Obama’s drone strategy covers new legal, moral ground

The Obama administration departed from its drone strategy when it filed secret criminal charges against men suspected of carrying out last year’s attack in Benghazi, Libya, but the tactic works, analysts say, only if the U.S. can get its hands on the men.

President Obama publicly acknowledged the secret charges in a news conference Friday but would reveal no other details — though sources said the sealed indictment named Ahmed Khatallah, a Libya militia leader.

One congressman has called for the U.S. to send an assassination team after Mr. Khatallah, while another option would be to send a special operations forces or other clandestine team into Libya to extract him.

Doing so, however, may carry the equally obvious risk of triggering the same sorts of headaches — collateral civilian casualties and anger among host country leaders — associated with the administration’s policy of simply killing terrorist suspects with drones.

How the White House proceeds with the case may well set a precedent in a war that has been defined by legal chaos and a search for an appropriate level of military action.

“The reason we drop drones on people is that they pose a threat and we can’t get to them in any other way,” said John B. Bellinger, a Washington lawyer who served as a legal adviser for the State Department and the National Security Council during the George W. Bush administration.

“How do we now actually arrest him and bring him back?” Mr. Bellinger said. “We could try to cajole the Libyans into arresting him and turning him over. We could also send in U.S. special forces, but that would conceivably create some serious issues with the Libyans.”

The latter approach, Mr. Bellinger said, carries a high risk of devolving into a firefight.

A complicated case

Mr. Khatallah’s name first surfaced in international news reports during the days and weeks after the attack, when Libyan sources said he could have been a ringleader on the night of the Sept. 11 attack that killed U.S. Ambassador J. Christopher Stevens and three other Americans.

During the months after the attack, Mr. Khatallah gained notoriety by granting brazen interviews to The New York Times and CNN in which he claimed that no authorities had ever questioned him.

At his news conference last week, Mr. Obama was asked why nobody had been brought to justice for the Benghazi attack 11 months after it occurred.

“I also said that we’d get bin Laden and I didn’t get him in 11 months,” Mr. Obama replied, adding that getting those responsible for the attack “remains a top priority for us.”

Mr. Khatallah is suspected of involvement in several Islamist groups in Benghazi, including Ansar al Shariah, and analysts said he can be expected to take a violent stand if approached suddenly on his own turf by U.S. military or law enforcement authorities.

“Apprehending him is absolutely potentially complicated,” said Dell Dailey, a retired Army general who headed the Joint Special Operations Command during the years following 9/11 and later the State Department’s Bureau of Counterterrorism.

Apart from the tactical challenges, Mr. Dailey pointed to legal murkiness surrounding any case in which military forces are called upon to take action on civilian court indictments — particularly in a nation like Libya, with no congressional authorization for the use of U.S. military force.

“Unless we’re in a country like Afghanistan or Iraq, which has a state of war, I don’t think the military would exercise a sealed indictment apprehension,” he said. “Now, special forces might escort the FBI into a battlefield environment and blow down the door to building, but it’s going to be the FBI that arrests the guy and takes control of the person.”

Mr. Dailey speculated the rules for such an extraction might change if “this guy is on one of those mysterious and unacknowledged ’kill lists’” — a reference to the clandestine directory that the administration is reported to maintain with names and biographies of terrorists designated as eligible for targeting by drone strike.

“If that’s the case,” he said, “it’s likely a whole different story and the U.S. military force fits into place.”

’Eliminate this person’

Some on Capitol Hill have echoed such conjecture in recent days.

When asked about the Khatallah charges during a recent “Newsmaker” interview on C-SPAN, Rep. Dana Rohrabacher, California Republican, said that if the Obama administration has a sense of certainty that someone is a terrorist, there is simply no reason to be bogged down by legal questions surrounding the matter.

“Maybe you could send some kind of a team into a place like Libya, or you could cut a deal with the Libyan government or pay off the Libyan government to eliminate this person,” said Mr. Rohrabacher, a senior member of the House Committee on Foreign Affairs.

“I’m sure sending a drone is legal, but sending a guy with a high-powered rifle is illegal?” he queried sarcastically. “That type of nonsense, we’ve got to get over if we’re going to confront the radical Islamist terrorist threat that will murder thousands of people, even hundreds of thousands of our people if they get a chance.”

Mr. Obama spoke of the effectiveness of drones during a major speech on terrorism in May, but he stressed that “America does not take strikes when we have the ability to capture individual terrorists” and that “our preference is always to detain, interrogate and prosecute.”

But if the goal is to prosecute in the U.S. federal court system, the business of interrogation can create serious legal hurdles because each suspect must be charged with a crime within 24 hours of arrest and cannot be questioned indefinitely by federal agents seeking intelligence on terrorist plots.

Facing such hurdles, the Obama administration, on at least one occasion, has quietly embraced the tactic known as “rendition,” which drew harsh public criticism after 9/11 when it was used during the George W. Bush administration.

The tactic involves kidnapping suspects and holding them in foreign prisons where they can be interrogated indefinitely by U.S. agents without the traditional protections provided by U.S. and international law, including those against torture.

A January report by The Washington Post said the administration used the tactic in the small African nation of Djibouti to interrogate three men suspected of supporting the al-Shabab terrorist organization in Somalia.

The report was released after an FBI statement said the suspects were arrested by “local authorities” and held for about three months before being charged under a sealed federal indictment in New York.

Whether a similar approach already may be at play in the Khatallah case remains to be seen.

The Justice Department and White House have declined to comment on the sealed indictment against Mr. Khatallah, although CNN, which was first to report on the charges, said they were filed months ago in New York.

Despite the indictment, the Obama administration appears — rhetorically at least — to have left open the possibility that men like Mr. Khatallah could be tried outside the federal court system.

The president and some top aides have said they would prefer to use civilian courts, but an alternative would be the military commission system.

While the system has drawn attention at Guantanamo Bay over the past decade for its failure to produce convictions in terrorism cases, some of Mr. Obama’s most senior advisers have left it on the table as a viable option.

Speaking at Harvard Law School in 2011, CIA Director John O. Brennan — who at the time of the speech was serving as Mr. Obama’s assistant for homeland security and counterterrorism — said the “decisions on which system to use in a given case must be guided by the factual and legal complexities of each case, and relative strengths and weaknesses of each system.”

The administration continues to pursue military commission charges in some major cases, including against suspected 9/11 mastermind Khalid Shaikh Mohammed at Guantanamo. While Mr. Obama has long advocated the closure of the Guantanamo facility, his administration also has called for moving the military trial system to a facility inside the mainland U.S.