Working with the FBI and other federal counterparts, police in New Jersey have located and taken into custody Ahmad Khan Rahami, the primary suspect in the New York and New Jersey bombings and police shootings. The feds filed a four-count criminal complaint against him that was unsealed Wednesday.
The authorities are still piecing together a comprehensive picture of Rahami, what he did, when he did what, where he traveled, his social media footprint, forensic exploitation of the crime scenes, and other evidence that might be available via other counterterrorism and lawful surveillance tools.
We don’t have all the facts, and it is likely that federal officials will uncover more in the coming days and weeks. Still, it is worth exploring the facts as we know them and some of the controversial issues related to Rahami’s legal status and interrogation.
What Facts Do We Know So Far?
The criminal complaint includes four counts:
- Use of weapons of mass destruction (18 U.S.C. 2332(a)(2)(A));
- Bombing a place of public use (18 U.S.C. 2332f(a)(1)(A));
- Destruction of property by means of fire or explosives (18 U.S.C. 844(d)); and
- Use of a destructive device during and in furtherance of a crime of violence (18 U.S.C. 924(c)(1)(A)).
There will likely be more charges, including terrorism charges, brought against the defendant in the near future.
The facts alleged in the criminal complaint in support of the four counts include:
- On Sept. 17, at approximately 9:35 a.m., an improvised explosive device exploded in Seaside Park, New Jersey. The explosion happened along the route of a Marine Corps charity 5k race, which was scheduled to begin at 9 a.m. but had been delayed due to other law enforcement action. The IED consisted of three connected pipe bombs, only one of which detonated. A cellphone was found nearby after the blast, which likely functioned as the timer for the bomb.
- On Sept. 17, at around 8:30 p.m., an IED detonated near 135 West 23rd Street in New York City. The bomb was comprised of a high-explosive main charge and had been placed inside a pressure cooker and left in a dumpster. When it exploded, it propelled the dumpster more than 120 feet, shattering windows 400 feet from the blast site and some windows more than three stories high. The bomb was packed with ball bearings and steel nuts. According to the report, some 31 people were injured. The remnants of a cellphone were found in the immediate area and were determined to be the likely timer for the bomb. Video surveillance of the area 37 minutes before the explosion depicts a person walking on the sidewalk, who looked like the defendant.
- A short time later, another unexploded IED was located by law enforcement in New York City on 27th Street, about four blocks from the 23rd Street bombing. The unexploded bomb was contained in a pressure cooker with wires from a cellphone protruding. It was packed with a high-explosive main charge, ball bearings, and steel nuts. Law enforcement found 12 fingerprints of the defendant from the recovered bomb, including on the pressure cooker, duct tape, and triggering cellphone. Video surveillance shows a person walking with a small suitcase approximately two minutes after the explosion of the 23rd Street bomb, and minutes later walking away from the camera without the suitcase. Authorities believe the person in the video is the defendant.
- On Sept. 18, at 8:40 p.m., multiple IEDs were found inside a backpack near the entrance to the New Jersey Transit station in Elizabeth, New Jersey. One device detonated as law enforcement officers tried to defuse it. Law enforcement recovered and inspected the remnants of the exploded and unexploded devices, the backpack, and handwritten documents found in the backpack. They found the defendant’s fingerprints from materials contained in the backpack.
- The criminal complaint also details eBay purchases of bomb components by someone with the username “ahmad rahimi,” and subsequent shipment to his place of employment. Investigators believe the purchaser to be the suspect. The report further details how two of the cellphones used in the bombings were connected to the defendant; his online activity; and the fact that a video—taken two days before the first bombing—shows the defendant igniting an incendiary device in a backyard.
What Law Should Be Applied—Domestic Criminal Law or the Law of War?
The administration has been consistent regarding cases like these: it applies domestic criminal law, with a slight twist.
That twist is the fact that law enforcement and intelligence operatives realize that questioning the suspect immediately after apprehension is paramount, as it can provide valuable information about imminent terror acts or plots. Gaining intelligence, not for subsequent prosecution and/or use in trial but to eliminate a potentially ongoing and imminent threat, is the primary purpose of questioning.
Despite calls from some to apply the law of war and treat the defendant as an unlawful enemy combatant, that is not going to happen. He is a United States citizen—we have never captured a U.S. citizen in the United States and sent him to Guantanamo Bay. Furthermore, under the Military Commissions Act of 2009, only non-U.S. citizens are subject to the jurisdiction of military commissions.
Over time, the administration has developed a protocol—handling a number of high-profile international and domestic terrorism cases—for how it believes these cases should be handled. Those cases include the 2009 Christmas Day attempted airline bombing by the so-called “underwear” bomber, Umar Farouk Abdulmutallab, and the 2010 Times Square car bombing attempt by Faisal Shahzad.
In both cases, the suspects attempted a terrorist act in the United States. They were both arrested, interrogated for intelligence purposes first, then given their Miranda warnings, and were eventually prosecuted and convicted in federal district court.
Rather than reading Rahami his Miranda warnings—which then gives him the upper hand in deciding whether to talk or not—the administration has chosen to invoke the “public safety exception” to Miranda, first recognized by the U.S. Supreme Court in New York v. Quarles.
When invoked properly, law enforcement can interrogate a suspect for a period of time immediately after detention for the express purpose of finding out from the defendant if there is a threat to public safety. There is some debate about how long the public safety exception can be used (hours or days), but it gives law enforcement, working with intelligence professionals, the chance to try to talk to the suspect to determine if there are ongoing threats to the public.
What Are the Available Interrogation Options?
Perhaps the most pressing decision right after Rahami was shot and captured was how best to interrogate him. Here, the administration has made clear over the years, through a series of terrorism cases, that it prefers to question the suspect for a period of time to ascertain whether there is valuable intelligence to be gained, and whether there is an imminent threat to public safety.
If and when the defendant wakes up, it is very likely that the administration will use the relatively new High-Value Detainee Interrogation Group to interrogate the defendant. Run out of the FBI, but comprised of intelligence and other experts, the interrogation group’s mission is to provide real-time interrogation exploitation of a terrorist suspect in cases such as these.
It’s important to recognize that, over the past 15 years, we have learned a great deal from lawful interrogations of enemy combatants and criminal terrorist suspects.
Many captured terrorists chose not to talk to Department of Defense officials, and that was their right. Others chose to talk. The same holds true for domestic criminal terrorism suspects: some talk to law enforcement and intelligence officials, others choose not to.
The decisions that law enforcement and national security officials have to make in short order will, no doubt, not make everyone happy. Gaining time-sensitive information from Rahami should be job number one. While it appears that he may have acted alone, it is just too early to tell.