[Ppnews] Dictatorial Powers Upheld

[Political Prisoner News]

http://www.counterpunch.org/worthington07212008.html

July 21, 2008

The Meaning of the Al-Marri Decision


Dictatorial Powers Upheld

By ANDY WORTHINGTON

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. Pucciarelli that 
the President can arrest US 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 ‘[t]he 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 
<http://www.counterpunch.org/worthington11062007.html>here. 
To recap briefly, al-Marri, a Qatari national who 
had studied in Peoria, Illinois in 1991, returned 
to the United States in September 2001, with his 
US 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 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, 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 al-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,” al-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 
al-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 
<http://www.counterpunch.org/worthington02072008.html>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 del aqua.”

As I discussed at length in an 
<http://www.counterpunch.org/worthington07142007.html>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 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.”

When I wrote these words, it seemed possible that 
the Fourth Circuit judges would act to prevent 
al-Marri from having the dubious distinction of 
being the last “enemy combatant” on the US 
mainland, and would put pressure on the 
government to transfer him to a federal prison to 
face a trial in a US court, as happened with 
<http://www.andyworthington.co.uk/2007/09/04/jose-padilla-more-sinned-against-than-sinning/>Jose 
Padilla, a US citizen and one of two other “enemy 
combatants” imprisoned without charge or trial -- 
the other being Yaser Hamdi, a US-born Saudi, who 
was held in Guantánamo until it was ascertained 
that he held US 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 
<http://www.counterpunch.org/worthington06152007.html>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 al-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 Ali al-Marri’s legal 
limbo, although it was somewhat ironic that, in a 
separate ruling, the swing-voting Judge Traxler 
ruled in al-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 
al-Marri’s case and that the hearsay declaration 
that constitutes the Government’s only evidence 
against al-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 US 
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 US forces.

The injustice of this was pointed out in the 
opinion of Judge Motz, who stated that, “unlike 
Hamdi and Padilla, al-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 
Ali al-Marri, but to US citizens as well. Judge 
Traxler noted, “it is likely that the 
constitutional rights our court determines exist, 
or do not exist, for al-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 
al-Marri, has the same Fifth Amendment due 
process rights as an American citizen. For this 
reason, the Government had to concede that if 
al-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 US 
citizens indefinitely without charge or trial. 
This verdict was never tested, as the government 
took Padilla out of the brig and into the court 
system (where he was 
<http://www.andyworthington.co.uk/2008/01/22/why-jose-padillas-17-year-prison-sentence-should-shock-and-disgust-all-americans/>convicted 
in January) before the Supreme Court could rule 
on his case, but as Glenn Greenwald noted in an 
article in 
<http://www.salon.com/opinion/greenwald/2008/07/16/al_marri/>Salon, 
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.

Al-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 al-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 
al-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.

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' (published 
by Pluto Press). 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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