<html>
<body>
<font size=3>
<a href="http://www.counterpunch.org/worthington07212008.html" eudora="autourl">
http://www.counterpunch.org/worthington07212008.html<br><br>
</a></font><font face="Verdana" size=2>July 21, 2008<br><br>
</font><font face="Times New Roman, Times" size=4><b><i>The Meaning of
the Al-Marri Decision <br><br>
</i></font><h1><font face="Times New Roman, Times" size=5 color="#990000">
<b>Dictatorial Powers Upheld
</b></font></h1><font face="Times New Roman, Times" size=4>By ANDY
WORTHINGTON <br><br>
</font><font face="Verdana" size=6 color="#990000">W</font>
<font face="Verdana" size=2>ake up, America! On July 15, the Court of
Appeals for the Fourth Circuit ruled by 5 votes to 4 in the case of
<i>Al-Marri v. Pucciarelli</i> that the President can arrest US citizens
and legal residents inside the United States and imprison them
indefinitely, without charge or trial, based solely on his assertion that
they are “enemy combatants.” Have a little think about it, and you’ll see
that the Fourth Circuit judges have just endorsed dictatorial powers.
<br><br>
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 <i>unless</i> 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.” <br><br>
As was pointed out by Judge Diana Gribbon Motz, who was steadfastly
opposed to the majority verdict (and whose opinion was endorsed by Judges
M. Blane Michael, Robert B. King and Roger L. Gregory), “the duration of
the relevant hostilities” is a disturbingly open-ended prospect. After
citing the 2007 State of the Union Address, in which the President
claimed that ‘[t]he 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.”<br><br>
The Court of Appeals made its extraordinary ruling in relation to a
habeas corpus claim in the case of Ali Saleh Kahlah al-Marri, whose story
I reported at length
<a href="http://www.counterpunch.org/worthington11062007.html">here</a>.
To recap briefly, al-Marri, a Qatari national who had studied in Peoria,
Illinois in 1991, returned to the United States in September 2001, with
his US 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
has now been held for five years and one month in complete isolation in a
blacked-out cell in an otherwise unoccupied cell block. For the first 14
months of this imprisonment, he was subjected to sleep deprivation and
extreme temperature manipulation, frequently deprived of food and water,
and interrogated repeatedly. <br><br>
In August 2003, representatives of the International Red Cross were
finally allowed to visit al-Marri, and two months later he was permitted
to meet with a lawyer, when he finally had the opportunity to explain
that his interrogators had “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>
Based on advice given to Donald Rumsfeld by Defense Department lawyers
regarding the use of isolation at Guantánamo, when the lawyers warned
that it was “not known to have been generally used for interrogation
purposes for longer than 30 days,” al-Marri has now been held in solitary
confinement for 66 times longer than the amount of time recommended by
the Pentagon’s own lawyers (this figure includes 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).
<br><br>
It is, therefore, unsurprising that his lawyer, Jonathan Hafetz of the
Brennan Center for Justice at the New York University School of Law, has
explained that he is 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.”<br><br>
So what is Ali al-Marri supposed to have done to justify being held in
solitary confinement for almost as long as the duration of the Second
World War? The presidential order declaring 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.” Elaborating, in subsequent statements, the government has
claimed that he was part of an al-Qaeda sleeper cell, who had been
instructed to carry out further terrorist attacks in the United States,
targeting reservoirs, the New York Stock Exchange and military
academies.<br><br>
What’s particularly worrying about these charges is that, by the
government’s own admission, the primary sources for its supposed evidence
against al-Marri are confessions made by Khalid Sheikh Mohammed (KSM),
the alleged architect of the 9/11 attacks, during the three months
following his capture in March 2003, when, as even the CIA has
<a href="http://www.counterpunch.org/worthington02072008.html">
admitted</a>, he was subjected to waterboarding, a form of controlled
drowning, which the torturers of the Spanish Inquisition at least had the
honesty to call “tortura del aqua.”<br><br>
As I discussed at length in an
<a href="http://www.counterpunch.org/worthington07142007.html">article</a>
last summer, KSM stated during his tribunal at Guantánamo in March 2007
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, 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>
As I also stated last November, “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.” <br><br>
When I wrote these words, it seemed possible that the Fourth Circuit
judges would act to prevent al-Marri from having the dubious distinction
of being the last “enemy combatant” on the US mainland, and would put
pressure on the government to transfer him to a federal prison to face a
trial in a US court, as happened with
<a href="http://www.andyworthington.co.uk/2007/09/04/jose-padilla-more-sinned-against-than-sinning/">
Jose Padilla</a>, a US citizen and one of two other “enemy combatants”
imprisoned without charge or trial -- the other being Yaser Hamdi, a
US-born Saudi, who was held in Guantánamo until it was ascertained that
he held US citizenship. In Hamdi’s case, however, a brief stay at the
Charleston brig was followed by a deal that allowed him to return to
Saudi Arabia. <br><br>
In June 2007, a panel of three Fourth Circuit judges dealt a blow to the
administration’s claims by
<a href="http://www.counterpunch.org/worthington06152007.html">ruling</a>
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.’” Last week’s decision followed a successful
appeal by the government, but when the Fourth Circuit court met <i>en
banc</i> to reconsider al-Marri’s case in October, it seemed possible
that they would uphold the panel’s June verdict. When Judge Michael asked
the government’s representative, Gregory J. Barre, “How long can you keep
this man in custody?” and 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>
I now realize, of course, that it was always highly improbable that the
Fourth Circuit court -- widely regarded as the most right-wing court in
the country -- would end Ali al-Marri’s legal limbo, although it was
somewhat ironic that, in a separate ruling, the swing-voting Judge
Traxler ruled in al-Marri’s favor when it came to a decision to grant him
some as yet unspecified ability to challenge the basis of his definition
as an “enemy combatant.” <br><br>
This, at least, earned him the gratitude of Judge Motz, who stated that
“the evidentiary proceedings envisaged by Judge Traxler will at least
place the burden on the Government to make an initial showing that ‘the
normal due process protections available to all within this country’ are
impractical or unduly burdensome in al-Marri’s case and that the hearsay
declaration that constitutes the Government’s only evidence against
al-Marri is ‘the most reliable available evidence’ supporting the
Government’s allegations.”<br><br>
In other respects, however, the court only added to its reputation as a
defender of the indefensible. Not content with endorsing the President’s
dictatorial right to imprison “enemy combatants” without charge or trial
on the US mainland, the judges responsible for the majority verdict ruled
that the President did not even have to allege, as he did with Yaser
Hamdi and Jose Padilla, that an “enemy combatant” had either been in
Afghanistan or had ever raised arms against US forces. <br><br>
The injustice of this was pointed out in the opinion of Judge Motz, who
stated that, “unlike Hamdi and Padilla, al-Marri is not alleged to have
been part of a Taliban unit, not alleged to have stood alongside the
Taliban or the armed forces of any other enemy nation, not alleged to
have been on the battlefield during the war in Afghanistan, not alleged
to have even been in Afghanistan during the armed conflict, and not
alleged to have engaged in combat with United States forces anywhere in
the world.” <br><br>
Judge Motz added, however, “With regret, we recognize that this view does
not command a majority of the court. Our colleagues hold that the
President can order the military to seize from his home and indefinitely
detain anyone -- including an American citizen -- even though he has
never affiliated with an enemy nation, fought alongside any nation’s
armed forces, or borne arms against the United States anywhere in the
world. We cannot agree that in a broad and general statute, Congress
silently authorized a detention power that so vastly exceeds all
traditional bounds. No existing law permits this extraordinary exercise
of executive power.”<br><br>
Disturbingly, as Judge Motz mentioned above, the court also indicated its
presumption that its ruling applies not just to legal residents like Ali
al-Marri, but to US citizens as well. Judge Traxler noted, “it is likely
that the constitutional rights our court determines exist, or do not
exist, for al-Marri will apply equally to our own citizens under like
circumstances,” and Judge Motz explained that the lack of distinction
between citizens and residents had become apparent at oral argument, when
the government “finally acknowledged that an alien legally resident in
the United States, like al-Marri, has the same Fifth Amendment due
process rights as an American citizen. For this reason, the Government
had to concede that if al-Marri can be detained as an enemy combatant,
then the Government can also detain any American citizen on the same
showing and through the same process.”<br><br>
We have, to be honest, been here before. In September 2005, a
three-member panel upheld, in Padilla’s case, the President’s power to
hold US citizens indefinitely without charge or trial. This verdict was
never tested, as the government took Padilla out of the brig and into the
court system (where he was
<a href="http://www.andyworthington.co.uk/2008/01/22/why-jose-padillas-17-year-prison-sentence-should-shock-and-disgust-all-americans/">
convicted</a> in January) before the Supreme Court could rule on his
case, but as Glenn Greenwald noted in an article in
<a href="http://www.salon.com/opinion/greenwald/2008/07/16/al_marri/"><i>
Salon</a></i>, the upshot is that the 2005 Padilla verdict still stands.
To that extent, all that has changed now is that the Fourth Circuit court
has reinforced its former ruling <i>en banc</i>.<br><br>
Al-Marri’s lawyers will doubtless appeal, and, if justice still counts
for anything, his case will go all the way to the Supreme Court. However,
it remains incomprehensible to me that the whole sorry saga has lasted
for so long already. As Jonathan Hafetz and his colleagues explained last
November when they presented their arguments to the Fourth Circuit judges
(and as Judge Motz noted last week), 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 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.<br><br>
That seems pretty clear to me. In the “War on Terror,” however, as I have
learned during my research over the last two and a half years, all forms
of logical thought -- sometimes in the courts, most of the time in
military custody, and as a permanent fixture in the war rooms where
torture was endorsed -- have been engulfed in a fog of fear and
barbarism.<br><br>
I leave the final words to Judge Motz, and her clear-eyed awareness of
the injustice of the al-Marri verdict. “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,” Judge
Motz wrote. “For a court to uphold a claim to such extraordinary power
would do more than render lifeless the Suspension Clause, the Due Process
Clause, and the rights to criminal process in the Fourth, Fifth, Sixth
and Eighth Amendments; it would effectively undermine all of the freedoms
guaranteed by the Constitution. It is that power -- were a court to
recognize it -- that could lead all our laws ‘to go unexecuted, and the
government itself to go to pieces.’ We refuse to recognize a claim to
power that would so alter the constitutional foundations of our
Republic.”<br><br>
Unless Ali al-Marri is allowed a meaningful review of his status as an
“enemy combatant,” Judge Motz’s fears have already come true. <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> (published by Pluto Press). Visit his website at:
<a href="http://www.andyworthington.co.uk/">www.andyworthington.co.uk</a>
<br>
He can be reached at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
<br><br>
</font><x-sigsep><p></x-sigsep>
<font size=3 color="#FF0000">Freedom Archives<br>
522 Valencia Street<br>
San Francisco, CA 94110<br><br>
</font><font size=3 color="#008000">415 863-9977<br><br>
</font><font size=3 color="#0000FF">
<a href="http://www.freedomarchives.org/" eudora="autourl">
www.Freedomarchives.org</a></font><font size=3> </font></body>
</html>