Detainee Challenges ‘Combatant’ Status

Four years into the war against terrorism, he hardly merits a footnote. Alongside other captives -- such as Padilla and Moussaoui -- he is largely forgotten.

But new developments in the case involving Ali Saleh Kahlah Al-Marri, a Qatari immigrant arrested in rural Illinois, pose intriguing questions about how the government is handling high-value terrorism suspects in secret prison locations.

The case also is shaping up as a major test of the broad enemy combatant authority granted to the president, which has drawn the ire of civil libertarians because it allows the government to hold people indefinitely without trial.

Last month, Al-Marri became the first terrorism suspect to file a lawsuit specifically based on allegations of mistreatment. He is being held in an isolation cell inside a Navy brig in Charleston, S.C., where, his lawyers wrote, “there is almost nothing to distract him from his torment.” They said Al-Marri was restricted to a tiny metal cell, without visitors or books or newspapers, that he goes long stretches without hot meals or warm water, and that he often is deprived of decent toilet privileges.

Next month his lawyers plan to file legal papers in a separate lawsuit attacking President Bush’s use of military authority to designate men enemy combatants.

The lawyers want a federal court hearing on the constitutionality of the enemy combatant designation process, with testimony and evidence they hope will show that Bush has been given unacceptably wide latitude to choose who he locks away forever.

Al-Marri, 39, is gaining renewed interest at the same time his brother is drawing unexpected attention at the prison for terrorist suspects at the U.S. naval base at Guantanamo Bay, Cuba. Jarallah Al-Marri has been declared an enemy combatant and has joined about 130 other detainees in a prolonged hunger strike at the base.

Neither the Bush administration nor the Pentagon will discuss enemy combatants: Al-Marri and others in this country, a few Al Qaeda leaders held in secret facilities abroad or the 500 detainees at Guantanamo.

But the Department of Defense issued a brief statement responding to Al-Marri’s suit about prison conditions in Charleston: “Enemy combatants have been trained to make sensational claims about their detention if captured.”

When Bush declared Al-Marri an enemy combatant in June 2003, he put his signature to a one-page document that described Al-Marri in general terms.

The president concluded, “It is the interest of the United States that the secretary of Defense detain Mr. Al-Marri as an enemy combatant.”

The story of Al-Marri began simply enough. He immigrated to the U.S. in the 1990s and graduated from Bradley University in Peoria, Ill. He returned to Qatar, only to return to America on Sept. 10, 2001 -- the day before four planes were hijacked on the East Coast. Three months later, FBI agents arrested him in Peoria.

He was held on relatively minor bank- and credit-card fraud charges. He was about to go to trial when the federal government abruptly dismissed the charges in June 2003, declared him an enemy combatant and whisked him to Charleston.

At that point, his story became more complicated.

Al-Marri was incarcerated in the same military jail as Jose Padilla and Yaser Esam Hamdi, and the government has treated each of them in vastly different ways.

A U.S. native, Padilla was arrested in Chicago. When he was declared an enemy combatant, the White House, the Pentagon and the attorney general’s office laid out specific accusations that Padilla trained with Al Qaeda and returned to the United States to scout for apartment complexes and gas stations to bomb.

This month, the U.S. 4th Circuit Court of Appeals ruled that the government did not have to grant him a trial.

Hamdi held dual citizenship. He was born in Baton Rouge, La., to temporary immigrants from Saudi Arabia; they later moved back to Saudi Arabia, and he was raised there.

Hamdi was captured on an Afghan battlefield, sent to Guantanamo Bay and later transferred to Charleston. A year ago he was abruptly sent home to Saudi Arabia -- even though he too was once deemed by Bush a grave threat to the U.S.

In anther high-profile case, Zacarias Moussaoui pleaded guilty April 22 to conspiring with Al Qaeda operatives involved in the Sept. 11 plot. If sentenced to death, he intends to fight on the grounds that he actually was recruited for a separate attack on the White House.

For Al-Marri, the government has never formally told him what he did wrong.

Carl Tobias, a University of Richmond law professor who has studied the enemy combatant issue, said he was baffled at the government’s wide latitude and discretion.

“The whole process strikes me as totally random,” Tobias said. “The only rule is that it is totally random.”

What especially irks Al-Marri’s lead attorney, Lawrence S. Lustberg of Newark, N.J., is that the government was giving his client his day in court but then suddenly deprived him of due process in June 2003.

“He is unique in the sense that he actually was being afforded his right,” Lustberg said. “He had it. Then he was stripped of it.”

Government lawyers even avoided providing a detailed explanation to U.S. District Judge Michael M. Mihm in Peoria, who had Al-Marri’s case at the time.

At a hastily called hearing, Assistant U.S. Atty. Jan Paul Miller said that the matter carried national security implications and that because Bush had signed the enemy combatant declaration, that alone was sufficient to end the judge’s jurisdiction.

Bush’s one-page declaration for Al-Marri was equally short on details: “Mr. Al-Marri is closely associated with Al Qaeda.... Mr. Al-Marri engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.... Mr. Al-Marri possesses intelligence ... about personnel and activities of Al Qaeda.”

For two years now, Al-Marri has been held in solitary confinement in Charleston. Only for the last year have his lawyers been able to meet with him -- and then only after the Supreme Court ruled that such access was appropriate in the Padilla case. Now they hope to strike down the enemy combatant provisions of U.S. law.

Their first effort was the civil complaint filed Aug. 8 about his prison conditions. They contend he has been routinely denied a toothbrush, toilet paper and bedding. They said his copy of the Koran was desecrated when jailers left it on the floor and covered it with debris. They said his cell temperature was alternately kept too hot or too cold. Sometimes, they said, the staff cut off his water supply.

Andy Savage, another of Al-Marri’s lawyers, said that since the lawsuit was filed, the brig has made some modifications, such as giving him an Arabic dictionary, albeit a 1954 edition.

The Koran desecration allegation is similar to complaints this year from detainees at Guantanamo Bay, where Al-Marri’s brother, Jarallah is on a hunger strike.

Unlike his brother, Jarallah Al-Marri has been granted a status review hearing and has heard some of the evidence against him. He was told he had traveled to a training camp run by Al Qaeda leader Osama bin Laden, was issued an AK-47 rifle and served as a checkpoint guard for the Taliban army in Afghanistan.

After the Sept. 11 attacks and the U.S. invasion of Afghanistan, he fled into Pakistan, was captured and turned over to the U.S.

At the start of his status review hearing, Jarallah Al-Marri asked, “Does this tribunal follow the laws of the United States?”

Yes, he was told.

Then he said, “Because of this, I will require a lawyer.”

His request was denied, he refused to comment further and the tribunal panel proceeded as if he were not there. At the end of the hearing Jarallah Al-Marri, like his brother in Charleston, was ruled an enemy combatant.