Lawyers for imprisoned "enemy combatant"
Ali Saleh Kahlah al-Marri are vowing to press the U.S. Supreme Court to hear
their case even though al-Marri was suddenly transferred to the civilian justice
system after more than five years in solitary confinement in a military brig.
According to American Civil Liberties Union attorney Jonathan Hafetz, the
case is far too loaded with potential precedent-setting issues to simply disappear
"on the eve of a dispositive ruling" by the Supreme Court.
There are two principal reasons, Hafetz told IPS. "First, al-Marri could
be detained as an 'enemy combatant' again if acquitted at trial. Second, absent
a Supreme Court review, this power could be used again against other legal
residents or American citizens in the future, absent a definitive ruling from
the high court that it is illegal."
Al-Marri, legally in the U.S. on a student visa, was arrested in 2003 and
accused of being a member of an al-Qaeda "sleeper cell" in the U.S.
But before his trial could begin, then President George W. Bush declared him
an "enemy combatant" under sweeping new powers claimed by the president
following the 9/11 terrorist attacks on the World Trade Center and the Pentagon.
He was taken to a U.S. Navy brig in South Carolina, where he has been imprisoned
Then, in a move that surprised many observers, the new administration of President
Barack Obama took swift action to have him indicted for "material support"
of terrorism by a civilian grand jury for trial in a federal court and moved
to dismiss al-Marri's pending litigation before the U.S. Supreme Court.
Acting Solicitor General Edwin S. Kneedler, the government's lawyer, petitioned
the court to dismiss the case and issue an order "as expeditiously as
possible" to allow the government to transfer al-Marri to civilian custody.
The petition claimed that the Supreme Court case was no longer relevant because
al-Marri was challenging a status he no longer had a person held by
the military without charges. "No live controversy remains in this case,"
the government filing said.
But the ACLU's Hafetz told IPS, "The fact they [the government] have
indicted does not necessarily make the case moot." He said al-Marri's
defense lawyers "will continue to pursue this case to make sure that no
American citizen or lawful resident will ever again be imprisoned without charge
"It is critical that the court hears al-Marri's case and categorically
rejects the notion that any president has the sweeping authority to deprive
individuals living in the United States of their most basic constitutional
rights by designating them 'enemy combatants,'" he said.
"We will press it and oppose the government's application to dismiss
the case," Hafetz told IPS.
Al-Marri could face up to 15 years in prison on allegations of conspiracy
and providing material support to terrorists.
The Qatar native journeyed to Illinois, purportedly to begin work on a master's
degree at the same college that had awarded him a bachelor's degree earlier.
His arrival came a day before terrorist strikes hit the Pentagon and the World
Trade Center in New York on Sept. 11, 2001.
After multiple interrogations by the Federal Bureau of Investigation (FBI),
al-Marri was indicted for credit card fraud and making false statements to
his interrogators. But before his trial could begin, he was designated an "enemy
combatant" and transferred to military control.
In 2005, Bush administration officials filed a sworn statement in a South
Carolina court saying that Marri had personally met Osama bin Laden and Khalid
Sheik Mohammed, the self-proclaimed mastermind of the terrorist attacks, and
volunteered to become a martyr in the U.S. The filing alleged that Marri was
in contact with an alleged travel facilitator for al-Qaeda, Mustafa Ahmed al-Hawsawi.
U.S. authorities said that Hawsawi gave him more than 10,000 dollars to finance
his trip to Illinois.
However, none of those allegations appeared in al-Marri's recent indictment,
a brief two-page, two-count document alleging "material support"
for a terrorist organization.
The transfer of al-Marri's case has triggered ambivalence among human rights
and legal advocacy groups. Most of these commentators generally applaud the
move which seems to agree with their position that federal courts should
be the venue for trials of suspected terrorists. But at the same time, many
have expressed dismay that the move may short-circuit a hearing and a once-and-for-all
decision by the Supreme Court.
"In this administration, we will hold accountable anyone who attempts
to do harm to Americans, and we will do so in a manner consistent with our
values," Attorney General Eric H. Holder Jr. said.
The al-Marri case bears a striking resemblance to one involving Jose Padilla,
the only U.S. citizen to be designated as an "enemy combatant" by
then President Bush and imprisoned by the military with charges or trial.
In the Padilla case, then Attorney General John Ashcroft interrupted a trip
to Russia to convene a press conference, where he accused Padilla of conspiring
to detonate a "dirty bomb" on U.S. soil.
The Bush administration initially declared Padilla an "enemy combatant"
and held him in military custody for three years, but then sought to avoid
a Supreme Court review of his case, and in 2005 on the eve of a high court
habeas corpus hearing where the government would have to present evidence to
justify his continued detention the Justice Department petitioned for his
release to face criminal indictment in U.S. courts. He was abruptly transferred
to a civilian jail.
The Brooklyn-born Puerto Rican was arrested by the FBI in May 2002 after returning
from Pakistan. Padilla, then 31, spent the next three years locked up in military
custody in a South Carolina naval brig without charges or access to lawyers.
Padilla was never charged with planning to detonate a "dirty bomb."
By the time of his trial, in 2007, he was found guilty by a federal jury of
charges that he conspired to kill people in an overseas jihad and to fund and
support overseas terrorism. The "dirty bomb" allegation had been
dropped. Padilla was convicted and sentenced to 17 years and four months in
The ACLU's Hafetz agrees on the similarities, but points out that, in the
al-Marri case, the court "has already agreed to hear the case and the
fact that it is happening again after years of illegal detention followed
by charges only on the eve of a dispositive ruling on this issue by the Supreme
Court underscores the need for review."
"It will be important to see whether the Obama administration is rejecting
this illegal and egregious detention policy of the Bush administration or just
indicting now to duck Supreme Court review and perpetuate that policy
a move that would defy, not honor, the rule of law," he told IPS.
(Inter Press Service)