ADAM GOLDMAN and BENJAMIN WEISER
Friday January 27, 2017
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 an American 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.Senator Jeff Sessions of Alabama, Mr. 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.
In an early test of President Barack Obama’s belief that international terrorists could be successfully prosecuted in the criminal courts, Mr. Murphy was overruled. Mr. Warsame was prosecuted in federal court in Manhattan, and after pleading guilty to providing material support to the Shabab and Al Qaeda in Yemen and to other charges, he became one of the nation’s most important terrorism informants.
To Justice Department and F.B.I. officials, their success in prosecuting Mr. Warsame and eliciting important information from him was proof that an alternative legal system was not needed to keep America safe from terrorism. But that belief — a founding principle of Mr. Obama’s national security strategy — is about to be challenged by his successor, President Trump.
Mr. Trump is expected to formally endorse that view with an executive order keeping Guantánamo open and then fill it with “bad dudes,” as he has put it.
But a look at Mr. Warsame’s case — and the substantial cooperation he provided to the military and law enforcement — suggests it could again become a flash point 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 Mr.
Warsame’s capture and his 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.
Mr. Warsame provided crucial intelligence about Shabab and Qaeda 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 Qaeda in Yemen’s chief propagandist; and it has underpinned terrorism prosecutions in the federal courts in Manhattan, Brooklyn and Minnesota. With Mr. Warsame’s cooperation, the authorities also have secretly charged at least a dozen terrorists, including a top Shabab commander, who remain at large overseas.
Mr. Warsame’s cooperation was so significant that the military outlined it in a highly classified document that has never been made public.
“He ultimately proved to be one of the most important sources of intelligence,” said James McJunkin, the F.B.I.’s former counterterrorism chief, who declined to discuss what Mr. Warsame provided to the government. “Many, including prominent Republicans in Congress, were claiming at the time that federal courts were not a place for terrorists. The facts prove exactly the opposite. These critics can’t point to anything that occurred in Gitmo other than a damn mess.”
By the time of Mr. Warsame’s arrest in 2011, Al Qaeda in Yemen had, among other things, claimed credit for a Christmas Day 2009 attempt to blow up a Detroit-bound airliner and a 2010 plot to detonate bombs hidden in printer cartridges on flights heading for the United States.
The possibility of the group’s collaborating with the Shabab was a nightmare for United States officials, who were concerned that Al Qaeda might arm the Shabab to launch an attack on the West.
When American intelligence discovered Mr. Warsame was in Yemen and preparing to travel to Somalia by boat from the Port of Aden, a mission was developed, code-named Operation Cypress, to capture him, officials said. A Navy SEAL team and an F.B.I. agent with the Hostage Rescue Team parachuted into the region and waited for word that Mr. Warsame was on the boat.
The SEALs, disguised as Navy sailors conducting antipiracy missions, boarded at least one vessel before finding a man who they believed was Mr. Warsame on April 19, 2011, and taking him back to an American Navy ship, the Boxer. Mr. Warsame at first lied about his identity, but the F.B.I. was able to verify it.
Mr. Warsame pleaded with his captors not to be sent to Guantánamo and started cooperating almost immediately.
His shipboard interrogation by the military, lasting more than two months, occurred without his being advised of his Miranda rights, since the questioning was for intelligence collection and not law enforcement purposes. During the interrogation, Mr. Warsame said that he had met with Mr. Awlaki and also Ibrahim Hassan al-Asiri, the chief bomb maker for Al Qaeda in Yemen (who remains atop the military’s kill list.)
It was while this interrogation was taking place that Mr. Murphy, the chief military prosecutor, met with prosecutors in the United States attorney’s office in Manhattan. They were preparing a criminal case against Mr. Warsame.
In arguing that Mr. Warsame should be prosecuted at Guantánamo, Mr. Murphy noted the risks of a civilian trial, citing the acquittals in 2010 of Ahmed Khalfan Ghailani, a Qaeda operative, of all but one of more than 280 charges stemming from the deadly 1998 bombings of two American Embassies in East Africa. (Mr. Ghailani’s conviction on the remaining charge was nevertheless sufficient to earn him a life sentence.)
Mr. Murphy also noted that Mr. Warsame hadn’t been read his rights, raising the question of whether his statements would be admissible in federal court. He said that he could use them in a military commission.
The prosecutors disagreed. They suggested Mr. Warsame would continue talking after the military interrogation was over and after he was read his rights.
Bolstering their case against him were three cooperating witnesses in Minnesota who met Mr. Warsame in early 2008 at a safe house on the Somali coast where he was recuperating from a gunshot wound. Incriminating evidence was also found on Mr. Warsame when he was taken into custody: a laptop computer that he had been given by Samir Khan, an American member of Al Qaeda in Yemen who worked on its online propaganda publication Inspire.
After further discussions at the highest levels of the Obama administration, the decision was made to pursue a federal prosecution of Mr. Warsame.
Aboard the Boxer, Mr. Warsame was given new guards and interrogators, including an F.B.I. agent and former New York Police Department detective. The authorities changed the look of the room, displaying an F.B.I. seal to clearly distinguish the purpose and circumstances of the new interrogation from the earlier one, and to ensure Mr. Warsame understood that his answers to the law enforcement questioning were voluntary.
After a break of several days, Mr. Warsame was read his rights, and he agreed to continue to talk. He was eventually taken to Djibouti, and from there, to New York in an F.B.I. Gulfstream jet, arriving in early July 2011, when his capture was announced.
The Shabab and Al Qaeda had no idea what had happened to him. And he continued to talk.
The dispute over where Mr. Warsame should be prosecuted occurred more than a year after the debate over where to try Khalid Shaikh 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 a Qaeda 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 shown to be extremely effective.
Mr. Warsame helped prosecutors build a case against Mr. Khan, who later died in the drone strike that killed Mr. Awlaki. He also provided crucial information about a top Shabab commander known as “Ikrima,” who was later implicated in a 2013 attack on a mall in Nairobi, Kenya.
Mr. Warsame has yet to appear as a witness in an American trial though in at least six cases in Minnesota, Brooklyn and Manhattan, the threat of his testimony appears to have helped persuade defendants to plead guilty.
In one case in which Mr. Warsame was expected to be a witness, the defendant, Mohamed Ibrahim Ahmed, pleaded guilty in 2012 to conspiracy charges and was sentenced to just over nine years.
“Those who had the misfortune to know Mr. Warsame,” Mr. Ahmed’s lawyer, Sabrina Shroff, said recently, “even in the most fleeting of moments, have spent years in American jails regretting that chance meeting.”