A look inside the "disposition matrix" that determines when -- or if -- the administration will pursue a suspected militant
Over the past two years, the Obama administration has begun to formalize a so-called "disposition matrix" for suspected terrorists abroad: a continuously evolving database that spells out the intelligence on targets and various strategies, including contingencies, for handling them. Although the government has not spelled out the steps involved in deciding how to treat various terrorists, a look at U.S. actions in the past makes evident a rough decision tree.
Understanding these procedures is particularly important for one of the most vexing, and potentially most dangerous, categories of terrorists: U.S. citizens. Over the years, U.S. authorities have responded with astonishing variety to American nationals suspected of terrorism, from ignoring their activities to conducting lethal drone strikes. All U.S. terrorists are not created equal. And the U.S. response depends heavily on the role of allies, the degree of threat the suspect poses, and the imminence of that threat -- along with other factors.
What follows is a flow chart (click here, or the image below, for the full interactive feature) that takes us through the criteria and decision points that can lead to a suspect terrorist's being ignored as a minor nuisance, being prosecuted in federal court, being held in a Pakistani prison, or being met with the business end of a Hellfire missile.
1. Territorial Jurisdiction
If a suspected terrorist is in the United States, the answer is easy: The only way to deal with him is to arrest and prosecute him in the civilian criminal justice system. So first, the FBI and other law enforcement agencies will monitor him to learn about the full extent of his activities and gather evidence to determine whether he has in fact committed a crime. And if so, they will arrest him. The Bush administration tried it for citizens caught domestically only once, in the case of Jose Padilla, and eventually gave up and tried Padilla in civilian court. The Obama administration has stated that it will use the civilian justice system exclusively both for domestic captures in general and for citizens, wherever our forces get them.
Though it remains controversial, the domestic criminal justice system is actually one of the workhorses of American counterterrorism. Since 9/11, the United States has handled more Americans suspected than all other options combined -- both using charges of terrorism itself and using more inchoate charges like conspiracy and material support for terrorism. In addition, a significant number of Americans suspected of involvement in terrorism have been convicted of lesser, sometimes unrelated, offenses charges.
If the suspect is overseas, however, the complications begin. The remainder of this flowchart conveys the steps and decision points that the administration takes, explicitly or implicitly, when deciding the fate of a suspected American terrorist.
2. Return to the United States
Some suspects may be outside of the United States and have plans to return -- concrete, specific plans the government knows about. Abu Zubaydah, a jihadist logistician, had reportedly told interrogators that he knew of individuals planning to conduct a radiological attack on the United States. Based on this and other intelligence, the name of Jose Padilla came to the attention of U.S. officials and, after Padilla applied for a replacement passport in Pakistan, U.S. officials learned he was traveling home to the United States. The FBI tailed him when his plane went through Zurich, and then he was quickly arrested after arrival in Chicago's O'Hare airport. Padilla was initially held in military custody. Today, however, that would not happen. A suspect the government knew was on his way home would, like the suspect already here, be detained and enter the criminal justice system directly.
Most terrorists camped out overseas, however, are not rushing back, and even when they are, trusting that a suspected American terrorism suspect will return home to be arrested is risky. Locals may tip him off that the United States is seeking him (yes, it is usually a him), or he may decide for his own reasons to delay or cancel his return. In addition, allowing a suspected terrorist on a plane -- even if thoroughly searched -- is nail-biting for officials involved.
So, not surprisingly, it is rare that an individual will be both known to be returning and also allowed to do so. Most of the time, officials cannot simply assume that a suspect will come back into their laps.
3. Is there a Reliable Ally to Handle the Problem?
If the suspect is abroad and not headed home, the question of which country he is in becomes important. Is he in a country whose government will reliably keep an eye on him -- and arrest him, if need be? Is that government functional enough to pull off an arrest, or does it lack control over significant parts of its territory? Is it a country that will grossly mistreat the suspect in a fashion that might prejudice his ability to get a fair trial? Is it a country with an extradition relationship with the United States?
The answers to these questions vary a great deal among the many countries in which U.S. nationals suspected of terrorism have taken refuge. If an American is living in Britain, for example, a country with strong legal institutions and a cooperative working relationship with the United States, the issue looks very different from when an American suspect is in the tribal areas of Pakistan -- or the ungoverned areas of Yemen, a country with a history of failure to prevent al Qaeda jail breaks. Americans in Somalia, a country with no functioning government at all, are a different story still. And then there's Saudi Arabia -- a highly effective police state that has had no trouble arresting American jihadists, but whose treatment of them afterward has required careful monitoring to make sure that statements given were not elicited through torture.
4. When an Ally Will Transfer
When an ally is willing to arrest and transfer a suspect to U.S. custody, suspects inevitably wind up back in criminal-justice land. This is in some ways the ideal solution, as it requires only law enforcement and intelligence cooperation with allies, not a capture operation involving U.S. forces or a kill order. But it does sometimes end up requiring delicate litigation over the suspect's treatment abroad. For example, Ahmed Omar Abu Ali -- a young man from Virginia -- was arrested in Saudi Arabia for involvement with an al Qaeda cell. He was transferred some time later to U.S. custody to face trial for conspiring to, among other things, kill President George W. Bush. The major issue in his case was whether the highly incriminating statements he made in Saudi custody were voluntary or not. Deciding this question required, remarkably, testimony by Saudi intelligence officials who interrogated Abu Ali. Abu Ali was ultimately convicted and given a lengthy prison term.
5. When an Ally Won't Transfer
At times, an ally will not transfer a suspect to U.S. jurisdiction, instead preferring to try him on its own. In December 2009, Pakistan arrested five American Muslims from the Washington, D.C. area who had traveled abroad for training and to fight U.S. soldiers by joining up with the Taliban. The United States sought their extradition, but Pakistan refused. In 2010, a Pakistani court found them guilty and sentenced them to 10 years in prison for conspiring against the Pakistani state.