The Washington Independent
The Washington Independent

Supreme Ct. Considers Reviewing Indefinite Detention of U.S. Resident

Last updated: July 31, 2020 | November 25, 2008 | Thomas Dixon
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Can the United States hold a lawful U.S. resident indefinitely without charges in a U.S. prison on American soil?

Normally, the answer is an unequivocal no. Federal law places strict time limits on how long the government can hold someone without charges (30 days), and how long the suspect may have to wait for a trial (70 days from the indictment), with some exceptions for procedural wrangling among lawyers.

It’s rather bizarre to contemplate, then, that the U.S. government has been holding Ali Saleh Kahlah Al-Marri, a lawful resident of Peoria, Ill., for almost 7 years without charge — in South Carolina.

Most news about detainees of the “war on terror” centers on the fate of the men held intentionally away from U.S. soil — at Guantanamo Bay. This case, which the Supreme Court will consider Tuesday in its pre-Thanksgiving conference, focuses on whether the U.S. can do the same thing it’s been doing to prisoners at Gitmo — now a huge embarrassment and thorny problem for the next administration — right here at home in the U.S. of A.

On its face, the story seems wholly un-American.

A graduate student who’d gone to college in Peoria, where he subsequently lived with his wife and five children, Al-Marri, then 28, was arrested at his home in Illinois by FBI agents in December, 2001.

At first, the U.S. charged him with credit card fraud, making false statements on a bank application and identity theft. All reprehensible acts, to be sure. But after a district court judge set a trial date, the government suddenly refused to allow al-Marri to see his lawyer. Days later, the government asked the federal court judge to dismiss the indictment, based on a one-page declaration signed by President George W. Bush that al-Marri was an “enemy combatant.”

According to the president’s declaration, al-Marri was “closely associated” with Al Qaeda and had engaged in “hostile and war-like acts,” including “conduct in preparation for acts of international terrorism.” Bush deemed al-Marri a “grave danger to the national security of the United States,” and asserted that holding and interrogating him was necessary to “aid U.S. efforts to prevent attacks by Al Qaeda.”

Al-Marri was transferred to Defense Dept. custody and sent to the U.S. Navy Brig in South Carolina. He’s been held in solitary confinement, without charge or trial, ever since.

Al-Marri claims he has been repeatedly tortured during his interrogations — forced into painful stress positions, deprived of sleep and threatened with death. The U.S. says it’s destroyed the recordings of those interrogations — they were no longer useful, say government officials — so now we may never know what really happened.

Al-Marri denies that he was plotting against the United States with Al Qaeda. There’s still only the declaration of an intelligence offer, charging that al-Marri is a dangerous terrorist who volunteered for a “martyr mission” and met with Osama bin Laden, to support the claims. Neither the public, al-Marri or even his lawyer has been permitted to see any of the actual evidence supporting those charges.

It all sounds like something out of the old Eastern Bloc, or even, strangely enough, out of Iraq’s former dictatorship under Saddam Hussein. But the Bush administration insists that the president is entitled to declare a U.S. resident an “enemy combatant” based on secret evidence, and to hold him indefinitely right here in America.

The judges of the Fourth Circuit Court of Appeals in Virginia offered up a stack of complicated and lengthy opinions on the matter in July, but ultimately decided that the government can keep holding al-Marri indefinitely.

(Note: The Fourth Circuit is now dominated by conservative judges appointed by Republicans; that could change under President Barack Obama.)

“The Fourth Circuit’s decision rests on the premise that the ‘war on terror’ justifies deviation from settled principles of due process, and that the Executive Branch should be permitted to arrest within the United States and to detain indefinitely without charge or trial, anyone–even a legal alien or United States citizen–whom it alleges to be an ‘enemy combatant,’ ” wrote lawyers on behalf of a group of 12 former federal judges and 13 senior Justice Dept. officials who filed an amicus brief, asking the Supreme Court to say it ain’t so.

The Supreme Court today could decide to hear the case; to affirm the Fourth Circuit’s position, or to punt and send the case back to the district court for further clarification of the law.

UpdateSCOTUSblog reports that the Supreme Court on Tuesday declined to take any action — either to grant cert or to deny on it — on the al-Marri case.

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