[Ppnews] Dictatorial Powers Unchallenged - Al-Marri's Plea Bargain

[Political Prisoner News]

http://www.counterpunch.org/worthington05012009.html
May 1 - 3, 2009


Al-Marri's Plea Bargain


Dictatorial Powers Unchallenged

By ANDY WORTHINGTON

For five years and eight months, the Bush 
administration held Qatari national and legal US 
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 
<http://www.andyworthington.co.uk/2009/03/02/ending-the-cruel-isolation-of-ali-al-marri-the-last-us-enemy-combatant/>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 
<http://www.andyworthington.co.uk/2009/04/21/ten-terrible-truths-about-the-cia-torture-memos-part-one/>memos 
released by the Obama administration two weeks 
ago, which, as confirmed in a Senate Armed 
Services Committee report 
(<http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf>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 
<http://www.andyworthington.co.uk/2007/09/04/jose-padilla-more-sinned-against-than-sinning/>Jose 
Padilla, and 
<http://www.andyworthington.co.uk/2009/03/11/forgotten-in-guantanamo-british-resident-shaker-aamer/>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 
<http://www.andyworthington.co.uk/2008/12/04/the-last-us-enemy-combatant-the-shocking-story-of-ali-al-marri/>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 
<http://www.counterpunch.org/worthington07142007.html>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 
<http://www.counterpunch.org/worthington02072008.html>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 
<http://www.latimes.com/news/nationworld/nation/la-na-enemy-combatant1-2009may01,0,7173449.story>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 
<http://online.wsj.com/article/SB124112909650574699.html?mod=googlenews_wsj>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, 
“<http://www.andyworthington.co.uk/2009/03/10/why-the-us-under-obama-is-still-a-dictatorship/>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 
<http://www.counterpunch.org/worthington07212008.html>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 4^th 
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 
and convicted) 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.”

Andy Worthington is a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk



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