WASHINGTON — One day in 2011, the top prosecutor in the system of military commissions set up after the Sept. 11 attacks to prosecute terrorists traveled to New York for a special meeting with Justice Department officials. A Somali terrorist, Ahmed Abdulkadir Warsame, was being held aboard a US warship after being captured in international waters off Yemen, and the official, John F. Murphy, wanted him tried at Guantánamo Bay before a military commission.
In an early test of President Obama’s belief that international terrorists could be successfully prosecuted in the criminal courts, Murphy was overruled. Warsame was prosecuted in federal court in Manhattan, and after pleading guilty to providing material support to al-Shabab and al-Qaida in Yemen and to other charges, he became one of the nation’s most important terrorism informants.
To Justice Department and FBI officials, their success in prosecuting Warsame and eliciting important information from him was proof that an alternative legal system was not needed to keep the US safe from terrorism. But that belief — a founding principle of Obama’s national security strategy — is about to be challenged by his successor.
Republican Senator Jeff Sessions of Alabama, President Trump’s nominee for attorney general, has long believed that the Obama administration sacrificed valuable intelligence by bringing terrorism cases in federal court. Along with other Republicans in Congress, he has argued that the isolated military prison at Guantánamo is where such terrorists should be sent and tried.
Trump is expected to formally endorse that view with an executive order keeping Guantánamo open.
But a look at Warsame’s case — and the substantial cooperation he provided to the military and law enforcement — suggests it could again become a flashpoint in a debate over which system — civilian or military — is best to handle terrorism cases.
Current and former law enforcement officials, some of whom spoke on the condition of anonymity because many details about Warsame’s value as a witness remain secret, agreed on his importance. Among informants in federal custody, the officials said, he ranks among a handful whose information seriously disrupted terrorist plots and contributed to winning convictions.
Warsame provided crucial intelligence about al-Shabab and al-Qaida leaders and helped thwart a terrorist attack in Saudi Arabia, the officials said. His assistance also helped in the hunt to find Anwar al-Awlaki, an American imam who became al-Qaida in Yemen’s chief propagandist; and it has underpinned terrorism prosecutions in federal courts in Manhattan, Brooklyn, and Minnesota. With Warsame’s cooperation, authorities also have secretly charged at least a dozen terrorists, including a top al-Shabab commander, who remain at large overseas.
The dispute over where Warsame should be prosecuted occurred more than a year after the debate over where to try Khalid Sheikh Mohammed, the admitted mastermind of the Sept. 11 attacks, and four other detainees accused in the attacks. The Obama administration ultimately dropped a plan to try them in federal court in Manhattan after strong opposition from local officials, deeply disappointing prosecutors who saw the cases as the best chance to hold the men responsible.
But it turned out that it has been hard to build a functioning judicial system from scratch, let alone a court that operates at a remote base far from where the judge and lawyers live.
Contributing to years of delays, defense lawyers have been able to mount repeated challenges to every procedural step because the rules of the tribunals system are untested, unlike those of civilian court.
The use of plea deals at Guantánamo is also largely untested, and because the government maintains that it can hold an al-Qaida prisoner indefinitely as a wartime detainee even after he serves a sentence or is acquitted, military prosecutors may not be able to assure someone who seeks to cooperate that he will be released after serving his sentence.
In contrast, the value of cooperation deals in federal terrorism prosecutions has been extremely effective.