Quite unlike its earlier, hold-for-interrogation-then-prosecute cases (Ghailani, Warsame, and Al-Liby), the United States now claims—has—no power to hold Abu Khattallah under the 2001 AUMF and laws of war. And without a wartime nexus, the government’s authority to detain for intelligence purposes prior to commencing criminal proceedings—rather than commencing criminal proceedings immediately—is less clear. In that regard, Abu Khattalla’s case stands to create a more broadly applicable (and thus perhaps more consequential) precedent.
