The Last 'Enemy Combatant' on the US Mainland

Torture is defined in many ways. To the Bush 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 euphemizes its forays into torture – only become unacceptable if they lead to organ failure or even death.

As a result, Dick Cheney was well within his comfort zone when, on a conservative radio show last October, he responded to a dismissive question about waterboarding – "Would you agree a dunk in water is a no-brainer if it can save lives?" – with, "Well, it's a no-brainer for me." Cheney added, "But for a while there, I was criticized as being the vice president for torture" (courtesy of the Washington Post), and he concluded with the administration's predictable mantra, "We don't torture. That's not what we're involved in."

To others, waterboarding is clearly torture, as the State 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 brainwashed that waterboarding and other techniques that have been used in Guantánamo and that are still part of the CIA's arsenal – including the prolonged use of stress positions, extreme temperature manipulation, and sleep deprivation – are torture, holding a man in solitary confinement for several years is somehow seen as a soft alternative.

This is in spite of the fact that Defense Department lawyers warned Donald Rumsfeld 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" to applying "duress past the point of irreversible psychological damage."

My concern with the effects of prolonged solitary confinement hit me abruptly this week when I read – in the New York Times, one of the few media outlets to cover the story – that the case of Ali al-Marri, the last "enemy combatant" on U.S. soil, was causing some consternation for the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.

A Qatari national and a resident alien in the United States, Marri had studied computer science in Peoria, Ill., in 1991. He had legally returned to the United States on Sept. 10, 2001, with his residency in order, to pursue postgraduate studies, bringing 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, S.C., where he was held incommunicado for 16 months and, according to statements eventually filed by his lawyers (see below), 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, Marri was subjected to sleep deprivation and extreme temperature manipulation. He was also frequently deprived of food and water, and he was only allowed outside for "recreation" – also alone – three times a week "when deemed to be 'compliant.'" To reinforce his isolation, his cell contained nothing but a Koran, a "suicide blanket," and a thin mattress. Even the window was blocked, preventing him from ever seeing natural light or knowing the time of day.

Marri stated that, during the first year of his imprisonment in the brig, he was "interrogated repeatedly" and 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." Interrogators 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."

In August 2003, representatives of the International Red Cross were finally allowed to meet with Marri. 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 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 10 months (58 times the amount of time recommended by Defense Department lawyers) in solitary confinement.

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). But Marri, as a U.S. resident, is supposed to be protected from this sort of treatment.

The only comparable case – and one that bears close scrutiny – is that of José Padilla, the only other "enemy combatant" to be held for a substantial period of time on the U.S. mainland. Padilla, a U.S. citizen, was held in the Charleston brig for three and a half years, where 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.

According to one of 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 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'") explains why his story has not been so newsworthy. It seems likely that his case has also been largely ignored because he is a resident alien rather than a U.S. citizen, and because his story is not so glamorous.

Unlike Padilla, who shot to undying fame when he was accused of plotting to detonate a "dirty bomb" in a U.S. city, Marri has no such tag to identify him. The presidential order that 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 al-Qaeda financier Mustafa al-Hawsawi. It has also been alleged that he met Osama bin Laden, pledged that he would kill Americans, volunteered for a "martyr mission," and was working as an al-Qaeda sleeper agent in the U.S. at the time of his capture. Rather more prosaically, it was also alleged that he had documents related to jihadist 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.

None of these claims are reliable. As Jonathan Hafetz explained to me when I spoke to him on Friday (and as has been apparent since Newsweek reported on it in June 2003), most of the supposed intelligence against Marri came from Khalid Sheikh Mohammed, who was captured in March 2003, just three months before Marri was upgraded from an alleged credit card fraudster to a major terror suspect. As I discussed at length in an article in July, "Guantánamo's Tangled Web: Khalid Sheikh Mohammed, Majid Khan, Dubious U.S. 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. Though KSM 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 Paracha's son Uzair, who was convicted in the United States on dubious charges in November 2005 and sentenced to 30 years in prison.

It's possible, therefore, that Marri is another victim of KSM's tortured confessions, but whether or not this is true, the correct venue for such discussions is in a court of law, 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, Marri has had the painful distinction of being the only U.S. "enemy combatant" held on American soil.

The Padilla verdict caused outrage among those who were rightly concerned that the judge had forbidden all mention of the three and a half years that a U.S. citizen had spent in mind-destroying isolation without charge or trial, but Marri's case is arguably even more significant. Under the cover of Marri's perceived second-class status as a resident alien rather than a U.S. 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."

This, then, is why the news that 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.

It is, moreover, not the first time that the Fourth Circuit judges have looked at Marri's case. In June, by a 2-1 majority, three judges in the Fourth Circuit appeals court delivered a 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.'"

The judges had apparently been swayed by the arguments presented by Hafetz 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": because the Constitution "prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield," and because, although a district court previously held that the president was authorized to detain 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 2,156 days – as of Nov. 6, 2007 – in solitary confinement).

The verdict in June – a triumph for those who realized how crucial the Marri case was – lasted only until the government appealed. Instead of three judges, the Fourth Circuit court has now convened en banc to reconsider Marri's indefinite detention without trial, and this 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.

Unexpectedly, however, the signs are not all bad. As the New York Times 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 way 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 [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, Michael stated, "It looks like a lifetime."

Under questioning from Judge William B. Traxler Jr., who inquired about the circumstances required for holding people in secret detention, Garre blustered that Marri had been given a chance to rebut the government's allegations but had "squandered" the opportunity. This was not strictly true. 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?" Traxler asked, to silence from Garre.

With the judges' overall opinions unclear, 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. 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."