Title: The Legality of Dual Interrogations for High-Value Terrorists

With the start of the 2001 “War on Terror,” the interrogation of detainees engaged in conducting or plotting terrorism has been a source of much consternation — from both legal and policy standpoints. The goal of these interrogations is to glean meaningful intelligence that may help prevent future terror attacks against the United States or its allies. Far too often, however, meaningful debate about lawfulness and efficacy is mired in ideological or political dogma, making it difficult, if not impossible, to establish a clear understanding of the issues at hand. Illustrations of this point over the past 16 years are numerous. For instance, in May 2009, the U.S. Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts conducted a public hearing regarding the Bush-era Department of Justice-approved interrogation techniques for certain “unlawful enemy combatants” that was titled: “What Went Wrong: Torture and the Office of the Legal Counsel in the Bush Administration.” The title alone precludes the possibility of objective assessment and demonstrates that the Democratic party-chaired hearing was not a fact-finding exercise.

It is beyond the scope of this article to trace the evolution of how the law around permissible interrogation techniques employed on detained “terrorists” developed. However, a recent pre-trial hearing in the case of U.S. v. Ahmed Salim Faraj Abu Khatallah provides an excellent opportunity to review what our current legal institutions deem permissible in terms of so-called “dual interrogations” for certain “high value” terrorists arrested for federal crimes. The Islamist terrorist Ahmed Salim Faraj Abu Khatallah was charged with the murder of U.S. Ambassador Christopher Stevens and three other U.S. government employees in the September 11, 2012 terror attack on the U.S. Special Mission compound in Benghazi, Libya. Khatallah was apprehended in Libya, placed on a Navy ship, and subjected to two different interrogations. The first interrogation of the arrested suspect was conducted by the High-Value Detainee Interrogation Group, a special intelligence squad created under the Obama Administration. The second interrogation of the terror suspect was conducted by FBI agents after Khatallah waived his Miranda rights.

Genesis of the HIG

Following a series of Executive and Congressional decisions concerning permissible interrogation techniques for detained terrorists, the 2006 Supreme Court decision in Hamdan v. Rumsfeld mandated that all detainees must be treated under the provisions of Common Article III of the Geneva Conventions – there could be no degrading or humiliating treatment. Three years later, Executive Order 13491, issued by President Obama in January 2009, required all U.S. agencies (including the CIA) to comply with the updated Bush-era Army Field Manual on interrogations, which specifically outlaws: (1) forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner; (2) placing hoods or sacks over the head of the detainee, or using duct tape over the eyes; (3) applying beatings, electric shock, burns, or other forms of physical pain; (4) waterboarding; (5) using military working dogs; (6) inducing hypothermia or heat injury; (7) conducting mock executions; and (8) depriving the detainee of necessary food, water, or medical care. Today there is no difference between what the military and other federal agencies can do in terms of conducting interrogations.

Given the need to gather actionable intelligence from arrested terrorists, President Obama also established a special interagency task force to review the entire interrogation process. In August 2009, the task force recommended to the Obama Administration the creation of the HIG. Obama’s National Security Council authored the HIG’s charter in 2010, composing a team of experienced interrogators and support personnel drawn from law enforcement, the Department of Defense, and the intelligence community. While much about the HIG is classified, including the charter itself, we do know that it is authorized to employ non-coercive techniques to gather intelligence. The FBI states the following about the HIG:

The High-Value Detainee Interrogation Group (HIG) is a three-agency entity—FBI, Central Intelligence Agency (CIA), and the Department of Defense (DoD)—established in 2009 that brings together intelligence professionals from the U.S. Intelligence Community to conduct interrogations that strengthen national security and that are consistent with the rule of law. Though the HIG‘s principal function is intelligence-gathering—not law enforcement—the actions of HIG teams are carefully documented, evidence is preserved in the event of a criminal prosecution, and its members are prepared to testify in court if necessary.

In short, HIG personnel may not engage in any unlawful interrogation practices. They are authorized to use lawful, non-coercive techniques that are designed to elicit voluntary statements and that do not involve the use of force, threats, or promises. The HIG is instructed to focus specifically on “High-Value Individuals,” defined as individuals who have information about high-value terrorist subjects, terrorist threats, or strategic-level knowledge of terrorist organizations.

If al-Qa’eda, ISIS, and other similar Islamist terror groups are to be kept at bay, the United States must rely on intelligence-gathering as an integral counterterrorism tool. Thus, the gathering of information to protect the lives of civilians legitimates an array of means, and in the era of weapons of mass destruction, this process of intelligence gathering is of particular importance.

Dual Interrogations – the HIG Team and the FBI

Ahmed Abu Khattallah is only one of two arrested terrorists to face criminal charges in federal court for participation in the coordinated terror attacks on the U.S. Special Mission compound in Benghazi. On July 15, 2013, “a criminal complaint and arrest warrant were issued for him” and, on June 15, 2014, Khattallah was arrested in Benghazi by a specially formed and trained capture team consisting of an FBI agent and seven Navy SEALs. The American arrest team took Khattallah to the USS New York off the coast of Libya to transport him to the United States where he was presented before a federal judge in Washington D.C.

While aboard the USS New York, Khattallah was subjected to two forms of interrogation. The HIG team conducted the first interrogation, which lasted five days. In accordance with the HIG Charter, interrogations were conducted humanely but without any Miranda warnings. The government’s purpose in using the HIG was to obtain actionable intelligence and, therefore, did not require advising Khattallah of his Miranda rights. Nevertheless, the HIG questioning was preceded by reading Khattallah the provisions of Article III of the Geneva Conventions, which were also posted in writing on his cell wall.

After a two-day break, during which no interrogations took place, an entirely new team consisting solely of FBI agents conducted a second interrogation. This second interrogation also lasted five days and was for prosecutorial purposes. Each day, Khattallah was read his Miranda rights before questioning began.

On August 16, 2017, after conducting an eight-day evidentiary hearing to consider Khattallah’s assertion that the dual interrogation process undermined the voluntariness of his Miranda waiver, federal district judge Christopher Cooper issued a detailed 59-page pre-trial ruling that rejecting Khattallah’s arguments. Without suggesting which legal test was used in determining his decision on the lawfulness of the dual interrogation process, the court applied two different tests to evaluate the legality of dual interrogations in Khattallah’s case. Both tests are found in Missouri v. Seibert, the first in the Seibert Plurality Test, and the second in Justice Kennedy’s concurrence in Seibert.

The Seibert Plurality Test is one of effectiveness – “whether it would be reasonable to find that, in these circumstances the [Miranda] warnings could function ‘effectively’ as Miranda requires.” Based on the Seibert Plurality Test, the court concluded that the HIG intelligence-based interrogation was much broader than the second FBI Miranda interrogation, which focused on Khatallah’s involvement in the Benghazi attack. The court also found that there was a significant break between the two types of interrogations where “Khatallah had two days entirely free of interviews, and during that break, he began receiving an extra daily meal and more regular shower privileges.” Finally, the court noted that, before the second Miranda interrogation, the FBI agents made it clear to Khatallah that they were conducting a different and separate interrogation, this one not centered on intelligence-gathering. Moreover, “[t]he FBI agents also did not reference any information from the prior interviews, nor could they have, as they did not know what was discussed.” After considering these factors, the court rejected Khatallah’s argument that the dual interrogations violated his rights based on the Seibert Plurality Test.

Similarly, Justice Kennedy’s test, which focused on the actual intent of the HIG interrogation, was also satisfied. The court cited numerous judicial precedents that focused on several factors in determining “deliberateness” – such as overlapping content, continuity of interrogators, and the completeness of any pre-warning interrogations. Applying these factors, the court found the government did not violate Miranda with deliberate intent. Indeed, from beginning to end, Khatallah was viewed as an international terrorist during the first HIG interrogation. Finally, the intelligence-gathering purpose was demonstrated in the information yielded from the interviews, which was logged by reports and daily summaries that were distributed to the intelligence community. The purpose, therefore, of the first HIG interrogation was to protect national security and not to undermine Miranda.

Conclusion

The use of the dual interrogation process did not undermine the voluntariness of Khatallah’s Miranda waiver. Khatallah’s HIG interrogation was properly performed and perfectly executed. In fact, the way in which the HIG interrogation was conducted vis a vis Khatallah represents the gold standard for how the HIG process should function. In no way was the second FBI interrogation, which was properly conducted after waiting two full days and obtaining written and verbal waivers of Khatallah’s Miranda rights, tainted by the HIG interrogation. Focused entirely on the Benghazi attack, the second interrogation was intended to obtain incriminating statements that could be used to prosecute Khattallah to the full extent of U.S. domestic law. The Khatallah investigation clearly demonstrates that the United States can gather actionable intelligence without compromising U.S. obligations to uphold legal and human rights standards. The case in question proves the legality of dual interrogations of terror suspects from a Miranda perspective and provides a model for future HIG conduct. Justice was well served.

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Lt. Colonel Jeffrey F. Addicott, S.J.D. (U.S. Army, JAGC, ret.) is a Professor of Law & Director of the Center for Terrorism Law, St. Mary’s University School of Law. The author wishes to acknowledge the superb efforts of research fellow Trevor Deason who supported this article with outstanding research, drafting, editing, and insight.