Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

Proxy Detention of a U.S. Citizen in Iraq? A Glimpse Into a Murky but Important Category of Detention

Robert Chesney
Wednesday, March 15, 2017, 10:56 AM

I would have missed this story if Phil Carter hadn’t flagged it on Twitter, since the Post categorized it as a merely “Local” item: a U.S. citizen from Virginia by the name of Mohamad Khweis apparently was held in detention for three months by Kurdish authorities in Iraq (after having traveled there to join the Islamic State), with the U.S.

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I would have missed this story if Phil Carter hadn’t flagged it on Twitter, since the Post categorized it as a merely “Local” item: a U.S. citizen from Virginia by the name of Mohamad Khweis apparently was held in detention for three months by Kurdish authorities in Iraq (after having traveled there to join the Islamic State), with the U.S. government seemingly exercising considerable control over the situation. Khweis eventually was repatriated and now faces the predictable material support charges routinely brought in such cases. But what matters here is that the story of his detention in the Kurdish region is a rare (and no doubt incomplete) snapshot into the murky world of proxy detention—an important but easily-overlooked component of counterterrorism policy, especially over the past decade.

I want to be clear about my use of the phrase “proxy detention.” Read strictly, this implies that the detention, though implemented on the ground by another government, is in fact controlled by the U.S. government. I don’t mean to be that precise here. I’m grasping for a phrase that captures the idea of a spectrum that runs from true proxy detention as just described all the way back to situations in which the U.S. government has some degree of access or influence but by no means amounting to actual control over the situation. Put another way, the “proxy” scenario is not a binary in which the U.S. government either does or does not truly control the fact and circumstances of detention, but rather a broad spectrum encompassing degrees of influence that may fluctuate over time. Perhaps it would be better to call it hybrid or indirect detention, or maybe best not to try to label it at all. For better or worse, though, I’m just going to proceed with proxy detention as my label of convenience here.

No doubt there always has been some degree of proxy detention in relation to counterterrorism policy and similar areas in which a foreign government may have custody of a person who is perceived by the U.S. government to be a national security threat. I suspect, though, that this situation became a more significant element of U.S. counterterrorism policy as the friction surrounding U.S.-administered detention mounted during the Bush administration, and especially as the Obama administration determined that it would not take any new detainees into long-term U.S. custody. Many observers concluded that those developments led to an increased reliance on lethal force in place of detention (which may be true, though on close inspection it is hard to identify circumstances in which force was used and yet capture appears to have been a realistic option). Others concluded that it led to an increased reliance on bringing captured terrorism suspects into the civilian criminal justice system (though there are not actually very many examples of this from the eight Obama years). Perhaps both of these are true to some degree. But don’t forget the role of proxy detention as another alternative. It goes hand-in-glove with the prevailing model of the past decade, pursuant to which the U.S. governments acts when possible by, with, and through local partners.

There have been occasional glimpses of this model in action, as I observed here in 2011 vis-à-vis Somalia, again in a March 2016 post commenting on cooperative CT activities in Somalia, and again in an October 2016 post that includes some notes on proxy detention there. Against this backdrop, Monday’s story about the period during which Khweis was held in the Kurdish region is not at all surprising. What is interesting is that, unlike most such cases, Khweis is (i) a US citizen and (ii) now in a position to litigate some of the consequences of the proxy approach, in the form of a motion to suppress incriminating statements made to an FBI clean team before his return to the U.S.

The citizenship angle draws attention to the singular and limited window through which an ongoing situation of possible proxy detention might lead to judicial intervention from the U.S. If and when such a case is known, habeas litigation might arise, as in the somewhat well-known example of Abu Ali, a U.S. citizen said to have been held by the Saudis at the request of the U.S. government. Meanwhile, the motion-to-suppress angle highlights the fact that, even if no one knows of a proxy detention scenario while it is unfolding, and in any event even if no one pursues judicial intervention in federal court, the prospect of trouble with the admissibility of clean-team statements during a subsequent U.S. criminal prosecution (and more specifically, the prospect of embarrassing details being exposed through discovery relating to a motion to dismiss such statements) might cast a shadow over the situation in advance. But of course, that won’t matter if the U.S. government does not anticipate bringing the person to the U.S. for prosecution. One can only guess how often these situations arise, but if I had to bet I’d say that it is very rare for the U.S. government to contemplate bringing a person back to America for prosecution, and vastly more common for these situations to involve non-U.S. persons who will remain overseas no matter what. Khweiss, from this point of view, is probably just the small tip of a large iceberg.

I will close by underscoring that “proxy detention” as I’m using it refers to a wide spectrum of circumstances, and that along much of that spectrum the U.S. government has no real ability to control the fate of the detainee. This makes it very hard to offer global comments on this scenario, for it isn’t really a single scenario. But at any rate, this spectrum of activities is, I think, an important part of the larger story of CT policy, especially over the past decade since the United States largely abandoned self-administration of detention.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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