Yesterday, Jonathan Hafetz, the American Civil Liberties Union lawyer who represented Al-Marri in his challenge to military detention, told The New York Times that the sentence by a federal judge was “a powerful reminder that America’s civilian courts can deliver justice even in the most challenging circumstances.” But David Rivkin, a former Reagan-era Justice Department official and strong supporter of military commissions to try suspected terrorists had a different take. Criminal courts are “ill-suited” to terror cases because the sentences are “a crap-shoot,” he said, adding that military commissions “arrive at a better judgment, being comprised of warriors, as to what level of danger the person poses.”

Al-Marri, a legal U.S. resident living in Peoria, Ill., before his arrest in late 2001, spent almost six years in a U.S. Navy brig in South Carolina without charge, mostly in isolation. Shortly before his case questioning the legality of his indefinite detention on U.S. soil was set to reach the Supreme Court,  the Obama administration transferred him to civilian custody, incarcerated him in a federal prison and prepared for his trial in federal court. But prosecutors agreed to accept a plea bargain, in which Al-Marri admitted that he’d been ordered by al-Qaeda official Khalid Shaikh Mohammed to move to the United States from his native Qatar and await instructions. Al-Marri moved his wife and five children to Peoria and he enrolled at Bradley University, where he had studied earlier. He admitted in his plea that he “researched online information related to various cyanide compounds” and communicated with other al-Qaeda operatives.

When al-Marri was arrested in December 2001 on charges of financial fraud, he hadn’t carried out any terrorist acts. But 18 months after his arrest, the government dropped the criminal charges and named al-Marri an “enemy combatant,” which in the Bush administration’s view, gave the government the right to hold him indefinitely in military custody. He remained at the Navy big, without charge or trial, until February.

Whether it’s legal for the United States to imprison indefinitely a lawful U.S. resident in a military prison on U.S. soil remains an open question, largely because the Obama administration did not give the Supreme Court an opportunity to rule on it. That may have been a strategic move designed to leave open the possibility of using that power again, particularly since President Obama promised to close the Guantanamo Bay prison by January 2010, but hasn’t yet decided what to do with many of the detainees imprisoned there.

For Al-Marri, however, it means he will now serve another eight years in prison. (He faced up to 15 years, but the judge agreed to consider the time he’d already served.) Al-Marri yesterday tearfully apologized for helping al-Qaeda and said he no longer wants to harm the American people.

Notwithstanding Rivkin’s criticism of the federal court’s sentence, it’s worth noting that in the two contested cases where terror suspects were sentenced by military commissions for similarly assisting al-Qaeda, both received lighter sentences. Salim Hamdan, for example, Osama bin Laden’s driver, was sentenced by a military jury of “warriors” to just five and a half years in prison, and given credit for time served. He’s already back home in Yemen. In the other case, Australian David Hicks pleaded guilty to providing material support for terrorism and was sentenced to only nine months in prison. A former kangaroo-skinner, Hicks is now home.

That admission comes just days after the not-so-subtle declarations of Judge Ellen Huvelle of the U.S. District Court in Washington, D.C., that the case had been “gutted” by the government’s admission that Jawad’s confessions were elicited through torture, and the fact that it still, more than six years later, hadn’t produced a single reliable eye witness to the crime.

The Justice Department evidently realized it wasn’t going to get very far in the habeas corpus case. But it wasn’t prepared to relinquish its right to imprison Jawad altogether. On Friday, it insisted that it has sufficient “new” evidence to warrant a criminal investigation.

Here’s what the Justice Department said in the papers it filed with the court Friday:

[I]n light of the multiple eyewitness accounts that were not previously available for inclusion in the record – including videotaped interviews – as well as third-party statements previously set forth in the government’s factual return, . . . the Attorney General has directed that the criminal investigation of petitioner in connection with the allegation that petitioner threw a grenade at U.S. military personnel continue, and that it do so on an expedited basis. As the Court is aware, the standard for detention under the AUMF [Authorization for the Use of Military Force] is different than the elements that must be proved in a criminal prosecution, and thus a decision not to contest the writ does not resolve whether the current eyewitness testimony and other evidence, or additional evidence that may be developed, would support a criminal prosecution stemming from the attack on U.S. service members.

Technically, that’s true. A habeas corpus proceeding is a civil case, and the burden of proof is different than in a criminal prosecution. In a civil case, the government has to prove its case only by “a preponderance of the evidence.” A criminal prosecution, however, requires proof “beyond a reasonable doubt.”  But that’s actually a higher burden of proof. So how could the government prove a criminal case against Jawad and not be able to prove its right to hold him in his habeas case?

The answer couldn’t rely on the strength of the evidence:  eyewitness testimony that Jawad committed a war crime would be strong evidence that would probably support the government’s claim that it could hold him indefinitely under the laws of war. The only way the government’s latest claim makes sense is if it’s now saying that throwing a grenade at U.S. soldiers is not a crime of war, but an ordinary criminal offense. But if that’s the case, then why did the U.S. government hold him for six and a half years at Guantanamo Bay as an enemy combatant? And can it really have “newly discovered” reliable eyewitness testimony almost seven years after the crime occurred? Or is it just that the Department of Justice realized it wasn’t going to be able to string along this particular federal judge who’s clearly become exasperated by the flimsiness of the government’s case?

“We have a fundamentally different view than the Bush administration did about Article 2 powers,” said Holder, referring to one source of authority the Bush administration relied on to hold detainees indefinitely. However, the president, as Commander-in-Chief does have certain power under the laws of war, said Holder, and “it has been traditional that people are held for the duration of a conflict.”

Asked if that would extend beyond a traditional battlefield to arresting a man in Peoria, Ill. and imprisoning him indefinitely — as the Bush administration did to Al-Marri — Holder said, “It’s not the position of this administration that we want to hold people for indefinite periods of time … without being tied to some statute, or international agreement, some customary in way in which this nation has conducted itself, I do not believe the president has that power. It has to be tied to something.”

Well, given that he just said that the laws of war allow indefinite detention for the duration of the conflict, and he didn’t rule out defining that conflict as a broad “war on terror” that could reach from Pakistan to Peoria, it sounds like Holder just said that he does support the executive’s power to detain anyone indefinitely  — whether overseas or at home on U.S. soil.

Then, Obama administration officials leaked to The New York Times that they’re thinking of reviving the Bush-created military commissions, even though, having completed only two trials in eight years, they were almost universally deemed a disaster.

Last week I wrote that legal experts across the political spectrum increasingly agree that civilian federal courts are the best place to try terror suspects — despite the potential difficulties created by tortured evidence. If the evidence is reliable, it will stand up in court; if it’s not, then it won’t and it shouldn’t. The rules are there for a reason.

As Attorney General Eric Holder pointed out Friday, the recent guilty plea of Ali Saleh Kahlah Al-Marri, the last “enemy combatant” detained on U.S. soil, proves how effective the U.S. criminal justice system can be. Not only was the Justice Department able to get a man who was subjected to prolonged isolation, painful stress positions, exposure to extreme temperature, sleep deprivation, extreme sensory deprivation, and threats of violence and death to plead guilty to an offense that will land him up to 15 years in prison and a lifetime of supervised release; Al-Marri also swore in his plea agreement to valuable evidence that can now be used against others, including the notorious alleged 9/11 mastermind Khalid Sheikh Muhammed. That’s exactly how the criminal justice system is supposed to work.

It’s not surprising that some former members of the Bush administration, such as Homeland Security official Stewart Baker, quoted in The New York Times on Saturday, complain that Al-Marri and those of his ilk shouldn’t be in the criminal justice system at all but should be detained indefinitely for as long as the United States is fighting al-Qaeda — which may be for the rest of his life. Or that Andrew McCarthy, the former prosecutor quoted in that same story — and who the Times neglected to mention is also a senior fellow at the National Review Institute and rabid critic of just about all Obama national security policies — thinks that Al-Marri’s sentence isn’t long enough. McCarthy is the same person who last week said that serial waterboarding isn’t torture because “After the first or second time you get the point that there’s no death to be feared here.”

But I have to admit I wasn’t expecting President Obama, who as a candidate called the military commissions “an enormous failure” and quickly suspended them as president, to want to revive them now. Surely he knows that any new military commission will be challenged in court; actual trials and appeals would delay any resolutions of these cases for many years more.

But then, maybe that’s the point. Adopting military commissions may be the Obama administration’s way of achieving the indefinite detention that Gates was talking about when he asked Congress for that extra $50 million just-in-case. Only now, the administration can say these men are only being detained pending their military commission trials, and so can paint indefinite detention as “military justice.”

Talk about putting lipstick on a pig.

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.

I don’t have the numbers yet, and many of the agreements are confidential, but at least one, now on file in a federal district court, reveals that Yaser Esam Hamdi — who was captured in Afghanistan in 2001, deemed an “illegal enemy combatant” and sent to Guantanamo Bay, where he was imprisoned for almost three years without charges — signed a promise not to sue the U.S. government as a condition of his release.

Evidently, the government knew it was vulnerable to suit for unlawful indefinite detention and abuse in custody — exactly the claims that some other former detainees have made since then.

“It was certainly a condition that the goverment insisted on,” says Geremy Kamens, an Assistant Federal Public Defender in the Eastern District of Virginia who represented Hamdi at the time.

Hamdi, who was born in Baton Rouge, La. and is therefore a U.S. citizen, insisted he was never a member of the Taliban or fighting the United States, as the U.S. government claimed. Still, to secure his release from prison (he was eventually transferred to the same Navy Brig in South Carolina that held Ali Saleh Kahlah Al-Marri), he signed the following statement:

Except in case of breach of this Agreement by the United States, Hamdi hereby releases, waives, forfeits, relinquishes and forever discharges the United States, its departments, agencies, officers, employees, instrumentalities and agents, in their individual or official capacities, from acts or omissions occurring prior to the official date of this Agreement, and from any and all challenges to the terms and conditions imposed by this Agreement.

Hamdi also agreed to relinquish his U.S. citizenship, be deported to Saudi Arabia, and face a host of travel and other restrictions.

But say Hamdi was tortured, abused, humiliated or otherwise mistreated while in U.S. custody, in violation of U.S. and international law, as many other former Guantanamo detainees claim they were?  Would his promise to not sue hold up in court?

Not necessarily.

As Shayana Kadidal of the Center for Constitutional Rights explains in an e-mail: “A nearly universal principle of contract law is that courts should refuse to enforce agreements made under duress, or that are against public policy (like gag rules). So one could make the argument against enforceability on those grounds.”

Of course, one could say that any plea agreement by a criminal defendant is entered into under duress, and those are virtually impossible to challenge in court. Then again, Hamdi did not plead guilty to anything, so this situation is a little different.

As Cornell University Law Professor Michael Dorf has written, “if Hamdi one day brings a lawsuit, the government will bear the burden of establishing ‘that the agreement is neither involuntary nor the product of an abuse of the criminal process’ ” — the standard set in a 1987 Supreme Court decision.

Although Hamdi has not filed a lawsuit against the United States — at least, not yet — a lawyer could certainly make a strong argument that requiring a former prisoner who was never convicted of anything to renounce his claims against a country that held him indefinitely without charge, and interrogated him under torture (if that’s what happened), is asking a victim to renounce his human rights.

And that, in itself, might well be viewed by a court as “an abuse of the criminal process.”

Dorf, by the way, said he the Hamdi case is similar to a “release-dismissal agreement” — in which the government agrees to drop criminal charges if the person charged will drop his civil suit against the government — and said he thinks that Hamdi’s agreement likely would not hold up in court.

Whether other detainees have been asked to sign similar agreements as a condition of their release isn’t clear, although Kamens said he’s heard that some have. I’ll keep trying to track those down.

TWI is on Twitter. Please follow us here.

As I wrote yesterday, Al-Marri’s appeal isn’t really about the Supreme Court at all. It’s about this fundamental question: Why is the Obama administration clinging to the power to detain indefinitely a lawful U.S. resident on U.S. soil without charge? Al-Marri has been in a Navy Brig in South Carolina for more than seven years, since being arrested in Peioria, Illinois, where the 28-year-old computer science student was living with his wife and five children. He says he was repeatedly tortured in prison during interrogations.

Although President Obama last week agreed to transfer him from a military to a civilian prison and try him in federal court, as the Bush administration should have done from the start, the Obama administration has refused to say that it will not put him back in military custody should some new evidence surface, or that it won’t arrest and hold some other lawful resident without charge in prison for another seven years.

That sounds eerily like the executive powers John Yoo was espousing for George W. Bush. What’s going on here?

Back to the Supreme Court part of this. The court did, appropriately, vacate the court of appeals decision that had ruled that the President does have the power to detain indefinitely anyone he deems an “enemy combatant” without charge in the U.S. That doesn’t mean the President can’t do it, though — it just means there’s no federal court of appeals ruling saying that he can.

Here’s what Jonathan Hafetz, the lead ACLU lawyer handling Al-Marri’s case, had to say this afternoon:

While we would have preferred a Supreme Court ruling that U.S. citizens and lawful residents detained in the U.S. cannot be held in military custody as ‘enemy combatants’ without charges or trial, the Supreme Court nonetheless took an important step today by vacating a lower court decision that had upheld the Bush administration’s authority to designate al-Marri as an ‘enemy combatant.’ Congress never granted the president that authority and the Constitution does not permit it. We trust that the Obama administration will not repeat the abuses of the Bush administration having now chosen to prosecute Mr. al-Marri in federal court rather than defend the Bush administration’s actions in this case.

Well, it would be easier to trust the Obama administration on that if it would just come out and say that it won’t actually exercise that extraordinary power in the future.

Now that the Obama administration has decided to transfer al-Marri out of the South Carolina Navy brig — where he’s been imprisoned without charge for the last seven years — and charge him in federal court, the habeas corpus petition the American Civil Liberties Union filed on al-Marri’s behalf would seem to be moot. After all, the ACLU had asked for their client to be transferred to civilian custody and charged in a regular court. The Department of Justice did just that Feb. 27, charging al-Marri under federal criminal law with providing material support to al-Qaeda.

The Obama Justice Department now asks the Supreme Court to dismiss al-Marri’s appeal. But if the court agrees, it would leave in place the court of appeals’ ruling that the federal government has the right to hold a lawful U.S. resident in prison without charge indefinitely, as long as the president designates him an “enemy combatant.” The court could, alternatively, vacate the Fourth Circuit’s decision, but that would leave the question undecided, except in the district of South Carolina where the court ruled that the government did not have that extraordinary power.

All of which raises the obvious question:  Why Is the Obama administration clinging to the right to hold lawful U.S. residents indefinitely without charge on U.S. soil?

Given President Obama’s early announcements that he’ll close the prison at Guantanamo Bay and ban the use of torture, civil rights advocates were kind of of expecting that the power of the executive to deem a lawful U.S. resident like al-Marri — he was living in Peoria, Ill. when he was arrested in 2001) an “enemy combatant” based on untested, secret evidence and throw him into a military prison for years without charge or trial would be among the most obvious Bush-era executive powers that Obama would quickly jettison.

Apparently not. In asking the Supreme Court to dismiss al-Marri’s case, the Obama administration wrote that the possibility that al-Marri will be re-designated an enemy combatant and therefore subject to indefinite detention is a “subjective fear” that is “remote and speculative.” But still possible. As the government says, “even if petitioner were to be re-designated in the future, that re-designation would occur in a much different posture, under different circumstances … for instance, evidence adduced during petitioner’s criminal proceeding could affect the factual basis for any future detention.”

So the government reserves the right to use evidence from his criminal trial to re-classify al-Marri as an “enemy combatant” subject to indefinite detention?

The ACLU, which is representing al-Marri, is pleased that the Obama administration transferred him out of military custody.  But now they’re left arguing that the Supreme Court should hear a case that, as a practical matter, doesn’t really exist anymore. Sure, the high court could decide that it’s capable of recurring, but the high court rarely wants to reach out and decide a major constitutional question that it doesn’t have to. The Obama administration’s transfer of Al-Marri means that now it doesn’t have to.

As Jonathan Haftez, the lead ACLU lawyer on the appeal, explained earlier today, the Obama Justice Department has “refused to defend an illegal policy. But they have not explicitly repudiated the domestic detention powers. They should have done that.”

While that doesn’t mean that al-Marri will get out anytime soon, it does at least give him an opportunity to see and contest the charges against him. He will reportedly be charged with providing material support to Al Qaeda.

Today, President Obama issued an official presidential memorandum sealing the deal:

[I]t is in the interest of the United States that Ali Saleh Kahlah al-Marri be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him.

One reason it’s in the interest of the United States is because it means the government can now ask the Supreme Court to dismiss the appeal pending in his habeas corpus case, as it’s said it will do. The appeal is a direct challenge to the government’s authority to hold a lawful U.S. resident indefinitely and without charge on U.S. soil.  Al-Marris’ lawyers at the American Civil Liberties Union have said they want to pursue the appeal to the Supreme Court, to obtain a ruling on the issue and “make sure that no American citizen or lawful resident will ever again be imprisoned without charge or trial.” However, it is difficult to imagine that the Supreme Court would choose to address the issue in al-Marri’s case, now that it no longer has to.

In as similar case, involving Jose Padilla, a US citizen held as an enemy combatant without charge by the Bush administration, the Supreme Court dismissed his appeal as soon as he was transferred to civilian custody for a criminal trial.

As a general matter, the Supreme Court will not decide a constitutional issue such as this one unless it is necessary to resolve a pending case.  The transfer of al-Marri from Defense Department to Justice Department custody would seem to render the issue moot. However, SCOTUSblog noted yesterday that al-Marri’s lawyers could argue that because the government could change its mind in the future and transfer al-Marri back to military custody, the Supreme Court should go ahead and decide the case.

As I’ve written before, that seems unlikely to me, but here’s SCOTUSblog’s learned analysis of how that scenario might play out.

Update:  The Department of Justice moved to dismiss Al-Marri’s appeal to the Supreme Court on Friday afternoon.

That would likely put an end to al-Marri’s Supreme Court case, as we had predicted might happen.  As I’ve reported previously, al-Marri was a lawful U.S. resident living in Peoria, Ill. with his five children when he was picked up by U.S. authorities, interrogated and locked up in a Navy brig in South Carolina. He is the last detainee to be held in the United States — as opposed to at Guantanamo Bay — without charge or trial.

The Obama administration now appears ready to remedy that by bringing formal criminal charges against him in federal court.

Here’s what Jonathan Hafetz of the American Civil Liberties Union, which has been representing al-Marri, had to say about The Post’s report this afternoon:

If true, the decision to charge al-Marri is an important step in restoring the rule of law and is what should have happened seven years ago when he was first arrested. But it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the U.S. is illegal and that this will never happen again.

If the government charges al-Marri in a federal court, however, that will moot the issue — whether the United States can hold someone indefinitely without charge on American soil –  in his habeas corpus case before the Supreme Court. That would ordinarily deprive the court of jurisdiction to consider the issue.