The Forgotten Detainee

By JOANNE MARINER

Wednesday, Aug. 30, 2006

Who remembers Ali Saleh al-Marri? A citizen of Qatar held since mid-2003 as an "enemy combatant" in the United States, al-Marri has largely been treated as an afterthought. Even as editorial boards waxed indignant over the indefinite detention of American citizens Yaser Hamdi and Jose Padilla, few seemed to notice the like situation of al-Marri.

But now that the two others have been released from military custody - Hamdi to return to Saudi Arabia, and Padilla to face criminal prosecution on terrorism charges - al-Marri's circumstances warrant greater scrutiny. As his habeas corpus claim works its way up through the courts, some very basic constitutional rights questions are being decided.

As was the case with both Padilla and Hamdi, al-Marri is being held in a Navy brig in South Carolina because of a one-page presidential order. And like Padilla (but unlike Hamdi), al-Marri was arrested in the United States, where he was lawfully present as a student.

Picked up by FBI agents from his home in Peoria, Illinois, al-Marri might be a criminal, but he hardly seems like a combatant. He carried no weapon, was thousands of miles away from any conceivable battlefield, and was charged with credit card fraud, making false statements, and similar offenses, until the government decided to drop his prosecution and transfer him into military custody.

On the basis of a brief hearsay declaration, a federal court recently upheld al-Marri's indefinite detention. The press reacted with silence: Only the Peoria Journal Star published a single, short article on the ruling.

The "former West Peoria man," the Journal Star indicated, would remain in military detention.

It's a Long Way from West Peoria to Kabul

The allegations against al-Marri are set out in a sixteen-page hearsay declaration filed with the South Carolina district court that issued a decision in his case a few weeks ago. What al-Marri essentially stands accused of is the crime of terrorism. If the government is correct in its allegations, al-Marri was an al Qaeda "sleeper" agent who was sent to the United States to disrupt the banking system and help other terrorist operatives.

Al-Marri is not accused of using a gun in Afghanistan, but rather of using a computer in Illinois. But because the government does not want to follow the basic rules of criminal procedure - such as granting the defendant the right to confront his accusers - it has deemed him a combatant, rather than a criminal.

In upholding al-Marri's detention, the South Carolina district court that issued a decision in the case a few weeks ago relied heavily on the Supreme Court's 2004 ruling in Hamdi v. Rumsfeld. The plurality opinion in the Hamdi case found that enemy combatants captured in Afghanistan could be held for the duration of the armed conflict if they were given a meaningful opportunity to challenge their detention.

The Hamdi case's holding narrowly reflected its facts. Yaser Hamdi was captured in Afghanistan in November 2001, allegedly with a large number of Taliban. While he claimed that he was not fighting as a combatant, there is no doubt that he was captured in a war-time environment.

The Hamdi plurality, focused on these circumstances, specifically defined an enemy combatant as a person who was "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Read those words again, if their scope is in any way unclear.

The Supreme Court's Hamdi ruling, in short, would seem to have very little relevance to someone arrested by the FBI in Peoria. Someone engaged in credit card fraud - or even terrorism -- on the territory of the United States just cannot be said to have engaged in armed conflict in Afghanistan.

KSM, Once Again

Besides the simple desire to evade criminal justice protections in favor of the more relaxed standards set out in Hamdi (by which, for example, hearsay might be allowed), the government appears to have another reason for placing al-Marri in military custody. This reason is easy enough to deduce from the hearsay declaration that the government filed with the court.

The main source of the allegations against al-Marri is apparently Khalid Sheikh Muhammed. Muhammed, believed to be the architect of the September 11 terrorist attacks, has been in secret CIA custody for years. Numerous press reports based on anonymous CIA sources have claimed that he has been tortured.

Because the government does not want to let KSM anywhere near a courtroom, it also needs to keep people like al-Marri away from fair criminal justice procedures. If al-Marri were allowed to cross-examine the source of the allegations against him, as he should be, the government would have to deliver up KSM to the court.

The CIA's secret detention of Muhammed and others is not only repugnant in itself, it is tainting a whole generation of terrorism prosecutions. It nearly derailed the prosecution of Zacarias Moussaoui; it caused similar problems with the prosecution of Uzair Paracha; and it is behind the Bush administration's efforts to push Congress to adopt egregiously unfair rules for military commission proceedings.

It may be that both Ali Saleh al-Marri and Khalid Sheikh Muhammed deserve to stay behind bars. But we will never know what they deserve until we subject them to a process that is designed to reveal the truth. Until then, what we have is a mockery of justice in which criminals are called combatants and Peoria is akin to Kabul.


Joanne Mariner is a human rights attorney. Her previous columns on the detainee cases and the "war on terrorism" are available in FindLaw's archive.

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