Wake up, America! On July 15, the Court of Appeals for the Fourth Circuit ruled by 5 votes to 4 in the case of Al-Marri v. Pucciarelli (PDF) that the President can arrest US citizens and legal residents inside the United States and imprison them indefinitely, without charge or trial, based solely on his assertion that they are “enemy combatants.” Have a little think about it, and you’ll see that the Fourth Circuit judges have just endorsed dictatorial powers.
In the words of Judge William B. Traxler, whose swing vote confirmed the court’s otherwise divided ruling, “the Constitution generally affords all persons detained by the government the right to be charged and tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the United States to military detention unless they fall within certain narrow exceptions … The detention of enemy combatants during military hostilities, however, is such an exception. If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities.”
As was pointed out by Judge Diana Gribbon Motz, who was steadfastly opposed to the majority verdict (and whose opinion was endorsed by Judges M. Blane Michael, Robert B. King and Roger L. Gregory), “the duration of the relevant hostilities” is a disturbingly open-ended prospect. After citing the 2007 State of the Union Address, in which the President claimed that ‘[t]he war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others,’” Judge Motz noted, “Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a ‘war on terror’ has no bounds.”
The Court of Appeals made its extraordinary ruling in relation to a habeas corpus claim in the case of Ali Saleh Kahlah al-Marri, whose story I reported at length here. To recap briefly, al-Marri, a Qatari national who had studied in Peoria, Illinois in 1991, returned to the United States in September 2001, with his US residency in order, to pursue post-graduate studies, bringing his family — his wife and five children — with him. Three months later he was arrested and charged with fraud and making false statements to the FBI, but in June 2003, a month before he was due to stand trial for these charges in a federal court, the prosecution dropped the charges and informed the court that he was to be held as an “enemy combatant” instead.
He was then moved to a naval brig in Charleston, South Carolina, where he has now been held for five years and one month in complete isolation in a blacked-out cell in an otherwise unoccupied cell block. For the first 14 months of this imprisonment, when he received no visitors from outside the US military or the security agencies, he was subjected to sleep deprivation and extreme temperature manipulation, frequently deprived of food and water, and interrogated repeatedly.
In August 2004, representatives of the International Red Cross were finally allowed to visit al-Marri, and two months later he was permitted to meet with a lawyer, when he finally had the opportunity to explain that his interrogators had “threatened to send [him] to Egypt or to Saudi Arabia where, they told him, he would be tortured and sodomized and where his wife would be raped in front of him.”
Based on advice given to Donald Rumsfeld by Defense Department lawyers regarding the use of isolation at Guantánamo, when the lawyers warned that it was “not known to have been generally used for interrogation purposes for longer than 30 days,” al-Marri has now been held in solitary confinement for 67 times longer than the amount of time recommended by the Pentagon’s own lawyers (this figure includes the six months that he spent in isolation in Peoria County Jail and the Metropolitan Correction Center in New York, before being transferred to Charleston).
It is, therefore, unsurprising that his lawyer, Jonathan Hafetz of the Brennan Center for Justice at the New York University School of Law, has explained that he is suffering from “severe damage to his mental and emotional well-being, including hypersensitivity to external stimuli, manic behavior, difficulty concentrating and thinking, obsessional thinking, difficulties with impulse control, difficulty sleeping, difficulty keeping track of time, and agitation.”
So what is Ali al-Marri supposed to have done to justify being held in solitary confinement for almost as long as the duration of the Second World War? The presidential order declaring him an “enemy combatant” stated simply that he was closely associated with al-Qaeda and presented “a continuing, present, and grave danger to the national security of the United States.” Elaborating, in subsequent statements, the government has claimed that he was part of an al-Qaeda sleeper cell, who had been instructed to carry out further terrorist attacks in the United States, targeting reservoirs, the New York Stock Exchange and military academies.
What’s particularly worrying about these charges is that, by the government’s own admission, the primary sources for its supposed evidence against al-Marri are confessions made by Khalid Sheikh Mohammed (KSM), the alleged architect of the 9/11 attacks, during the three months following his capture in March 2003, when, as even the CIA has admitted, he was subjected to waterboarding, a form of controlled drowning, which the torturers of the Spanish Inquisition at least had the honesty to call “tortura del aqua.”
As I discussed at length in an article last summer, KSM stated during his tribunal at Guantánamo in March 2007 that he had given false information about other people while being tortured, and, although he was not allowed to elaborate, I traced several possible victims of these false confessions, including Majid Khan, one of 13 supposedly “high-value” detainees transferred with KSM to Guantánamo from secret CIA prisons in September 2006, Saifullah Paracha, a Pakistani businessman and philanthropist held in Guantánamo, and his son Uzair, who was convicted in the United States on dubious charges in November 2005, and sentenced to 30 years in prison.
As I also stated last November, “It’s possible, therefore, that al-Marri is another victim of KSM’s tangled web of tortured confessions, but whether or not this is true, the correct venue for such discussions is in a court of law, and not in leaks and proclamations from an administration that appears to be intent on holding him without charge or trial for the rest of his life.”
When I wrote these words, it seemed possible that the Fourth Circuit judges would act to prevent al-Marri from having the dubious distinction of being the last “enemy combatant” on the US mainland, and would put pressure on the government to transfer him to a federal prison to face a trial in a US court, as happened with Jose Padilla (left), a US citizen and one of two other “enemy combatants” imprisoned without charge or trial — the other being Yaser Hamdi, a US-born Saudi, who was held in Guantánamo until it was ascertained that he held US citizenship. In Hamdi’s case, however, a brief stay at the Charleston brig was followed by a deal that allowed him to return to Saudi Arabia.
In June 2007, a panel of three Fourth Circuit judges dealt a blow to the administration’s claims by ruling that “the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’” Last week’s decision followed a successful appeal by the government, but when the Fourth Circuit court met en banc to reconsider al-Marri’s case in October, it seemed possible that they would uphold the panel’s June verdict. When Judge Michael asked the government’s representative, Gregory J. Barre, “How long can you keep this man in custody?” and Garre replied that it could “go on for a long time,” depending on the duration of the “war” with al-Qaeda, Judge Michael stated, “It looks like a lifetime.”
I now realize, of course, that it was always highly improbable that the Fourth Circuit court — widely regarded as the most right-wing court in the country — would end Ali al-Marri’s legal limbo, although it was somewhat ironic that, in a separate ruling, the swing-voting Judge Traxler ruled in al-Marri’s favor when it came to a decision to grant him some as yet unspecified ability to challenge the basis of his definition as an “enemy combatant.”
This, at least, earned him the gratitude of Judge Motz, who stated that “the evidentiary proceedings envisaged by Judge Traxler will at least place the burden on the Government to make an initial showing that ‘the normal due process protections available to all within this country’ are impractical or unduly burdensome in al-Marri’s case and that the hearsay declaration that constitutes the Government’s only evidence against al-Marri is ‘the most reliable available evidence’ supporting the Government’s allegations.”
In other respects, however, the court only added to its reputation as a defender of the indefensible. Not content with endorsing the President’s dictatorial right to imprison “enemy combatants” without charge or trial on the US mainland, the judges responsible for the majority verdict ruled that the President did not even have to allege, as he did with Yaser Hamdi (left) and Jose Padilla, that an “enemy combatant” had either been in Afghanistan or had ever raised arms against US forces.
The injustice of this was pointed out in the opinion of Judge Motz, who stated that, “unlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict, and not alleged to have engaged in combat with United States forces anywhere in the world.”
Judge Motz added, however, “With regret, we recognize that this view does not command a majority of the court. Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power.”
Disturbingly, as Judge Motz mentioned above, the court also indicated its presumption that its ruling applies not just to legal residents like Ali al-Marri, but to US citizens as well. Judge Traxler noted, “it is likely that the constitutional rights our court determines exist, or do not exist, for al-Marri will apply equally to our own citizens under like circumstances,” and Judge Motz explained that the lack of distinction between citizens and residents had become apparent at oral argument, when the government “finally acknowledged that an alien legally resident in the United States, like al-Marri, has the same Fifth Amendment due process rights as an American citizen. For this reason, the Government had to concede that if al-Marri can be detained as an enemy combatant, then the Government can also detain any American citizen on the same showing and through the same process.”
We have, to be honest, been here before. In September 2005, a three-member panel upheld, in Padilla’s case, the President’s power to hold US citizens indefinitely without charge or trial (PDF). This verdict was never tested, as the government took Padilla out of the brig and into the court system (where he was convicted in January) before the Supreme Court could rule on his case, but as Glenn Greenwald noted in an article in Salon, the upshot is that the 2005 Padilla verdict still stands. To that extent, all that has changed now is that the Fourth Circuit court has reinforced its former ruling en banc.
Al-Marri’s lawyers will doubtless appeal, and, if justice still counts for anything, his case will go all the way to the Supreme Court. However, it remains incomprehensible to me that the whole sorry saga has lasted for so long already. As Jonathan Hafetz and his colleagues explained last November when they presented their arguments to the Fourth Circuit judges (and as Judge Motz noted last week), the President “lacks the legal authority to designate and detain al-Marri as an ‘enemy combatant’ for two principal reasons”: firstly, because the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and secondly, because, although a district court previously held that the President was authorized to detain al-Marri under the Authorization for Use of Military Force (the September 2001 law authorizing the President to use “all necessary and appropriate force” against those involved in any way with the 9/11 attacks), Congress explicitly prohibited “the indefinite detention without charge of suspected alien terrorists in the United States” in the Patriot Act, which followed five weeks later.
That seems pretty clear to me. In the “War on Terror,” however, as I have learned during my research over the last two and a half years, all forms of logical thought — sometimes in the courts, most of the time in military custody, and as a permanent fixture in the war rooms where torture was endorsed — have been engulfed in a fog of fear and barbarism.
I leave the final words to Judge Motz, and her clear-eyed awareness of the injustice of the al-Marri verdict. “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them ‘enemy combatants,’ would have disastrous consequences for the Constitution –- and the country,” Judge Motz wrote. “For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws ‘to go unexecuted, and the government itself to go to pieces.’ We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”
Unless Ali al-Marri is allowed a meaningful review of his status as an “enemy combatant,” Judge Motz’s fears have already come true.
Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.
For updates on Ali al-Marri’s case, see my December 2008 article, The Last US Enemy Combatant: The Shocking Story of Ali al-Marri, Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant” and Why The US Under Obama Is Still A Dictatorship (both March 2009), and Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty (May 2009).
Also see related articles on Jose Padilla: Jose Padilla: More Sinned Against Than Sinning (August 2007), Why Jose Padilla’s 17-year prison sentence should shock and disgust all Americans (January 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (April 2009).
So sadly crazy. The USA has gone insane. Again.
After this article was published, I received the following comment:
The 4th Circuit has recently been rendering bizarre, leftward decisions due to its lack of appointments to replace retiring members. Thus, several panels of three judges have rendered leftward decisions, only to be over-ruled by full panels. If we can only hang on a few more months without any appointments, we may see a complete transformation of this panel from the right-wing rubber-stamp that it has been for the last 20 years.
I then wrote back:
That would be good, William. Reading through the ruling, I was shocked at how extraordinarily divided the opinions were – although that also seems to be part of the confusion sown by inventing a whole new quasi-legal system after 9/11.
Thanks for the comment. May I post it on my website?
And I received the following reply:
Yes. I practice in the Circuit and we have been going back and forth from getting terrible to great decisions (obviously I am a classical liberal in the line of John Stuart Mill) with respect to the sentencing guidelines, drugs and exclusionary evidence. I believe the Washington Post did an article on this about a year ago.
Due to the anticipation of a Democrat in the White House and bitter in-fighting between two contiguous states, Virginia and Maryland that really do not like each other, over appointments in the 4th Circuit (which is composed of West Virginia, Maryland, Virginia, North Carolina and South Carolina — your state had to have a proper British name for your state to be included in this Circuit, lol), the 4th Circuit has been slow to replace retiring judges.
Plus, about the only “nice” thing George Bush ever did was that he allowed Gregory, an African-American, whom you mention in your article and who was only an interim, unconfirmed, Clinton judge, to stay on and receive a full lifetime appointment as a judge, and that amounted to an additional liberal appointment.
This isn’t necessarily pertinent to the above, but the U.S. has gone from being one of the most liberal to being one of the least liberal countries in the world in the last 30 years. In 1975, we were one of the few countries that did not have the death penalty. I believe that a lot of this has to do with our particular apportionment methods which may just about be at the point of shifting leftward again as enough people from the liberal Northeast states are now moving to fairly large states like Virginia, North Carolina, Georgia and Colorado to shift the nation leftward again. Paradoxically, at first, such movement made these states have an even more conservative influence but once it reaches a certain level, the states and their representatives will (are) becoming more moderate.
I also received the following message:
Many thanks for your sterling work, and for keeping us all informed on the progress of the doomsday clock. From your all-too-vivid description of the events leading to the indefinite incarceration of Ali Saleh Kahlah al-Marri, it looks to me as if the USA has not moved on since the Salem Witch Trials.
First, someone (KSM) is denounced as a witch. Then he is routinely tortured, until he gives the torturers some names. Then, the process is repeated for each of those names. At least there is good job security for the torturers — I can see no reason why or how this process should ever come to an end.
Nor can I see any reason why those people’s membership of the human race should not be rescinded by the rest of us — those who still have consciences (if only residual ones).
And this — short and to the point, from Gui Rochat:
Amazing that the Magna Carta is being nullified in a land that resisted such measures from its former colonial boss. But much like all civilian liberties that were suspended in Germany in the nineteen thirties.
To that extent, all that has changed now is that the Fourth Circuit court has reinforced its former ruling en banc.
Bingo. I would go still further: to the extent that the United States Supreme Court decided to duck the question of the outrageous executive fiat detention of Padilla in 2004 (and that with the allegedly more reasonable O’Connor and Rehnquist then in place instead of the automaton Roberts and the weasel Alito). The High Court decided that the burning question raised by Padilla was a venue issue. That moment, the United States, was de facto a dictatorship at that very moment, and I said as much. Jonathan Hafetz more or less confirmed this when I interviewed him, confirming that all “live” Padilla issues applied to Mr. al-Marri.
Of course, a little remembered detail of Mr. Padilla’s original case was that the district court judge, now Attorney General of the United States Michael Mukasey, ostensibly recognized Padilla’s right to counsel but implicitly recognized the heretofore-not-recognized-in-American-jurisprudence “executive bypass of the Constution;” Mukasey was then duly reversed by New York’s Second Circuit Court of Appeals (holding “charge or release”… no exceptions), duly eviscerated over… venue.
And yet while another federal appeals court noted in Parhat that the government does not get to make up the facts and law just because “it says it thrice”… what are we to make of the Supreme Court trio of Rasul, Hamdan and Boumediene resulting in, well, nothing: hundreds remain at GTMO, thousands more in Afghanistan, Iraq, and God knows where, with the precedent of arbitrary detention of citizens (Padilla) and lawful residents (al-Marri) alive and well, especially in the 4th Circuit, home of the naval brig where the government is most likely to consign anyone it wants.
It seems 9-11 really, really changed everything, while we Americans just sat here and let it. I hope I live long enough for the folly this has been to be recognized, and institutional reforms put in place to be sure that it is all reversed, and never repeated, and those responsible for this willy-nilly needless sacrifice of Constitutional principles duly brought to justice.
And Jonathan Hafetz made my day:
Andy: I cannot thank you enough. This is a truly superb piece, which pulls together so many angles and insights (such as the isolation and coerced evidence), which go beyond the decision. And it’s beautifully written.
And Valtin, a psychologist who blogs at American Torture and Daily Kos, plus other sites, including his own, sent me the following encouraging message:
Your name has been a constant for me over the years now for providing accurate and important information re Bush GWOT and the prisoners at Guantánamo. Your coverage, for instance, on the al-Marri decision is head and shoulders over anything else I could find.
Here’s Valtin’s site:
[...] one, if not three, Supreme Court Justices. It’s about the Military Commissions Act and the Patriot Act. It’s about FISA. It’s about Guantanamo Bay and whether or not America stands for [...]
[...] them indefinitely on the U.S. mainland without charge or trial, as the cases of Jose Padilla and Ali al-Marri reveal in horrific [...]
[...] stand, but the government appealed, and when the Fourth Circuit reconvened en banc to deliver a second ruling in July this year, the voices of reason — four judges led by Diana Gribbon Motz — were [...]
[...] federal court system, although just, also enabled it to prevent the Supreme Court from reviewing a terrible 4th Circuit ruling last July, when, as I described it, “a majority of the judges decided that the President was [...]
[...] US citizens or residents held as “enemy combatants” — along with Jose Padilla and Ali al-Marri — and subjected to profound isolation, sleep deprivation and sensory deprivation (in other words, [...]
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