For five years and eight months, the Bush administration held Qatari national and legal U.S. resident Ali Saleh Kahleh 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 U.S. 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 U.S. 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 U.S. "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 allegation 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 U.S. 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 U.S. 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."