WASHINGTON, 20 September 2005 — Four years into the war against terrorism, he hardly merits a footnote. Alongside other enemy captives — names like Padilla and Moussaoui — he is largely forgotten.
But new developments in the case involving Ali Saleh Kahlah Al-Marri, a Qatari immigrant arrested in rural Illinois, pose intriguing questions about how the government is handling high-value terror suspects in secret prison locations.
The case also is shaping up as the first major test of the broad enemy combatant authority granted the president, which has drawn the ire of civil libertarians because it allows the government to hold people indefinitely without trial.
Last month, Al-Marri became the first terrorism suspect to file a lawsuit specifically based on allegations of mistreatment in his isolation cell inside a Navy brig in Charleston, S.C., where his lawyers wrote that “there is almost nothing to distract him from his torment.” They said he was restricted to a tiny metal cell, without visits or books or newspapers, that he goes long stretches without hot meals or warm water, and often is deprived of decent toilet privileges.
Next month his lawyers plan to file legal papers in a separate lawsuit attacking President Bush’s use of military authority to designate enemy combatants.
The attorneys want a federal court hearing into the constitutionality of the enemy combatant designation process, with testimony and evidence they hope will show that Bush is given unacceptably wide latitude to pick and choose who he locks away forever. Al-Marri, 39, is gaining renewed interest at the same time his brother also is drawing unexpected attention at the prison for accused terrorists at the US naval base at Guantanamo Bay, Cuba, where he, too, has been declared an enemy combatant and has joined 130 other detainees engaged in a prolonged hunger strike there.
Neither the Bush administration nor the Pentagon will discuss enemy combatants — Al-Marri and others in this country, a handful of Al-Qaeda leaders held in secret facilities abroad, or the 500 detainees at the Cuban base prison.
But responding to Al-Marri’s suit about prison conditions in Charleston, the Department of Defense issued a brief statement: “Enemy combatants have been trained to make sensational claims about their detention if captured.”
When Bush declared Al-Marri an enemy combatant in June 2003, he put his signature to a one-page document that described Al-Marri in only general terms. The president merely said Al-Marri was closely associated with Al-Qaeda, engaged in hostile and warlike acts, and knew of pending Al-Qaeda terror plots. The president concluded, “It is the interest of the United States that the Secretary of Defense detain Mr. Al-Marri as an enemy combatant.”
The story of Al-Marri began simply enough. He immigrated to the United States in the 1990s and earned a degree from Bradley University in Peoria, Ill. He returned to Qatar, only to return to America on Sept. 10, 2001 — the day before four planes were hijacked on the East Coast. Three months later, FBI agents arrested him in Peoria.
He was held on relatively minor bank and credit card fraud charges. He was about to go to trial when the federal government abruptly dismissed the charges in June 2003, declared him an enemy combatant and whisked him off to the Charleston brig.
At that point, his story became more complicated. Al-Marri was incarcerated in the same brig with Padilla and Yaser Esam Hamdi, and the government has treated each of them in vastly different ways.
A US native, Padilla was arrested in Chicago. When he was declared an enemy combatant, the White House, the Pentagon and the attorney general’s office laid out specific accusations that Padilla trained with Al-Qaeda and returned to the United States to scout for targets to bomb.
Earlier this month, the 4th US Circuit Court of Appeals ruled that the government did not have to grant him a trial to defend himself.
Hamdi held dual citizenship. He was born in Baton Rouge, La., to temporary immigrants from Saudi Arabia; they later moved back to Saudi Arabia and he was raised there.
Hamdi was captured on an Afghan battlefield, sent to Guantanamo Bay and later transferred to Charleston. A year ago he was abruptly sent home to Saudi Arabia — even though he, too, was once deemed by Bush a grave threat to this nation.
For Al-Marri, the government has never formally told him what he did wrong.
Carl Tobias, a University of Richmond law professor has closely studied the enemy combatant issue, and he remains baffled at the government’s wide latitude and discretion.
“The whole process strikes me as totally random,” Tobias said. “The only rule is that it is totally random.”
What especially irks Al-Marri’s lead attorney, Lawrence S. Lustberg, is that the government was giving his client his day in court but then suddenly deprived him of due process in June 2003. “He is unique in the sense that he actually was being afforded his right,” Lustberg said. “He had it. Then he was stripped of it. They suddenly pulled it away. How can they defend that?”
Government lawyers even avoided providing a detailed explanation to US District Judge Michael M. Mihm in Peoria, who had Al-Marri’s case at the time.
At a hastily called hearing, Assistant US Attorney Jan Paul Miller said that the matter carried national security implications and that since Bush had signed the enemy combatant declaration that alone was “sufficient” to end the judge’s jurisdiction.
Bush’s one-page declaration for Al-Marri was equally short on details: “Mr. Al-Marri is closely associated with Al-Qaeda .... Mr. Al-Marri engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.... Mr. Al-Marri possesses intelligence.... about personnel and activities of Al-Qaeda.’’
For two years now, Al-Marri has been held in solitary confinement in Charleston. Only for the last year have his lawyers been able to meet with him — and then only after the Supreme Court ruled such access was appropriate in the Padilla case. Now they are seeking a legal forum to strike down the enemy combatant provisions of US law.
Their first effort was the civil complaint filed Aug. 8 about his prison conditions. They contend he has been routinely denied a toothbrush, toilet paper and bedding. They said his copy of the Qur’an was desecrated when jailers left it on the floor and covered it with debris. They said his cell temperature was alternately kept too hot or too cold.
Sometimes, they said, the staff cut off his water supply, preventing him from flushing his toilet and forcing him “to defecate on his food tray so that his feces would not have to remain in the same cell where he lives and prays.’’
Andy Savage, another of Al-Marri’s lawyers, said that since the lawsuit was filed, the brig has made some modifications, such as giving him an Arabic dictionary, albeit a 1954 edition.
The Qur’an desecration allegation is similar to complaints from Guantanamo Bay detainees this year, and prisoners there are now engaged in a protracted hunger strike. Among them is Al-Marri’s brother, Jarallah Al-Marri.
Jarallah Al-Marri, however, has been granted a status review hearing and has heard some of the evidence against him.
He was told he had traveled to a training camp run by Al-Qaeda leader Osama Bin Laden, that he was issued an AK-47 rifle and served as a checkpoint guard for the Taleban army in Afghanistan.
Following the Sept. 11, attacks and the US military invasion of Afghanistan, he fled into Pakistan, was captured and turned over to the United States.
At the start of his status review hearing, he asked, “Does this tribunal follow the laws of the United States?”
Yes, he was told.
Then he announced, “Because of this, I will require a lawyer.”
His request was denied, he refused to comment further and the tribunal panel proceeded as if he were not there. At the end of the hearing Jarallah Al-Marri, like his brother in Charleston, was ruled an enemy combatant.