Saturday, February 28, 2009


By William Fisher

Lawyers for imprisoned “enemy combatant” Ali Saleh Kahlah al-Marri are vowing to press the 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 us. “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.”

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 ever since.

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 Marri to civilian custody.
The petition claimed that the Supreme Court case was no longer relevant because 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 us, “The fact they (the government) have indicted does not necessarily make the case moot.” He said 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 or trial. 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’."

“We will press it and oppose the government’s application to dismiss the case,” Hafetz told us.

Marri could face up to 15 years in prison on allegations of conspiracy and
providing material support to terrorists.

The Qatari 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), 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 to finance his trip to Illinois.

However, none of those allegations appeared in Marri's recent indictment, a brief two-page, two-count document alleging “material support” for a terrorist organization.

The transfer of 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 American 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 Department of Justice (DOJ) 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 prison.

The ACLU’s Hafetz agrees on the similarities, but points out that, in the 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 us.