The importance of trying Ali Saleh Khalah Al-Marri

By Jonathan Winer

On January 28, a group of 19 former government officials with experience in intelligence and national security filed an amici curiae brief with the Supreme Court in the case to provide the court a brief finding that holding Ali Saleh al-Marri in the U.S. as an enemy combatant for seven years on U.S. soil without charge has been dangerously counterproductive in combating terrorism.

As one of the 19 bipartisan group of experts who joined the team on the brief led by Suzanne Spaulding, formerly Assistant General Counsel at the CIA and General Counsel for the U.S. Senate Select Committee on Intelligence, I thought it might be useful to highlight why such a politically-diverse group of people all felt so strongly that the U.S. needs to end the indefinite military imprisonment of a man who if the facts are as alleged by the government was a highly-dangerous terrorist at the time of his 2001 arrest in Illinois.

In a nutshell, terrorism lives off ideological stories. These stories, or narratives, become incorporated in worldviews which however twisted, are constantly incorporating new facts. As stated in the brief:

"Subjecting individuals apprehended inside the United States to indefinite military imprisonment as enemy combatants, instead of putting them on trial, invigorates the false – but widely accepted – narrative that the United States is engaged in a war on Islam, using its vast power to victimize Muslims, and that the terrorist is a noble warrior engaged in a holy war. Such treatment of a terrorism suspect is so far outside the traditions of this Nation that it undermines the credibility of our commitment to equality, justice, and the rule of law. The result is a powerful recruitment tool for violent extremists who claim allegiance to Islam, and greater risk to the security of the Nation."

The facts that have been alleged regarding Al-Marri's criminal and terrorist-related activities are disturbing to say the least. According to the original federal criminal indictment of Al-Marri, he had more than 1750 credit card numbers and names of account holders at the time of his arrest and false identification documents. The government also alleged that Al-Marri used a calling card to call a number in Dubai linked to the reputed al-Qaeda financier Mustafa al-Hawsawi. Federal agents found folders labeled "jihad arena" and "chem," in his computer which the government said contained information on the poisonous gas hydrogen cyanide. His computer had links to Web sites related to weaponry and satellite equipment, as well as the text of lectures by Osama bin Laden.

Assuming all of this is true, the government should be well situated to try Al-Marri not only on a variety of serious fraud-related criminal charges, but for terrorist acts. Indeed, Al-Marri was initially criminally charged within the U.S. Justice system following his arrest in late 2001. On June 23, 2003, he was then designated by President Bush as an enemy combatant and transported from the Central District of Illinois, where he was being held pending criminal charges, to the Naval Consolidated Brig in Charleston, South Carolina, for detention by the Department of Defense. He has been there ever since, without trial, consigned to indefinite imprisonment in the absence of any facts ever having actually been found by a trier-of-fact, rather than merely asserted by the government.

Under the policy established under the Bush Administration, the U.S. government took the position that it has inherent and statutory authority to seize and detain indefinitely as “enemy combatants” individuals like Al-Marri, who are legally present in the United States and are suspected of involvement in terrorism. As a result, a person in this category may be held essentially forever, as if the person had been convicted, solely on the invocation that the President has the power to do so and chosen to use it.

The brief argues that indefinite military detention of persons lawfully residing in the U.S. without criminal charge or trial, threatens to undermine our national security. It states that we will not prevail against violent extremists by military force alone, and that drying up terrorist recruitment and support is essential to our national security. It states that terrorists employ a false narrative about the objectives and values of the United States to glorify their heinous acts and promote recruitment. And it concludes that imprisoning Al-Marri without trial instead of bringing criminal charges against him serves the terrorist narrative, and thereby threatens national security.

We have successfully convicted many terrorists in criminal trials over the years, and such convictions show our own people, as well as the world, that our system of justice is based on facts and evidence. The blind sheikh who orchestrated the first World Trade Center bombing, Omar Abdul Rahman, has been serving his life sentence in federal prison since his 1995 conviction for seditious conspiracy. The same is true of El Sayyid Nosair, an American citizen who immigrated from Egypt and then assassinated Jewish Defense League head Meir Kahane and helped establish what the U.S. government called a "Jihad organization" involved Sheikh Rahman. We both convicted and executed Oklahoma City bomber Timothy McVeigh on terrorism charges, within the framework of the criminal justice system. Most recently, on December 22, 2008, an Afghani, Khan Mohammed, was sentenced to life in prison for narco-terrorism in the first conviction for that charge since the statute was enacted in March 2006 on terrorism and narcotics charges related to his activities directed against the U.S. in Afghanistan.

It is the consensus of the experts on the brief, which we believe to reflect a far broader consensus, that terrorism cannot be defeated by military action alone, but must focus on eliminating popular support, particularly vis-à-vis recruitment. As stated in the brief, "that requires us to confront the terrorist narrative and reveal its lies. Demonstrating our commitment to equality, justice, and the rule of law supports a counternarrative that is essential to that effort and, we submit, to our national security."

On January 22, President Obama ordered a review of the Al-Marri case to determine what to do with him. What happens next will depend on many factors, including whether in light of his treatment to date, which has reportedly included extended periods of isolation, he is mentally competent to participate in a trial. That we are in such a situation now in light of the danger of the man described by the allegations itself illustrates the negative consequences of the original decision to take Al-Marri out of the criminal justice system where he could have been tried and if convicted as the alleged facts would suggest, sentenced years ago.

As the new Administration considers its options, the Supreme Court has to decide whether, to cite the dissenting Fourth Circuit appellate decision, "a nonmilitary person arrested on U.S. soil, outside the zone of battle, for providing active aid to the enemy at time of war, cannot be declared an enemy combatant and detained for the duration of the hostilities, but must be prosecuted in the civilian courts of the United States."

The majority of the 4th Circuit found that the holding of Al-Marri had dire consequences for our domestic system of justice:

"To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them "enemy combatants," would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws "to go unexecuted, and the government itself to go to pieces."

As argued in our amicus brief, our efforts to discourage terrorism, too, are undermined by Al-Marri's continued indefinite detention. It is time for us to return to our roots as a society that trusts in legal processes rather than in an all-powerful unitary executive with unfettered unilateral discretion to decide who is an enemy combatant, and therefore, that person's fate, forever.