Ali Saleh Kahlah al-Marri: Charge Him or Release Him

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When U.S. citizen Ahmed Abu Ali was recently returned to the United States to face criminal charges for terrorism, after some two years of detention in Saudi Arabia without being charged with a crime, he told U.S. Magistrate Liam O’Grady that he had been tortured by Saudi officials. Judge O’Grady replied, “I can assure you, you will not suffer any torture or humiliation while in the marshals’ custody.”

Perhaps the reason that Judge O’Grady qualified his statement with the phrase “while in the marshals’ custody” is that he is familiar with the case of Ali Saleh Kahlah al-Marri. Given that the Pentagon might do to Abu Ali what it did to al-Marri, there is no way that Judge O’Grady could issue an unconditional guarantee to Abu Ali that he would not be tortured while in the custody of U.S. officials.

The facts in the al-Marri case are similar to those in the Jose Padilla case, where the government arrested an American citizen on U.S. soil and sent him into military custody for punishment, claiming the omnipotent power to punish him without complying with the constraints of the Bill of Rights and without federal court interference. A U.S. district judge in South Carolina, however, recently rejected the government’s argument, ruling that federal officials had to either charge Padilla with a crime or release him from custody. Not surprisingly, the government is appealing the ruling.

As ominous and threatening as the Padilla doctrine is to the freedom of the American people, the al-Marri case involves a even rawer exercise of U.S. military power because it entailed removing a federal criminal defendant who had already been indicted by a civilian federal grand jury and who was thereby under the jurisdiction of a U.S. federal district court and transferring him to the Pentagon for detention and punishment.

Under the “war on terrorism,” U.S. officials have taken the position that they have the power to determine whether a suspected terrorist is to be tried as a criminal in U.S district court or treated as an enemy combatant under Pentagon control in the “war on terrorism.” The difference in treatment is day and night, with criminal defendants being accorded the protections of the Bill of Rights, including the bar against cruel and unusual punishments, and “enemy combatants” being denied the protections of the Bill of Rights and facing the possibility of being tortured and sexually abused.

For example, U.S. officials chose to accord Zacarias Moussaoui, whom they accuse of being the “20th hijacker” in the 9/11 attacks, as a criminal defendant; that’s the reason they currently have him under indictment in a federal district court in Virginia. Others accused of terrorism (John Walker Lindh, the so-called American Taliban, who is an American citizen, being a notable example), have received the same federal criminal-court treatment.

Others, such as American citizens Yaser Hamdi, who was captured in the war on Afghanistan, and Jose Padilla, who was arrested at an international airport in Chicago, have been designated “enemy combatants.”

It is important to note that determining whether a suspected terrorist is a criminal defendant or an “enemy combatant” is totally subjective and is made on an ad hoc, case-by-case basis by the Pentagon and the president. They claim that because the nation is “at war,” there should be no federal court interference with their determination.

The reason that this is important is that since this life-or-death determination is based on the subjective, ad hoc determination of government officials, it violates the “rule of law” principle that President Bush continues to preach about to the world. In a society based on the “rule of law,” people know that they have to answer only to a well-defined law for their conduct. On the other hand, in a society based on the “rule of men,” people know that they have to answer to the discretionary determinations of government officials for their conduct.

If a suspected terrorist is lucky, he’ll get the federal court treatment. If he is unlucky, he’ll get the military treatment. In the federal system, the criminal defendant is accorded all the protections of the Bill of Rights, many of which stretch back to the Magna Carta. In the military system, “enemy combatants” can be held until the “war on terrorism” is over, which could be never, and they can be punished without being according the right to counsel, due process of law, trial by jury, or the other rights guaranteed in the Bill of Rights; moreover, as the world has learned, “enemy combatants” can be subjected to “cruel and unusual punishments” imposed by the military, including torture, sex abuse, rape, weird sex acts, and even murder.

Jose Padilla was never charged with a crime. Soon after he was taken into custody by U.S. officials as a “material witness,” the Pentagon secured a statement from President Bush certifying that Padilla was an “enemy combatant” in the war on terrorism, took him into custody, transferred him to a military brig in South Carolina, and announced an intention to hold him indefinitely without according him right to counsel, due process, or trial by jury.

After almost three years, a South Carolina judge ordered the government to either charge Padilla with a crime or release him. The court rejected the government’s “enemy combatant” designation, ruling that terrorism is a crime, not an act of war.

Al-Marri’s case, as I mentioned earlier, involves a much rawer exercise of military power. Al-Marri was actually indicted for terrorism-related offenses in federal district court, first in New York, and then later in Illinois. Motions were being heard in his case and the attorneys were preparing for trial, which is the normal procedure in federal criminal cases.

All of a sudden, federal prosecutors requested the presiding judge in the case to dismiss the indictment against al-Marri. The judge granted the request, but “with prejudice,” which means that under the Sixth Amendment bar against double jeopardy, U.S. officials can now never bring those particular criminal charges against al-Marri again. Once the order of dismissal was entered in the Illinois criminal case, U.S. officials secured an official “enemy combatant” designation from President Bush and immediately transferred al-Marri to the same military brig in South Carolina where they are still holding Padilla.

Make no mistake about it: The governmental power exercised in the Padilla and al-Marri cases will be a back door to military control of our nation. While the American people might not realize that, Pentagon officials most certainly do, which is why they are fighting tooth and nail in federal district court in South Carolina aggressively opposing al-Marri’s petition for a writ of habeas corpus. They have already announced their intention to appeal the Padilla decision, hoping that they can persuade the federal appellate courts to acknowledge their power to take Americans into custody without federal court interference.

Think about what they have done in the al-Marri case. Here is a guy under control of a federal district court under federal criminal indictment, which is exactly what the Constitution requires when federal officials accuse someone of a crime. In that proceeding, al-Marri was receiving all the protections of the Bill of Rights, including right to counsel, due process of law, and trial by jury.

All of a sudden, the Pentagon just yanks him out of that system and transfers him to the military system, where he is denied all the protections of the Constitution and the Bill of Rights.

If the Pentagon wins in the Padilla and al-Marri cases, military officials will be free to pick up anyone in the country and punish him as a “terrorist” without having to go through the normal judicial processes of proving beyond a reasonable doubt that he has committed a crime. If they have instead decided to prosecute a person suspected of terrorism in federal court and determine that they do not have sufficient evidence to convict him, or simply get upset with him or his attorney, they will have the power to remove him from the system and transfer him to military control for punishment, denying him the right to consult with his attorney, due process, and trial by jury.

Unlike Padilla, al-Marri is a foreign citizen, a citizen of Qatar. Some people might think that enables the government to treat him differently than it does Padilla. Not so. Our ancestors had the wisdom and foresight to guarantee the procedural protections of the Bill of Rights to all people, accused of a crime by the feds, foreigners and Americans alike. If the feds get away with doing what they have done to al-Marri, they will be free to do it to you, your friends, newspaper editors, dissenters, critics, and anyone else they decide to pick up and hold indefinitely. Don’t forget that they are currently holding around 8,000 suspected terrorists in Iraq — and denying them right to counsel, bail, due process, and trial by jury. They will do the same here if given the power.

If the Pentagon ultimately wins in the Padilla and al-Marri cases, all it will have to do is put a stack of 100 or 500 or 1,000 sheets in front of the president for his signature, each of which certifies that such and such person is an “enemy combatant.” What are the chances that the president is going to challenge the Pentagon’s determination of who is a “terrorist” and who is not? Most likely, to save time, the president would simply sign a few thousands sheets in advance, permitting the Pentagon to fill in the names as circumstances warrant. After all, in the “war on terrorism,” isn’t time always of the essence?

Some people might respond, “Yeah, but the Pentagon’s policy is to keep Guantanamo Bay, where people are tortured and sexually abused, limited to foreigners, not Americans. At least Americans get to stay in a military brig in South Carolina.” What those people don’t realize is that that determination itself was entirely discretionary and tactical on the part of the Pentagon. If it were to win in the Padilla and al-Marri cases, thereby securing immunity from federal court interference, there would be nothing to prevent the Pentagon from changing its policy and rounding up American “terrorists” and transferring them to Guantanamo for punishment. After all, keep in mind that in the minds of the Pentagon, a terrorist is a terrorist, which is why they’ve treated Padilla and al-Marri in much the same way.

That’s why Judge O’Grady’s assurances to Abu Ali that he won’t be tortured “while in the marshals’ custody” are rather hollow. If Pentagon officials can remove Ali Saleh Kahlah al-Marri from the control of the federal judiciary and transfer him to the military after he’s been indicted, they can do the same to Abu Ali … or anyone else. That’s why the Padilla and al-Marri cases are the most ominous and dangerous threat to the American people, to our freedom, and to our way of life in our lifetime.

Jacob Hornberger [send him mail] is founder and president of The Future of Freedom Foundation.

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