In War of Vague Borders, Detainee Longs for Court By ADAM LIPTAK http://www.nytimes.com/2007/01/05/washington/05terror.html?ref=us&pagewanted =print
Ali al-Marri, whom the government calls a sleeper agent for Al Qaeda and who is the only person on the American mainland still held as an enemy combatant, spends his days in a small cell in solitary confinement at the Navy brig in Charleston, S.C. When he is in an ironic mood, his lawyers say, he calls the cell his villa. Mr. Marri waits there for word from his wife, two sons and three daughters, whom he last saw in 2001, just before his arrest in Peoria, Ill., where he was studying computer science at Bradley University. Letters arrive, but they are late and have words and sentences blacked out. A note his wife sent to him 10 months ago landed recently. It began with a standard Muslim invocation, but a word was missing. Mr. Marri is pretty sure it was "Allah." But mostly Mr. Marri waits for word from a federal appeals court, which will soon rule on one of the most urgent questions in American law, one his case presents in stark form: May the government indefinitely detain a foreigner living legally in the United States, without charges and without access to the courts? Mr. Marri, who is 41 and a citizen of Qatar, wants the right to challenge President Bush's assertion that he is a terrorist and "a grave danger to the national security of the United States." The Bush administration says the courts cannot second-guess the president when he decides that someone is an enemy combatant, at least when noncitizens are involved. Detaining combatants is a military rather than a criminal matter, the administration says, adding that its purpose is not to punish the prisoner but to stop him from returning to the battlefield. The implications of that position are startling, according to a brief filed last month in Mr. Marri's case by some 30 constitutional scholars. "The government's interpretation would be vastly threatening to the liberty of more than 20 million noncitizens residing in the United States," the brief said, "exposing them to the risk of irremediable indefinite detention on the basis of unfounded rumors, mistaken identity, the desperation of other detainees subject to coercive interrogation, and the deliberate lies of actual terrorists." Kathleen M. Blomquist, a spokeswoman for the Justice Department, disputed that contention. "Of all the terrorists currently in the custody of the United States military, al-Marri is the only one who was captured in the United States," Ms. Blomquist said, adding that the notion that millions of people are at risk is "unfounded and absurd." Mr. Bush's determination that Mr. Marri is an enemy combatant, she said, was based on substantial evidence, including "his association with Khalid Shaikh Mohammed <http://topics.nytimes.com/top/reference/timestopics/people/m/khalid_shaikh_ mohammed/index.html?inline=nyt-per> , mastermind of the 9/11 attacks, and files found on his computer concerning chemical weapons of mass destruction." Mr. Marri maintains his innocence, his lawyers say. But they have refused to offer point-by-point rebuttals of the government's detailed assertions, calling instead for prosecutors to offer evidence to back them up in court. "In a civilized society and under American law and tradition," said Jonathan Hafetz, a lawyer for Mr. Marri with the Brennan Center for Justice <http://topics.nytimes.com/top/reference/timestopics/organizations/b/brennan _center_for_justice/index.html?inline=nyt-org> at New York University <http://topics.nytimes.com/top/reference/timestopics/organizations/n/new_yor k_university/index.html?inline=nyt-org> School of Law, "the government has the obligation to prove its case." One of Mr. Marri's brothers, Mohammed Marri, in a telephone interview from Qatar, rejected the charge that Mr. Marri is a terrorist. "For sure it's not true," he said. A third brother, Jarallah, is at Guantánamo Bay, Cuba, held as an enemy combatant based on accusations that he had visited a Qaeda camp. "This is not a proper way to treat other people from other countries," Mohammed Marri said of his brothers and other detainees. "If they are guilty, let them prove it in court." An Exclusive Club The Charleston brig can hold 288 military prisoners and 6 enemy combatants, but there have never been more than 3 in the exclusive enemy combatant club. Two of them are now gone. One of them, Yaser Hamdi, was freed and sent to Saudi Arabia after the United States Supreme Court <http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme _court/index.html?inline=nyt-org> allowed him to challenge his detention in 2004. Jose Padilla <http://topics.nytimes.com/top/reference/timestopics/people/p/jose_padilla/i ndex.html?inline=nyt-per> was transferred to the criminal justice system last year just as the Supreme Court was considering whether to review his case. That leaves only Mr. Marri. Mr. Hamdi and Mr. Padilla are American citizens, but Mr. Marri is not. They were seized abroad or on their way back to the United States, while Mr. Marri was living what seemed to be an ordinary life, in Peoria, a city often caricatured as the nation's most ordinary, with a family and a minivan. The government contends in a partly declassified declaration from a senior defense intelligence official, Jeffrey N. Rapp, and in a recent book by former Attorney General John Ashcroft <http://topics.nytimes.com/top/reference/timestopics/people/a/john_ashcroft/ index.html?inline=nyt-per> , that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system. The assertions have not been tested in court, and human rights groups say they are based on unreliable evidence "There is substantial reason to believe," lawyers for two of the groups wrote in a brief in November, "that the allegations of the Rapp declaration are derived from the torture of two men interrogated at Guantánamo Bay and other detention sites: Khalid Shaikh Mohammed and Mustafa Ahmed al-Hawsawi." The government says that Mr. Hawsawi was one of the financiers of the Sept. 11 attacks. Mr. Rapp's declaration cites the personal views of Mr. Mohammed, who is often referred to as K.S.M. "K.S.M. considered al-Marri an ideal sleeper agent," Mr. Rapp wrote. Kept in Isolation Mr. Marri was kept in isolation at the brig and, according to his court filings, subjected to tough interrogation. Interrogators threatened to send him to Egypt or Saudi Arabia, according to a lawsuit filed on his behalf in 2005, "where, they told him, he would be tortured and sodomized and where his wife would be raped in front on him." "By winter '05," Andrew J. Savage, who also represents Mr. Marri, said in a recent interview, "I genuinely thought he was losing his mind. He told me in this sort of indirect way that he might not be able to hold on, that his mind was playing tricks on him." Mr. Padilla's lawyers have said that their client's time in the brig was so grueling that he is not fit to stand trial. But while Mr. Padilla was passive, Mr. Marri pushed back. He put wet toilet paper on the video camera, for instance. The brig responded by taking away his mattress, Koran and hygienic products, including his toilet paper. "There is almost nothing to distract him from his torment," his lawyers wrote in the lawsuit, "and he therefore becomes preoccupied with his pain and the degradation he suffers." Perhaps as a consequence of the lawsuit, conditions have improved. When Mr. Marri's lawyers were first allowed to see him in October 2004, after the decision in Mr. Hamdi's case, Mr. Marri was behind a transparent barrier and bound in leg-irons and handcuffs that were linked to a belly-chain and fastened to the floor. Officials from the Defense Intelligence Agency <http://topics.nytimes.com/top/reference/timestopics/organizations/d/defense _intelligence_agency/index.html?inline=nyt-org> and the brig were present, and the conversation was videotaped. On a recent visit, Mr. Savage said, he met his client in a visiting lounge. Mr. Marri, who was not restrained, was wearing stylish bifocals rather than institutional prison glasses. He was also wearing a watch, which makes it easier for him to know when to pray. Mr. Savage brought hummus and pita bread. "We sat down, we broke bread, and we had a three-and-a-half hour conversation, unmonitored," Mr. Savage said. Mr. Marri is now allowed to watch television in the evening, but not the news. He reads newspapers and magazines, but they are edited. "Brig staff remove all materials associated with the war on terror from them," Cmdr. Stephanie L. Wright, the brig's commanding officer, said in court filing in July. Sometimes that makes for a thin newspaper. "All I get is sports and obits," Mr. Marri has complained, Mr. Savage said. He is critical of the former, saying there is not enough soccer coverage. The Defense Department has allowed journalists and others to tour the Guantánamo facility, where Mr. Marri's brother Jarallah and 400 other men are being held. All of the Guantánamo prisoners are foreigners who were seized abroad. The government has not asserted that the brothers were working together. The Defense Department refused a recent request to inspect the Charleston brig. A spokesman, Cmdr. J. D. Gordon, cited "operational security concerns surrounding the detention of an alleged al Qaeda-linked operative in the U.S. mainland," a reference to Mr. Marri. Commander Gordon added that "it has always been our policy to treat all detainees humanely." Return to the United States Mr. Marri spent eight years in the United States as a young man, graduating from Bradley with an undergraduate degree in business administration in 1991. When he returned to the United States 10 years later, he brought his family. In his declaration, Mr. Rapp noted that Mr. Marri's profile "differed significantly from that of the Sept. 11, 2001, hijackers." Those differences, Mr. Rapp said, made Mr. Marri all the more attractive to Al Qaeda. The years between Mr. Marri's two stints at Bradley are a mystery. The government says he trained at a Qaeda camp in Afghanistan for about a year and a half between 1996 and 1998, specializing in poisons. The government also says that Mr. Marri visited the United States briefly in 2000, which Mr. Marri has denied. In the summer of 2001, Mr. Rapp wrote, Mr. Mohammed introduced Mr. Marri to Osama bin Laden <http://topics.nytimes.com/top/reference/timestopics/people/b/osama_bin_lade n/index.html?inline=nyt-per> . Mr. Marri "offered to be an Al Qaeda martyr," Mr. Rapp wrote. "Al Qaeda instructed al-Marri that it was imperative that he arrive in the United States prior to Sept. 11, 2001, and that if al-Marri could not do so, that he should cancel all his plans and go to Pakistan," Mr. Rapp wrote. The Marris arrived in Peoria on Sept. 10, 2001. Mr. Marri soon came to the attention of the F.B.I. <http://topics.nytimes.com/top/reference/timestopics/organizations/f/federal _bureau_of_investigation/index.html?inline=nyt-org> , which first interviewed him less than a month later. In December, agents searched his laptop, finding "research consistent with the tradecraft and teachings associated with Al Qaeda," Mr. Rapp wrote. Mr. Marri was arrested on Dec. 12, 2001, and held as a material witness at the request of prosecutors in New York. He was indicted two months later on charges of credit card fraud. In January 2003, the government added charges of lying to federal agents and financial institutions, and identity theft. Mr. Marri pleaded not guilty. His family has since returned to the Middle East. For a year and a half, the government pursued a conventional criminal case. Mr. Ashcroft, in his book "Never Again," which was published in October, wrote that Mr. Marri "rejected numerous offers to improve his lot" by cooperating with investigators. "He insisted," Mr. Ashcroft wrote, "on becoming a 'hard case.' " In June 2003, as the case was nearing trial, the government abruptly changed course, taking Mr. Marri out of the criminal system and moving him into indefinite military detention. That means, Mr. Ashcroft later wrote, that Mr. Marri can be held "at least until the war against Al Qaeda was over." In its rush to move Mr. Marri, the government short-circuited its criminal case. On hearing that a federal judge in Peoria would allow Mr. Marri's lawyers to file papers opposing the transfer as long as the criminal case was alive, the government agreed to dismiss the criminal charges with prejudice, meaning they cannot be refiled. The decision, however, would not prevent the government from charging Mr. Marri with other crimes outlined in Mr. Rapp's declaration. The declaration has served the purpose for which it was designed. In August, it persuaded Henry F. Floyd, a federal judge in Spartanburg, S.C., to deny a habeas corpus petition challenging Mr. Marri's detention. Saying that Mr. Marri had "offered nothing more than a general denial" of the assertions in the declaration, Judge Floyd dismissed the petition. Neither side was happy with the ruling. Mr. Marri has appealed to the United States Court of Appeals for the Fourth Circuit in Richmond, saying that the president does not have the power to detain him as an enemy combatant. A foreigner living legally in the United States, his lawyers say, is not the same as a soldier captured on a battlefield. Even if the president does have the power, they say, he should be required to support his assertions with evidence. The government argues that Judge Floyd gave Mr. Marri too full a hearing. It cited the recent Military Commissions Act, which says that the courts have no jurisdiction to hear challenges from any alien "who has been determined by the United States to have been properly detained as an enemy combatant." The case will be heard Feb. 1 The government offered Mr. Marri a sort of consolation prize should the appeals court dismiss his case. It said he could try to persuade a combatant status review tribunal, convened by the Defense Department, that he was not an enemy combatant. That would apparently be the first such proceeding on the mainland; all of the others known to have been conducted were at Guantánamo Bay. A Different View In a brief filed in November, eight former Justice Department officials, including Janet Reno <http://topics.nytimes.com/top/reference/timestopics/people/r/janet_reno/ind ex.html?inline=nyt-per> , the attorney general in the Clinton administration, said that taking Mr. Marri out of the criminal system as his case approached trial "has given to the appearance of manipulation of the judicial process." The brief listed several criminal statutes available to prosecute people accused of terrorism along with many successful prosecutions under them. "The criminal justice system has proven that it can make the cases," Ms. Reno said in an interview. "For the president to be able to designate someone as an enemy combatant, without process and without regulation, just doesn't make any sense and isn't necessary." Ms. Blomquist, the Justice Department spokeswoman, said, "While we respect the views of former law enforcement officials, the United States cannot afford to retreat to a pre-September 11 mind-set that treats terrorism solely as a domestic law enforcement problem." Mr. Marri shared a fantasy with one of his lawyers not long ago. "I'd love to be taken back to Saudi Arabia and they would beat the" - here, he swore - "out of me for six months," Mr. Marri said, according to Mr. Savage. "It would be brutal, but it would be finite." (F)AIR USE NOTICE: All original content and/or articles and graphics in this message are copyrighted, unless specifically noted otherwise. All rights to these copyrighted items are reserved. Articles and graphics have been placed within for educational and discussion purposes only, in compliance with "Fair Use" criteria established in Section 107 of the Copyright Act of 1976. 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