By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair
How would you feel if you had never been a member of any nation’s military, had never fought alongside any nation’s armed forces, and had never borne arms against the United States anywhere in the world but were suddenly designated an “enemy combatant” by the President of the United States, placed in solitary confinement in a military prison for five years, subjected to torture, held incommunicado from family and attorney, and never had any formal charges brought against you?
Apparently, some in the Government of the United States of America believe that the President has the constitutional authority to do precisely that to any person lawfully living in this country or even, potentially, to any American citizen.
Al Saleh Kahlah al-Marri, a citizen of Omar, entered the United States on September 10, 2001. He was accompanied by his wife and children. He came to this country to pursue a master’s degree at Bradley University in Peoria, Illinois. He had already earned a bachelor’s degree from the university in 1991.
Then the unspeakable, the unimaginable happened. Foreign-born terrorists – mostly from Saudi Arabia, a longtime American oil ally – hijacked four commercial airliners and crashed two of them into the World Trade Center’s twin towers, one into the Pentagon, and one into a field in Pennsylvania killing and injuring thousands of Americans.
The understandable U.S. reaction was swift – federal and state law enforcement authorities, intelligence assets, and military personnel swept across the country to identify, investigate, and seize anyone who remotely resembled a “terrorists.” Less than one month after the 9/11 attacks Congress enacted the Authorization for Use of Military Force (“AUMF”) act that gave the President broad powers to wage a “war on terrorism,” including declaring suspected terrorists as “enemy combatants” and placing them in indefinite military detention. Thousands of native Muslims and foreign born citizens, especially Arabs, were questioned, arrested, interrogated, tortured, and some placed in military detention.
That’s what happened to al-Marri. Three months after the 9/11 attacks FBI agents raided al-Marri’s home in Peoria and took him into custody as a “material witness” in connection those attacks. He was transported from Peoria to a New York City jail. In February 2002 he was indicted by federal authorities in the Southern District of New York for possession of unauthorized or counterfeit credit cards numbers with intent to defraud. In January 2003 al-Marri was then indicted on the following six additional counts:
- Two counts of making a false statement to the FBI;
- Three counts of making a false statement on a bank application; and
- One count of using another person’s identification to influence the action of a federally insured financial institution.
al-Marri was formally arraigned and pleaded not guilty to all seven counts. Four months later a United States District Court in
New York dismissed all the charges against al-Marri, saying it lacked proper jurisdiction over the case.
Undeterred, the Government returned al-Marri to Peoria where he was indicted in the Central District of Illinois on the same seven charges. The local federal district court set his trial date for July 21, 2003. But before trial the court set a hearing to take evidence on al-Marri’s motion to suppress evidence he alleged had been obtained through torture. Before the court could conduct that hearing, the Government on June 23, 2003 filed a motion to dismiss the indictment based on an order signed that morning by President Bush declaring al-Marri an “enemy combatant.” The district court granted the motion. The president’s order stated he had:
“DETERMINED for the United States that [al-Marri] (1) is an enemy combatant; (2) is closely associated with al Qaeda; (3) engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism; (4) possesses intelligence … that … would aid U.S. efforts to prevent attacks by al-Qaeda; and (5) represents a continuing, present, and grave danger to the national security of the United States.”
President Bush decided that al-Marri should be removed from the custody of civilian authorities and turned over to the nation’s military for indefinite detention because it was “necessary to prevent him from aiding al Qaeda. So the president ordered Attorney General John Ashcroft to surrender al-Marri to Secretary of Defense Donald Rumsfeld with instructions that the Defense Secretary “detain [al-Marri] as an enemy combatant.”
For the next five years al-Marri was held in a severe military detention as an enemy combatant without any specific charge(s) against him or any indication when his detention would end. During the first 16 months of his military detention, a-Marri was not allowed to communicate with anyone in the outside world, including his attorney, wife or children. His attorney filed a civil lawsuit in 2005 that charged al-Marri had been subjected to extreme interrogations involving sensory deprivation, threatened with violence, and denied basic hygiene necessities.
Shortly after he was taken into military custody, July 2003, al-Marri’s civilian attorney filed a petition for writ of habeas corpus on behalf of his client seeking his release. A federal district court in Illinois dismissed the petition, saying it lacked jurisdiction to entertain the habeas application. Both the Seventh Circuit Court of Appeals and the U.S. Supreme Court upheld the district court’s decision.
Al-Marri’s attorney persisted in a determined effort to free his client from an unlawful military detention. In July 2004 he filed a second petition for writ of habeas corpus on al-Marri’s behalf. This time he filed the petition in the District of South Carolina. Two months later the Government responded to the second habeas application. With its response, the Government included a Declaration of Jeffery N. Rapp, Director of the Joint Intelligence Task Force for Combating
Terrorism, to support its contention that al-Marri could be held indefinitely in military detention based on President Bush’s June 2003 order. The Rapp Declaration cited the following ten reasons in support of the president’s order:
- Al-Marri is “closely associated with al Qaeda, an international terrorist organization with which the United States is at war.”
- Al-Marri trained at an al Qaeda training camp in Afghanistan sometime between 1996 and 1998.
- Al-Marri was introduced to Osama bin Laden by Khalid Shaykh Muhammed in the summer of 2001.
- Al-Marri volunteered after his meeting with bin Laden for a “martyr mission” on behalf of al Qaeda.
- Al-Marri was ordered by al Qaeda to enter the United States sometime before September 11, 2001 to act as a “sleeper agent” to facilitate terrorist activities and explore the possibility of disrupting the nation’s financial system through computer hacking.
- Al-Marri in the summer of 2001 met with terrorist financier Admed al-Hawsawi and received funds to buy a laptop computer.
- Al-Marri used his laptop to gather technical information about poisonous chemicals.
- Al-Marri engaged in efforts to obtain false identification, credit cards, and banking information, including stolen credit card numbers.
- Al-Marri communicated with known terrorists, including Khalid Shaykh Muhammed and al-Hawsawi, by telephone and e-mails.
- Al-Marri saved information on his laptop about jihad, the 9/11 attacks, and bin Laden.
While the Rapp Declaration provided a significant number of general allegations of possible terrorist-related activity, the Declaration did not state that al-Marri had engaged in any of the following specific conduct:
- That he was a citizen or affiliated with the armed forces of any nation at war with the United States;
- That he was seized on, near, or escaped from a battlefield on which the armed forces of the United States or its allies were engaged in combat;
- That he was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or
- That he directly participated in any hostilities against the United States or allied armed forces.
In October 2004 the Government permitted al-Marri access to his attorney, although he was still denied access to his wife and children. Al-Marri’s attorney vigorously responded to the Government’s allegations stated in the Rapp Declaration, saying his client was not an enemy combatant, and asked the court to summarily grant the habeas application and order his client released from military custody. The federal court ruled that the Rapp Declaration had provided al-Marri with “sufficient notice” as to why he was being held in military detention as an enemy combatant. The court instructed al-Marri’s attorney to file “rebuttal evidence” to the allegations made in the Rapp Declaration.
While al-Marri’s attorney filed a response to the Rapp Declaration, he did not present any “rebuttal evidence,” informing the court that the Government had the initial burden to establish his client was an enemy combatant and the Rapp Declaration, standing alone, was insufficient to meet that burden.
Nearly two years later, June 2006, the federal district court denied al-Marri’s habeas corpus application. The attorney for al-Marri appealed to the Fourth Circuit Court of Appeals and in June 2007 a three-judge panel of that court reversed the judgment of the lower court and remanded the case for further proceedings. See: Al-Marri v. United States, 487 F.3d 160 (3rd Cir. 2007). The Government sought, and secured, an en banc hearing before the appeals court – and, in a sharply divided decision, the appeals court on July 15, 2008 agreed with the three-judge panel and remanded the case back to the federal district court for a hearing on al-Marri’s habeas corpus petition. See: Al-Marri v. United States, No. 06-7427, Slip Opinion, p. 12.
The en banc appeals court pointed out that “both parties recognize that it does not violate the Due Process Clause for the President to order the military to seize and detain individuals who ‘qualify’ as enemy combatants for the duration of a war. They disagree, however, as to whether the evidence the Government has proffered, even assuming its accuracy,
establishes that al-Marri fits within the ‘legal category of enemy combatant.’ The Government principally contends that its evidence establishes this, and therefore the AUMF grants the President statutory authority to detain al-Marri as an enemy combatant, Alternatively, the Government asserts that the President has inherent constitutional authority to order al-Marri’s indefinite military detention. Al-Marri maintains that the proffered evidence does not establish that he fits within the “legal category of enemy combatant,’ and so the AUMF does not authorize the President to order the military to seize and detain him, and that the President has no inherent constitutional authority to order this detention.” Id., at 17-18.
At the end of the day, the en banc appeals court rejected the Government’s sweeping argument that the President under AUMF had unfettered authority to order the indefinite military detention of anyone he/she deems to be an “enemy combatant.” The appeals court was guided by the sound and historical rule of law that “for over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law.” Id., at 6.
And that is what the al-Marri case is about: the noble and sacrosanct rule that no person – whether an American citizen or a foreigner living lawfully in this country – shall be deprived of his or her liberty without due process of law. Indefinite military detention without formal charges does not satisfy due process of law. The President indeed has the constitutional authority to declare a person waging war against the United States to be an “enemy combatant” and order that person placed in military detention. According to current case law, that does not offend due process of law.
But at some reasonable point the Government must bring formal charge(s) to support the President’s “enemy combatant” designation and justify its military detention of that individual. We as a nation have never sanctioned indefinite detention – civilian or military – without a formal charge and a finding of guilt. General allegations as those contained in the Rapp Declaration against al-Marri are apparently nothing more than suspicions and associations based on second and third hand hearsay. Even if one accepted that the allegations in the Rapp Declaration were sufficient to warrant placement in military detention, the Government had a fundamental legal obligation to conduct a hearing within a reasonable period of time and make a finding, one way or the other.
The Government of these precious United States of America cannot, and should not, be allowed to hold people – whether American citizens or not – in indefinite military detention while the nation wages its never-ending “war on terror.” If al-Marri is a terrorist, or has supported terrorism, then the Government should have the moral and constitutional courage to try and convict him as such, either in a civilian court or a military tribunal. But keeping him confined in an indefinite military detention based on the Rapp Declaration is not a substitute for Due Process of Law.