Using the Libya case as a reference point.
Nazih Abdul-Hamed al-Ruqai, or Abu Anas al-Liby, as he is more commonly known, has pleaded not guilty to charges of conspiracy to kill and maim Americans abroad and to attack US national defence facilities in connection with al-Qaeda’s bombing of US embassies in Kenya and Tanzania in 1998.
After being on the US most wanted list for 13 years, al-Liby was seized 11 days ago by members of the US army’s Delta force from the streets of Tripoli in a daylight operation that has stirred international controversy.
The Libyan government immediately demanded an explanation of the seizure, stressing that they were “keen on prosecuting any Libyan citizen inside Libya”.
US secretary of state, John Kerry, responded that al-Liby was “a legal target” and that he would face justice in the US. US president Barack Obama carefully avoided answering directly a question about whether the seizure had been lawful, only saying that al-Liby “helped plan and execute plots that killed hundreds of people, a whole lot of Americans. We have strong evidence of that. And he will be brought to justice”.
Below is from Foreign Policy Mag and I copied as I subscribe.
Barack Obama's administration has mounted a strenuous defense at the United Nations of its decision to capture Ahmed Abu Khattala, the chief suspect in the deadly 2012 attack on the U.S. compound in Benghazi, Libya. It notified the U.N. Security Council that America acted in self-defense to prevent similar attacks, according to an unpublished copy of the U.S. letter to the world body.
The appeal to the Security Council came as the Libyan government accused Washington of violating Libyan law by abducting Abu Khattala within its borders and urged the United States to return Abu Khattala to stand trial in Libya.
The Libyan government "considers this as a violation of legal sovereignty and certainly they are asking for some explanation from the U.S. government," Libya's U.N. envoy, Ibrahim Dabbashi, told Foreign Policy. "I think the guy is also wanted for crimes in Libya." The Libyan government, he added, believes that Libya should try him rather than the United States.
Dabbashi said he has "no idea" whether the United States officially sought Libyan approval for the operation. But he has no intention of formally protesting the American action. "There is no reason to raise it," he said. "I think it should be raised in Washington, D.C."
Pentagon spokesman Rear Adm. John Kirby said that the United States did tell Libyan authorities about the operation to capture Abu Khattala but wouldn't clarify whether it notified the government beforehand or afterward. "On the consultations with Libya, we've long made it clear that we were going to hold accountable the perpetrators of -- of Benghazi," he told reporters Wednesday. "This should come as no surprise to anyone, least of all the Libyan government. And I can tell you that they were -- they were notified about ... this capture operation."
It is unusual for the United States to report its counterterrorism operations to the United Nations.
The United States has long maintained that in self-defense it can legally pursue international terrorists anywhere in the world if it has evidence the terrorists are seeking to strike American targets. The Obama administration believes it requires no international approval to do so.
The United States provided no such explanation to the U.N. Security Council after Delta Force commandos in October captured Nazih Abdul-Hamed al-Ruqai (also known as Abu Anas al-Libi), a Libyan militant whom U.S. authorities linked to al Qaeda's 1998 bombing of two U.S. embassies in Africa that killed more than 200 people.
The United States has also never formally notified the 15-nation council of any of its targeted killings of terrorist suspects by drone, and it didn't make formal notification of its raid of Osama bin Laden's compound.
In a letter to Russia's Vitaly Churkin, this month's Security Council president, Samantha Power, the U.S. ambassador to the U.N., said that the United States determined that Abu Khattala was a "key figure" in the September 2012 attack on the U.S. diplomatic outpost, which resulted in the deaths of U.S. Ambassador J. Christopher Stevens and three other Americans.
"On behalf of my government, I wish to report that the United States of America has taken action in Libya to capture Ahmed Abu Khattala, a senior leader of the Libyan militant group Ansar al-Sharia - Benghazi in Libya," she wrote. "Abu Khattala will be presented to a United States Federal Court for criminal prosecution.
"Following a painstaking investigation, the U.S. government ascertained that Ahmed Abu Khattala was a key figure in those armed attacks," the letter continued. "The investigation also determined that he continued to plan further armed attacks against U.S. persons."
The U.S. rationale echoed the Bush administration's controversial doctrine of "preemptive war," which holds that the United States may act militarily in self-defense to respond to an imminent threat. Power provided no details of Abu Khattala's role in planning future attacks against U.S. citizens, but insisted that they were serious enough to merit American action.
"The measures we have taken to capture Abu Khatallah in Libya were therefore necessary to prevent such armed attacks, and were taken in accordance with the United States' inherent right of self-defense," she wrote. "We are reporting these measures to the Security Council in accordance with Article 51 of the Charter of the United Nations."
Article 51 states that U.N. members possess an "inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations."
David Bosco, a scholar at American University and an FP columnist who authored a book on the Security Council, said it is "unusual" for the United States to submit such a letter.
The United States, he said, is likely seeking to "solidify" its legal case. He suggested that the United States may not have had a clear green light from the Libyan government. "If the United States could claim that the Libyan government had endorsed or given its authorization to this operation, they would have been on solid legal ground internationally because of the right of sovereign governments to request assistance, including military assistance, from another government," he said. "This letter makes me think that the Libyan government is not on board with this operation and was certainly not publicly willing to condone it."
The U.S. Supreme Court has ruled that criminal defendants may be prosecuted in U.S. courts regardless of where or how they were captured and brought to the United States. In 1992, the court found that a Mexican doctor accused of assisting in the torture and murder of a Drug Enforcement Administration agent and his pilot in Mexico could stand trial in the United States even though the doctor was kidnapped from his home and flown in a private plane to Texas, where federal authorities arrested him.
"The fact of [the defendant's] forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws," the Supreme Court ruled.
Foreign Policy's Senior Writer Shane Harris contributed to this story from Washington.