Yet what’s so remarkable about this story is how unremarkable this kind of kidnapping has become. Abu Khattala is at least the fourth high-value terrorism suspect arrested overseas by U.S. forces in recent years to be brought here for trial. He is at least the second to be captured in Libya. And even though this tactic appears to be radical and intrusive, it’s probably the best.
U.S. law is tolerant of overseas kidnappings: Federal laws authorize overseas arrests (even those in violation of international law), and a range of our terrorism-related criminal offenses (including those with which Abu Khattala has been charged) apply extraterritorially. Moreover, under something called the “Ker–Frisbie doctrine” (named after the pair of antiquated Supreme Court decisions from which it derives), criminal defendants cannot seek to dismiss the charges against them on the ground that their presence was secured unlawfully. In other words, even if Abu Khattala was “kidnapped,” or was otherwise captured in violation of international (or U.S.) law, it is extremely unlikely that such a claim would have any bearing on his amenability to civilian criminal prosecution—whether or not one thinks it should. Courts have recognized an exception to Ker-Frisbie if the government’s conduct in capturing the defendant “shocks the conscience,” but cases in which those arguments have succeeded are few and far between—and have almost always included severe mistreatment of the defendant while he was in custody. Put another way, even if the U.S. violated Libyan sovereignty in capturing Abu Khattala, only Libya, and not Abu Khattala, can protest.
This seemingly batty system, though, is almost certainly the best way to nab terrorism suspects who take refuge in countries that won’t arrest them—even for them. In the early years of the Bush administration, overseas captures of a terrorism suspect invariably led either to his “extraordinary rendition” (in which he would be transferred to the custody of another country where he would be subjected to coercive interrogations—in many cases, outright torture) or, if the suspect was affiliated with al-Qaeda or the Taliban, his being shipped off to Guantánamo Bay. Indeed, a sizeable minority of the 149 detainees still at Guantánamo were captured somewhere other than the battlefields of Afghanistan and Pakistan.
And although the Obama administration has stopped subjecting new suspects to either of those fates, targeted killings through drone strikes appear to have become an increasingly popular tactic when capturing a high-value terrorism suspect (like Anwar al-Awlaki) is infeasible. Given the controversies surrounding drone strikes—including the lack of transparency concerning their frequency or legal justification—democratic kidnapping may be a far better outcome for the rule of law; at least then, the suspects can have some semblance of due process. And for suspects who both lack a connection to al-Qaeda and pose no imminent threat to the United States, it’s hardly clear that they can be targeted with military force at all—at which point the choices become democratic kidnapping or leaving them alone.
Instead, our real concern in these cases should not be the means by which the government captures terrorism suspects overseas, but rather, what happens next. Does the suspect have the same rights as any criminal defendant arrested within the United States, including rights to counsel, to be timely brought before a neutral magistrate, and to a speedy trial? Or is there some interim period during which he languishes in a form of legal limbo? The federal courts have only just begun to grapple with these questions, but if the current pattern holds, they will only become more significant as this practice, the least-worst option, becomes increasingly common.