of the use of the criminal court system.

BLOCK: What about the military commissions, the questions of jurisdiction and the legal hurdles that might be posed if a case were to be brought there instead. Have those been resolved?

Mr. ZARATE: Well, they haven't been wholly resolved and I think the experts you had on in the prior segment pointed that out. The military commissions have been problematic. They've been challenged. There are certainly jurisdictional questions as to whether or not the military commissions act and jurisdiction applies to those not found in defined war zones like Iraq and Afghanistan. And this individual was found in the waters between Yemen and Somalia, and so there would be questions with respect to that.

There would also be questions to whether or not material support provisions as applied in the criminal context could be applied here. And so, there are some challenges. But I think having the full sort of array of tools available makes a lot of sense and applying them case by case is appropriate. The challenge, though, I think, for the Obama administration is explaining how they deal with a case where they have somebody who is providing a lot of intelligence but who may not be in a position to be providing prosecutable evidence.

For example, they don't waive their Miranda rights, they decide not to talk, there's not an ability to create other founts of evidence to create a case and it's somebody we don't want to release because they're dangerous. What do you do then? And I think that's really the thorny case. And that didn't occur here.

BLOCK: Because he talked.

Mr. ZARATE: We got lucky because he talked and he was willing to talk after he was given his Miranda rights and we're, I assume, able to make a fairly strong prosecutable case in New York. And so I think this should turn out well in this context, but it doesn't answer all the questions.

BLOCK: And Republicans, though, say that this defies the intent of Congress, that prisoners should not be transferred from Guantanamo Bay and should be, in fact, tried at Guantanamo Bay. What has Congress said definitively now at this point, about where terrorism suspects should be tried, what the venue is?

Mr. ZARATE: Well, Congress has spoken explicitly about detainees in Guantanamo and the fact that detainees in Guantanamo cannot be transferred to the U.S. to face article 3 court cases, criminal cases. That said, Congress has not spoken explicitly about those who are found or captured elsewhere around the world, outside of Iraq and Afghanistan and where they should be tried. And I think the administration has tried mightily to make the case that Congress should not be getting in the middle of those kinds of decisions.

I think at the end of the day, Melissa, what you have is really a polarized debate between whether or not we're talking about a pure wartime setting where wartime laws and procedures should apply or an ad mixture of even a criminal basis as the primary basis of dealing with these individuals. That's really what is fundamentally at play here.

BLOCK: And if we're looking for, say, an Obama administration doctrine on where terrorism suspects should be tried, are we seeing one emerging here? Is this pretty much a pattern, you think, that they'll follow?

Mr. ZARATE: I think the Obama administration has learned from some early mistakes. I think, certainly, fundamentally, they want to use the criminal legal system. They want to prove that Article 3 courts can be applied to terrorists and can be applied effectively.

I think part of that is doctrinal, part of it is also pragmatic. They don't like the military commission's process. They're messy. They don't like sending people to third countries. That's another option. They don't like indefinite detention, which this administration has continued. But they don't like it and they certainly don't want to add to the population in a place like Guantanamo or even in Bagram in Afghanistan.

And so the predisposition, I think, is to use criminal legal systems to apply to individuals who shouldn't be on the streets and who are dangerous to the U.S. national security.

BLOCK: Okay, Juan Zarate, thanks so much.

Mr. ZARATE: Thanks, Melissa.

BLOCK: Juan Zarate was deputy national security advisor for combating terrorism under President George W. Bush. He's now with the Center For Strategic and International Studies here in Washington.

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