The government seems to think not, judging by New York Times
coverage I noted earlier this morning.
Among other things, the Times
piece discusses the executive branch's thinking about Abu Khattalla's detention at sea, on the one hand; and on the other, the procedural requirement that upon arrest, a defendant be presented to a judge "without unnecessary delay." I have supplied the emphasis:
Obama administration officials have also raised an argument they could make to a judge if they wanted to present in court a statement made by Mr. Abu Khattala: The delay was not “unnecessary” because it was easier to bring him through international waters than to transport him by helicopter to an airport in a country in Europe or North Africa, which would require the permission of the host country.
So: the idea is not that United States actually had to opt for a long cruise across the Atlantic. It is instead that the above represented the easier of several possible approaches; and that seemingly quicker air travel, via Europe or Africa, could require uncertain and time-consuming calls to allies, thus slowing things down.
It is true that the presentment requirement has been interpreted flexibly by some courts; and that some entirely expedient-seeming delays nevertheless have been deemed permissible. (The quintessential no-no is delaying presentment for the purpose of interrogating the defendant about the crimes he is accused of committing.) That acknowledged, I wonder how a district judge will respond to the argument above, if and when it is put forward.
To be sure, whatever the court's reaction might be, the stakes for the criminal prosecution are likely quite low: presentment claims aren't often humdingers for defendants. And as I mentioned earlier, violations of presentment rules are typically punished rather gently---by excluding any statements obtained in contravention of those rules. Here the United States' criminal case certainly won't depend on the introduction, at trial, of any such statements Abu Khattalla might have made during intelligence interrogation.