There used to be a belief – no doubt Attorney General Alberto Gonzales would describe it as “quaint” – that people accused of a crime were presumed innocent until proven guilty. That was in the olden days, however, before the world-changing events of 9/11, after which, according to the powers that the President of the United States granted himself in November 2001, anyone he regarded with suspicion – almost exclusively Muslims, as it turned out – could be declared guilty without the need for such outmoded legal relics as the presumption of innocence and the right to a fair trial.
The prison at Guantánamo is full of these new types of human beings – “illegal enemy combatants,” guilty “unpeople” imprisoned forever at the President’s whim – as are other US-run prisons around the world, in Afghanistan, Iraq, Diego Garcia and the Horn of Africa. Some are hidden in prisons in other countries – “friendly” regimes who are “with us” in the “War on Terror,” including Libya, a country run by a man who resembles, but clearly is not the Colonel Gaddafi who was once our sworn enemy – where they can be subjected to “enhanced interrogation techniques” without American operatives having to lift a finger to incriminate themselves in their “interrogation.”
On Monday 11 June, the case of one of these “unpeople” – a Qatari named Ali al-Marri, a rather special example who was captured in the United States – was scrutinized by a panel of Fourth Circuit judges, who were deciding whether the President had the right to have kept this man imprisoned without trial for five and a half years. To an untrained eye – perhaps one belonging to those of us who still believe in due process – the facts in al-Marri’s case are difficult to discern with any certainty, beyond the documented evidence relating to his movements between September 2001 and the present day.
A legal US resident – though not a citizen – al-Marri had studied computer science at Bradley University in Peoria, Illinois in 1991, and returned on 10 September 2001 to pursue post-graduate studies, bringing his family – his wife and five children – with him. Three months later he was arrested and charged with fraud and making false statements to the FBI, but in June 2003, a month before he was due to stand trial for these charges in a federal court in Peoria, the prosecution dropped the charges and informed the court that he was to be held as an “enemy combatant” instead. Held incommunicado in a military brig in Charleston, South Carolina, he was not allowed to meet representatives of the International Red Cross until August 2004, and was not allowed legal counsel until October 2004, when Mark Berman of Gibbons, Del Deo, Dolan, Griffinger & Vecchione took on his case. Since November 2005, when another American “enemy combatant,” Jose Padilla, was indicted on criminal charges unrelated to the alleged terrorist plot for which he was originally seized in May 2002, al-Marri has had the dubious distinction of being the only “enemy combatant” on the US mainland.
On Monday, al-Marri’s ongoing legal limbo was finally addressed when the Fourth Circuit judges ruled, by 2-1, that the President no longer had the right to hold him without charge or trial. “Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process,” the court said, “and this is so even if he calls them ‘enemy combatants’.”
Like the recent debacle of the Military Commissions, this was a painful blow for an administration clinging to its belief in the Presidential prerogative to create “enemy combatants” at will. To bolster its extra-legal case, the charges against al-Marri had been widely publicized by the administration over the previous four years. The presidential order which declared him an “enemy combatant” stated that he was closely associated with al-Qaeda and presented “a continuing, present, and grave danger to the national security of the United States,” and at various times he has been accused of having connections to the al-Qaeda financier Mustafa al-Hawsawi, of working as an al-Qaeda sleeper agent in the US, of having pledged to Osama bin Laden that he would kill Americans, and of having documents related to jihadi activities on his computer, including information on hydrogen cyanide (used in chemical weapons), lectures by Osama bin Laden and a cartoon of planes crashing into the World Trade Center.
These allegations may or may not be true, but those of us in the “quaint” old world of due process believe the Fourth Circuit judges were absolutely correct to conclude that the mind of Bush alone was not the appropriate place to make these decisions. In the simple Manichean world of the President and his supporters, however, the judges’ decision is apparently something akin to high treason. Those whose opinions are as clear-cut as the President’s include Bradford Berenson, one of eight associate counsels during Alberto Gonzales’ tenure as White House counsel, who complained in the Wall Street Journal that, “fueled by the 1960s rights revolution, the post-civil rights era celebration of judicial power, and the suspicion and distrust of executive power and military authority after Watergate and the Vietnam War,” the “pendulum” of the federal courts was “now swinging too far in the other direction.”
Berenson proceeded to describe al-Marri in terms of such rigorous certitude that I can only conclude that he was reading the President’s mind: “Mr Marri is a member of al-Qaeda who trained at Osama bin Laden’s terrorist training camp in Afghanistan. In the summer of 2001, he met with Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, and then traveled to the U.S. just prior to those attacks to serve as an al-Qaeda sleeper agent. The government believes he was intended to be part of a second wave of attacks on our country and was researching ways to disrupt the US financial system. After he was arrested, the government searched his computer and found materials relating to chemical weapons, jihad, and al-Qaeda, as well as 1,000 credit-card numbers.”
To Mr Berenson – and his idols in the government – I can only say: Ali al-Marri may be all of these things, but we need lawyers, judges and juries to figure that out, not self-declared clairvoyants with an iron belief in unfettered executive power.
ANDY WORTHINGTON (www.andyworthington.co.uk) is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (to be published by Pluto Press in October 2007).
He can be reached at: firstname.lastname@example.org