July 22nd, 2008
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.”
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.”
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 here. 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.
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.
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
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
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
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.
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 admitted, 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.”
As I discussed at length in an article 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.
As I also stated last November,
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 Jose Padilla, 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.
In June 2007, a panel of three Fourth Circuit judges dealt a blow to the administration’s claims by ruling that
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.”
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.”
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.
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.”
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.”
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,
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 (PDF). This verdict was never tested, as the government took Padilla out of the brig and into the court system (where he was convicted in January) before the Supreme Court could rule on his case, but as Glenn Greenwald noted in an article in Salon, 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 en banc.
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
That seems pretty clear to me. In the “War on Terror,” however, as I learned during my research for The Guantánamo Files, 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.
I leave the final words to Judge Motz, and her clear-eyed awareness of the injustice of the al-Marri verdict.
Unless Ali al-Marri is allowed a meaningful review of his status as an “enemy combatant,” Judge Motz’s fears have already come true.