Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty

1.5.09

For five years and eight months, the Bush administration held Qatari national and legal US resident Ali Saleh Kahlah al-Marri without charge or trial as an “enemy combatant” in the Naval Consolidated Brig in Charleston, South Carolina. Arrested by the FBI in December 2001, and subsequently charged with crimes including credit card fraud and identity theft, al-Marri, who had arrived in the US with his family on September 10, 2001, to study at Peoria University in Illinois, was subsequently pulled out of the criminal justice system and held as an “enemy combatant,” when further investigation of his computer and other possessions indicated that he had been sent to the US to establish an al-Qaeda “sleeper cell.”

In the last months of his confinement, before the Obama administration swiftly reviewed his case and moved him into the federal court system, al-Marri had been allowed a modicum of personal freedom — such as watching TV and making calls to his family — although he was still held in isolation in a cell block in which all the other cells were unoccupied.

These small kindnesses were, however, not enough to make up for the long years in which his isolation was absolute, and he had, moreover, been subjected to the kind of “enhanced interrogation techniques” authorized by the Office of Legal Counsel in memos released by the Obama administration two weeks ago, which, as confirmed in a Senate Armed Services Committee report (PDF) published last week, migrated to Guantánamo and to Bagram in Afghanistan, and were then adopted in Iraq.

In al-Marri’s case, after a year and a half awaiting a trial in a federal court, following his arrest in December 2001, the first 16 months that he spent as an “enemy combatant” took place in a state of almost unprecedented isolation, which, outside of the horrors endured by the “high-value detainees” in CIA custody, was shared only by the other two US “enemy combatants,” Yasser Hamdi and Jose Padilla, and a handful of prisoners in Guantánamo. His isolation was such that, according to a psychiatric assessment conducted on behalf of his lawyers, he began 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.”

As his lawyers also explained in court documents filed last May, during this period interrogators told him that “they would send him to Egypt or to Saudi Arabia to be tortured and sodomized and forced to watch as his wife was raped in front of him,” and threatened to make him “disappear so that no one would know where he was.” They also explained,

He was denied any contact with the world outside, including his family, his lawyers, and the Red Cross. All requests to see, speak to, or communicate with Mr. al-Marri were ignored or refused. Mr. al-Marri’s only regular human contact during that period was with government officials during interrogation sessions, or with guards when they delivered trays of food through a slot in his cell door, escorted him to the shower, or took him to a concrete cage for “recreation.” The guards had duct tape over their name badges and did not speak to Mr. al-Marri except to give him orders.

As a result of this treatment, it was understandable that many commentators — myself included — wondered how much truth there was to the government’s allegations against al-Marri, especially as it was claimed that he had connections to Khalid Sheikh Mohammed, the self-confessed architect of the 9/11 attacks, who had been seized in the months before al-Marri was declared an “enemy combatant,” and who, we now know from the OLC’s torture memos, was subjected to waterboarding (an ancient torture technique that involves controlled drowning) 183 times in March 2003.

Nevertheless, on Thursday, in a federal courtroom in Peoria, Ali al-Marri accepted a plea agreement entered before District Judge Michael Mihm, and “admitted to one count of conspiring to provide material support or resources to a foreign terrorist organization,” as the Los Angeles Times described it, adding, “He spoke softly and smiled occasionally as Mihm read aloud a timeline that described Marri’s attendance at terrorist training camps in Pakistan and his research into cyanide compounds and other chemical agents.”

Under the terms of the plea agreement, al-Marri admitted associating with Khalid Sheikh Mohammed and Mustafa al-Hawsawi, the alleged financier of the 9/11 attacks (including collecting $10,000 from al-Hawsawi in the UAE), before arriving in the US on Sept. 10, 2001. The agreement also stated that, while attending several training camps in Pakistan, “he became an expert with military weapons, he learned to conceal his identity online and he used his computer to research chemical agents that could be used in an attack,” and that a search of his house led to the discovery of “an almanac with pages bookmarked showing US bridges, roads and waterways,” although the Wall Street Journal noted that, in his statement, he “didn’t reveal orders to carry out any specific attacks.”

Al-Marri is due to be sentenced on June 30, and, by all accounts, will receive a sentence of up to 15 years as a result of the plea arrangement, which is half of what he could have been expected to receive had he decided not to negotiate. As news of the agreement was announced, Marjorie Cohen, the President of the National Lawyers Guild, told the Los Angeles Times, “It was done for expediency’s sake.” She explained that by reaching a plea agreement “the Obama administration avoids a lengthy trial where invariably evidence of torture would come out, and that would put even more pressure on the administration to have investigations and prosecutions.”

This, I think, is undoubtedly true, although Matthew Waxman, a Columbia University law professor who was also the Bush administration’s deputy assistant secretary of defense for detainee affairs in 2004-05, nailed another uncomfortable truth when he told the Times, “The Obama administration inherited a tough dilemma: On the one hand, it wants to distance itself from controversial Bush administration positions. But on the other hand it wants to preserve options and executive powers. Given the history of this case, the administration didn’t want to litigate it, and courts will be happy to be rid of it.”

The key phrases here are Waxman’s opinions that the Obama administration “didn’t want to litigate” the case, and that 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, 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 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,” and despite the valid complaints, made by al-Marri’s lawyers, 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.

In March, when the Supreme Court challenge was halted, al-Marri’s lawyers succeeded in persuading the justices to vacate the 4th Circuit ruling, but another ruling supporting the government’s self-proclaimed right to imprison Americans as ”enemy combatants” stills stands in the case of Jose Padilla. In an echo of al-Marri’s case, an appeals court ruled in the government’s favor in September 2005, and Padilla was taken out of the brig and put into the federal court system (where he was later tried, convicted and sentenced) before the Supreme Court could challenge the ruling.

Justice may finally have come knocking in the case of Ali al-Marri — although I believe that his sentence should reflect not just the 18 months he spent in federal prison, as proposed by the government, but also the five years and eight months that he spent in an illegal hellhole of the Bush administration’s own devising — but it remains unacceptable that, as the Justice Department stated when moving him out of the brig in March, “Any future detention — were that hypothetical possibility ever to occur — would require new consideration under then-existing circumstances and procedure.”

With a Presidential license to seize and hold Americans as “enemy combatants” still on the books, this reference to “then-existing circumstances and procedure” suggested — and still suggests — that the Obama administration, in its quest for “flexibility,” would rather keep open a profoundly disturbing loophole inherited from its lawless predecessors, instead of confirming, as Barack Obama stated in a speech in August 2007, that under his watch “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.”

POSTSCRIPT: The full plea agreement is available here (it’s a 20-page PDF).

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, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post, Antiwar.com and CounterPunch.

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” and Why The US Under Obama Is Still A Dictatorship (both March 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).

9 Responses

  1. the talking dog says...

    Yup. The subtext of the al-Marri case is that the United States is, at least de jure, in one of its federal circuits (the 4th, covering at least 4 states, at least one of which houses a military brig that, and as per the United States Supreme Court in ducking the Padilla case, the government could decide to move anyone to in order to create jurisdiction in said 4th Circuit), a dictatorship… in short, the entireUnited States is now effectively a dictatorship (assuming you find the sort of country that tolerates extra-legal executive disappearings a dictatorship, and I do… YMMV).

    Let me not mince words with respect to my college classmate The President: he has talked a damned good game, but that’s it.

    As far as real, non-rhetorical action, his record thus far has been almost indistinguishable from his predecessor… and no, I don’t count release of the torture memos, which would have eventually been ordered released per litigation, as getting him out of a failing report card that includes releasing exactly one and only one GTMO detainee, reasserting the state secrets privilege on exactly the same terms the Bush Administration did, appealing the Kiyemba case [the Uighurs] in an attempt to gut habeas corpus as a meaningful remedy and now, refusing to not abandon the perfidious holding in al-Marri… and you see where I’m going.

    The good news, I suppose, is that unlike with his predecessor, we can hold out the hope that with enough public pressure, either on him or at least on members of his party in Congress, we can force the hand of THIS President… but force it we must. Because his instinct for upholding the interests of big business first and everyone else a far, far distant second… certainly in the “national security” area… has not translated into the kind of “change” he promised in this area. Maybe that will “change” too… but none of us can take it for granted.

  2. Andy Worthington says...

    One of the things that TD and I bonded over, as we got to know each other a few years back, was our horror that the President of the United States had empowered himself to act like a medieval tyrant, throwing Americans in brigs without charge or trial, that politicians had failed to remember that they were only around because they had once had the nerve to tell the king that his “divine right” was a mirage, that some judges (though not all) had also accepted that a state of war conjured up out of a terrorist attack by a bunch of malignant criminals was a convenient excuse to forget that they too were supposed to provide a necessary check on Executive power, and that the American people, for the most part, didn’t seem to care that (a) this was happening, here in America, to Americans, and (b) they could be next.

    So here’s TD’s own take on what he calls the second most important case of our lifetimes, after Padilla’s:
    http://thetalkingdog.com/archives2/001295.html
    And marvellous it is too.

    A few quotes:

    The obvious question is… after six years of the inhuman cruelty of holding Al-Marri in total isolation is… why was this so damned hard?… Why was it necessary to try to set the example that persons lawfully in the United States could be “disappeared” without judicial proceeding? Precisely for the purpose of demonstrating that the government could do it, and get away with it.

    and

    And so, at the end of the day, the handling of Al-Marri’s case has made us all less safe, by an almost infinite factor… (1) because not only are we less safe because of how many additional terrorists our actions have enabled A.Q. and the other bad guys to recruit, and (2) because now it is established law (at least in one of our federal circuits, the one that includes Maryland, Virginia and the Carolinas) that the United States is a dictatorship: the President can wave a wand and utter “Enemy Combatantus”… and you, me, or anyone, can be disappeared at executive whim, beyond the ken of the courts.

    Thanks, TD. When it gets particularly crappy, it’s extra-great to have you around.

  3. Dictatorial Powers Unchallenged As US “Enemy Combatant” Pleads Guilty by Andy Worthington « Dandelion Salad says...

    [...] Combatant” Pleads Guilty by Andy Worthington Posted on May 1, 2009 by dandelionsalad by Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 1 May [...]

  4. Frances Madeson says...

    I agree that his sentence should include all time served. And the torture years, hard time indeed, should be multiplied by more than the power of one. I’m no mathematical genius and wouldn’t presume to define the exact terms but a fair formula is needed, one that reflects both the quantity and quality (torture!) of his incarceration.

  5. Andy Worthington says...

    After this article was published on CounterPunch, I received the following message:

    Hello Mr Worthington,

    I read your article “Dictatorial Powers Unchallenged” about the al-Marri case. He’s now in the (civilian) criminal justice system. There is US law against torture. He was tortured and has psychological identification of the long-term effects to prove it.

    What’s to keep him from recanting his plea based on the fact he was tortured and made the plea simply to have the torture stop — the usual taint that torture puts on any legal proceeding?

    Thanks,

    John Puma

  6. Andy Worthington says...

    This was my reply:

    Hi John,

    Thanks for getting in touch.

    So the answer is that, rather cannily from the government’s point of view, the plea arrangement explicitly prevents al-Marri from recanting. As Lyle Denniston explained on SCOTUSblog, “Al-Marri agreed not to challenge his guilty plea and the resulting conviction, and agreed not to pursue any habeas challenge.”
    http://www.scotusblog.com/wp/lingering-issues-for-al-marri/

    However, Denniston also noted problems with the Justice Department’s contention that it “reserves the right to oppose” any claim that al-Marri should get less than a 15-year prison term. Stating that this was “where future controversy may center,” he explained that, although al-Marri agreed not to dispute the plea, “he explicitly did not give up the right to seek credit for being in custody since his initial arrest on Dec. 12, 2001,” and added that, although al-Marri “agreed not to seek to withdraw his guilty plea because of the sentence he is given … that would still leave the sentence open to challenge if not reduced, either for time already in custody or because of the conditions of his confinement.”

    And Denniston added, “The two sides did agree on a number of sentencing factors under the federal Sentencing Guidelines, but it is up to Judge Mihm to actually set the sentence. The prosecutors and al-Marri’s lawyers agreed that the judge should consider as a favorable factor for al-Marri that he moved fairly quickly to decide to plead guilty, thus sparing the prosecution the effort of preparing for trial. That agreement, though, is also not binding on the judge.”

    As a result, I think we can expect fireworks when the actual sentencing occurs, which will involve the kind of focus on al-Marri’s torture that the government has been seeking to avoid. I certainly hope so, as it’s unacceptable to me that — regardless of al-Marri’s supposed significance — he was held in illegal and inhumane conditions on the US mainland, and the government wants to sweep that away, much as the Bush administration did with Jose Padilla.

    I hope that helps.

    Best,
    Andy

  7. Obama Returns to Bush Era on Guantánamo « roger hollander says...

    [...] al-Marri accepted a plea agreement and admitted that he had been sent to the United States as an al-Qaeda “sleeper agent,” [...]

  8. turning the page on tyranny « seeking spirit says...

    [...] we prosecuted and received a guilty plea from a detainee – [Ali] al-Marri — in federal court after years of legal confusion. We are preparing to transfer another detainee [...]

  9. Ali al-Marri, The Last US “Enemy Combatant,” Receives Eight-Year Sentence + Ali al-Marri’s Statement In Court by Andy Worthington « Dandelion Salad says...

    [...] federal court last Thursday. The prosecution was seeking a 15-year sentence, following al-Marri’s guilty plea in April, when, as part of a plea bargain, he accepted that he had receiving training in al-Qaeda camps and [...]

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