Constitution Check: Did the U.S. have power to arrest a Benghazi attack suspect in his home country?

Lyle Denniston explains why attorneys for Benghazi suspect Ahmed Abu Khatallah will have a tough time arguing his arrest was unconstitutional.

benghazi

Benghazi. Wikicommons user Dennixo

THE STATEMENTS AT ISSUE:

“Our nation’s memory is long, and our reach is far….We have conducted a thorough, unrelenting investigation, across continents, to find the perpetrators.”

– U.S. Attorney General Eric Holder, Jr., in a statement on June 17, announcing the capture in Libya of a Libyan national, Ahmed Abu Khatallah, on U.S. criminal charges for an alleged role in the attack on the U.S. diplomatic mission in Benghazi on September 11, 2012, killing the U.S. ambassador and three other Americans.

“While Delta Force soldiers provided the muscle, the raid [resulting in the suspect’s seizure] was carried out under law enforcement authority, not as a military operation under the longstanding congressional authorization of force against Al Qaeda and its associated forces, according to administration officials….An administration official said the United States had not told the Libyan government until after the operation.”

“It is not clear whether the law of war applied to [Abu Khatallah]. The United States is engaged in an armed conflict against Al Qaeda, the Taliban and their associated forces, but not against all Islamist militants anywhere in the world. It is a matter of dispute whether Mr. Abu Khattala’s militia, Ansar al-Shariah of Benghazi, has any meaningful operational ties to Al Qaeda.”

– Excerpts from two New York Times stories on June 18, discussing the nature of the secret U.S. operation in Libya – apparently carried out on June 15 — that resulted in the Benghazi suspect’s capture.

WE CHECKED THE CONSTITUTION, AND…

In a dangerous world, where terrorism and violence regularly move beyond national borders, it is no longer unusual for the American government to operate across the globe in trying to track down those who attack U.S. citizens or facilities. And, when a suspect is found and captured, the simple fact is that the Constitution does not stand in the way.   There is nothing explicit in the document’s text that forbids either the U.S. military or the FBI from acting alone or together in making an overseas arrest.

When Libyan national Ahmed Abu Khatallah is prosecuted on criminal terrorism charges under U.S. law, as the Justice Department plans to do, he will have a defense lawyer. And, no doubt, that attorney will argue that the charges should be dismissed because his arrest in his home country was beyond the power of U.S. authorities, broke international law because it showed no respect for Libya’s sovereignty, and violated his rights under the American Constitution. (There is no doubt, by the way, that while he is on trial, he will have the constitutional rights that protect anyone prosecuted in a U.S. court.)

But those challenges are not likely to succeed, and his trial almost certainly would go forward to a verdict for or against guilt.   The judge who conducts that trial will be strictly limited when asked to shut down the case, by decades of constitutional understanding about the power of the U.S. president and the Executive Branch to act globally to protect America’s interests and enforce its domestic laws beyond the nation’s shores.

And no part of the government’s defense of such a worldwide reach for its law enforcement is more powerful than a Supreme Court decision in 1990, in the case of U.S. v. Verdugo-Urquidez. In that decision, the court ruled that the Constitution provides no protection against the arrest overseas of a foreign national. More significantly, the court stressed that it would hesitate long before it would allow constitutional limits to “significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest.”

It is no surprise that, in carrying out sometimes expansive anti-terrorism actions, U.S. presidents have regularly relied upon that decision.

In the case of the coming prosecution of the suspect in the Benghazi attack, further detail is likely to come out about how the military and the FBI split up their role in the suspect’s capture.   From what has already been discussed publicly, however, it appears that Executive Branch officials planned it primarily as a law enforcement operation – that is, making an arrest of an individual already named in a previously secret set of charges – and not as a military operation, as such.

Such a strategic premise for seizing Abu Khatallah seemed aimed at heading off questions about whether the president could rely upon Congress’s sweeping 2001 resolution authorizing a U.S. response to the 2001 terrorist attacks on the U.S., since the application of that law to Abu Khatallah’s organization may be in doubt.

But treating the operation as one of law enforcement could also strengthen the legal basis for seizing the suspect in his home country, even if one assumes that the U.S. Constitution tolerates his arrest in the way it was carried out. After all, it is a matter of international law that a nation’s foreign embassies and other diplomatic sites are treated as a part of the territory of that nation, even if located thousands of miles from home territory. Prosecutors will argue that the 2012 attack on the Benghazi mission was the same legally as an attack on U.S. soil, so arrests made of suspects in that attack are entirely proper responses, no matter where they occurred.

If there is any serious legal cloud hanging over the arrest of Abu Khatallah, it could focus on whether that incident violated international law, because U.S. operatives went into Libya without telling that nation’s government that they were coming and did not tell it what they planned to do; they were finished and gone by the time that government learned about the raid.   Moreover, as recently as last September, U.S. officials told Congress that the Libyan government had barred the FBI from making any arrests in that country of suspects in the Benghazi incident.

The problem, though, is that it is far from clear where Libya might successfully turn – if it were inclined to object legally – to mount a challenge to the operation.   Perhaps the only options would be to the United Nations, or to the World Court. There are significant practical and policy problems with doing either, however.

There is, though, one final test that the case against Abu Khatallah must pass. Once put on trial, will he be tried fairly?   U.S. courts are credited with doing so, repeatedly, in terrorism cases in recent years. But each such case bears watching, because the nation’s reputation for equal justice is on trial, too.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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