Wake up, America! On July 15, the Court of Appeals
for the Fourth Circuit ruled by 5 votes to 4 in the case of Al-Marri v.
that the president can arrest U.S. 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.
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 "The 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, Marri, a Qatari national who had studied in Peoria, Ill.,
in 1991, returned to the United States in September 2001, with his U.S. 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
He was then moved to a naval brig in Charleston, S.C., 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,
when he received no visitors from outside the U.S. military or the security
agencies, 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 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."
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," 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).
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."
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 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
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, "It's possible, therefore, that 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."
When I wrote these words, it seemed possible that the Fourth Circuit judges
would act to prevent Marri from having the dubious distinction of being the
last "enemy combatant" on the U.S. mainland, and would put pressure
on the government to transfer him to a federal prison to face a trial in a
U.S. court, as happened with Jose
Padilla, a U.S. citizen and one of two other "enemy combatants"
imprisoned without charge or trial – the other being Yaser Hamdi, a U.S.-born
Saudi, who was held in Guantánamo until it was ascertained that he held
U.S. 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 "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 en banc to reconsider 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."
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 Marri's legal limbo, although it was somewhat ironic that, in a
separate ruling, the swing-voting Judge Traxler ruled in 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 Marri's case and that the hearsay declaration that constitutes
the government's only evidence against 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
U.S. 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 U.S. forces.
The injustice of this was pointed out in the opinion of Judge Motz, who stated
that, "unlike Hamdi and Padilla, 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 Marri,
but to U.S. citizens as well. Judge Traxler noted, "it is likely that
the constitutional rights our court determines exist, or do not exist, for
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 Marri,
has the same Fifth Amendment due process rights as an American citizen. For
this reason, the government had to concede that if 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."
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 U.S. 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 at Salon.com,
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.
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 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.
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.
I leave the final words to Judge Motz, and her clear-eyed awareness of the
injustice of the 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."
Unless Ali al-Marri is allowed a meaningful review of his status as an "enemy
combatant," Judge Motz's fears have already come true.