Hello all
The Al-Marri campaign has moved to a new blog site at http://almarricampaign.wordpress.com/
this blog site will no longer be maintained but the new site already looks much better and will be updated as regularly as possible so please check back.
thanks for your ongoing support,
all the best
Jezz and Jackie
Al-Marri Campaign.
Friday, 20 February 2009
Monday, 9 February 2009
President Barack Obama,
The White House,
1600 Pennsylvania Avenue NW,
Washington DC 20500, USA
Dear Mr. President,
We are writing to you regarding the case Ali Saleh Kahlah al-Marri, a Qatari National and legal Resident in the USA who has been subjected to prolonged detention without charge or trial since December 2001. He is currently in extreme solitary confinement at the Consolidated Military Brig in Charleston, South Carolina.
He has been kept incommunicado for over seven years in violation of his human rights. We are very concerned at reports of his psychological and physical deterioration due to his appalling treatment.
Your executive order of January 22 2009 directing an immediate review of Ali al-Marri’s status has given us hope that the extreme injustice he has suffered will be at an end and that he will be charged or released at the earliest opportunity.
Ali al-Marri has been cruelly treated by the your country’s previous Administration. We believe that it can not be right for a country to seize civilians, declare them to be “enemy combatants“, detain them indefinitely, subject them to cruel and degrading treatment and deny them access to any legal process.
We find it incomprehensible that Ali al- Marri has been held for so long.
We note that in 2004 the UN Working Party on Arbitrary Arrest found that Ali al-Marri’s detention was arbitrary and in breach of the US’s international human rights obligation.
We are aware of your pledges to restore the rule of law and your determination that the US will abide by its international treaty obligations.
We are encouraged by your commitment to “carry forward the precious gift, the God given promise that all are equal, all are free and all deserve to pursue the full measure of happiness.“
We call on you to end the unlawful detention of Ali al-Marri.
Please restore his constitutional rights, including the right to habeas corpus. Release him or charge him with a recognisable criminal offence in a court that meets international standards of justice.
However, justice demands that the crimes against him must also be subject to legal procedures.
He has suffered extreme isolation, abusive interrogations, denial of basic necessities including clothing, blanket, mattress, adequate water and hygiene items. He has been refused books, newspapers and recreation.
He is alone day after day. He has been kept in a cell, 9 feet by 6 feet, exposed to the cold and without any daylight. For three years he had no access to a lawyer. He was not allowed to phone to his family until 2008 and is still only permitted two calls a year. Letters are delayed for years.
These are crimes against humanity. We urge you to act in all haste to end his ordeal and make the torturers accountable,
Yours sincerely,
Name and Address (please add your own comment if you wish )
Friday, 6 February 2009
Link to online petition
Please visit this site to sign our petition which will be delivered to the US Ambassador in London
Thursday, 29 January 2009
Jarallah's letter to President Obama
January 16th, 2008
TO
PRESIDENT ELECT BARACK OBAMA
Dear President Elect,
Re Ali Saleh Kahlah Al-Marri
I write to ask what you are going to do about my brother, and when? He is Ali Al-Marri, the only man being held on U.S. soil, as an enemy combatant, at Charleston Naval Brig, South Carolina.
I was myself kidnapped and unlawfully detained in Guantanamo Bay without any justification ever being given, for more than 6 years. I was finally released last summer.
Throughout that time I was subjected to appalling treatment in repeated attempts to coerce me into providing untrue evidence against my brother. He meanwhile, a law abiding student, has been held as an “enemy combatant” within the United States itself without trial and in a naval brig. He is the only person being so held. His treatment has been as bad as or worse than mine, throughout precisely the same period of time.
I read of your commitment to close Guantanamo Bay and disperse those detained there. I ask you for a straightforward equivalent commitment, to send my brother home to his family now.
Sincerely,
Jarallah S. K. Al-Marri
Saturday, 17 January 2009
Democracy Now article on Ali al-Marri
The Case of Ali al-Marri: Can the Bush Administration Indefinitely Detain Legal Residents Without Charge?
2nd February 2007
www.democracynow.org/2007/2/2/the_case_of_ali_al_marri
The Bush administration has declared Ali al-Marri an “enemy combatant” and is claiming the right to jail him forever without pressing charges. On Thursday al-Marri’s attorneys appeared in a federal court to fight his five-year detention. The case marks one of the first challenges of the Military Commission Act and its suspension of the writ of Habeas Corpus. Constitutional scholars warn that if the government prevails it would expose more than twenty million noncitizens residing in the United States to the risk of indefinite detention on the basis of unfounded rumors, mistaken identity and lies. [includes rush transcript]
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We turn now to the case of Ali al-Marri. Over five years ago he was arrested at his home in Peoria Illinois where he lived with his wife and five children. He was initially he was arrested on criminal charges on suspicion of being part of a sleeper Al Qaeda cell. But in June of 2003, President Bush declared him to be an enemy combatant. The criminal charges were dropped and he was handed over to the military. He has been held in solitary confinement ever since in Navy brig in South Carolina and he is the only person still being held as an enemy combatant on U.S. soil.
Al-Marri is not been charged with any crime. Evidence has never been presented. And the Bush administration is claiming the right to jail him forever without pressing charges. On Thursday al-Marri’s attorneys appeared in a federal court in Richmond Virginia to fight his detention. The case marks one of the first challenges of the Military Commission Act and its suspension of the writ of Habeas Corpus.
Two months ago thirty constitutional scholars filed a brief about al-Marri’s case. They warned that if the government prevails it would expose more than twenty million noncitizens residing in the United States to the risk of indefinite detention on the basis of unfounded rumors, mistaken identity and lies.
Here with me now is one of Al Marri’s attorneys—Jonathan Hafetz.
- Jonathan Hafetz. Associate Counsel of the Liberty & National Security Project at the Brennan Center for Justice at NYU School of Law.
Rush Transcript
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AMY GOODMAN: Here with me now is one of al-Marri’s attorneys, Jonathan Hafetz, an attorney with the Brennan Center for Justice here in New York City. Welcome to Democracy Now!
JONATHAN HAFETZ: Good morning.
AMY GOODMAN: So start from the beginning. How was al-Marri picked up?
JONATHAN HAFETZ: Well, he was arrested at his home by FBI agents, charged with a crime, and then, as you pointed out, shortly before trial and actually literally on the eve of a hearing to suppress illegally seized evidence that was taken from his home without a warrant, the government essentially just pulled the plug on the criminal justice system and by the stroke of a pen transferred him to a military brig to legal limbo, where he had no rights, was held incommunicado and has been detained without charges now for going on four years.
AMY GOODMAN: What is this brig where he is held?
JONATHAN HAFETZ: The brig is a military prison in South Carolina. It typically houses individuals from the military who are convicted, court-martialed for offenses. But he’s in a isolated wing of the brig. He’s never seen another prisoner. The only individuals he’s permitted to see are his captors, the military guards, and now his lawyers are able to see him, but the first seventeen months he was held completely incommunicado. His lawyers were not able to contact him. We had no contact with him.
AMY GOODMAN: For how long?
JONATHAN HAFETZ: For seventeen months.
AMY GOODMAN: For almost a year and a half.
JONATHAN HAFETZ: That’s correct. Even the International Committee for the Red Cross was not able to go in. I mean, it was essentially secret detention on US soil. We had no way of knowing if he was alive.
AMY GOODMAN: And what exactly was the charge?
JONATHAN HAFETZ: Well, there was no charge. There were just allegations made, hearsay allegations, allegations we believe that were obtained from detainees through illegal methods, other detainees possibly through torture that the government did not present in court. There has been no hearing, no witnesses, nothing that would resemble what we understand as due process.
AMY GOODMAN: And explain what you mean when on the eve of—you’re saying on the eve of trial?
JONATHAN HAFETZ: Well, the trial was a few weeks away, but the judge had scheduled a hearing to suppress illegally seized evidence. The government can’t present evidence at a trial that’s been taken from someone’s home without a warrant. And there was a hearing to find out whether that had happened, and instead of going forward with the hearing, as would normally happen, the government showed up with an order, a one-page order from the President saying, ’You’re an enemy combatant. We’re going to dismiss the criminal case, and we’re going to snatch Mr. al-Marri and put him in a brig.’
AMY GOODMAN: And what does “enemy combatant” mean, that he had been fighting on the battlefield?
JONATHAN HAFETZ: Well, the term “enemy combatant” means essentially whatever the government says it means. They’ve used different definitions in different cases.
AMY GOODMAN: Invented by this administration?
JONATHAN HAFETZ: Yeah. The concept of enemy combatant is not a concept that’s identified under the laws of war. The government claims it’s a customary use of the laws of war or, you know, law of armed conflict, but there is no such thing as enemy combatant as the administration’s used its term. The way they use it is they try to describe it as someone who’s fighting on a battlefield. But Mr. al-Marri was never on a battlefield, never fought against US troops. He’s not in any way what we understand to be a combatant under the laws of war. He is essentially an alleged criminal who should be tried in the criminal justice system and has a right to be tried, but they are inventing this term to try to kind of pull the rug from under those rights and essentially get out of the Bill of Rights.
AMY GOODMAN: And so, he’s held in the military brig for how long?
JONATHAN HAFETZ: Well, he’s been at the brig now for over three-and-a-half years.
AMY GOODMAN: And how does this fit into the Military Commissions Act?
JONATHAN HAFETZ: Well, while his case was on appeal, Congress passed the Military Commissions Act in October, last October, and what the government has come to court claiming is that the Military Commissions Act strips the courts of the power even to hear his habeas corpus case. So if the government’s correct, the court would not even have the power to decide whether his detention is lawful. You know, we submit that that was never Congress’s intention. It never suspended the writ of habeas corpus, and so it could never eliminate the right of habeas corpus for any of the lawful resident aliens in the United States who have constitutional rights just like American citizens. And if they did, it would be unconstitutional. Congress could not take away the court’s power to hear his habeas case.
AMY GOODMAN: Janet Reno, the former attorney general, has commented on this case. What has she said?
JONATHAN HAFETZ: Well, what she said, I think, is very important, which is she and other top law enforcement officials who have spent their careers prosecuting crimes, including alleged terrorist crimes, and they say, you know, look, the nation’s criminal laws are very strong and are sufficient to handle the prosecution of terrorism cases, and we’ve seen that before 9/11, and we’ve seen it after. The government has prosecuted and obtained numerous convictions of individuals alleged of things that are similar to what is alleged against Mr. al-Marri. And what we’re asking for is that same right, that same core right of our Constitution, to be able to contest the charges and prove his innocence at a criminal trial.
AMY GOODMAN: So what does this mean for other non-citizens in the United States?
JONATHAN HAFETZ: Well, it’s, I think, very terrifying what it could mean. It means, one, if the government is correct about the Military Commissions Act, any immigrant could be snatched off the streets and secretly jailed, potentially forever, in a military brig, without ever having the right to get the court on a habeas corpus petition to ever have a right to receive judicial review of whether their detention is unlawful. And it means that individuals could be held potentially forever without charge. And it’s important to know that the powers the government is asserting to hold Mr. al-Marri as an enemy combatant are the same powers they say they can hold a US citizen. They’ve made clear that if everything were the same and Mr. al-Marri were a US citizen, they could do exactly the same thing. So what can happen to him could happen to a US citizen. It happened to Jose Padilla, as we know. And, I mean, this is it. They are essentially crossing the rubicon. They are essentially saying, “We don’t have to follow the criminal justice system and the Bill of Rights if we deem someone an enemy combatant.”
AMY GOODMAN: So what happens now in al-Marri’s case?
JONATHAN HAFETZ: Well, we will wait for the Fourth Circuit’s decision in his appeal.
AMY GOODMAN: And he remains in the brig?
JONATHAN HAFETZ: Yeah, he remains in the brig, pending a decision.
AMY GOODMAN: And the Congress, Senate, passing the Military Commissions Act, stripping habeas corpus?
JONATHAN HAFETZ: Well, the court will decide whether Congress in fact stripped habeas corpus over his case, and if it did, it will address whether or not it’s constitutional. So the court will address that issue in its decision.
AMY GOODMAN: Have you met with al-Marri?
JONATHAN HAFETZ: Yes, a number of times.
AMY GOODMAN: What is his mental condition?
JONATHAN HAFETZ: Well, I think it’s fluctuated over time. You know, at times it’s been very bad. I mean, there was a period of time when he was held in—you know, the isolation and the deprivation of basic necessities, basic religious items that didn’t allow him to practice Islam. Things like, you know, that we take for granted, like soap and toilet paper, were not given to him. And there was a period of time where he felt like he was losing his mind. He’s now in more stable condition. Things have improved, you know, largely because we filed a lawsuit against the government to compel them to treat him humanely. But he has, I think, been harmed very significantly, physically and mentally, by this ordeal, but, you know, he’s trying to hold it together and to main faith that he’ll have, you know, the right to a fair hearing in court one day.
AMY GOODMAN: And what about his family, his wife and his kids?
JONATHAN HAFETZ: Well, it’s difficult. His youngest child, for example, he last saw when the child was nine months old; now over five, has not seen them. He’s not allowed to talk to them on the phone. No visits. All he’s allowed to communicate through is letters, but because of the government censorship, they take sometimes ten months to reach his family or his family’s letters to reach him. And they’re sometimes very redacted. They will black out, you know, three-quarters of a letter from a seven-year-old child. So it’s really inconceivable that he’s not allowed to have meaningful contact with his own family.
AMY GOODMAN: And under what circumstances do you see him? What is the physical space like? What condition is he in?
JONATHAN HAFETZ: Well, now where we see him it varies. I mean, we’re able to sit across from him. He’s now not restrained. He used to have a leg shackle, ankle shackle on. But we’re able to meet with him now, and the staff at the brig have been very professional and accommodating in handling these requests. And, you know, the problem is not with the folks at the brig, the military people; the problem is with the administration and the three stars, as it were, who set this kind of policy, where you can hold someone as an enemy combatant and not give him any of the protections that we give prisoners during wartime.
AMY GOODMAN: Jonathan Hafetz, I want to thank you very much for being with us. He’s Associate Counsel of the Liberty & National Security Project at the Brennan Center for Justice at New York University School of Law. Thank you.
Article by Andy Worthington -The Last US Enemy Combatant: The Shocking Story of Ali al-Marri
The Last US Enemy Combatant: The Shocking Story of Ali al-Marri
4.12.08
By Andy Worthington
In brighter times, before a fog of fear descended on the United States, and the discourse of decent men and women was coarsened by an acceptance of the use of torture as a “no-brainer,” it would have been inconceivable that an American could have been held for seven years without charge or trial on the US mainland, in a state of solitary confinement so debilitating that he is said to be 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.”
And yet, this is exactly what has happened in the case of Ali Saleh Kahlah al-Marri. A Qatari national — and legal US resident — al-Marri had studied computer science in Peoria, Illinois in the 1980s, had graduated in 1991, and had legally returned to the United States on September 10, 2001 to pursue post-graduate studies, bringing his family — his wife and five children — with him. Three months later, on December 12, 2001, he was arrested at his home by the FBI, and taken to the maximum security Special Housing Unit at the Metropolitan Correctional Center in New York, where he was held in solitary confinement as a material witness in the investigation into the 9/11 attacks.
In February 2003, al-Marri was charged with credit card fraud, identity theft, making false statements to the FBI, and making a false statement on a bank application, and was moved back to a federal jail in Peoria, but on June 23, 2003, a month before he was due to stand trial, the charges were suddenly dropped when President Bush declared that he was an “enemy combatant,” who was “closely associated” with al-Qaeda, and had “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.” Also asserting that he possessed “intelligence,” which “would aid US efforts to prevent attacks by al-Qaeda,” the President ordered al-Marri to be surrendered to the custody of the Defense Department, and transported to the Consolidated Naval Brig in Charleston, South Carolina.
Al-Marri had already been held for 18 months, and had suffered in the Metropolitan Correction Center, where, in the wake of the 9/11 attacks, Muslim immigrants — 762 of the 1,200 men in total who were rounded up for investigation — were subjected to physical and verbal abuse, held in conditions of confinement that were “unduly harsh,” and often denied basic legal rights and religious privileges, according to a 2003 report by the Justice Department. However, his ordeal began in earnest at the brig.
The Consolidated Naval Brig, Charleston, South Carolina.
As was recently revealed through the disclosure of military documents following a Freedom of Information request (PDF), al-Marri, along with two American citizens also held as “enemy combatants” — Yaser Hamdi and Jose Padilla — was subjected to the same “Standard Operating Procedure” that was applied to prisoners at Guantánamo during its most brutal phase, from mid-2002 to mid-2004. This involved the use of “enhanced interrogation techniques,” including prolonged isolation, painful stress positions, exposure to extreme temperature, sleep deprivation, extreme sensory deprivation, and threats of violence and death.
Although the treatment of prisoners at Guantánamo was disturbingly harsh, it can be argued — with some confidence, I believe — that the treatment of al-Marri, Hamdi and Padilla was worse than that endured by the majority of the Guantánamo prisoners, as all three suffered in total isolation. The exceptions to this are the handful of Guantánamo prisoners who also endured years of solitary confinement — including the released British national Moazzam Begg, and British resident Shaker Aamer, who is still held at the prison, and has been in solitary confinement since August 2005.
Held alone in cellblocks that were otherwise unoccupied, al-Marri, Hamdi and Padilla had to survive without even the small comforts available to most of the Guantánamo prisoners, who, when not held in isolation as a punishment or as a prelude to interrogation, could at least communicate with the prisoners in the cells adjacent to them, and could take advantage of what lawyer Clive Stafford Smith has called the “incredible prisoner bush telegraph,” through which information is conveyed around the prison.
In the case of Hamdi (who was picked up in Afghanistan in November 2001 and initially held in Guantánamo until it was discovered that, although he had lived in Saudi Arabia since he was a child, he was born in Baton Rouge and was an American citizen), the effects of this near-total isolation were already apparent in June 2002, just a month after his transfer from Guantánamo. As one of the officers responsible for him explained in an email to his superiors, “with no potential end in sight and no encouraging news and isolated from his countrymen, I can understand how he feels … I will continue to do what I can to help this individual maintain his sanity, but in my opinion we’re working with borrowed time.”
In the case of Jose Padilla, who was held in strict solitary confinement for 21 months, the effects of his isolation were so intense that it has been reported that he literally lost his mind (his warders described him as “so docile and inactive that he could be mistaken for ‘a piece of furniture’”). Al-Marri’s experience was similar. As his lawyers explained in May this year, in court documents protesting his treatment (PDF), for the 16 months that he was held incommunicado,
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.
Noting his exposure to the “enhanced interrogation techniques” mentioned above, al-Marri’s lawyers also explained that 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.” They also threatened to make him “disappear so that no one would know where he was,” and on several occasions stuffed his mouth with cloth and gagged him with duct tape. “One time,” the lawyers noted, “when Mr. al-Marri managed to loosen the tape … interrogators re-taped his mouth even more tightly. Mr. al-Marri started to choke until a panicked agent from the FBI or Defense Intelligence Agency removed the tape.” On other occasions, “for periods of up to eight days at a time, Mr. al-Marri was placed in a completely bare and cold cell simply for refusing to answer questions.”
Perhaps the most disturbing treatment al-Marri suffered during this period was the suppression of his religious freedom. His lawyers observed that
Mr. al-Marri’s observance of Islam was restricted and degraded so severely that he could not adhere to the most elemental tenets of his faith. He was denied water to purify himself and a prayer rug to kneel on when praying. Mr. al-Marri was also denied a kofi to cover his head during prayer; when he used his shirt as a substitute, he was punished by having his shirt removed. Mr. al-Marri was prohibited from knowing the time of day or the direction of Mecca, preventing him from properly fulfilling the Islamic requirement of praying five times a day. The only religious item that Mr. al-Marri was permitted was a Qur’an, and his copy of the Qur’an was sometimes taken away to facilitate interrogation and at other times was degraded and abused.
In June 2004, the US Supreme Court made two significant rulings regarding the rights of prisoners detained in the “War on Terror.” One, Rasul v. Bush, granted habeas corpus rights to the Guantánamo prisoners, allowing lawyers access to the prison to begin filing briefs asking why the prisoners were being held, and the other, Hamdi v. Rumsfeld, did the same for US “enemy combatants,” although in a rather more muddled manner. Although eight of the nine justices determined that the President could not indefinitely imprison a US citizen without basic due process rights, they were unable to agree about the extent of the prisoners’ rights.
The most immediate impact of these rulings on the “enemy combatants” held on the US mainland was the repatriation of Yaser Hamdi to Saudi Arabia in August 2004. Padilla (photo, left) and al-Marri were less fortunate. Although both gained access to lawyers, and the brutal interrogations came to an end, the government was unwilling to grant them any further rights. In Padilla’s case, the government continued to hold him until November 2005, when, with the Supreme Court circling once more, the supposed justification for holding him — his alleged involvement in a “dirty bomb” plot — was dropped, and he was moved to the federal court system to face sketchy charges of providing material support for terrorism, which, nonetheless, led to a conviction in August 2007, and a 17-year sentence in January 2008.
Al-Marri was even unluckier. Although he too was granted access to counsel — in October 2004 — his lawyers noted, in the submission in May regarding his treatment, that “access initially was monitored and severely curtailed,” and, crucially, that, because he was a resident and not a citizen, the government “refused to recognize that Mr. al-Marri had a legal right of access to counsel (and still refuses to recognize that right to this day”).
Moreover, his lawyers explained that, although there was an improvement in his conditions of detention, these conditions “remained unbearably brutal and harsh.” They noted that he “continued to be confined to a 9 by 6 foot cell,” and was “denied regular opportunity for exercise,” and also stated:
The single window in Mr. al-Marri’s cell remained darkened with an opaque covering that prevented Mr. al-Marri from seeing the outside world or knowing the time of day. His cell had only a sink, toilet and hardened (metal) bed affixed to the wall. Mr. al-Marri had no chair on which to sit and no blanket, pillow, or any other soft item inside his cell. For more than two years, Mr. al-Marri was denied a mattress, causing him discomfort and pain whenever he lay down …
Mr. al-Marri was confined to his cell for 24 hours a day, 7 days a week, for months at a time. Once Mr. al-Marri was forced to spend more than 20 days in his metal bed in his freezing cell, shivering under a thin, stiff “suicide blanket,” unable even to stand because the floor was too cold and his socks and footwear had been taken away from him.
As part of a deliberate policy of controlling almost every aspect of his life “to cause disorientation, discomfort, and despair,” al-Marri continued to be deprived of all external stimuli — he had no access to books, newspapers, magazines, TV or radio — and began showing evidence of the mental collapse mentioned at the start of the article.
His conditions of confinement improved after August 2005, when his lawyers first filed a formal complaint about his treatment, and they noted in May this year that he is “now permitted to move about his cell block (though he remains the only prisoner there) and is given adequate time for recreation.” He is also in regular contact with his family by telephone, although his first phone call was not allowed until April 29, 2008, and was only arranged after his lawyers discovered that his father had died.
Nevertheless, the naked truth about al-Marri’s detention is that the five and a half years that he has spent in solitary confinement in the Charleston brig — on top of the 15 months that he was isolated in the Metropolitan Correction Center — makes him possibly the most isolated prisoner in American history. This would be disturbing enough if he had actually been convicted of a crime, but is all the more distressing because he has never been allowed anywhere near a courtroom.
This is not for want of trying on the part of his lawyers — and of certain judges. Last June, a panel of three judges in the Fourth Circuit appeals court dealt a blow to the administration’s claims by ruling that “the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’”
At the time, it looked as if this ruling might stand, but the government appealed, and when the Fourth Circuit reconvened en banc to deliver a second ruling in July this year, the voices of reason — four judges led by Diana Gribbon Motz — were overruled by their five colleagues. In the words of Judge William B. Traxler, whose swing vote confirmed the court’s otherwise divided ruling, “the Constitution generally affords all persons detained by the government the right to be charged and tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the United States to military detention unless they fall within certain narrow exceptions … The detention of enemy combatants during military hostilities, however, is such an exception. If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities.”
Judge Motz and the dissenters took exception to the mention of “the duration of the relevant hostilities.” After citing the 2007 State of the Union Address, in which President Bush claimed that “the war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others,” Judge Motz noted, “Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a ‘war on terror’ has no bounds.”
What disturbed the dissenters the most, however, were other elements of the ruling. Judge Motz noted that her colleagues had endorsed the President’s dictatorial right to imprison US citizens — as well as US residents — as “enemy combatants” without charge or trial, and also noted that they had claimed that the President did not even have to allege, as he did with Hamdi and Padilla, that an “enemy combatant” had either been in Afghanistan or had ever raised arms against US forces.
The dissenting judges also supported al-Marri’s lawyers, who had pointed out that the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and that, 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.
Judge Motz’s conclusion — “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,” — should have sounded the alarm for anyone concerned with the Constitutional rights of Americans, but although Judge Traxler joined Judge Motz and her colleagues in ruling that al-Marri was entitled to some sort of review of the basis of his detention, there has been no progress in the intervening months. Al-Marri is now waiting to see if the Supreme Court, which was deciding whether to take up his case on November 25, will indeed challenge what Judge Motz called “a claim to power that would … alter the constitutional foundations of our Republic.”
The question remains, of course, as to why al-Marri was held as an “enemy combatant” in the first place, and although there are many unexplained elements in his story — involving the alleged large-scale credit card fraud that led to his initial arrest, an unexplained visit to New York in 2000, and questions about research on his computer into chemicals that could be used in explosives — he has always maintained that the allegations against him, as laid out in an FBI declaration, are untrue: specifically, that he “associated with high-level al-Qaeda members, met with Osama bin Laden, volunteered for a ‘martyr mission,’ and was ordered to enter the United States before September 11, 2001, to facilitate terrorist activities and explore the possibility of disrupting [the US] financial system via computer hacking.”
What’s particularly worrying about the FBI’s declaration is that the primary source for the allegations is Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, who was seized in Pakistan in March 2003, just three months before al-Marri was declared an “enemy combatant,” and subjected to the ancient torture technique known as waterboarding. During his tribunal at Guantánamo in March 2007, Mohammed stated that he had given false information about other people while being tortured, and, although he was not allowed to elaborate, I traced several possible victims of these false confessions in an article last summer, including Majid Khan, one of 13 supposedly “high-value” detainees transferred with Mohammed to Guantánamo from secret CIA prisons in September 2006, Saifullah Paracha, a Pakistani businessman and philanthropist held in Guantánamo, and his son Uzair, who was convicted in the United States on dubious charges in November 2005, and sentenced to 30 years in prison.
It’s possible, therefore, that al-Marri is another victim of Mohammed’s false confessions, obtained through torture, and that other allegations may have come from Mustafa al-Hawsawi, an alleged al-Qaeda financier, captured with Mohammed, who was also held in CIA custody before his transfer to Guantánamo. The government has alleged that al-Marri was in contact with al-Hawsawi before his arrest, but al-Marri has repeatedly denied the allegation.
Whatever the truth, however, the correct venue for ascertaining Ali al-Marri’s guilt or innocence has never been, and never will be, through long years of torture and extreme isolation in a military brig in South Carolina. I can only hope that the Supreme Court, which now has a long track record of opposing the Bush administration’s attempts to justify holding prisoners without charge or trial, will realize the importance of his case, recognizing not only how it degrades America’s moral standing and her “constitutional foundations,” but also how — in terms of what has been done to Ali al-Marri on behalf of the American people — it is a repugnant way to treat a fellow human, whether a foreigner, a “resident alien,” or a US citizen.
In one sentence that reveals the depths to which the Bush administration has sunk in the treatment of Ali al-Marri, Stuart Grassian, a Boston psychiatrist and an expert on the effects of solitary confinement, explained, after being allowed to meet him at the Charleston brig, that he had “only very uncommonly encountered an individual whose confinement was as onerous as Mr. al-Marri’s, except for individuals who had been incarcerated brutally in some third-world countries.”
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press). He wrote this article exclusively for Cageprisoners.
Note: See here for a detailed archive of legal documents relating to the case.
POSTSCRIPT: On December 5, the Supreme Court announced that it would “decide whether President George W. Bush can order the indefinite imprisonment in the United States of an al Qaeda suspect without charging him,” as Reuters explained, adding that the Court “most likely will hear arguments in Marri’s case in March, with a decision expected by the end of June.” SCOTUSblog has links to the legal documents, including impressive support for al-Marri from law professors, former federal judges and retired military officers.
4.12.08
By Andy Worthington
In brighter times, before a fog of fear descended on the United States, and the discourse of decent men and women was coarsened by an acceptance of the use of torture as a “no-brainer,” it would have been inconceivable that an American could have been held for seven years without charge or trial on the US mainland, in a state of solitary confinement so debilitating that he is said to be 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.”
And yet, this is exactly what has happened in the case of Ali Saleh Kahlah al-Marri. A Qatari national — and legal US resident — al-Marri had studied computer science in Peoria, Illinois in the 1980s, had graduated in 1991, and had legally returned to the United States on September 10, 2001 to pursue post-graduate studies, bringing his family — his wife and five children — with him. Three months later, on December 12, 2001, he was arrested at his home by the FBI, and taken to the maximum security Special Housing Unit at the Metropolitan Correctional Center in New York, where he was held in solitary confinement as a material witness in the investigation into the 9/11 attacks.
In February 2003, al-Marri was charged with credit card fraud, identity theft, making false statements to the FBI, and making a false statement on a bank application, and was moved back to a federal jail in Peoria, but on June 23, 2003, a month before he was due to stand trial, the charges were suddenly dropped when President Bush declared that he was an “enemy combatant,” who was “closely associated” with al-Qaeda, and had “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.” Also asserting that he possessed “intelligence,” which “would aid US efforts to prevent attacks by al-Qaeda,” the President ordered al-Marri to be surrendered to the custody of the Defense Department, and transported to the Consolidated Naval Brig in Charleston, South Carolina.
Al-Marri had already been held for 18 months, and had suffered in the Metropolitan Correction Center, where, in the wake of the 9/11 attacks, Muslim immigrants — 762 of the 1,200 men in total who were rounded up for investigation — were subjected to physical and verbal abuse, held in conditions of confinement that were “unduly harsh,” and often denied basic legal rights and religious privileges, according to a 2003 report by the Justice Department. However, his ordeal began in earnest at the brig.
The Consolidated Naval Brig, Charleston, South Carolina.
As was recently revealed through the disclosure of military documents following a Freedom of Information request (PDF), al-Marri, along with two American citizens also held as “enemy combatants” — Yaser Hamdi and Jose Padilla — was subjected to the same “Standard Operating Procedure” that was applied to prisoners at Guantánamo during its most brutal phase, from mid-2002 to mid-2004. This involved the use of “enhanced interrogation techniques,” including prolonged isolation, painful stress positions, exposure to extreme temperature, sleep deprivation, extreme sensory deprivation, and threats of violence and death.
Although the treatment of prisoners at Guantánamo was disturbingly harsh, it can be argued — with some confidence, I believe — that the treatment of al-Marri, Hamdi and Padilla was worse than that endured by the majority of the Guantánamo prisoners, as all three suffered in total isolation. The exceptions to this are the handful of Guantánamo prisoners who also endured years of solitary confinement — including the released British national Moazzam Begg, and British resident Shaker Aamer, who is still held at the prison, and has been in solitary confinement since August 2005.
Held alone in cellblocks that were otherwise unoccupied, al-Marri, Hamdi and Padilla had to survive without even the small comforts available to most of the Guantánamo prisoners, who, when not held in isolation as a punishment or as a prelude to interrogation, could at least communicate with the prisoners in the cells adjacent to them, and could take advantage of what lawyer Clive Stafford Smith has called the “incredible prisoner bush telegraph,” through which information is conveyed around the prison.
In the case of Hamdi (who was picked up in Afghanistan in November 2001 and initially held in Guantánamo until it was discovered that, although he had lived in Saudi Arabia since he was a child, he was born in Baton Rouge and was an American citizen), the effects of this near-total isolation were already apparent in June 2002, just a month after his transfer from Guantánamo. As one of the officers responsible for him explained in an email to his superiors, “with no potential end in sight and no encouraging news and isolated from his countrymen, I can understand how he feels … I will continue to do what I can to help this individual maintain his sanity, but in my opinion we’re working with borrowed time.”
In the case of Jose Padilla, who was held in strict solitary confinement for 21 months, the effects of his isolation were so intense that it has been reported that he literally lost his mind (his warders described him as “so docile and inactive that he could be mistaken for ‘a piece of furniture’”). Al-Marri’s experience was similar. As his lawyers explained in May this year, in court documents protesting his treatment (PDF), for the 16 months that he was held incommunicado,
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.
Noting his exposure to the “enhanced interrogation techniques” mentioned above, al-Marri’s lawyers also explained that 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.” They also threatened to make him “disappear so that no one would know where he was,” and on several occasions stuffed his mouth with cloth and gagged him with duct tape. “One time,” the lawyers noted, “when Mr. al-Marri managed to loosen the tape … interrogators re-taped his mouth even more tightly. Mr. al-Marri started to choke until a panicked agent from the FBI or Defense Intelligence Agency removed the tape.” On other occasions, “for periods of up to eight days at a time, Mr. al-Marri was placed in a completely bare and cold cell simply for refusing to answer questions.”
Perhaps the most disturbing treatment al-Marri suffered during this period was the suppression of his religious freedom. His lawyers observed that
Mr. al-Marri’s observance of Islam was restricted and degraded so severely that he could not adhere to the most elemental tenets of his faith. He was denied water to purify himself and a prayer rug to kneel on when praying. Mr. al-Marri was also denied a kofi to cover his head during prayer; when he used his shirt as a substitute, he was punished by having his shirt removed. Mr. al-Marri was prohibited from knowing the time of day or the direction of Mecca, preventing him from properly fulfilling the Islamic requirement of praying five times a day. The only religious item that Mr. al-Marri was permitted was a Qur’an, and his copy of the Qur’an was sometimes taken away to facilitate interrogation and at other times was degraded and abused.
In June 2004, the US Supreme Court made two significant rulings regarding the rights of prisoners detained in the “War on Terror.” One, Rasul v. Bush, granted habeas corpus rights to the Guantánamo prisoners, allowing lawyers access to the prison to begin filing briefs asking why the prisoners were being held, and the other, Hamdi v. Rumsfeld, did the same for US “enemy combatants,” although in a rather more muddled manner. Although eight of the nine justices determined that the President could not indefinitely imprison a US citizen without basic due process rights, they were unable to agree about the extent of the prisoners’ rights.
The most immediate impact of these rulings on the “enemy combatants” held on the US mainland was the repatriation of Yaser Hamdi to Saudi Arabia in August 2004. Padilla (photo, left) and al-Marri were less fortunate. Although both gained access to lawyers, and the brutal interrogations came to an end, the government was unwilling to grant them any further rights. In Padilla’s case, the government continued to hold him until November 2005, when, with the Supreme Court circling once more, the supposed justification for holding him — his alleged involvement in a “dirty bomb” plot — was dropped, and he was moved to the federal court system to face sketchy charges of providing material support for terrorism, which, nonetheless, led to a conviction in August 2007, and a 17-year sentence in January 2008.
Al-Marri was even unluckier. Although he too was granted access to counsel — in October 2004 — his lawyers noted, in the submission in May regarding his treatment, that “access initially was monitored and severely curtailed,” and, crucially, that, because he was a resident and not a citizen, the government “refused to recognize that Mr. al-Marri had a legal right of access to counsel (and still refuses to recognize that right to this day”).
Moreover, his lawyers explained that, although there was an improvement in his conditions of detention, these conditions “remained unbearably brutal and harsh.” They noted that he “continued to be confined to a 9 by 6 foot cell,” and was “denied regular opportunity for exercise,” and also stated:
The single window in Mr. al-Marri’s cell remained darkened with an opaque covering that prevented Mr. al-Marri from seeing the outside world or knowing the time of day. His cell had only a sink, toilet and hardened (metal) bed affixed to the wall. Mr. al-Marri had no chair on which to sit and no blanket, pillow, or any other soft item inside his cell. For more than two years, Mr. al-Marri was denied a mattress, causing him discomfort and pain whenever he lay down …
Mr. al-Marri was confined to his cell for 24 hours a day, 7 days a week, for months at a time. Once Mr. al-Marri was forced to spend more than 20 days in his metal bed in his freezing cell, shivering under a thin, stiff “suicide blanket,” unable even to stand because the floor was too cold and his socks and footwear had been taken away from him.
As part of a deliberate policy of controlling almost every aspect of his life “to cause disorientation, discomfort, and despair,” al-Marri continued to be deprived of all external stimuli — he had no access to books, newspapers, magazines, TV or radio — and began showing evidence of the mental collapse mentioned at the start of the article.
His conditions of confinement improved after August 2005, when his lawyers first filed a formal complaint about his treatment, and they noted in May this year that he is “now permitted to move about his cell block (though he remains the only prisoner there) and is given adequate time for recreation.” He is also in regular contact with his family by telephone, although his first phone call was not allowed until April 29, 2008, and was only arranged after his lawyers discovered that his father had died.
Nevertheless, the naked truth about al-Marri’s detention is that the five and a half years that he has spent in solitary confinement in the Charleston brig — on top of the 15 months that he was isolated in the Metropolitan Correction Center — makes him possibly the most isolated prisoner in American history. This would be disturbing enough if he had actually been convicted of a crime, but is all the more distressing because he has never been allowed anywhere near a courtroom.
This is not for want of trying on the part of his lawyers — and of certain judges. Last June, a panel of three judges in the Fourth Circuit appeals court dealt a blow to the administration’s claims by ruling that “the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’”
At the time, it looked as if this ruling might stand, but the government appealed, and when the Fourth Circuit reconvened en banc to deliver a second ruling in July this year, the voices of reason — four judges led by Diana Gribbon Motz — were overruled by their five colleagues. In the words of Judge William B. Traxler, whose swing vote confirmed the court’s otherwise divided ruling, “the Constitution generally affords all persons detained by the government the right to be charged and tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the United States to military detention unless they fall within certain narrow exceptions … The detention of enemy combatants during military hostilities, however, is such an exception. If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities.”
Judge Motz and the dissenters took exception to the mention of “the duration of the relevant hostilities.” After citing the 2007 State of the Union Address, in which President Bush claimed that “the war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others,” Judge Motz noted, “Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a ‘war on terror’ has no bounds.”
What disturbed the dissenters the most, however, were other elements of the ruling. Judge Motz noted that her colleagues had endorsed the President’s dictatorial right to imprison US citizens — as well as US residents — as “enemy combatants” without charge or trial, and also noted that they had claimed that the President did not even have to allege, as he did with Hamdi and Padilla, that an “enemy combatant” had either been in Afghanistan or had ever raised arms against US forces.
The dissenting judges also supported al-Marri’s lawyers, who had pointed out that the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and that, 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.
Judge Motz’s conclusion — “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,” — should have sounded the alarm for anyone concerned with the Constitutional rights of Americans, but although Judge Traxler joined Judge Motz and her colleagues in ruling that al-Marri was entitled to some sort of review of the basis of his detention, there has been no progress in the intervening months. Al-Marri is now waiting to see if the Supreme Court, which was deciding whether to take up his case on November 25, will indeed challenge what Judge Motz called “a claim to power that would … alter the constitutional foundations of our Republic.”
The question remains, of course, as to why al-Marri was held as an “enemy combatant” in the first place, and although there are many unexplained elements in his story — involving the alleged large-scale credit card fraud that led to his initial arrest, an unexplained visit to New York in 2000, and questions about research on his computer into chemicals that could be used in explosives — he has always maintained that the allegations against him, as laid out in an FBI declaration, are untrue: specifically, that he “associated with high-level al-Qaeda members, met with Osama bin Laden, volunteered for a ‘martyr mission,’ and was ordered to enter the United States before September 11, 2001, to facilitate terrorist activities and explore the possibility of disrupting [the US] financial system via computer hacking.”
What’s particularly worrying about the FBI’s declaration is that the primary source for the allegations is Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, who was seized in Pakistan in March 2003, just three months before al-Marri was declared an “enemy combatant,” and subjected to the ancient torture technique known as waterboarding. During his tribunal at Guantánamo in March 2007, Mohammed stated that he had given false information about other people while being tortured, and, although he was not allowed to elaborate, I traced several possible victims of these false confessions in an article last summer, including Majid Khan, one of 13 supposedly “high-value” detainees transferred with Mohammed to Guantánamo from secret CIA prisons in September 2006, Saifullah Paracha, a Pakistani businessman and philanthropist held in Guantánamo, and his son Uzair, who was convicted in the United States on dubious charges in November 2005, and sentenced to 30 years in prison.
It’s possible, therefore, that al-Marri is another victim of Mohammed’s false confessions, obtained through torture, and that other allegations may have come from Mustafa al-Hawsawi, an alleged al-Qaeda financier, captured with Mohammed, who was also held in CIA custody before his transfer to Guantánamo. The government has alleged that al-Marri was in contact with al-Hawsawi before his arrest, but al-Marri has repeatedly denied the allegation.
Whatever the truth, however, the correct venue for ascertaining Ali al-Marri’s guilt or innocence has never been, and never will be, through long years of torture and extreme isolation in a military brig in South Carolina. I can only hope that the Supreme Court, which now has a long track record of opposing the Bush administration’s attempts to justify holding prisoners without charge or trial, will realize the importance of his case, recognizing not only how it degrades America’s moral standing and her “constitutional foundations,” but also how — in terms of what has been done to Ali al-Marri on behalf of the American people — it is a repugnant way to treat a fellow human, whether a foreigner, a “resident alien,” or a US citizen.
In one sentence that reveals the depths to which the Bush administration has sunk in the treatment of Ali al-Marri, Stuart Grassian, a Boston psychiatrist and an expert on the effects of solitary confinement, explained, after being allowed to meet him at the Charleston brig, that he had “only very uncommonly encountered an individual whose confinement was as onerous as Mr. al-Marri’s, except for individuals who had been incarcerated brutally in some third-world countries.”
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press). He wrote this article exclusively for Cageprisoners.
Note: See here for a detailed archive of legal documents relating to the case.
POSTSCRIPT: On December 5, the Supreme Court announced that it would “decide whether President George W. Bush can order the indefinite imprisonment in the United States of an al Qaeda suspect without charging him,” as Reuters explained, adding that the Court “most likely will hear arguments in Marri’s case in March, with a decision expected by the end of June.” SCOTUSblog has links to the legal documents, including impressive support for al-Marri from law professors, former federal judges and retired military officers.
What You Can Do
WRITE TO THE U.S. AND QATAR
Suggestion: Write requesting immediate action in the case of Ali Al-Marri being held as an enemy combatent at the US Naval Brig Charleston South Carolina. Ask for Al- Marri to have his constitutional rights restored with access to the judicial system and that he be returned to his home in Qatar urgently.
Approaches from the UK can be addressed to :
Sir David Manning Ambassador to the USA
British Embassy
3100 Massachusetts Avenue
Washington DC 20008 USA
The Honorable Hilary Clinton, Secretary of State
Department of State 2201 C Street NW
Washington DC 20520 USA
The Honorable Robert Gates, Secretary of Defense
1000 Defense Pentagon
Washington DC 20301 USA
Use the address “Dear Secretary of State / Defense.
President Barack Obama
The White House
1600 Pennsylvania Avenue
Washington DC 20500 USA
His ExcellencyEmir Hamad bin Khalifa al-Thani
The Palace of the Emir of Quatar
Doha, Quatar.
CONTACT US AND JOIN THE CAMPAIGN. WE WILL BE MEETING FORTNIGHTLY FROM JANUARY 28st 7pm VENUE TBC PHONE 07799564620 or e-mail for details We will post details asap.
Ali al-Marri Summary of the Case
Summary of the Case
Al-Marri v. Pucciarelli is a habeas corpus action challenging the detention of the only remaining individual held in the United States as an “enemy combatant.” At stake is whether the President can order the military to seize and detain indefinitely without charge or trial individuals lawfully residing in the United States based on government assertions that he planned to commit terrorist activities.
Background
Ali Saleh Kahlah al-Marri, a Qatari national, came lawfully to the United States with his wife and five children to pursue a master’s degree at Bradley University in Peoria, Illinois, in September 2001. He was arrested by the FBI at his home that December and subsequently indicted for credit card fraud and false identification. Al-Marri asserted his innocence and prepared to contest the charges. But on June 23, 2003, on the eve of a hearing to suppress illegally seized evidence and less than a month before trial, the President declared al-Marri an al Qaeda agent and designated him an “enemy combatant” in the “war on terrorism.” That same day, the military took custody of al-Marri and incarcerated him in the Navy brig in South Carolina, where he has been detained without charge ever since.
For the first sixteen months of his military detention, the government held al-Marri incommunicado and subjected him to a brutal interrogation regime. Al-Marri was held in total isolation, exposed to painful stress positions, shackled in a freezing cell for hours at a time, and threatened with violence and death. Although the government has never indicated how long it plans to hold al-Marri, who remains in virtual isolation at the brig, it has indicated that his detention may continue potentially for the rest of his life.
Court Proceedings
Al-Marri filed a petition for a writ of habeas corpus challenging his military detention without charge. After the district court dismissed the petition, a three judge panel of the U.S. Court of Appeals for the Fourth Circuit reversed, ruling that the “military detention of al-Marri must cease.” Al-Marri v. Wright, 487 F.3d 160, 195 (4th Cir. 2007). The full Fourth Circuit, however, agreed to rehear the case. In July 2008, the en banc appeals court ruled by a 5-4 vote that, under the Authorization for Use of Military Force (AUMF), 115 Stat. 224, the President can detain individuals in the United States, including U.S. citizens, indefinitely without charge based on government assertions that they planned to commit terrorist activities. Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008). The five judge majority issued three separate opinions, unable to agree on a definition of “enemy combatant.” Dissenting for the four judges, Judge Diana Gribbon Motz declared that “in this nation, military control cannot subsume the constitutional rights of civilians.” Id. at 251-52. She added, “[t]o sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them ‘enemy combatants,’ . . . would effectively undermine all of the freedoms guaranteed by the Constitution.” Id. at 252-53.
On September 19, 2008, Al-Marri filed a petition for certiorari seeking review of the Fourth Circuit’s decision. The petition asserts that the Fourth Circuit made four grave errors on an issue of paramount national importance by vesting the executive with an unprecedented detention power that Congress never authorized and that the Constitution does not allow.
First, the Fourth Circuit disregarded the Supreme Court’s repeated directive that authority to seize and detain individuals within the United States without charge, even if allowed under the Constitution, demands a clear statement from Congress. Instead, the Fourth Circuit construed the AUMF’s silence to grant unprecedented authority for domestic military detention, rejecting centuries of legal tradition and fundamental constitutional safeguards secured through the criminal process.
Second, the Fourth Circuit ignored Congress’ clear intent, manifested contemporaneous to the AUMF in the Patriot Act, that domestic terrorism suspects not be subject to prolonged or indefinite detention without charge, but be handled through the civilian criminal justice and immigration systems.
Third, the Fourth Circuit contradicted the Supreme Court’s instruction that power to detain under the AUMF must be consistent with established law-of-war principles. Consequently, it stretched the definition of “enemy combatant,” far beyond what the Court’s decisions allow, imperiling the Constitution’s most important safeguards and unsettling long-established understandings about the military’s limited domestic role.
Finally, by upholding the military detention of a person who had been confined already for eighteen months in maximum security federal custody with no imminent prospect of release, the Fourth Circuit ignored Congress’ explicit instruction in the AUMF that only “necessary and appropriate” military force may be used.
The Fourth Circuit’s decision has profound repercussions. It grants the executive discretion to displace the constitutional protections of the criminal justice system, including the right to speedy presentment, confrontation, and trial by jury, merely by alleging a connection to possible terrorist activity. It also replaces settled and historic protections with confusion, creating three different definitions of “enemy combatant”—on top of the government’s own various and shifting definitions of that term. In short, by authorizing a novel domestic military detention scheme with uncertain substantive parameters and ad hoc procedural rules, the Fourth Circuit decision casts a pall over the physical liberty of all persons living within this country.
On December 5, 2008, the Supreme Court granted the petition and agreed to hear the case.
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