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<a href="http://www.counterpunch.org/worthington05012009.html" eudora="autourl">
http://www.counterpunch.org/worthington05012009.html<br>
</a></font><font face="Verdana" size=2 color="#990000">May 1 - 3,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>Al-Marri's Plea
Bargain <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">
Dictatorial Powers Unchallenged
</b></font></h1><font face="Times New Roman, Times" size=4>By ANDY
WORTHINGTON <br><br>
</font><font face="Verdana" size=6 color="#990000">F</font>
<font face="Verdana" size=2>or 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.”<br><br>
In the
<a href="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</a>, 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. <br><br>
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
<a href="http://www.andyworthington.co.uk/2009/04/21/ten-terrible-truths-about-the-cia-torture-memos-part-one/">
memos released</a> by the Obama administration two weeks ago, which, as
confirmed in a Senate Armed Services Committee report
(<a href="http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf">
PDF</a>) published last week, migrated to Guantánamo and to Bagram in
Afghanistan, and were then adopted in Iraq.<br><br>
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
<a href="http://www.andyworthington.co.uk/2007/09/04/jose-padilla-more-sinned-against-than-sinning/">
Jose Padilla</a>, and
<a href="http://www.andyworthington.co.uk/2009/03/11/forgotten-in-guantanamo-british-resident-shaker-aamer/">
a handful of prisoners</a> 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.”<br><br>
As his lawyers also explained in
<a href="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</a>, 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,<br><br>
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.<br><br>
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
<a href="http://www.counterpunch.org/worthington07142007.html">Khalid
Sheikh Mohammed</a>, 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
<a href="http://www.counterpunch.org/worthington02072008.html">
waterboarding</a> (an ancient torture technique that involves controlled
drowning) 183 times in March 2003.<br><br>
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
<a href="http://www.latimes.com/news/nationworld/nation/la-na-enemy-combatant1-2009may01,0,7173449.story">
<i>Los Angeles Times</a></i> 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.”<br><br>
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
<a href="http://online.wsj.com/article/SB124112909650574699.html?mod=googlenews_wsj">
<i>Wall Street Journal</a></i> noted that, in his statement, he “didn't
reveal orders to carry out any specific attacks.”<br><br>
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
<i>Los Angeles Times</i>, “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.”<br><br>
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 <i>Times</i>, “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.”<br><br>
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,
“<a href="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</a>,” the new
government’s decision to move al-Marri into the federal court system,
although just, also enabled it to prevent the Supreme Court from
reviewing
<a href="http://www.counterpunch.org/worthington07212008.html">a terrible
4th Circuit ruling</a> 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.<br><br>
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.<br><br>
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.” <br><br>
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.”<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>
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