Ali S. K. al-Marri, age 37, with his wife and five children, returned to Peoria, Illinois from Qatar to do graduate work at his alma mater, Bradley University. He ran afoul of the law because he arrived on the eve of September 11, 2001 and fit the image of a terrorist—as did any Arab who was fresh from the Middle East.
He was arrested in December 2001 on allegations of credit card fraud. Worse, although not illegal, federal agents found videos and printed material among his belongings that appeared to confirm their suspicion of complicity in possible terrorist activities. None of this can be confirmed however, because he was never tried on the criminal charges, but has been kept in solitary confinement in the US until now as an “enemy combatant.”
It has been shown that al-Marri did not belong to any army hostile to the United States, nor was he captured on a battlefield—the allegations which should be offered for holding prisoners at Guantanamo. The notable difference between al-Marri and these detainees is that al-Marri was a legal resident of the United States with connections that had gone back to 1983. He was like any of the immigrants who have made up the legal population of the United States since its origin, of whom some 20 million are legal residents—though not citizens.
For the first 16 months while detained in a South Carolina Navy brig, Al-Marri was not allowed to contact his family or see a lawyer. A lawsuit filed on his behalf in 2005 alleged that he had been denied basic necessities, subjected to extreme sensory deprivation, and had been threatened by his interrogators with sending him to Egypt or Saudi Arabia “where he would be tortured and sodomized and where his wife would be raped in front of him.” (New York Times 6/12/07)
On June 11, 2007, to the great relief of Constitutional loyalists, a three-judge panel of the federal Fourth Circuit Court of Appeals ruled his detention to be in violation of the law, ruling that the administration could charge him with a crime, deport him or hold him as a material witness in connection with a grand jury investigation.
Judge Diana Gribbon Motz wrote: “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if he calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution—and the country.”
The Justice Department’s position: “Al-Marri is an individual who trained at Osama bin Laden’s training camp in Afghanistan. In the summer of 2001, he met with Khalid Shaykh Muhammed, the mastermind of the September 11 attacks, and entered the United States just before September 11 to serve as an al-Qaeda sleeper agent to explore methods of disrupting the US financial system.”
The military chose none of the options offered by the three-judge court, keeping him in custody and appealing the decision. Thus the situation for al-Marri remained for another year, until July 17, 2008, when the full court rendered its latest decision. The Fourth Circuit Court of Appeals is not only friendly to the President, a large majority are Bush I and II appointees, and known as the most conservative court in the federal appellate system.
Thus outnumbered this time, Judge Motz wrote: “Our colleagues hold that the president can order the military to seize from his home and indefinitely detain anyone in this country— including an American citizen—even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world.”
In 2002, after his arrest, al-Marri’s home newspaper in Peoria editorialized by citing Constitutional provisions requiring a proper indictment, the declaration that no one be deprived of life, liberty and property without due process of law, that the accused shall enjoy the right to a speedy and public trial by an impartial jury—informed of the nature and cause of the accusation. “The Founding Fathers included those rights in the first 10 amendments to the Constitution because they were considered fundamental to the kind of nation they wanted to create—incensed at English soldiers who plucked colonists from their homes and tossed them in jail without saying why or for how long or what they could do to regain their freedom.”
The New York Times found the decision “breathtaking” stating, “If a president ever wants to round up Americans on vague charges and detain them indefinitely, this ruling gives him a dangerous green light.” (7/20/08)
For American residents and citizens, the sword of Damocles is a perfect analogy, awaiting a rectification by the US Supreme Court, yet there is reason to doubt that justice will prevail.