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

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

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.

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.