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Benghazi suspect: Enemy or criminal, or both, or neither?

Michael McGough

5:41 PM EDT, June 20, 2014

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The capture of Ahmed Abu Khatallah, the alleged ringleader of the 2012 attacks on a U.S. mission in Benghazi, Libya, has revived an old (and tedious) debate: Are figures such as Abu Khatallah “unlawful enemy combatants” or criminals?

The answer, of course, is that they can be both — just as Certs is a breath mint and a candy mint. And sometimes they are neither. In defending his trading of five Taliban detainees at Guantanamo Bay for Army Sgt. Bowe Bergdahl, President Obama said, “You don’t do prisoner exchanges with your friends, you do ’em with your enemies.” That imples that members of the Taliban belong to a third category: prisoners of war.

Sens. Lindsey Graham (R-S.C.) and Marco Rubio (R-Fla.) want Khatallah sent to Guantanamo for questioning. The Obama administration reportedly plans to try Khatallah as a criminal defendant in this country — after he is questioned on a Navy ship.

That replicates the administration’s treatment of another prisoner captured in Libya — Abu Anas al Liby (whose real name is Nazih Abdul-Hamed Ruqai), a suspected Al Qaeda figure indicted in the 1998 bombings of two U.S. embassies in Africa. The State Department said that Ruqai’s capture was justified by the Authorization for Use of Military Force passed by Congress after 9/11. But Ruqai was also charged with a federal crime.

An act of terrorism on foreign soil can also be a violation of U.S. criminal law. Khatallah is charged with “killing a person in the course of an attack on a federal facility involving the use of a firearm and dangerous weapon.” When most of us think of a federal facility, a post office comes to mind. But the diplomatic annex in Benghazi was also a federal facility.

So Obama is on firm legal ground in seeking to try these defendants in criminal court, despite Republican complaints. (He also has political motives for doing so: He thinks that providing suspects with the protections of American law enhances this country’s image.)

Still, the hybrid nature of these offenses does complicate matters. With ordinary criminal suspects, the overriding purpose of interrogation is to obtain information about the crime for which the suspect is in custody. When the prisoner is a suspected international terrorist, the government also wants to plumb the depth of the suspect’s knowledge about other plots. That can be hard if you expeditiously read the prisoner his Miranda rights.

The Obama Justice Department has discovered an ingenious way to question terrorist suspects for a prolonged period without Mirandizing them. In 1984, the Supreme Court ruled that when police are motivated by a desire to protect the public about an ongoing crime, they can question a suspect without reading him his rights, and that the resulting incriminating statements can be used at trial.

Adapting this “public safety exception” to terrorist cases, the department had FBI agents question Dzhokhar Tsarnaev, the 19-year-old immigrant suspected of planting bombs at the Boston Marathon, for some time before a federal magistrate read him his rights. According to a law enforcement official quoted in The Times, Khatallah was questioned initially about any new potential terrorism threats before he was read his Miranda rights.

Some civil libertarians worry (with good reason, I think) that this expansion of the public safety exception could migrate into ordinary criminal cases and weaken Miranda protections. They argue that, if the government is concerned that Mirandizing a suspected terrorist will cause him to clam up about ongoing plots, it should be willing to pay the price of not being able to use his incriminating statements in court.

The debate between the administration and Republicans like Graham would be easier to adjudicate if terrorism suspects could be pigeonholed as either enemy combatants in a global conflict or as criminals. Sadly, it’s not that simple.

Follow Michael McGough on Twitter @MichaelMcGough3