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<a href="http://www.counterpunch.org/worthington11062007.html" eudora="autourl">
http://www.counterpunch.org/worthington11062007.html<br><br>
</a></font><font face="Times New Roman, Times" size=4><b>November 6,
2007<br><br>
</font><h1><font face="Times New Roman, Times" size=5><b>The Last
"Enemy Combatant" on the U.S. Mainland<br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">The
Torture of Ali
al-Marri</b></font></h1><font face="Times New Roman, Times" size=5>By
ANDY WORTHINGTON<br><br>
</font><font face="Verdana" size=6 color="#990000">T</font>
<font face="Verdana" size=2>orture is defined in many ways. To the US
administration, nothing that it ever does is torture. In keeping with the
notorious "Torture Memo" of August 2002, drafted primarily by
Vice President Dick Cheney's chief counsel David Addington,
"enhanced interrogation techniques" (as the administration
euphemistically defines its forays into torture) only actually become
torture if the suffering produced is equivalent to organ failure or even
death. <br><br>
As a result, Dick Cheney was well within his comfort zone when, on a
conservative radio show last October, he responded to a dismissively
phrased question about waterboarding -- "Would you agree a dunk in
water is a no-brainer if it can save lives?" -- with the response,
"Well, it's a no-brainer for me." He added, "But for a
while there, I was criticized as being the vice president for
torture" (courtesy of the <i>Washington Post</i>), and concluded
with the administration's predictable mantra, "We don't torture.
That's not what we're involved in."<br><br>
To others, including the State Department, waterboarding is clearly
torture, as the Department declares every year when it condemns other
countries for subjecting prisoners to "a dunk in the water."
But while it should be clear to all but the most vindictively
brain-washed that waterboarding and other techniques which have been used
in Guantánamo, and which are still part of the CIA's arsenal (including
the prolonged use of stress positions, extreme temperature manipulation,
and profound sleep deprivation) are also torture, especially when their
use is combined, holding a man in solitary confinement for several years
is somehow seen as a soft option.<br><br>
This is in spite of the fact that, when approved by Donald Rumsfeld for
use at Guantánamo, Defense Department lawyers warned that isolation was
"not known to have been generally used for interrogation purposes
for longer than 30 days." The lawyers' warnings, it should also be
noted, echoed the opinion expressed in the CIA's 1963 KUBARK Manual (with
its notorious section on counter-intelligence interrogation), in which
the agency warned of the "profound moral objection" of applying
"duress past the point of irreversible psychological
damage."<br><br>
My concern with the effects of prolonged solitary confinement hit me
abruptly this week when I read -- in the <i>New York Times</i>, one of
the few media outlets to cover the story -- that the case of Ali
al-Marri, the last "enemy combatant" on US soil, was causing
some consternation to the US Court of Appeals for the Fourth Circuit in
Richmond, Virginia. <br><br>
A Qatari national and a resident alien in the United States, al-Marri had
studied computer science in Peoria, Illinois in 1991, and had legally
returned to the United States on September 10, 2001, with his residency
in order, to pursue post-graduate studies, bringing his family (his wife
and five children) with him. Three months later he was arrested and
charged with fraud and making false statements to the FBI, but in June
2003, a month before he was due to stand trial for these charges in a
federal court, the prosecution dropped the charges and informed the court
that he was to be held as an "enemy combatant" instead.
<br><br>
He was then moved to a naval brig in Charleston, South Carolina, where he
was held incommunicado for 16 months, and where, according to statements
eventually filed by his lawyers (see below), he was subjected to
"inhumane, degrading, and physically and psychologically abusive
treatment." Held in "complete isolation" in a bare cell
measuring nine feet by six feet in an otherwise unoccupied cell block, he
was subjected to sleep deprivation and extreme temperature manipulation,
was frequently deprived of food and water, and was only allowed outside
for "recreation" (also alone) three times a week "when
deemed to be 'compliant.'" Reinforcing his isolation, his cell
contained nothing but a Koran, a "suicide blanket" and a thin
mattress, and even the window was blocked out, preventing him from ever
seeing natural light or knowing the time of day.<br><br>
Al-Marri also stated that, during the first year of his imprisonment in
the brig, he was "interrogated repeatedly," and he explained
that his interrogators "falsely told [him] that four of his brothers
and his father were in jail because of him, and promised that they would
all be released if he cooperated with them," and also
"threatened to send [him] to Egypt or to Saudi Arabia where, they
told him, he would be tortured and sodomized and where his wife would be
raped in front of him." <br><br>
In August 2003, representatives of the International Red Cross were
finally allowed to meet with al-Marri, and two months later he was
finally permitted to meet with a lawyer, but despite sporadic visits from
the Red Cross and his legal representatives, the extreme isolation in
which he has been held (and the perpetuation of the ill-treatment
outlined above) has been barely mitigated. Including the six months that
he spent in isolation in Peoria County Jail and the Metropolitan
Correction Center in New York, before being transferred to Charleston, he
has now spent four years and ten months (58 times the amount of time
recommended by Defense Department lawyers) in solitary confinement.
<br><br>
While this is not unique -- the alleged "high-value" al-Qaeda
operative Abu Zubaydah has been in solitary since March 2002, for
example, and several Guantánamo detainees have also spent a substantial
amount of time in a similar situation (including, currently, the British
resident Shaker Aamer, who has been alone in an isolation block since
August 2005) -- al-Marri, as a US resident, is supposed to be protected
from this sort of treatment.<br><br>
The only comparable case, and one which bears close scrutiny, is that of
Jose Padilla, the only other "enemy combatant" to be held for a
substantial period of time on the US mainland. A US citizen, Padilla was
held in the Charleston brig for three and a half years, where, crucially,
the extreme isolation to which he was subjected, combined with sensory
deprivation and the use of psychotropic drugs, led to the complete
disintegration of his mind, according to several psychiatrists who
evaluated his mental state. <br><br>
According to one of al-Marri's lawyers, Jonathan Hafetz of the Brennan
Center for Justice at the New York University School of Law, his client's
mental disintegration has not been quite so severe, although he has been
described as suffering "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." While this is a distressing
litany of the symptoms to be expected from prolonged solitary
confinement, it may be that al-Marri's relative sanity compared to
Padilla (who was described by his guards as "so docile and inactive
that he could be mistaken for 'a piece of furniture'") is sufficient
to explain why his story has not been so newsworthy, but it seems likely
that his case has also been largely ignored because he is a resident
alien rather than a US citizen, and because his story is not so
glamorous.<br><br>
Unlike Padilla, who shot to undying fame when he was accused of plotting
to detonate a "dirty bomb" in a US city, al-Marri has no such
tag to identify him. The presidential order which declared him an
"enemy combatant" stated simply that he was closely associated
with al-Qaeda and presented "a continuing, present, and grave danger
to the national security of the United States," and the
"charges" against him have fluctuated: at various times it has
been claimed by the government that he attended an al-Qaeda training
camp, that he met Khalid Sheikh Mohammed (KSM), the self-confessed
architect of 9/11, and that he had connections to the al-Qaeda financier
Mustafa al-Hawsawi. It has also been alleged that he met Osama bin Laden,
and that, after meeting him, pledged that he would kill Americans, that
he volunteered for a "martyr mission," and that he was working
as an al-Qaeda sleeper agent in the US at the time of his capture. Rather
more prosaically, it was also alleged that he had documents related to
jihadi activities on his computer, including information on hydrogen
cyanide (used in chemical weapons), lectures by Osama bin Laden and a
cartoon of planes crashing into the World Trade Center.<br><br>
Crucially, however, none of these claims are necessarily reliable. As
Jonathan Hafetz explained to me when I spoke to him on Friday (and as has
been apparent since <i>Newsweek</i> reported on it in June 2003), most of
the supposed intelligence against al-Marri came from Khalid Sheikh
Mohammed, who was captured in March 2003, just three months before
al-Marri was upgraded from an alleged credit card fraudster to a major
terror suspect. As I discussed at length in an article in July,
"Gitmo's Tangled Web: Khalid Sheikh Mohammed, Majid Khan, Dubious US
Convictions and a Dying Man," KSM stated during his tribunal at
Guantánamo in March this year that he had given false information about
other people while being tortured, and, though he was not allowed to
elaborate, I traced in my article several possible victims of these false
confessions, including Majid Khan, one of 13 supposedly
"high-value" detainees transferred with KSM 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. <br><br>
It's possible, therefore, that al-Marri is another victim of KSM's
tangled web of tortured confessions, but whether or not this is true, the
correct venue for such discussions is in a court of law, and not in leaks
and proclamations from an administration that appears to be intent on
holding him without charge or trial for the rest of his life. Since
November 2005, when the administration dropped its "dirty bomb"
allegations against Padilla and charged him with the far lesser crimes of
"conspiracy to murder, kidnap, and maim people in a foreign country,
conspiracy to provide material support for terrorists, and providing
material support for terrorists," for which he was convicted --
pending appeal -- in August this year, al-Marri has had the painful
distinction of being the only US "enemy combatant" held on
American soil. <br><br>
The Padilla verdict caused outrage amongst those who were rightly
concerned that the judge had forbidden all mention of the three and a
half years that a US citizen had spent in mind-destroying isolation
without charge or trial, but al-Marri's case is, arguably, even more
significant. Under the cover of his perceived second-class status as a
resident alien rather than a US citizen, the administration appears to be
hoping that the Fourth Circuit judges will endorse what Jonathan Hafetz
described to me as "the most radical and far-reaching claim of the
imperial presidency: that the President can seize any person in America
and imprison him for life, without charge and without evidence, based
solely upon his say-so."<br><br>
This, then, is why the news that al-Marri's case was being scrutinized by
the Fourth Circuit judges seized my attention so vigorously. While the
Supreme Court will undoubtedly beckon if the verdict goes the
government's way, the Fourth Circuit judges are discussing an issue that
should be of paramount importance to all Americans: their right not to be
seized on a Presidential whim, and held forever without charge or trial.
<br><br>
It is, moreover, not the first time that the Fourth Circuit judges have
looked at al-Marri's case. In June, by a majority of 2 to 1, three judges
in the Fourth Circuit appeals court delivered the following damning
verdict on the President's presumed ability to detain Americans (whether
citizens or resident aliens) at will. "Put simply," they
declared, "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.'" <br><br>
The judges had apparently been swayed by the arguments presented by
Jonathan Hatefz and his colleagues, who insisted, as they have maintained
all along, that the President "lacks the legal authority to
designate and detain al-Marri as an 'enemy combatant' for two principal
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 previously held that the President was authorized to
detain al-Marri under the Authorization for the 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 9/11), 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. Even more
critically, Congress actually rejected a provision in a prior draft of
the bill, which would have permitted the Attorney General to detain
without charge any individual he "has reason to believe may commit,
further, or facilitate acts [of terrorism]," insisting instead that
suspects be charged "with a criminal offense or an immigration
violation within seven days of their arrest" (that's seven days,
note, not 2155 days -- as of November 5, 2007 -- in solitary
confinement).<br><br>
The verdict in June -- a triumph for those who realized how crucial the
al-Marri case was -- lasted only until the government appealed. Instead
of three judges, the Fourth Circuit court has now convened <i>en banc</i>
to reconsider al-Marri's indefinite detention without trial, and this
critical decision -- a last bulwark, effectively, against the whims of a
dictatorial President -- now rests in the hands of nine judges in one of
the most conservative courts in the land. <br><br>
Unexpectedly, however, the signs are not all bad. As the <i>New York
Times</i> explained, "based on the pointed, practical and frequently
passionate questioning" during Wednesday's hearing, the judges were
"divided and troubled, and it was not clear which was the majority
was leaning." Some responses were predictable. Judge J. Harvie
Wilkinson III, for example, remarked that civil liberties groups had
"stirred up needless anxiety" about the President's powers.
"We're not talking about an indiscriminate roundup," he said.
"We're talking about two people in six years [al-Marri and Padilla]
with undisputed ties to al-Qaeda." In response, however, Judge
Robert L. Gregory stated that the case was one of "constitutional
principle," and a representative of the government, Gregory J.
Garre, faced tough questions about the administration's position. Judge
M. Blane Michael asked, "How long can you keep this man in
custody?" and when Garre replied that it could "go on for a
long time," depending on the duration of the "war" with
al-Qaeda, Judge Michael stated, "It looks like a
lifetime."<br><br>
Under questioning from Judge William B. Traxler Jr., who inquired about
the circumstances required for holding people in secret detention, Garre
blustered that al-Marri had been given an opportunity to rebut the
government's allegations, but had "squandered" the opportunity.
This was not strictly true. Al-Marri had indeed been given an opportunity
to face his accusers in court, but, as his lawyers pointed out, the
burden was actually on the government to prove its accusations. "How
is a person who is held incommunicado to challenge these things?"
Judge Traxler asked, to silence from Garre. <br><br>
With the judges' overall opinions unclear, al-Marri, his lawyers, and all
responsible American citizens will have to wait for the verdict to be
announced, which could be before the end of the year. I can only hope
that the judges have listened carefully to the arguments made by his
lawyers. As Jonathan Hafetz explained to me, "Mr. al-Marri's
four-plus years of solitary confinement in a navy prison crosses a line
that should never be crossed a civilized society, and cannot be accepted
in a nation, like America, committed to basic human rights and the
principles of its Constitution."<br><br>
<b>Andy Worthington</b> is a British historian, and the author of
'<a href="http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga">
The Guantánamo Files: The Stories of the 774 Detainees in America's
Illegal Prison'</a> (to be published by Pluto Press in October 2007).
Visit his website at:
<a href="http://www.andyworthington.co.uk/">www.andyworthington.co.uk</a>
<br><br>
He can be reached at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
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