Guest Voice: The Torture Of Ali Al-Marri, The Last U.S. Mainland â€œEnemy Combatantâ€
NOTE: The Moderate Voice from time to time runs Guest Voice posts by readers who don’t have their own website or some people who do who want to present their viewpoint or just another perspective to TMV’s highly diverse readership. Guest Voice columns do not necessarily reflect the opinion of TMV or its writers. This Guest Voice post is by author Andy Worthington.
The torture of Ali al-Marri, the last â€œenemy combatantâ€ on the US mainland
By Andy Worthington
Torture is defined in many ways. To the US administration, nothing that it ever does is torture. In keeping with the notorious â€œTorture Memoâ€ of August 2002, drafted primarily by Vice President Dick Cheneyâ€™s chief counsel David Addington, â€œenhanced interrogation techniquesâ€ â€“ as the administration euphemistically defines its forays into torture â€“ only actually become torture if the suffering produced is equivalent to organ failure or even death.
As a result, Dick Cheney was well within his comfort zone when, on a conservative radio show last October, he responded to a dismissively phrased question about waterboarding â€“ â€œWould you agree a dunk in water is a no-brainer if it can save lives?â€ â€“ with the response, â€œWell, it’s a no-brainer for me.â€ He added, â€œBut for a while there, I was criticized as being the vice president for tortureâ€ (courtesy of the Washington Post), and concluded with the administrationâ€™s predictable mantra, â€œWe don’t torture. That’s not what we’re involved in.â€
To others, including the State Department, waterboarding is clearly torture, as the Department declares every year when it condemns other countries for subjecting prisoners to â€œa dunk in the water.â€ But while it should be clear to all but the most vindictively brain-washed that waterboarding and other techniques which have been used in GuantÃ¡namo, and which are still part of the CIAâ€™s arsenal â€“ including the prolonged use of stress positions, extreme temperature manipulation, and profound sleep deprivation â€“ are also torture, especially when their use is combined, holding a man in solitary confinement for several years is somehow seen as a soft option.
This is in spite of the fact that, when approved by Donald Rumsfeld for use at GuantÃ¡namo, Defense Department lawyers warned that isolation was â€œnot known to have been generally used for interrogation purposes for longer than 30 days.â€ The lawyersâ€™ warnings, it should also be noted, echoed the opinion expressed in the CIAâ€™s 1963 KUBARK Manual â€“ with its notorious section on counter-intelligence interrogation â€“ in which the agency warned of the â€œprofound moral objectionâ€ of applying â€œduress past the point of irreversible psychological damage.â€
My concern with the effects of prolonged solitary confinement hit me abruptly this week when I read â€“ in the New York Times, one of the few media outlets to cover the story â€“ that the case of Ali al-Marri, the last â€œenemy combatantâ€ on US soil, was causing some consternation to the US Court of Appeals for the Fourth Circuit in Richmond, Virginia.
A Qatari national and a resident alien in the United States, al-Marri had studied computer science in Peoria, Illinois in 1991, and had legally returned to the United States on September 10, 2001, with his residency in order, to pursue post-graduate studies, bringing his family â€“ his wife and five children â€“ 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 â€œenemy combatantâ€ instead.
He was then moved to a naval brig in Charleston, South Carolina, where he was held incommunicado for 16 months, and where, according to statements eventually filed by his lawyers (see below), he was subjected to â€œinhumane, degrading, and physically and psychologically abusive treatment.â€
Held in â€œcomplete isolationâ€ in a bare cell measuring nine feet by six feet in an otherwise unoccupied cell block, he was subjected to sleep deprivation and extreme temperature manipulation, was frequently deprived of food and water, and was only allowed outside for â€œrecreationâ€ â€“ also alone â€“ three times a week â€œwhen deemed to be â€˜compliant.â€™â€ Reinforcing his isolation, his cell contained nothing but a Koran, a â€œsuicide blanketâ€ and a thin mattress, and even the window was blocked out, preventing him from ever seeing natural light or knowing the time of day.
Al-Marri also stated that, during the first year of his imprisonment in the brig, he was â€œinterrogated repeatedly,â€ and he explained that his interrogators â€œfalsely told [him] that four of his brothers and his father were in jail because of him, and promised that they would all be released if he cooperated with them,â€ and also â€œthreatened 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.â€
In August 2003, representatives of the International Red Cross were finally allowed to meet with al-Marri, and two months later he was finally permitted to meet with a lawyer, but despite sporadic visits from the Red Cross and his legal representatives, the extreme isolation in which he has been held â€“ and the perpetuation of the ill-treatment outlined above â€“ has been barely mitigated. Including 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, he has now spent four years and ten months (58 times the amount of time recommended by Defense Department lawyers) in solitary confinement.
While this is not unique â€“ the alleged â€œhigh-valueâ€ al-Qaeda operative Abu Zubaydah has been in solitary since March 2002, for example, and several GuantÃ¡namo detainees have also spent a substantial amount of time in a similar situation (including, currently, the British resident Shaker Aamer, who has been alone in an isolation block since August 2005) â€“ al-Marri, as a US resident, is supposed to be protected from this sort of treatment.
The only comparable case â€“ and one which bears close scrutiny â€“ is that of Jose Padilla, the only other â€œenemy combatantâ€ to be held for a substantial period of time on the US mainland.
A US citizen, Padilla was held in the Charleston brig for three and a half years, where, crucially, the extreme isolation to which he was subjected, combined with sensory deprivation and the use of psychotropic drugs, led to the complete disintegration of his mind, according to several psychiatrists who evaluated his mental state.
According to one of al-Marriâ€™s lawyers, Jonathan Hafetz of the Brennan Center for Justice at the New York University School of Law, his clientâ€™s mental disintegration has not been quite so severe, although he has been described as suffering â€œsevere 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.â€
While this is a distressing litany of the symptoms to be expected from prolonged solitary confinement, it may be that al-Marriâ€™s relative sanity compared to Padilla (who was described by his guards as â€œso docile and inactive that he could be mistaken for â€˜a piece of furnitureâ€™â€) is sufficient to explain why his story has not been so newsworthy, but it seems likely that his case has also been largely ignored because he is a resident alien rather than a US citizen, and because his story is not so glamorous.
Unlike Padilla, who shot to undying fame when he was accused of plotting to detonate a â€dirty bombâ€ in a US city, al-Marri has no such tag to identify him. The presidential order which declared him an â€œenemy combatantâ€ stated simply that he was closely associated with al-Qaeda and presented â€œa continuing, present, and grave danger to the national security of the United States,â€ and the â€œchargesâ€ against him have fluctuated: at various times it has been claimed by the government that he attended an al-Qaeda training camp, that he met Khalid Sheikh Mohammed (KSM), the self-confessed architect of 9/11, and that he had connections to the al-Qaeda financier Mustafa al-Hawsawi.
It has also been alleged that he met Osama bin Laden, and that, after meeting him, pledged that he would kill Americans, that he volunteered for a â€œmartyr mission,â€ and that he was working as an al-Qaeda sleeper agent in the US at the time of his capture. Rather more prosaically, it was also alleged that he had documents related to jihadi activities on his computer, including information on hydrogen cyanide (used in chemical weapons), lectures by Osama bin Laden and a cartoon of planes crashing into the World Trade Center.
Crucially, however, none of these claims are necessarily reliable. As Jonathan Hafetz explained to me when I spoke to him on Friday (and as has been apparent since Newsweek reported on it in June 2003), most of the supposed intelligence against al-Marri came from Khalid Sheikh Mohammed, who was captured in March 2003, just three months before al-Marri was upgraded from an alleged credit card fraudster to a major terror suspect.
As I discussed at length in an article in July, â€œGuantÃ¡namoâ€™s Tangled Web: Khalid Sheikh Mohammed, Majid Khan, Dubious US Convictions and a Dying Man,â€ KSM stated during his tribunal at GuantÃ¡namo in March this year that he had given false information about other people while being tortured, and, though he was not allowed to elaborate, I traced in my article several possible victims of these false confessions, including Majid Khan, one of 13 supposedly â€œhigh-valueâ€ detainees transferred with KSM to GuantÃ¡namo from secret CIA prisons in September 2006, Saifullah Paracha, a Pakistani businessman and philanthropist held in GuantÃ¡namo, and his son Uzair, who was convicted in the United States on dubious charges in November 2005, and sentenced to 30 years in prison.
Itâ€™s possible, therefore, that al-Marri is another victim of KSMâ€™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. Since November 2005, when the administration dropped its â€œdirty bombâ€ allegations against Padilla and charged him with the far lesser crimes of â€œconspiracy to murder, kidnap, and maim people in a foreign country, conspiracy to provide material support for terrorists, and providing material support for terrorists,â€ for which he was convicted â€“ pending appeal â€“ in August this year, al-Marri has had the painful distinction of being the only US â€œenemy combatantâ€ held on American soil.
The Padilla verdict caused outrage amongst those who were rightly concerned that the judge had forbidden all mention of the three and a half years that a US citizen had spent in mind-destroying isolation without charge or trial, but al-Marriâ€™s case is, arguably, even more significant. Under the cover of his perceived second-class status as a resident alien rather than a US citizen, the administration appears to be hoping that the Fourth Circuit judges will endorse what Jonathan Hafetz described to me as â€œthe most radical and far-reaching claim of the imperial presidency: that the President can seize any person in America and imprison him for life, without charge and without evidence, based solely upon his say-so.â€
This, then, is why the news that al-Marriâ€™s case was being scrutinized by the Fourth Circuit judges seized my attention so vigorously. While the Supreme Court will undoubtedly beckon if the verdict goes the governmentâ€™s way, the Fourth Circuit judges are discussing an issue that should be of paramount importance to all Americans: their right not to be seized on a Presidential whim, and held forever without charge or trial.
It is, moreover, not the first time that the Fourth Circuit judges have looked at al-Marriâ€™s case. In June, by a majority of 2 to 1, three judges in the Fourth Circuit appeals court delivered the following damning verdict on the Presidentâ€™s presumed ability to detain Americans (whether citizens or resident aliens) at will. â€œPut simply,â€ they declared, â€œthe 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.â€™â€
The judges had apparently been swayed by the arguments presented by Jonathan Hatefz and his colleagues, who insisted, as they have maintained all along, that the President â€œlacks the legal authority to designate and detain al-Marri as an â€˜enemy combatantâ€™ for two principal reasonsâ€; firstly, because the Constitution â€œprohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,â€ and secondly, because, although a district court previously held that the President was authorized to detain al-Marri under the Authorization for the Use of Military Force (the September 2001 law authorizing the President to use â€œall necessary and appropriate forceâ€ against those involved in any way with 9/11), Congress explicitly prohibited â€œthe indefinite detention without charge of suspected alien terrorists in the United Statesâ€ in the Patriot Act, which followed five weeks later. Even more critically, Congress actually rejected a provision in a prior draft of the bill, which would have permitted the Attorney General to detain without charge any individual he â€œhas reason to believe may commit, further, or facilitate acts [of terrorism],â€ insisting instead that suspects be charged â€œwith a criminal offense or an immigration violation within seven days of their arrestâ€ (thatâ€™s seven days, note, not 2155 days â€“ as of November 5, 2007 â€“ in solitary confinement).
The verdict in June â€“ a triumph for those who realized how crucial the al-Marri case was â€“ lasted only until the government appealed. Instead of three judges, the Fourth Circuit court has now convened en banc to reconsider al-Marriâ€™s indefinite detention without trial, and this critical decision â€“ a last bulwark, effectively, against the whims of a dictatorial President â€“ now rests in the hands of nine judges in one of the most conservative courts in the land.
Unexpectedly, however, the signs are not all bad. As the New York Times explained, â€œbased on the pointed, practical and frequently passionate questioningâ€ during Wednesdayâ€™s hearing, the judges were â€œdivided and troubled, and it was not clear which was the majority was leaning.â€ Some responses were predictable. Judge J. Harvie Wilkinson III, for example, remarked that civil liberties groups had â€œstirred up needless anxietyâ€ about the Presidentâ€™s powers. â€œWeâ€™re not talking about an indiscriminate roundup,â€ he said. â€œWeâ€™re talking about two people in six years [al-Marri and Padilla] with undisputed ties to al-Qaeda.â€ In response, however, Judge Robert L. Gregory stated that the case was one of â€œconstitutional principle,â€ and a representative of the government, Gregory J. Garre, faced tough questions about the administrationâ€™s position. Judge M. Blane Michael asked, â€œHow long can you keep this man in custody?â€ and when Garre replied that it could â€œgo on for a long time,â€ depending on the duration of the â€œwarâ€ with al-Qaeda, Judge Michael stated, â€œIt looks like a lifetime.â€
Under questioning from Judge William B. Traxler Jr., who inquired about the circumstances required for holding people in secret detention, Garre blustered that al-Marri had been given an opportunity to rebut the governmentâ€™s allegations, but had â€œsquanderedâ€ the opportunity. This was not strictly true. Al-Marri had indeed been given an opportunity to face his accusers in court, but, as his lawyers pointed out, the burden was actually on the government to prove its accusations. â€œHow is a person who is held incommunicado to challenge these things?â€ Judge Traxler asked, to silence from Garre.
With the judgesâ€™ overall opinions unclear, al-Marri, his lawyers, and all responsible American citizens will have to wait for the verdict to be announced, which could be before the end of the year. I can only hope that the judges have listened carefully to the arguments made by his lawyers. As Jonathan Hafetz explained to me, â€œMr. al-Marri’s four-plus years of solitary confinement in a navy prison crosses a line that should never be crossed a civilized society, and cannot be accepted in a nation, like America, committed to basic human rights and the principles of its Constitution.â€
Andy Worthington is the author of The GuantÃ¡namo Files: The Stories of the 774 Detainees in Americaâ€™s Illegal Prison. Visit his website here.