lily
05-27-2008, 08:09 PM
Link (http://www.usatoday.com/news/washington/2008-05-25-enemy-combatant_N.htm)
'Sleeper cell' case questions Bush's authority
WASHINGTON - If his cell were at Guantanamo Bay, the prisoner would be
just one of hundreds of suspected terrorists detained offshore, where the
U.S. says the Constitution does not apply.
But Ali Saleh Kahlah al-Marri is a U.S. resident being held in a South
Carolina military brig; he is the only enemy combatant held on U.S. soil.
That makes his case very different.
Al-Marri's capture six years ago might be the Bush administration's
biggest domestic counterterrorism success story. Authorities say he was an
al-Qaeda sleeper agent living in middle America, researching poisonous
gasses and plotting a cyberattack.
To justify holding him, the government claimed a broad interpretation
of the president's wartime powers, one that goes beyond warrantless
wiretapping or monitoring banking transactions. Government lawyers told
federal judges that the president can send the military into any U.S.
neighborhood, capture a citizen and hold him in prison without charge,
indefinitely.
There is little middle ground between the two sides in al-Marri's
case, which is before a federal appeals court in Virginia. The government
says the president needs this power to keep the nation safe. Al-Marri's
lawyers say that as long as the president can detain anyone he wants, nobody
is safe.
Other plans
A Qatari national, al-Marri came to the U.S. with his wife and five
children on Sept. 10, 2001 - one day before the terrorist attacks in New
York and Washington. He arrived on a student visa seeking a master's degree
in computer science from Bradley University, a small private school in
Peoria, Ill.
The government says he had other plans.
According to court documents citing multiple intelligence sources,
al-Marri spent months in al-Qaeda training camps during the late 1990s and
was schooled in the science of poisons. The summer before al-Marri left for
the United States, he allegedly met with Osama bin Laden and Sept. 11
mastermind Khalid Sheikh Mohammed. The two al-Qaeda leaders decided al-Marri
would make a perfect sleeper agent and rushed him into the U.S. before Sept.
11, the government says.
A computer specialist, al-Marri was ordered to wreak havoc on the U.S.
banking system and serve as a liaison for other al-Qaeda operatives entering
this country, according to a court document filed by Jeffrey Rapp, a senior
member of the Defense Intelligence Agency.
According to Rapp, al-Marri received up to $13,000 for his trip, plus
money to buy a laptop, courtesy of Mustafa Ahmad al-Hawsawi, who is
suspected of helping finance the Sept. 11 attacks.
A week after the attacks, Congress unanimously passed the
Authorization for Use of Military Force. It gave President Bush the power to
"use all necessary and appropriate force" against anyone involved in
planning, aiding or carrying out the attacks.
The FBI interviewed al-Marri that October and arrested him in December
as part of the Sept. 11 investigation. He rarely had been attending classes
and was failing in school, the government said.
When investigators looked through his computer files, they found
information on industrial chemical suppliers, sermons by bin Laden, how-to
guides for making hydrogen cyanide and information about chemicals labeled
"immediately dangerous to life or health," according to Rapp's court filing.
Phone calls and e-mails linked al-Marri to senior al-Qaeda leaders.
In early 2003, he was indicted on charges of credit card fraud and
lying to the FBI. Like anyone else in the country, he had constitutional
rights. He could question government witnesses, refuse to testify and retain
a lawyer.
On June 23, 2003, Bush declared al-Marri an enemy combatant, which
stripped him of those rights. Bush wrote that al-Marri possessed
intelligence vital to protect national security. In his jail cell in Peoria,
however, he could refuse to speak with investigators.
A military brig allowed more options. Free from the constraints of
civilian law, the military could interrogate al-Marri without a lawyer,
detain him without charge and hold him indefinitely. Courts have agreed the
president has wide latitude to imprison people captured overseas or caught
fighting against the U.S. That is what the prison at Guantanamo Bay in Cuba
is for.
But al-Marri was not in Guantanamo Bay.
"The president is not a king and cannot lock people up forever in the
United States based on his say-so," said Jonathan Hafetz, a lawyer who
represents al-Marri and other detainees. "Today it's Mr. al-Marri. Tomorrow
it could be you, a member of your family, someone you know. Once you allow
the president to lock people up for years or even life without trial,
there's no going back."
Glenn Sulmasy, a national security fellow at Harvard, said the issue
comes down to whether the nation is at war. Soldiers would not need warrants
to launch a strike against invading troops. So would they need a warrant to
raid an al-Qaeda safe house in a U.S. suburb?
Sulmasy says no. That's how Congress wrote the bill and "if they feel
concerned about civil liberties, they can tighten up the language," he said.
That would require the politically risky move of pushing legislation
to make it harder for the president to detain suspected terrorists inside
the U.S.
Al-Marri is not the first prisoner who did not fit neatly into the
definition of enemy combatant.
Two U.S. citizens, Yaser Esam Hamdi and Jose Padilla, were held at the
same brig as al-Marri. But there are differences. Hamdi was captured on an
Afghanistan battlefield. Padilla, too, fought alongside the Taliban before
his capture in the United States.
By comparison, al-Marri had not been on the battlefield. He was
lawfully living in the United States. That raises new questions.
Did Congress really intend to give the president the authority to lock
up suspected terrorists overseas but not those living here?
If another Sept. 11-like plot was discovered, could the military
imprison the would-be hijackers before they stepped onto the planes?
Is a foreign battlefield really necessary in a conflict that turned
downtown Manhattan into ground zero?
Also, if enemy combatants can be detained in the U.S., how long can
they be held without charge? Without lawyers? Without access to the outside
world? Forever?
These questions play to two of the biggest fears that have dominated
public policy debate since Sept. 11: the fear of another terrorist attack
and the fear the government will use that threat to crack down on civil
liberties.
"If he is taken to a civilian court in the United States and it's been
proved he is guilty and it's been proved there's evidence to show that he's
guilty, you know, he deserves what he gets," his brother, Mohammed al-Marri,
said in a telephone interview Friday from his home in Saudi Arabia. "But
he's just been taken there with no court, no nothing. That's shame on the
United States."
Courts have gone back and forth on al-Marri's case as it worked its
way through the system. The last decision, a 2-1 ruling by a 4th U.S.
Circuit Court of Appeals panel, found that the president had crossed the
line and al-Marri must be returned to the civilian court system. Anything
else would "alter the constitutional foundations of our Republic," the
judges said.
The full appeals court is reviewing that decision and a ruling is
expected soon. During arguments last year, government lawyers said the
courts should give great deference to the president when the nation is at
war.
"What you assert is the power of the military to seize a person in the
United States, including an American citizen, on suspicion of being an enemy
combatant?" Judge William B. Traxler asked.
"Yes, your honor," Justice Department lawyer Gregory Garre replied.
The court seemed torn.
One judge questioned why there was such anxiety over the policy. After
all, there have been no mass roundups of citizens and no indications the
White House is coming for innocent Americans next.
Another judge said the question is not whether the president was
generous in his use of power; it is whether the power is constitutional.
Whatever the decision, the case seems destined for the Supreme Court.
In the meantime, the first military trials are set to begin soon against
detainees at Guantanamo Bay. Al-Marri may get one, too. Or he may get put
back into the civilian court system. For now, he waits.
'Sleeper cell' case questions Bush's authority
WASHINGTON - If his cell were at Guantanamo Bay, the prisoner would be
just one of hundreds of suspected terrorists detained offshore, where the
U.S. says the Constitution does not apply.
But Ali Saleh Kahlah al-Marri is a U.S. resident being held in a South
Carolina military brig; he is the only enemy combatant held on U.S. soil.
That makes his case very different.
Al-Marri's capture six years ago might be the Bush administration's
biggest domestic counterterrorism success story. Authorities say he was an
al-Qaeda sleeper agent living in middle America, researching poisonous
gasses and plotting a cyberattack.
To justify holding him, the government claimed a broad interpretation
of the president's wartime powers, one that goes beyond warrantless
wiretapping or monitoring banking transactions. Government lawyers told
federal judges that the president can send the military into any U.S.
neighborhood, capture a citizen and hold him in prison without charge,
indefinitely.
There is little middle ground between the two sides in al-Marri's
case, which is before a federal appeals court in Virginia. The government
says the president needs this power to keep the nation safe. Al-Marri's
lawyers say that as long as the president can detain anyone he wants, nobody
is safe.
Other plans
A Qatari national, al-Marri came to the U.S. with his wife and five
children on Sept. 10, 2001 - one day before the terrorist attacks in New
York and Washington. He arrived on a student visa seeking a master's degree
in computer science from Bradley University, a small private school in
Peoria, Ill.
The government says he had other plans.
According to court documents citing multiple intelligence sources,
al-Marri spent months in al-Qaeda training camps during the late 1990s and
was schooled in the science of poisons. The summer before al-Marri left for
the United States, he allegedly met with Osama bin Laden and Sept. 11
mastermind Khalid Sheikh Mohammed. The two al-Qaeda leaders decided al-Marri
would make a perfect sleeper agent and rushed him into the U.S. before Sept.
11, the government says.
A computer specialist, al-Marri was ordered to wreak havoc on the U.S.
banking system and serve as a liaison for other al-Qaeda operatives entering
this country, according to a court document filed by Jeffrey Rapp, a senior
member of the Defense Intelligence Agency.
According to Rapp, al-Marri received up to $13,000 for his trip, plus
money to buy a laptop, courtesy of Mustafa Ahmad al-Hawsawi, who is
suspected of helping finance the Sept. 11 attacks.
A week after the attacks, Congress unanimously passed the
Authorization for Use of Military Force. It gave President Bush the power to
"use all necessary and appropriate force" against anyone involved in
planning, aiding or carrying out the attacks.
The FBI interviewed al-Marri that October and arrested him in December
as part of the Sept. 11 investigation. He rarely had been attending classes
and was failing in school, the government said.
When investigators looked through his computer files, they found
information on industrial chemical suppliers, sermons by bin Laden, how-to
guides for making hydrogen cyanide and information about chemicals labeled
"immediately dangerous to life or health," according to Rapp's court filing.
Phone calls and e-mails linked al-Marri to senior al-Qaeda leaders.
In early 2003, he was indicted on charges of credit card fraud and
lying to the FBI. Like anyone else in the country, he had constitutional
rights. He could question government witnesses, refuse to testify and retain
a lawyer.
On June 23, 2003, Bush declared al-Marri an enemy combatant, which
stripped him of those rights. Bush wrote that al-Marri possessed
intelligence vital to protect national security. In his jail cell in Peoria,
however, he could refuse to speak with investigators.
A military brig allowed more options. Free from the constraints of
civilian law, the military could interrogate al-Marri without a lawyer,
detain him without charge and hold him indefinitely. Courts have agreed the
president has wide latitude to imprison people captured overseas or caught
fighting against the U.S. That is what the prison at Guantanamo Bay in Cuba
is for.
But al-Marri was not in Guantanamo Bay.
"The president is not a king and cannot lock people up forever in the
United States based on his say-so," said Jonathan Hafetz, a lawyer who
represents al-Marri and other detainees. "Today it's Mr. al-Marri. Tomorrow
it could be you, a member of your family, someone you know. Once you allow
the president to lock people up for years or even life without trial,
there's no going back."
Glenn Sulmasy, a national security fellow at Harvard, said the issue
comes down to whether the nation is at war. Soldiers would not need warrants
to launch a strike against invading troops. So would they need a warrant to
raid an al-Qaeda safe house in a U.S. suburb?
Sulmasy says no. That's how Congress wrote the bill and "if they feel
concerned about civil liberties, they can tighten up the language," he said.
That would require the politically risky move of pushing legislation
to make it harder for the president to detain suspected terrorists inside
the U.S.
Al-Marri is not the first prisoner who did not fit neatly into the
definition of enemy combatant.
Two U.S. citizens, Yaser Esam Hamdi and Jose Padilla, were held at the
same brig as al-Marri. But there are differences. Hamdi was captured on an
Afghanistan battlefield. Padilla, too, fought alongside the Taliban before
his capture in the United States.
By comparison, al-Marri had not been on the battlefield. He was
lawfully living in the United States. That raises new questions.
Did Congress really intend to give the president the authority to lock
up suspected terrorists overseas but not those living here?
If another Sept. 11-like plot was discovered, could the military
imprison the would-be hijackers before they stepped onto the planes?
Is a foreign battlefield really necessary in a conflict that turned
downtown Manhattan into ground zero?
Also, if enemy combatants can be detained in the U.S., how long can
they be held without charge? Without lawyers? Without access to the outside
world? Forever?
These questions play to two of the biggest fears that have dominated
public policy debate since Sept. 11: the fear of another terrorist attack
and the fear the government will use that threat to crack down on civil
liberties.
"If he is taken to a civilian court in the United States and it's been
proved he is guilty and it's been proved there's evidence to show that he's
guilty, you know, he deserves what he gets," his brother, Mohammed al-Marri,
said in a telephone interview Friday from his home in Saudi Arabia. "But
he's just been taken there with no court, no nothing. That's shame on the
United States."
Courts have gone back and forth on al-Marri's case as it worked its
way through the system. The last decision, a 2-1 ruling by a 4th U.S.
Circuit Court of Appeals panel, found that the president had crossed the
line and al-Marri must be returned to the civilian court system. Anything
else would "alter the constitutional foundations of our Republic," the
judges said.
The full appeals court is reviewing that decision and a ruling is
expected soon. During arguments last year, government lawyers said the
courts should give great deference to the president when the nation is at
war.
"What you assert is the power of the military to seize a person in the
United States, including an American citizen, on suspicion of being an enemy
combatant?" Judge William B. Traxler asked.
"Yes, your honor," Justice Department lawyer Gregory Garre replied.
The court seemed torn.
One judge questioned why there was such anxiety over the policy. After
all, there have been no mass roundups of citizens and no indications the
White House is coming for innocent Americans next.
Another judge said the question is not whether the president was
generous in his use of power; it is whether the power is constitutional.
Whatever the decision, the case seems destined for the Supreme Court.
In the meantime, the first military trials are set to begin soon against
detainees at Guantanamo Bay. Al-Marri may get one, too. Or he may get put
back into the civilian court system. For now, he waits.