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Baketa Marri, my client's 80-year-old mother, asked for only one thing when I told her I was coming from America to visit her family in Qatar: "Can you bring me a picture of my son? I want to see his face again." When I saw her last week, I had to deliver the heart-breaking news: Our president had refused her request.
Baketa's son, Ali Marri, has spent nearly 2,000 days in detention in a Navy brig in South Carolina. He has been held in virtual isolation, without charge or trial, because the president has declared him an "enemy combatant" in the "war on terror." Marri is the only person with that designation being held inside the U.S., and under current law, he could be imprisoned under these conditions for the rest of his natural life.
The law in question -- a 2001 authorization to use military force in Afghanistan -- has been twisted beyond recognition. It now allows the military to seize U.S. citizens as well as legal residents like Marri and hold them forever in a state of legal limbo.
Among our legal system's most fundamental principles are the right to a jury trial and the presumption that someone is innocent until proved guilty.
Like executive branch decisions approving torture, Marri's detention is a radical departure from America's deepest values, a moment when our country lost its bearings.
Ali Marri is now 43 years old. He came to the United States in September 2001 with his wife and five children to study for a master's degree at Bradley University in Peoria, Ill.
Three months later, two FBI agents came to Marri's home in Peoria and arrested him. They believed he had information that could aid the government's investigation of the Sept. 11 attacks and detained him as a "material witness." Two months later, the government filed the first of three indictments against him, claiming that Marri had engaged in credit card fraud and lied to the FBI.
Marri maintained his innocence and prepared to contest the accusations against him. The district judge scheduled a trial date for July 2003.
But the trial never took place. Less than a month before the trial was scheduled to begin, Marri was taken in the middle of the night to a military prison in South Carolina. He was no longer a man accused of a crime. The president had signed an order declaring him an "enemy combatant." All of the Constitution's protections had been erased with the stroke of a pen.
Once removed from the criminal justice system, Marri was deprived of any contact with the outside world, paving the way for a brutal interrogation regime. He was shackled in a fetal position to the floor of a freezing cell, kept from sleeping for days on end, and threatened with violence and death -- all in a deliberate attempt to create a sense of hopelessness and despair. Guantanamo Bay, Cuba, had come to America.
The interrogations continued for 16 months before Marri was finally allowed to see a lawyer. Recordings from those months of interrogations, meanwhile, were destroyed by the Defense Department.
Marri's challenge to his detention has yet to be resolved. In July, the full U.S. 4th Circuit Court of Appeals in Richmond, Va., issued a sharply divided decision ruling that the president could hold Marri and others arrested in the United States indefinitely if the president declares them "enemy combatants." Today, the Supreme Court will decide whether to hear Marri's case.
For more than 200 years, America has stood by the principle that people can't be imprisoned without being charged. It not only embodies the country's ideals but also reflects a practical understanding that the criminal justice system remains the most effective way of fighting terrorism.
"All we are asking for is justice," Marri's older brother, Mohammed, told me during our visit. "If my brother did something wrong, he should be punished. But he should not be locked up without a trial."
In the past, any other outcome would have been unthinkable. But now indefinite detention without charge and detainee abuse have tarnished a justice system that was once a model throughout the world.
If America is serious about restoring that system and its reputation, it must correct these egregious examples of executive overreaching, or they will become America's new legacy.
Jonathan Hafetz is an attorney at the American Civil Liberties Union and counsel for Ali Marri.