Two weeks ago, when the Obama administration announced that it was bringing to an end the disturbing isolation endured by Ali al-Marri, a US resident who has been held without charge or trial for seven years and two months — and who, most worryingly, has spent the last five years and nine months as an “enemy combatant” in solitary confinement in the Naval Consolidated Brig in Charleston, South Carolina — it was clear that one of the Bush administration’s most arrogant and un-American policies was coming to an end.
President Obama clearly regarded al-Marri’s imprisonment as significant, as he issued a Presidential memorandum on his second day in office ordering the Justice Department to review the Qatari national’s case, and the announcement that al-Marri was to be moved out of his seemingly endless legal limbo and into the federal court system demonstrated that, in this specific case at least, the President was sticking to his word.
However, what worried al-Marri’s lawyers — and those, like myself, who have been following his case closely — was that the President’s decision would also bring to an end al-Marri’s pending Supreme Court challenge, in which the nation’s most powerful judges were scheduled to review whether or not the President — any President, not just a member of the Bush family — had the right to designate as an “enemy combatant” any American, whether a citizen or a resident, and to imprison them indefinitely without charge or trial.
This was not merely an academic exercise. When al-Marri’s case was reviewed by the 4th Circuit Appeal Court last July, a majority of the judges decided that the President was indeed entitled to subject Americans to arbitrary imprisonment, despite the complaints of the dissenting judges, led by Judge Diana Gribbon Motz, who argued that, if the ruling were allowed to stand, it “would effectively undermine all of the freedoms guaranteed by the Constitution.”
The 4th Circuit majority also ignored the complaints of al-Marri’s lawyers, even though they were clearly more aware of the restraints on executive power that had been enforced by Congress in the wake of the 9/11 attacks than most of the judges. In a brief to the court, the lawyers pointed out that the President lacked the legal authority to designate and hold al-Marri as an “enemy combatant” for two particular 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 had 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.
When the Obama administration announced its decision to move al-Marri to the federal court system, Justice Department officials also asked the Supreme Court to dismiss the pending case as “moot,” and on Friday the justices agreed, although, to their great credit, they also made a point of overruling (“vacating”) the horrendous decision made by the 4th Circuit Appeals Court last summer.
As a result, you may be thinking that the President no longer has the power to hold Americans without charge or trial as “enemy combatants,” but if this is the case then you may be — and should be — dismayed to learn that a previous ruling to this effect still stands, which was not addressed by the Supreme Court, and which has not been addressed by the Obama administration either.
In February 2005, in the case of Jose Padilla, an American citizen who was also held in prolonged solitary confinement as an “enemy combatant,” District Court Judge Henry F. Floyd ruled against the government, and ordered Padilla’s release. Noting that the power to suspend the writ of habeas corpus “belongs solely to Congress” under the Constitution, Judge Floyd declared, “Since Congress has not acted to suspend the writ, and neither the President nor this Court have the authority to do so,” Padilla had to be released. “It is true,” he added, “that there may be times during which it is necessary to give the Executive Branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else — not the Court and not the President … Simply stated, this is a law enforcement matter, not a military matter.” Echoing the decision taken by President Obama’s Justice Department in the case of Ali al-Marri, Judge Floyd added that the government could avoid releasing Padilla if it filed criminal charges against him, or acted to hold him as “a material witness.”
However, Judge Floyd’s ruling only stood for seven months. On September 9, 2005, three 4th Circuit judges — J. Michael Luttig, M. Blane Michael and William B. Traxler Jr. — overturned it (PDF), based on their belief (contested by Padilla’s lawyers, and also, as noted above, by al-Marri’s) that Congress had granted these sweeping and otherwise unconstitutional powers to the President as part of his wartime prerogative under the Authorization for Use of Military Force.
As with al-Marri, this ruling was never tested in the Supreme Court. Just before a review was scheduled to begin, the Bush administration got cold feet, and moved Padilla into the federal court system, where, in August 2007, he was convicted of providing material support for terrorism in a lop-sided trial — in which all mention of his long years of torture in solitary confinement were excluded by the judge — and, in January 2008, received a sentence of 17 years and three months.
In many ways, of course, history is repeating itself with al-Marri, even though the man at the top has changed, but what is most worrying is that the Padilla ruling still stands. Without the Supreme Court being given the opportunity to rule decisively on this question, what is needed is a clear repudiation of the policy by the Obama administration.
Instead, the Justice Department explained, in a brief filed with the Supreme Court last Wednesday, that, while the government “did not defend its power to detain Mr. Marri at present” (as Glenn Greenwald described it for Salon), “it left open the possibility that he or others might be subject to military detention as enemy combatants in the future.” In the Justice Department’s exact words, “Any future detention — were that hypothetical possibility ever to occur — would require new consideration under then-existing circumstances and procedure.”
It’s one thing, I suppose, to keep your options open, but quite another to defend the indefensible. Instead of fudging, in anticipation of future emergencies, President Obama and Attorney General Holder need to spell our clearly that no President will ever again imprison Americans as terror suspects beyond the law. Otherwise, Barack Obama’s fine words, in August 2007, when he declared, “We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary,” will be meaningless, and Judge Rogers’ opinion — that the very constitutional foundations of the Republic had been fatally undermined — will be as applicable to the Obama administration as it was to that of George W. Bush.
Note: The photo at the top of the article, which was taken recently, is the first photo of an “enemy combatant” that the US administration has allowed to be released publicly. Taken by a representative of the International Committee of the Red Cross, it was released to al-Marri’s family, and was then published in the New Yorker. Jane Mayer noted that a source had indicated that “This change in policy regarding the release of detainee photos may soon extend to Guantánamo.”
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), Ending The Cruel Isolation Of Ali al-Marri, The Last US “Enemy Combatant” (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).
We’re at all of seven weeks into the Obama Administration, and while laudable in rhetoric, the Obama Administration has actually slowed down the pace of releases from GTMO, slowed down the pace of GTMO habeas litigation (which had at least caused a slight trickle of releases on its own), proceeded with the mean-spirited Uighur appeal and refusal to admit them into the country, asserted state secret privileges exactly as the Bush Admin. has done, asked the very people responsible for GTMO being a chamber-of-horrors to certify it as “Geneva compliant” (which, after the introduction of “movie night,” they promptly did, notwithstanding the continued isolation and brutality the prisoners are subjected to), and now, has played the cutesy game of bait and switch with al-Marri mentioned in this post.
It would be a gross mistake, of course, especially at this early date, to presume that the Obama Admin. is, or even can be, worse than the Bush Administration. But until it starts to back up the current President’s lofty rhetoric with some actual, concrete “facts on the ground” actions, it would also be a mistake to assume that it’s terribly much better.
Many Americans used to believe that home foreclosure wouldn’t happen to them, unemployment wouldn’t happen to them, bankruptcy wouldn’t happen to them, loss and lack of health insurance wouldn’t happen to them–that these categories of deprivation were unobtainable to their comfortable and complacent existences. Understandable illusions, and all too human. But recent experience is puncturing what was essentially a lack of imagination. What was far-fetched has become a commonplace. So it is with the category of “enemy combatant”–we have to continue to help more people understand that as long as the principle exists in U.S. law, they are personally at risk. The distance between Mr. al-Marri’s experience and anyone else in America’s is potentially no distance at all.
Thanks TD and Frances for your comments.
TD, the fine heart that beats behind your acerbic eye is acutely attuned to current disappointments — and we clearly need some serious evidence of right-mindedness on the part of the Obama administration to remove the creeping sense that “change,” though happening, always includes doors to the previous administration’s horrors that are left ajar when they should be firmly shut.
And Frances, there is a wonderful directness to your comment, “The distance between Mr. al-Marri’s experience and anyone else in America’s is potentially no distance at all.”
Andy, I just want to drop in and say how powerful your writing has been lately, and how important. With almost no other journalistic voices out there speaking to the failures of the Obama administration to take on the Bush legacy of state secrets, and protection of the power to torture (only Glenn Greenwald also seems to consistently bring up these issues), yours is precious, and I thank you for all your work.
Thanks, Valtin. The encouragement is much appreciated.
As I mentioned in my reply to the Talking Dog, above, I’m trying not to forget what positive steps the Obama administration took in its first few days, but I do worry that they’re keeping options open that shouldn’t be kept open at all. With al-Marri, for example, I believe they should have allowed the Supreme Court case to go forward — or should have made it clear that no American will ever be held as an “enemy combatant” again. It’s as simple as that.
And speaking of important work, readers who haven’t checked out Valtin’s blog (click on his name above) should do so, as you’re somehow maintaining a relentless commentary on issues of great importance while holding down a proper job!
Thanks also for quoting me and linking to me in this post:
It brought my site to the attention of readers who hadn’t come across me before, which is always a very good thing!
A great quote from Valtin’s most recent blog (linked above):
“Torture remains a little understood and embarrassing subject in U.S. circles. It’s dimly recognized that if the lid were totally taken off, much of the establishment leadership in the U.S. would be revealed as culpable, or at least compromised. Hence, mainstream opinion makers are attempting to keep whatever scandals within ‘reasonable’ limits.
“Politics can be strange sometimes. The mainstream opinion makers are usually pretty good at what they do, especially the left-wing versions of them. But they don’t often have to deal with such incendiary material.”
Valtin adds that this necessary work has instead been taken up by “a dedicated coterie of attorneys, bloggers, journalists, and even some politicians and military officers, who don’t want to see this issue die before accountability takes place.”
For a report on Ali al-Marri’s first court hearing, the best account was by Reuters:
The hearing was fairly inconclusive. Al-Marri was “told he must wait until he is moved to another state before he can enter a plea on charges of supporting terrorism” (to which he is expected to plead not guilty), but he was clearly happy to be out of the brig for the first time since June 2003, and Reuters reported that he “smiled as he chatted with his lawyer.”
A bond hearing has been scheduled for March 18, and al-Marri’s lawyer, Andy Savage, said that government prosecutors will be required to present at least some of the evidence against his client. He added that he plans to present witnesses, and has requested that two of al-Marri’s brothers be allowed to travel to the US to take part.
Assistant US Attorney Kevin McDonald, for the prosecution, said that after next week’s hearing, al-Marri would probably be transferred to Illinois. The prosecutors also claimed, as Reuters described it, that al-Marri “is a danger to the community and a flight risk and should stay locked up pending trial,” but McDonald came unstuck when he told the judge that US Immigration and Customs Enforcement officials had prepared a detention order against al-Marri, claiming that he “is in the country illegally.” Savage replied by noting that, when al-Marri was arrested in December 2001, he was a student with a valid visa. “His status was lawful,” he pointed out. “He came here openly with the approval of his government and the American government.”
The most poignant passage was the following, which provides just a glimpse of what it must feel like to be allowed outside for the first time after seven years’ imprisonment without charge or trial: “Marri was taken from the brig to the federal courthouse in downtown Charleston before daybreak. He was disappointed that all he could see were the headlights of other vehicles but hoped to get a glimpse of the area on his return trip to the brig, Savage said.”
Savage added that, in spite of his long suffering, al-Marri “harbored no animosity.” “You don’t see any signs of bitterness,” he said. “You see someone who is grateful to go to court today.”
This just in:
< < Instead, the Justice Department explained, in a brief filed with the Supreme Court last Wednesday, that, while the government “did not defend its power to detain Mr. Marri at present” (as Glenn Greenwald described it for Salon), “it left open the possibility that he or others might be subject to military detention as enemy combatants in the future.” In the Justice Department’s exact words, “Any future detention — were that hypothetical possibility ever to occur — would require new consideration under then-existing circumstances and procedure.” >>
Why won’t you or Glenn Greenwald just say it? If Mr. Marri is ACQUITTED, and the court discharges him from ITS custody; the US Government still reserves the right to hold him as an enemy combatant. THAT is what the above-quoted paragraph means.
Why are you beating around the bush?
BRUCE TYLER WICK
Cleveland, Ohio USA
Good to hear from you.
I could have missed the point, but I would fall off my chair in disbelief if they attempted that particular trick.
What concerns me is keeping the door open for a “hypothetical possibility” — someone other than al-Marri.
Bruce wrote back:
Hope you sit close to the floor; wouldn’t want you to injure yourself!
And then sent another, more somber message:
Should the US Government convict Mr. Marri on ANY charge, it avoids having to resort to extralegal detention via the “enemy combatant” designation (or other ruse). That is, of course, what happened to Jose Padilla, and what the Government I believe is betting will happen to Mr. Marri.
A client told me just last night that polling here shows our Muslims to be a seriously disaffected lot, with up to a third favoring regime change — fully half, if one includes those who would not lift a finger to save the (present) US Government!
If accurate, these polls do no more than reflect attitudes OUTSIDE the US. But here at home, minorities are expected to suffer in silence; to be grateful for whatever they’ve got; to help fight the country’s wars; and to thereby EARN a place at the banquet table.
Privation, discrimination, harassment AND military service are all part of the time-tested hazing ritual for immigrants and minorities; and except for wealthiest 0.01% who make the rules, no one skips steps.
Mr. Marri will be convicted to something, I predict.
To which I can only reply, Bruce, that I agree with your prognosis of the immigrants’ fate — oh, the irony, in a country of immigrants! — and that I only hope that we get what appears to be a fair trial based on evidence (though not, obviously, any mention of the years of incommunicado detention and torture). Like Padilla’s case, it may well play out as a dry run for the sort of distressing charade that, I suspect, may await the few dozen prisoners at Guantánamo when they finally make it to the US courts.
I remember when Padilla’s judge refused to allow any mention of his “missing” three and half years, when the jury turned up wearing stars and stripes on July 4, and when the prosecution played videos of bin Laden, even though there was no suggestion that Padilla had ever met him.
And then he got 17 years and three months, for having his fingerprints on a training camp application form, and for “speaking in code” on the phone …
Just in case this got missed earlier?
Tuesday, March 3, 2009
Memos Provide Blueprint for Police State
Seven newly released memos from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide “legal” rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.
Who wrote these memos? All but one were crafted in whole or in part by the infamous John Yoo and Jay Bybee, authors of the so-called “torture memos” that redefined torture much more narrowly than the U.S. definition of torture, and counseled the President how to torture and get away with it. In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.
What does the federal maiming statute prohibit? It makes it a crime for someone “with the intent to torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person.” It further prohibits individuals from “throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance” with like intent.
The two torture memos were later withdrawn after they became public because their legal reasoning was clearly defective. But they remained in effect long enough to authorize the torture and abuse of many prisoners in U.S. custody.
The seven memos just made public were also eventually disavowed, several years after they were written. Steven Bradbury, the Principal Deputy Assistant Attorney General in Bush’s Department of Justice, issued two disclaimer memos – on October 6, 2008 and January 15, 2009 – that said the assertions in those seven memos did “not reflect the current views of this Office.” Why Bradbury waited until Bush was almost out of office to issue the disclaimers remains a mystery. Some speculate that Bradbury, knowing the new administration would likely release the memos, was trying to cover his backside.
Indeed, Yoo, Bybee and Bradbury are the three former Justice Department lawyers that the Office of Professional Responsibility singled out for criticism in its still unreleased report. The OPR could refer these lawyers for state bar discipline or even recommend criminal charges against them.
In his memos, Yoo justified giving unchecked authority to the President because the United States was in a “state of armed conflict.” Yoo wrote, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” Yoo made the preposterous argument that since deadly force could legitimately be used in self-defense in criminal cases, the President could suspend the Fourth Amendment because privacy rights are less serious than protection from the use of deadly force.
Bybee wrote in one of the memos that nothing can stop the President from sending al Qaeda and Taliban prisoners captured overseas to third countries, as long as he doesn’t intend for them to be tortured. But the Convention Against Torture, to which the United States is a party, says that no country can expel, return or extradite a person to another country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Bybee claimed the Torture Convention didn’t apply extraterritorially, a proposition roundly debunked by reputable scholars. The Bush administration reportedly engaged in this practice of extraordinary rendition 100 to 150 times as of March 2005.
The same day that Attorney General Eric Holder released the memos, the government revealed that the CIA had destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. The memo that authorized the CIA to waterboard, written the same day as one of Yoo/Bybee’s torture memos, has not yet been released.
Bush insisted that Zubaida was a dangerous terrorist, in spite of the contention of one of the FBI’s leading al Qaeda experts that Zubaida was schizophrenic, a bit player in the organization. Under torture, Zubaida admitted to everything under the sun – his information was virtually worthless.
There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.
Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.
[…] it “wants to preserve options and executive powers.” As I explained in an article in March, “Why The US Under Obama Is Still A Dictatorship,” the new government’s decision to move al-Marri into the federal court system, although just, […]
[…] still “on the table,” the Justice Department was taking a very different line in the case of Ali al-Marri, a legal US resident who was held in extreme isolation for nearly six years without charge or trial […]
Investigative journalist, author, filmmaker, photographer and Guantanamo expert
Email Andy Worthington
Please support Andy Worthington, independent journalist: