WASHINGTON – The U.S. capture of an al-Qaida suspect on Libyan soil has renewed questions of legality, with President Barack Obama relying on controversial rationales from his predecessor, George W. Bush.
U.S. commandos on Saturday seized senior al-Qaida figure Abu Anas al-Libi off the streets of Tripoli as he was parking his car and whisked him to a warship. Libya denounced the operation as a kidnapping and summoned the U.S. ambassador.
The White House declined to say whether it sought permission from Libya’s pro-Western central government but insisted that the operation was legal.
Obama told reporters Tuesday that al-Libi — a computer expert charged in a New York court over the 1998 bombings of the U.S. embassies in Kenya and Tanzania — “planned and helped to execute a plot that killed hundreds of people, a whole lot of Americans.
“We have strong evidence of that. And he will be brought to justice,” Obama said, vowing to go after “active networks” that aim against the United States.
His administration justified the operation under the 2001 Authorization for Use of Military Force by the U.S. Congress, which gave the president the power to target any nation, group or person involved in the Sept. 11 attacks.
But the case under international law is less clear. Article 2(4) of the U.N. Charter bars nations from the threat or use of force against other states.
The U.S. may have received tacit approval from Libya, despite its public denials, but otherwise would need to offer another rationale such as that Libya was allowing an attack to be planned on its territory, said Robert F. Turner, a professor at the University of Virginia School of Law.
“It would not surprise me at all if we had the private consent of the authorities and, if that’s the case, it was a perfectly lawful act,” Turner said. “It would also be a lawful act — although controversial — if he were still involved with terrorism,” he said.
But Turner said it was critical for the United States to provide a legal justification. “If we start saying our obligations don’t count because we’re the biggest gorilla in the zoo, we’re not going to have a strong case to tell the Iranians or North Koreans or anyone else that they need to observe their nonproliferation obligations,” he said.
In 2003, the CIA snatched the cleric Mustafa Osama Nasr on the streets of Milan and sent him to his native Egypt, where his lawyers said he was tortured. An Italian court later sentenced 23 CIA agents to prison in absentia, despite speculation that then-Prime Minister Silvio Berlusconi had quietly approved the operation.
“The same kinds of concerns and issues arise here in that the administration seems to be relying on law of war rationales to escape the constraints that apply under the criminal justice system,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project.