With every passing day that the US holds its newest terror suspect in the brig of the USS San Antonio, the Obama administration dives deeper into the extra-legal murk that characterized its predecessor.
Abu Anas al-Liby, a Libyan indicted by a federal court in New York 13 years ago, is somewhere in the Mediterranean Sea,where he has been for at least three days. Several Obama administration officials told the Guardian this week that the administration has yet to decide whether to prosecute Liby in a civilian court or through a military tribunal, even though his indictment in New York is in force.
The Geneva conventions state that prisoners of war be held on land, but there is ambiguity in legal circles as to whether this mandate applies to Liby. But the more immediate legal issue confronting the Obama administration, according to legal experts, is whether Liby is being detained on the USS San Antonio itself or whether the San Antonio is acting as a transit vessel taking Liby to his ultimate point of detention.
And that depends on how long Liby remains on the ship. “True transitory detention on a ship, for a brief period of time required by movement, might be OK,” said Robert Chesney, a law professor at the University of Texas who specializes in national security. “But of course, we’re not talking about a ship that is moving Liby somewhere.”