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In Major Setback for Bush Administration, Federal Court Rules U.S. Cannot Detain Legal Residents Without Charge as “Enemy Combatants”

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The ruling came in the case of the only person still held as an enemy combatant on U.S. soil — Ali al-Marri, who was arrested five years ago at his home in Peoria, Illinois. Writing for the majority, Judge Diana Gribbon Motz said authorizing indefinite military detention “would have disastrous consequences for the Constitution — and the country.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The Bush administration has been dealt a major setback in its treatment of prisoners in the so-called “war on terror.” On Monday, a federal appeals court ruled the administration cannot label U.S. residents “enemy combatants” and jail them indefinitely without charge. The ruling came in the case of the only person still held as an enemy combatant on U.S. soil.

Ali al-Marri was arrested five years ago at his home in Peoria, Illinois, where he lived with his wife and five children. He had come from his native Qatar to study computer science at Bradley University. Al-Marri was initially charged with credit card fraud and lying to federal agents, but in June 2003 President Bush declared him an enemy combatant and ordered him into military custody. He spent the last four years in solitary confinement at a Navy brig in Charleston, South Carolina. The government says al-Marri is part of an al-Qaeda sleeper sell, but has not charged him with any crime.

Writing for the majority, Judge Diana Gribbon Motz said that authorizing indefinite military detention, quote, “would have disastrous consequences for the Constitution—and the country.” She continued, “We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”

I’m joined now by Jonathan Hafetz. He’s the lead counsel in the al-Marri case and litigation director at the Liberty & National Security Project at the Brennan Center for Justice at New York University School of Law.

Welcome to Democracy Now!, Jonathan.

JONATHAN HAFETZ: Thank you, Amy.

AMY GOODMAN: What is your reaction to this ruling?

JONATHAN HAFETZ: This is a monumental victory for the rule of law in the United States, a vindication of basic constitutional principles, the right to habeas corpus, to challenge your detention in a federal court, and the principle that no person can be held without due process of law.

AMY GOODMAN: Did it surprise you?

JONATHAN HAFETZ: Well, we were certainly very pleased by the ruling. And, you know, it’s kind of hard to believe, actually, we’re actually talking about this issue, that the notion that the president can just lock someone up, citizen or non-citizen in this country, based upon suspicion, and hold them, potentially for life without charge, is so antithetical to the principles this country was founded on that, you know, it’s stunning, the claims that they make for sweeping power.

AMY GOODMAN: Tell us who the prisoner is. Tell us who this man, being held in South Carolina in the brig, is, al-Marri.

JONATHAN HAFETZ: He is a 41-year-old man, citizen of Qatar, who came to the United States lawfully, to study and obtain a master’s degree at Bradley University in Illinois. He came with his wife and five children. And he was arrested, initially, as a material witness in the 9/11 investigation and then charged with a crime, as you noted. But before his trial was scheduled to commence, the president declared him an enemy combatant and stripped him of all his rights—essentially took him from the criminal justice system, where the Bill of Rights applies, and put him in legal limbo, in solitary confinement in a military brig, where he was held incommunicado and subjected to abuse and mistreatment, and even denied access to his lawyers.

AMY GOODMAN: So, how did you represent him?

JONATHAN HAFETZ: Well, initially we, for the first 16 months after he was declared an enemy combatant—that is, from June 2003 to October 2004—we represented him without being able to speak to him. We, you know, filed papers on his behalf and asserted a right to meet with him and to challenge his detention. But the government refused. They would not allow him to even speak with his attorneys, let alone with anyone else in the outside world, including his wife and five children, who he’s not spoken with since he was first arrested. So, this is—you know, that’s how we tried to do it. Eventually we were able to get access to him, and we’ve now continued to fight for his right to not be held without charge.

AMY GOODMAN: Why hasn’t the military charged him?

JONATHAN HAFETZ: We really don’t know. I mean, there are a couple of possible explanations.

AMY GOODMAN: Or the government, I should say.

JONATHAN HAFETZ: One is they don’t have the evidence. Mr. al-Marri has maintained from the beginning that he’s innocent. Another possible reason is that they wanted to subject him to coercive interrogations, which he had to endure—the extreme isolation, the sensory deprivation, the abuse, the threats—which they could not have done in the civilian justice system. So—

AMY GOODMAN: Has he told you about this?

JONATHAN HAFETZ: Absolutely. And we have filed a separate lawsuit in 2005.

AMY GOODMAN: Can you go further into exactly what he’s been subjected to?

JONATHAN HAFETZ: Well, initially, he was subjected to—well, held incommunicado, as I mentioned, without any access to anyone in the outside world. He was held in a tiny cell with no one to talk to. There was no—it was all metallic services. He developed severe pain. He was denied things like a blanket, denied the Qur’an, subjected to religious abuse, not permitted to practice Islam, denied any kind of stimulation. What I mean by “any,” any books, any knowledge of what was going on, just basically locked in a cell 24 hours a day, seven days a week, not permitted to see sunlight. There were threats made against him, against his family, that they would—his family would be sent to Egypt, his wife would be raped—just actually horrible, horrible things. Now, this has improved somewhat, in, in part, response to the lawsuit we filed, in part, response to actually the men and women at the military brig, who are not setting the policy and are—you know, realize they have a human being there and are acting accordingly. But, you know, at the highest levels of government, there was a decision made to detain him as an enemy combatant, to subject him to this kind of torture and abuse that you can’t get away with in the civilian justice system, because it’s just—it’s flatly illegal and unconstitutional.

AMY GOODMAN: Now, Ali al-Marri was held in the same brig in South Carolina as Jose Padilla, or Padilla—the name has been pronounced both different ways.


AMY GOODMAN: The U.S. citizen held as an enemy combatant for three-and-a-half years, now moved to Miami where he’s being tried for terrorism charges in a federal court there. What is happening in Jose Padilla’s case?

JONATHAN HAFETZ: Well, I mean, a couple of things. You know, first of all, you see that the fact finding—the importance of a criminal trial, to find out what the truth is. You know, there have been some—you know, witnesses are being presented, evidence is being presented, and there’s going to be an adjudication. I don’t know which way it will come out, but one way or another about Jose Padilla’s guilt or innocence. That doesn’t happen in this enemy combatant world, where there are no—there’s no hearing, there’s no witnesses, there’s no evidence. You don’t find the truth.

And second, I think what’s notable about Jose Padilla’s case is that he was not charged with any of the allegations. The charges did not reflect any of the allegations on which he was detained as an enemy combatant—that is, that he was supposed to explode a dirty bomb. They didn’t charge him with that in the civilian court because, as administration officials have said, the evidence by which those allegations or that information was obtained was illegal and unconstitutional. It was obtained through torture. So, I mean, that’s what the enemy combatant policy is. It’s a way to shield, in part, coercive interrogations, torture and other abuse from scrutiny, by putting someone in a legal limbo where there’s no hearing, no witnesses, no due process, no scrutiny of a government’s evidence.

AMY GOODMAN: Jonathan Hafetz, how do these cases relate to the hundreds of men who are being held at Guantanamo? Do they have any effect?

JONATHAN HAFETZ: Well, certainly, Mr. al-Marri is in a different situation, in that he’s in the United States, a legal resident. He has undisputed constitutional rights, including a right to habeas corpus and due process. However, the court’s ruling transcends his case in that it rejects the administration’s sweeping definition of a combatant, that a combatant is someone that—whoever the president says he is, a definition that’s untethered from traditional notions of combatancy in the laws of war. And that ruling and that analysis will have implications, I believe, for others.

AMY GOODMAN: Padilla, his lawyers say, has now—because of sensory deprivation and torture, is psychologically, to say the least, very impaired and thinks that his guards are his friends, his lawyers his persecutors. How can he be tried?

JONATHAN HAFETZ: Well, the judge—it’s a good question. The judge made a ruling that he was competent to stand trial, although that’s quite a low threshold. But, you know, I think the notion of what happened before really taints the criminal trial. And al-Marri—Mr. al-Marri underwent the same, if not worse, treatment than Jose Padilla, and there was a period of time a few years ago where we really felt he was, you know, losing his mind. Things have improved, and he’s, you know, certainly competent and doing better, but these types of—this type of mistreatment really takes its toll and has irreparable consequences.

AMY GOODMAN: Finally, Jonathan Hafetz, we last had you on talking about a New Jersey man, an American citizen, who was being held in an Ethiopian prison, believed to be one of those black sites, U.S.-involved prisons where people are brought here, Somalia, Kenya. We were talking to Anthony Mitchell in Nairobi, who was the AP reporter who had exposed this story. He later died in the Kenyan Airways flight over Cameroon. But this young man, Amir Mohamed Meshal, has since been returned to New Jersey, to his family. Can you tell us—you represent him—what is his situation and what happened to him in Ethiopia?

JONATHAN HAFETZ: Well, he’s certainly—he’s home with his family now, after four months of secret detention, rendition. And he’s very happy to be home. But, you know, what went on raises, as we’ve noted, very serious questions about proxy detention, where the U.S. essentially uses governments, other foreign governments like Ethiopia, in this case, to detain American citizens without due process and beyond the rule of law, and also rendition, where people are secretly transferred without judicial review to face mistreatment. So, I mean, this case raises serious questions about the administration’s approach to counterterrorism policy.

AMY GOODMAN: And last question: The ruling says the administration cannot label a U.S. citizen or a permanent resident an enemy combatant and indefinitely hold them. What happens to someone who is not a legal resident, perhaps an undocumented worker, who is picked up?

JONATHAN HAFETZ: Well, I think that the analysis, essentially, is based on, you know, the rule that if you’re in the United States, that you have constitutional rights. Certainly lawful resident aliens have them, but also, under Supreme Court precedent, any person in the United States has those rights. So I think that there’s a good argument that the decision would apply to those individuals, as well.

AMY GOODMAN: Thank you very much for joining us, Jonathan Hafetz, litigation director of the Liberty & National Security Project at the Brennan Center for Justice at the NYU School of Law, an attorney for Ali al-Marri. This is Democracy Now!,, The War and Peace Report. Back in a minute.

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