[Ppnews] The Last "Enemy Combatant" on the U.S. Mainland

[Political Prisoner News]

http://www.counterpunch.org/worthington11062007.html

November 6, 2007


The Last "Enemy Combatant" on the U.S. Mainland


The Torture of Ali al-Marri

By ANDY WORTHINGTON

Torture is defined in many ways. To the US 
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 euphemistically defines 
its forays into torture) only actually become 
torture if the suffering produced is equivalent 
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 dismissively 
phrased question about waterboarding -- "Would 
you agree a dunk in water is a no-brainer if it 
can save lives?" -- with the response, "Well, 
it's a no-brainer for me." He added, "But for a 
while there, I was criticized as being the vice 
president for torture" (courtesy of the 
Washington Post), and concluded with the 
administration's predictable mantra, "We don't 
torture. That's not what we're involved in."

To others, including the State Department, 
waterboarding is clearly torture, as the 
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 vindictively brain-washed 
that waterboarding and other techniques which 
have been used in Guantánamo, and which are still 
part of the CIA's arsenal (including the 
prolonged use of stress positions, extreme 
temperature manipulation, and profound sleep 
deprivation) are also torture, especially when 
their use is combined, holding a man in solitary 
confinement for several years is somehow seen as a soft option.

This is in spite of the fact that, when approved 
by Donald Rumsfeld for use at Guantánamo, Defense 
Department lawyers warned 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" 
of 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 US 
soil, was causing some consternation to the US 
Court of Appeals for the Fourth Circuit in Richmond, Virginia.

A Qatari national and a resident alien in the 
United States, al-Marri had studied computer 
science in Peoria, Illinois in 1991, and had 
legally returned to the United States on 
September 10, 2001, with his 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 combatant" instead.

He was then moved to a naval brig in Charleston, 
South Carolina, where he was held incommunicado 
for 16 months, and where, according to statements 
eventually filed by his lawyers (see below), he 
was 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, he was subjected 
to sleep deprivation and extreme temperature 
manipulation, was frequently deprived of food and 
water, and was only allowed outside for 
"recreation" (also alone) three times a week 
"when deemed to be 'compliant.'" Reinforcing his 
isolation, his cell contained nothing but a 
Koran, a "suicide blanket" and a thin mattress, 
and even the window was blocked out, preventing 
him from ever seeing natural light or knowing the time of day.

Al-Marri also stated that, during the first year 
of his imprisonment in the brig, he was 
"interrogated repeatedly," and he explained that 
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," and 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 al-Marri, and 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 that 
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 ten months (58 times the 
amount of time recommended by Defense Department 
lawyers) in solitary confinement.

While 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) -- al-Marri, 
as a US resident, is supposed to be protected from this sort of treatment.

The only comparable case, and one which bears 
close scrutiny, is that of Jose Padilla, the only 
other "enemy combatant" to be held for a 
substantial period of time on the US mainland. A 
US citizen, Padilla was held in the Charleston 
brig for three and a half years, where, 
crucially, 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 al-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 al-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'") is sufficient to explain why his 
story has not been so newsworthy, but it seems 
likely that his case has also been largely 
ignored because he is a resident alien rather 
than a US 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 US city, al-Marri has no such tag to 
identify him. The presidential order which 
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 the al-Qaeda financier 
Mustafa al-Hawsawi. It has also been alleged that 
he met Osama bin Laden, and that, after meeting 
him, pledged that he would kill Americans, that 
he volunteered for a "martyr mission," and that 
he was working as an al-Qaeda sleeper agent in 
the US at the time of his capture. Rather more 
prosaically, it was also alleged that he had 
documents related to jihadi 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.

Crucially, however, none of these claims are 
necessarily 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 al-Marri came from Khalid 
Sheikh Mohammed, who was captured in March 2003, 
just three months before al-Marri was upgraded 
from an alleged credit card fraudster to a major 
terror suspect. As I discussed at length in an 
article in July, "Gitmo's Tangled Web: Khalid 
Sheikh Mohammed, Majid Khan, Dubious US 
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, and, though he 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 his 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 al-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. 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, al-Marri 
has had the painful distinction of being the only 
US "enemy combatant" held on American soil.

The Padilla verdict caused outrage amongst those 
who were rightly concerned that the judge had 
forbidden all mention of the three and a half 
years that a US citizen had spent in 
mind-destroying isolation without charge or 
trial, but al-Marri's case is, arguably, even 
more significant. Under the cover of his 
perceived second-class status as a resident alien 
rather than a US 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 al-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 al-Marri's 
case. In June, by a majority of 2 to 1, three 
judges in the Fourth Circuit appeals court 
delivered the following 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 Jonathan Hatefz 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"; 
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 al-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 2155 days -- as of November 5, 
2007 -- in solitary confinement).

The verdict in June -- a triumph for those who 
realized how crucial the al-Marri case was -- 
lasted only until the government appealed. 
Instead of three judges, the Fourth Circuit court 
has now convened en banc to reconsider al-Marri's 
indefinite detention without trial, and this 
critical 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 was 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 [al-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, Judge 
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 al-Marri had been given an 
opportunity to rebut the government's 
allegations, but had "squandered" the 
opportunity. This was not strictly true. Al-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?" 
Judge Traxler asked, to silence from Garre.

With the judges' overall opinions unclear, 
al-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. al-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."

Andy Worthington is a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (to be 
published by Pluto Press in October 2007). Visit 
his website at: <http://www.andyworthington.co.uk/>www.andyworthington.co.uk

He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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