The Significance of Ali Al-Marri’s Guilty Plea

Defense Secretary Robert Gates’ statements yesterday that he expects the United States will have to transfer up to 100 prisoners from Guantanamo Bay to the United States, where they’d be held indefinitely without trial, was an odd juxtaposition with yesterday’s guilty plea of Ali Saleh Kahlah Al-Marri.

On the one hand, Attorney General Eric Holder said yesterday that the guilty plea of Al-Marri, who for almost six years was held without charge as an “enemy combatant” in a Navy brig in South Carolina, demonstrated “The certainty that our criminal justice system can and will hold terrorists accountable for their actions.”

Indeed, Al-Marri, who says he was abused in prison but still pleaded guilty to providing material support to al-Qaeda, is a prime example of how suspects charged with serious allegations of terrorism, even if they’re mistreated, can properly be handled in the federal criminal justice system.

On the other hand, Gates’ statement to the Senate yesterday suddenly illuminated something I’d wondered about when the Obama administration sought dismissal of Al-Marri’s appeal to the Supreme Court. As I wrote then, President Obama seemed eager to hold on to an extraordinary executive power — that is, the power to hold a lawful U.S. resident indefinitely without charge on U.S. soil.  Of course, that would seem to be a flagrant violation of the Constitution. But the Obama administration, by transferring Al-Marri to the criminal justice system before the Supreme Court could hear his case, carefully avoided a high court ruling. (Remember these broad military powers inside the United States, and the suspension of the Bill of Rights, are the kind of thing John Yoo argued for in some of his more infamous Office of Legal Counsel memos.)

Now we understand why Obama wasn’t going to relinquish that right.  Because apparently, according to Gates’ statements, he’s prepared to use them — not on one prisoner, but on up to 100.

So far, Gates and the media seem focused on whether anyone in Congress will let the Defense Department build a new facility to house terrorists in their district. But I’m far more interested in who’s telling Gates that the United States is going to hold these men indefinitely without trial here in the United States, and why Gates — or Obama, or Holder — believe these men can’t be tried in U.S. federal courts.

As I wrote the other day, the emerging consensus among criminal justice experts is that terror suspects ought to be tried in ordinary federal courts, not in any specially-created military commissions, “national security courts,” or even in the military justice system. But then, they weren’t considering the possibility of not trying them at all. Most probably assumed that Obama, who made the grand gesture of announcing he was going to close Guantanamo Bay within his first days in office, wasn’t just going to set up another military detention center to do exactly the same thing here in the continental United States. Maybe I’m missing something, but I don’t see how that’s an improvement over Gitmo.

As Human Rights First lawyer Devon Chaffee said today, Al-Marris’ plea agreement “demonstrates that our existing, tried and true federal criminal justice system is where these cases belong. . . . The Obama Administration should follow the example it set in this case and bring Guántanamo detainees suspected of having committed a terrorism crime to justice in existing federal courts.”

Human Rights First in 2008 released a report, based on former prosecutors’ analysis of more than 120 international terrorism cases prosecuted in the federal criminal justice system, concluding that the existing federal criminal system is fully capable of prosecuting suspected terrorists.

Maybe Gates, and whoever he’s conferring with, ought to read that report.