United for Peace of Pierce County, WA - We nonviolently oppose the reliance on unilateral military actions rather than cooperative diplomacy.

As “the only enemy combatant held on U.S. soil” by the U.S. government, Ali Saleh Kahlah al-Marri’s name ought to be well known. -- And if they aren’t concerned about al-Marri himself, shouldn’t Americans be concerned about the arguments that government lawyers are making to justify his continued detention in a military brig? -- “Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a citizen, and hold him in prison without charge, indefinitely,” the Associated Press reported Saturday.[1] -- The most recent legal decision in the al-Marri case was “a 2-1 ruling by a 4th U.S. Circuit Court of Appeals panel [that] found that the president had crossed the line and al-Marri must be returned to the civilian court system,” Matt Apuzzo wrote. -- “Anything else would ‘alter the constitutional foundations of our Republic,’ the judges said.” -- But a review is underway by the full appeals court, “a ruling is expected soon.” -- A separate AP piece published Tuesday described another aspect of the al-Marri case: his attorney’s allegations that he has been “subjected to a brutal interrogation regime bordering on, if not amounting to torture,” and that the government has destroyed tape evidence of this.[2] -- On Apr. 9, the Washington Post reported on another question in the al-Marri case: whether the fact that the administration has since repudiated a notorious 2003 memo written by John C. Yoo that was at the time “a key part of a legal analysis backing Marri's detention” demonstrates that he is being held illegally.[3] -- COMMENT: The fact that a U.S. resident is being held in a military prison on U.S. soil and denied constitutional rights should be a matter of great concern to Americans, according to observers like Naomi Wolf. -- Wolf argued in a recent book that the government’s getting away with arrests of “people whose status . . . blurs the thick black line that had been established between ‘us’ and ‘them’” is a key development in a democratic society undergoing a “fascist shift” of the kind that occurred in Mussolini’s Italy in the 1920s, Stalin’s Russia and Hitler’s Germany in the 1930s, East Germany in the 1950s, Czechoslovakia in the 1960s, and Chile and other Latin American dictatorships in the 1970s. -- Wolf argues that such arrests being a step toward the establishment of “secret prisons,” by which Wolf means “a prison system that is not accountable and that is beyond the rule of law” (The End of America: Letter of Warning to a Young Patriot [White River Junction, VT: Chelsea Green Publishing, 2007], pp. 46-47). -- Wolf did not mention the al-Marri case in her book, but she should have, since she emphasizes that “that is where we are right now in America” (p. 47)....

WASHINGTON -- If his cell were at Guantanamo Bay, the prisoner would be just one of hundreds of suspected terrorists detained offshore, where the U.S. says the Constitution does not apply.

But Ali Saleh Kahlah al-Marri is a U.S. resident being held in a South Carolina military brig; he is the only enemy combatant held on U.S. soil. That makes his case very different.

Al-Marri's capture six years ago might be the Bush administration's biggest domestic counterterrorism success story. Authorities say he was an al-Qaida sleeper agent living in middle America, researching poisonous gasses and plotting a cyberattack.

To justify holding him, the government claimed a broad interpretation of the president's wartime powers, one that goes beyond warrantless wiretapping or monitoring banking transactions. Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a citizen, and hold him in prison without charge, indefinitely.

There is little middle ground between the two sides in al-Marri's case, which is before a federal appeals court in Virginia. The government says the president needs this power to keep the nation safe. Al-Marri's lawyers say that as long as the president can detain anyone he wants, nobody is safe.

A Qatari national, al-Marri came to the U.S. with his wife and five children on Sept. 10, 2001 -- one day before the terrorist attacks in New York and Washington. He arrived on a student visa seeking a master's degree in computer science from Bradley University, a small private school in Peoria, Ill.

According to court documents citing multiple intelligence sources, al-Marri spent months in al-Qaida training camps during the late 1990s and was schooled in the science of poisons. The summer before al-Marri left for the United States, he allegedly met with Osama bin Laden and Sept. 11 mastermind Khalid Sheikh Mohammed. The two al-Qaida leaders decided al-Marri would make a perfect sleeper agent and rushed him into the U.S. before Sept. 11, the government says.

A computer specialist, al-Marri was ordered to wreak havoc on the U.S. banking system and serve as a liaison for other al-Qaida operatives entering this country, according to a court document filed by Jeffrey Rapp, a senior member of the Defense Intelligence Agency.

According to Rapp, al-Marri received up to $13,000 for his trip, plus money to buy a laptop, courtesy of Mustafa Ahmad al-Hawsawi, who is suspected of helping finance the Sept. 11 attacks.

A week after the attacks, Congress unanimously passed the Authorization for Use of Military Force. It gave President Bush the power to "use all necessary and appropriate force" against anyone involved in planning, aiding, or carrying out the attacks.

The FBI interviewed al-Marri that October and arrested him in December as part of the Sept. 11 investigation. He rarely had been attending classes and was failing in school, the government said.

When investigators looked through his computer files, they found information on industrial chemical suppliers, sermons by bin Laden, how-to guides for making hydrogen cyanide, and information about chemicals labeled "immediately dangerous to life or health," according to Rapp's court filing. Phone calls and e-mails linked al-Marri to senior al-Qaida leaders.

In early 2003, he was indicted on charges of credit card fraud and lying to the FBI. Like anyone else in the country, he had constitutional rights. He could question government witnesses, refuse to testify, and retain a lawyer.

On June 23, 2003, Bush declared al-Marri an enemy combatant, which stripped him of those rights. Bush wrote that al-Marri possessed intelligence vital to protect national security. In his jail cell in Peoria, however, he could refuse to speak with investigators.

A military brig allowed more options. Free from the constraints of civilian law, the military could interrogate al-Marri without a lawyer, detain him without charge, and hold him indefinitely. Courts have agreed the president has wide latitude to imprison people captured overseas or caught fighting against the U.S. That is what the prison at Guantanamo Bay in Cuba is for.

"The president is not a king and cannot lock people up forever in the United States based on his say-so," said Jonathan Hafetz, a lawyer who represents al-Marri and other detainees. "Today it's Mr. al-Marri. Tomorrow it could be you, a member of your family, someone you know. Once you allow the president to lock people up for years or even life without trial, there's no going back."

Glenn Sulmasy, a national security fellow at Harvard, said the issue comes down to whether the nation is at war. Soldiers would not need warrants to launch a strike against invading troops. So would they need a warrant to raid an al-Qaida safe house in a U.S. suburb?

Sulmasy says no. That's how Congress wrote the bill and "if they feel concerned about civil liberties, they can tighten up the language," he said.

That would require the politically risky move of pushing legislation to make it harder for the president to detain suspected terrorists inside the U.S.

Al-Marri is not the first prisoner who did not fit neatly into the definition of enemy combatant.

Two U.S. citizens, Yaser Esam Hamdi and Jose Padilla, were held at the same brig as al-Marri. But there are differences. Hamdi was captured on an Afghanistan battlefield. Padilla, too, fought alongside the Taliban before his capture in the United States.

By comparison, al-Marri had not been on the battlefield. He was lawfully living in the United States. That raises new questions.

Did Congress really intend to give the president the authority to lock up suspected terrorists overseas but not those living here?

If another Sept. 11-like plot was discovered, could the military imprison the would-be hijackers before they stepped onto the planes?

Is a foreign battlefield really necessary in a conflict that turned downtown Manhattan into ground zero?

Also, if enemy combatants can be detained in the U.S., how long can they be held without charge? Without lawyers? Without access to the outside world? Forever?

These questions play to two of the biggest fears that have dominated public policy debate since Sept. 11: the fear of another terrorist attack and the fear the government will use that threat to crack down on civil liberties.

"If he is taken to a civilian court in the United States and it's been proved he is guilty and it's been proved there's evidence to show that he's guilty, you know, he deserves what he gets," his brother, Mohammed al-Marri, said in a telephone interview Friday from his home in Saudi Arabia. "But he's just been taken there with no court, no nothing. That's shame on the United States."

Courts have gone back and forth on al-Marri's case as it worked its way through the system. The last decision, a 2-1 ruling by a 4th U.S. Circuit Court of Appeals panel, found that the president had crossed the line and al-Marri must be returned to the civilian court system. Anything else would "alter the constitutional foundations of our Republic," the judges said.

The full appeals court is reviewing that decision and a ruling is expected soon. During arguments last year, government lawyers said the courts should give great deference to the president when the nation is at war.

"What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?" Judge William B. Traxler asked.

One judge questioned why there was such anxiety over the policy. After all, there have been no mass roundups of citizens and no indications the White House is coming for innocent Americans next.

Another judge said the question is not whether the president was generous in his use of power; it is whether the power is constitutional.

Whatever the decision, the case seems destined for the Supreme Court. In the meantime, the first military trials are set to begin soon against detainees at Guantanamo Bay. Al-Marri may get one, too. Or he may get put back into the civilian court system. For now, he waits.

COLUMBIA, S.C. -- Attorneys for a suspected enemy combatant being held in South Carolina say they want any remaining evidence in his case to be preserved, and that tapes already destroyed would have proven he has been treated harshly while in custody.

Tapes destroyed by the government would have shown that Ali al-Marri "was subjected to a brutal interrogation regime bordering on, if not amounting to torture," his attorneys argued in court documents filed late Monday.

The recordings would have supported claims he was subject to sensory and environmental deprivation in the brig, and prevented from participating in religious practices, the documents said.

Prosecutors have called al-Marri, a legal resident alien from Qatar arrested in 2001, a national security threat with links to al-Qaida. He has been held in isolation at a Navy brig near Charleston for almost five years.

Earlier this year, the Defense Department announced that a review of taping at military prisons found that thousands of recordings were routinely destroyed -- including interrogations of al-Marri from 2003 and 2004 that prosecutors said had been considered materials that were no longer needed for intelligence.

Prosecutors have said a judge doesn't need to order that evidence be saved because all evidence in ongoing legal cases is already saved under Defense Department directives. The government has also said an investigation into what happened to the tapes isn't necessary because al-Marri's lawsuit contesting the conditions of his confinement didn't begin until 2005.

Attorneys for al-Marri argue the government should have preserved any evidence related to al-Marri dating back to 2003, when he was officially declared an enemy combatant.

"If it's in bad faith, this is potentially criminal. It's obstruction of justice," al-Marri's attorney, Jonathan Hafetz of the Brennan Center for Justice, said Tuesday. "It really doesn't get any worse than this."

In 2005, al-Marri's attorneys requested that their client be allowed more frequent communication with his family in Saudi Arabia, as well as unrestricted access to television news, arguing that his isolation is affecting his mental health and ability to help in his defense. Prosecutors have argued that giving al-Marri unrestricted war-related news would allow the suspected al-Qaida associate to learn about plans by Osama bin Laden and other suspected terrorist leaders.

Kevin McDonald, acting U.S. Attorney for South Carolina, declined to comment on the case.

Another lawsuit questioning the government's authority to hold al-Marri as an enemy combatant is pending before the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Attorneys for Ali Saleh Kahlah al-Marri, a Qatari national the government calls an al-Qaeda sleeper agent, said the 2003 memo was a key part of a legal analysis backing Marri's detention that the Justice Department has repudiated. The memo "further demonstrates that al-Marri's detention lacks legal basis," the attorneys wrote in a letter to the U.S. Court of Appeals for the 4th Circuit in Richmond, which is considering Marri's case.

The memo, declassified and released last week, asserted broad presidential powers in a time of war. It argued that federal laws prohibiting maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's authority as commander in chief overrode such statutes. Legal experts said they believe Marri is the first prisoner to cite the memo as evidence in his own case.

Although Justice Department officials told the Defense Department to stop relying on the memo nine months after it was issued, President Bush designated Marri as an enemy combatant before the memo was withdrawn. The designation relied in part on an opinion from the Justice Department's Office of Legal Counsel, where the memo's author, John C. Yoo, was then a deputy, the government has said in court filings.

"The memo makes plain as day that al-Marri was declared an enemy combatant based on discredited legal opinions and for the illegal purpose of abusive interrogations," Jonathan Hafetz, an attorney with the Brennan Center for Justice who represents Marri, said yesterday. Defense attorneys contend that Marri, who is being held at a Navy brig in South Carolina, has been subjected to such interrogation methods as sleep deprivation and being forced to stand in uncomfortable positions for long periods.

The government has not said whether Yoo's memo was included in the Office of Legal Counsel analysis, and Hafetz conceded that he could not prove that it was. Justice Department officials declined comment yesterday, saying they would respond in court.

Marri, who was arrested in December 2001 in Illinois and designated a combatant in June 2003, is the last of three suspected enemy combatants held in the United States whose detentions triggered a fierce battle over governmental powers to fight terrorism. Government officials have said that Marri was planning a second wave of attacks after Sept. 11, 2001. The government contends that Bush has the power to detain Marri and that such authority is vital during wartime to protect the nation from attacks.

Attorneys for Marri -- a lawful permanent U.S. resident -- argue that the military cannot indefinitely detain, without charge, a U.S. citizen or resident captured on U.S. soil. A three-judge 4th Circuit panel ruled last year that Bush had exceeded his constitutional authority and ordered the government to charge Marri in a civilian court or free him. The government appealed to the full court, which has not issued a decision.

Legal experts split yesterday over whether the memo would influence the outcome.

"I'm not sure the Yoo memo is of direct assistance to Mr. Marri," said Douglas W. Kmiec, a Pepperdine University law professor who headed the Justice Department's Office of Legal Counsel in the Reagan and first Bush administrations. "The memo primarily concerns aggressive forms of interrogation, not primarily the president's authority to designate individuals as enemy combatants."

But David H. Remes, who represents 16 detainees at Guantanamo Bay, Cuba, said it was "perfectly legitimate for al-Marri's counsel to bring this to the court's attention."

He said: "The detention and treatment of al-Marri rest on the premise that as an enemy combatant he enjoys no constitutional protections. If the administration has repudiated the memo supporting that premise, then the government's justification for holding al-Marri as an enemy combatant crumbles."