Last Thursday, US resident Ali al-Marri, the last “enemy combatant” on the US mainland, was indicted by a federal grand jury in Peoria, Illinois, for providing material support for terrorism, bringing to an end the Qatari national’s disturbing imprisonment for five years and eight months without charge or trial in a state of solitary confinement that is unprecedented in the “War on Terror.”
Al-Marri — whose story I reported at length here — arrived in the US on September 10, 2001 to pursue post-graduate studies in Peoria, and was initially seized by the FBI in December 2001, based on suspicions that he was involved in credit card fraud. In June 2003, just before he was due to stand trial, he was declared an “enemy combatant” by President Bush, and was moved to the US Naval Consolidated Brig in Charleston, South Carolina, where he has been held ever since. He spent the first 16 months without access to anyone outside the US military or the intelligence services, and his isolation has been so severe that, as his lawyers have explained, 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.”
Moreover, as Jane Mayer reported in an article for last week’s New Yorker, Lawrence Lustberg, one of al-Marri’s earliest defense lawyers, was at pains to emphasize that last year’s revelation that officials at the brig were ordered to follow the same Standard Operating Procedure used at Guantánamo underplays the exceptional isolation to which al-Marri was subjected. “I’ve been to Guantánamo,” Lustberg said. “Marri was far more isolated. He had no contact with any other detainees. Most days, he had no human contact at all.”
So extreme was his treatment that Andrew Savage, his local counsel in Charleston, who is now allowed to speak to him by phone, and to visit him every other week, told Mayer that he “believes that nothing has been tougher on his client than the uncertainty of not knowing if he would ever be released.” He explained, “He would have preferred beatings. He’d say, ‘Andy, it’s worse than beating.’ He wanted to be sent to Egypt to be renditioned. He’d say, ‘Torture me — but end it!’”
Al-Marri also developed allies in the brig who shared the lawyers’ concerns about his treatment. As Mayer described it, “Their mission, as they saw it, was to run a safe, professional, and humane prison, regardless of who was held there. It was the political appointees in Washington, at the Pentagon and the Department of Justice, who wanted Marri to be kept in prolonged isolation.” In 2005, Andrew Savage discovered that Air Force Major Chris Ferry, the head of security at the brig, “would stay all night with Marri. He’d go down to the brig and sit with him, and tell him to hold on. Chris was there at three in the morning, on the darkest nights.” And in December, when John Pucciarelli, the commander of the brig, was moving on to a new assignment, he made a point of arranging for al-Marri to be brought to the brig’s visitors’ center, where he “said that he was sorry that he had been unable to do more for Marri, but he had treated him as well as he could,” and also left him a parting gift: a television.
These are glimpses of humanity after the long years of al-Marri’s almost unbroken isolation, but he still spends most of his time alone in an otherwise empty cell block, and the Obama administration is, therefore, to be congratulated for ending his novel and unjustifiable ordeal and transferring him into the federal court system, where we will now, perhaps, discover whether there is any truth to the Bush administration’s claims that he was sent to the US as part of an al-Qaeda sleeper cell.
It may be that the government has evidence that this is the case, but the worry is that the main source for this claim is Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, who made his “confession” in the first few months after his capture, when, as has been made abundantly clear in the last few years, he was subjected to horrendous torture in CIA custody. In her book The Dark Side, Jane Mayer explained how, according to sources who had read a classified Red Cross report about the detention and interrogation of Mohammed and the 13 other “high-value detainees” in CIA custody, based on interviews with the men about their treatment in the years before their transfer to Guantánamo in September 2006, “Mohammed was subjected not just to waterboarding but to hundreds of different techniques in just a two-week period soon after his capture,” and a former CIA official told Mayer, “There were some horrible moments. Things went too far. It was awful. Awful.” I have previously reported my suspicions about other cases in which Mohammed may have falsely implicated other people as a result of his torture — as he himself attempted to explain during his Combatant Status Review Tribunal at Guantánamo in March 2007 (PDF) — and it may be that al-Marri is another victim of Mohammed’s lies.
Certainly, nothing about al-Marri’s response to his imprisonment follows what the Bush administration came to regard as the modus operandi of al-Qaeda operatives, which, as well as apparently including an instruction to allege that they were tortured, if given the opportunity, also included an instruction to tell deliberate lies to frustrate their captors and to send them on worthless missions that would consume time, resources and energy. Instead, al-Marri has persistently refused to concede that he had anything to do with Mohammed or al-Qaeda, to the extent that Jane Mayer concluded in her article that, although the Bush administration could have prosecuted him using conventional means, the real motive for designating him an “enemy combatant,” transferring him to the brig and torturing him was “frustration on the part of the Justice Department at being unable to make Marri confess.” Mayer noted that David Kelley, a former Attorney for the Southern District of New York, who supervised the early stages of his case, “was told to push him hard, which he did, but Marri kept professing his innocence.” She also noted that Attorney General John Ashcroft wrote in his 2006 book Never Again, “Al-Marri rejected numerous offers to improve his lot by cooperating with the FBI investigators and providing information. He insisted on becoming a ‘hard case.’”
Perhaps, however, instead of becoming a “hard case,” al-Marri was not a “hard case” at all, and everything about his treatment was based on projection and presumption from an administration that had opened the door to torture, and, as Mark Berman, another of al-Marri’s early lawyers, explained, “really just wanted to interrogate him” in a rough manner. Andrew Savage has no doubt that al-Marri is not who the government thinks he is. “I don’t fear him, not personally and not for the United States,” he told Mayer. “Is he putting me on? Scamming me? Putting it over on me? I really don’t think so. I’m not naïve. I’ve defended multi-murderers, child murderers, child molesters, and all sorts of violent criminals. But I really don’t think Ali’s a terrorist.”
Quite where this leaves al-Marri’s existing court case, based on his long imprisonment without charge or trial, is difficult to say. The American Civil Liberties Union (ACLU) represents him in his case challenging his designation as an “enemy combatant,” which was taken up by the Supreme Court in December, and in a statement issued just before the indictment was announced, pointed out that a criminal indictment “would not automatically resolve the issues that are pending before the Supreme Court.”
Jonathan Hafetz, a staff attorney at the ACLU who has represented al-Marri for many years, added, “The decision to charge al-Marri is an important step in restoring the rule of law and is what should have happened seven years ago when he was first arrested. But it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the US is illegal and that this will never happen again.”
I couldn’t agree more. Unless the Supreme Court is allowed to review al-Marri’s case, a particularly disturbing ruling that was delivered last summer by the 4th Circuit Appeals Court will stand as a defense of unfettered executive power — and unconscionable cruelty — that demonstrates complete disdain for the Constitution. The divided court ruled, by a majority of one, that the President is entitled to seize any American — not just a resident like al-Marri, but any citizen — and imprison them indefinitely without charge or trial, even if, as was noted by the principal dissenting judge, Diana Gribbon Motz, “unlike [Yaser] Hamdi and [Jose] Padilla [the other two Americans held as “enemy combatants” between 2002 and 2005], 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.”
She added: “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. 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.”
With that, it’s clear to me that there is more on trial at the end of this shameful period in US history than just one man, Ali al-Marri. Also on trial, though it will not be addressed in Peoria, is the Bush administration’s claim, as Judge Motz put it, that it was entitled to “alter the constitutional foundations of our Republic.”
Andy Worthington 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.
As published exclusively on the website of the Future of Freedom Foundation.
For a sequence of articles on Ali al-Marri’s case, see The Ordeal of Ali al-Marri (June 2007), The torture of Ali al-Marri, the last “enemy combatant” on the US mainland (November 2007), Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri (July 2008), The Last US Enemy Combatant: The Shocking Story of Ali al-Marri (December 2008), Why The US Under Obama Is Still A Dictatorship (March 2009), 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).
There’s going to be an interesting surprise awaiting you when you wake up tomorrow (because of the time difference). A little matter of 92 video tapes destroyed by the CIA, some relevant to Mr. al-Marri’s interrogations. A mere 18-minute erasure brought Mr. Nixon down. Now we can add 92 counts of obstruction of justice to the Bush/Cheney tally sheet. 92 smoking guns. The tide is turning.
It’s not the early 1970′s: Americans have been conditioned by years of outrageous reality television, ever more graphic films, a miserable education system and a culturally-bankrupt culture to be pretty much incapable of being particularly shocked by anything, most especially by the malfeasance of their own government. (One notable exception is the events of 9-11, which would have been less shocking had not images of planes crashing into towers not been broadcast hundreds of thousands of times in succession on semi-live television). The only thing that might have shocked anyone re: the torture/interrogation films would be the existence of graphic pictures, like those from Abu Ghraib, although, quite frankly, even those images came out in plenty of time before the ’04 election and the Bush/Cheney torture regime was reelected anyway. The CIA destroying the 92 torture tapes was no risk: the courts will not find the Government or those involved in contempt… they just won’t; not destroying them presented the problem. [Worse, as discussed further below, I think the Obama Admin. would like all this swept under the rug anyway, and is kind of relieved the pictures and films no longer exist.]
To the post… since Al-Marri is held for exactly the same reasons Padilla was held, i.e., the President can invoke the magic words “national security” and “terrrrrorist” and unConstitutionally suspend the rest of the Constitution, this becomes the continuation of Padilla, i.e., the most important case of our lifetimes. While we all agree it is about time once and for all for the Government to test its allegations against Al-Marri in a courtroom rather than in a dungeon, and this is a welcome development, I still have misgivings about the final outcome.
The unwelcome part is that almost certainly, I fear that both the Obama Administration and the Supreme Court will use this occasion as an opportunity to duck the Court’s deciding the ultimate underlying question, even though it need not and should not duck it as there is a doctrine of law called “capable of repetition yet evades review,” the rationale for the court to take abortion cases long after the disposition of the particularly pregnancy involved has resolved one way or another. Unless the Obama Admin. affirmatively rejects the rationale that the President can EVER do what the Bush Admin. did with Padilla and Al-Marr… then, sadly, those military kidnappings are “capable of repetition.”
Which means that, it is already the law of the hyperconservative 4th Circuit (VA, MD, NC, SC) that notwithstanding the rest of the Constitution, the President has absolute monarchial power… and the Supreme Court will have, once again, refused to disabuse us of this precedent for the rest of the country. Not a happy scenario, even if, we can hope at least, Saleh Al-Marri finally gets his day in court.
WOW!! This country is as fucked up as I thought!
[...] the last months of his confinement, before the Obama administration swiftly reviewed his case and moved him into the federal court [...]
[...] the last months of his confinement, before the Obama administration swiftly reviewed his case and moved him into the federal court [...]
[...] evaluate alternative dispositions,” that his long and unjust isolation came to an end, and he was reintroduced to the justice system that had been prepared to try him back in June [...]
[...] al-Marri was a legal US resident who was also tortured as an “enemy combatant,” although he was moved into the criminal justice system under Obama, and tried and convicted of charges relating to terrorism in [...]
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