Marri Case Suggests That Interrogations Will Hinder Trials
Monday, May 4, 2009
Nearly six years ago, President George W. Bush declared Ali Saleh
Kahlah al-Marri an enemy combatant and had him swept out of federal
court and into a U.S. Navy brig so he could be interrogated without the
legal protections afforded by the criminal justice system. Bush said
the Qatari national, arrested as a material witness in Illinois in
December 2001, possessed critical intelligence that "would aid U.S.
efforts to prevent attacks by al-Qaeda on the United States."
In an agreement Marri entered Thursday in Peoria, Ill., he pleaded
guilty to conspiracy to provide material support to al-Qaeda and
admitted to being a sleeper agent. Under the guise of being a student,
Marri came to the United States on Sept. 10, 2001, on the orders of
Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11
attacks, and began to research the use of chemical weapons as well as
potential targets, according to the plea.
Thursday's agreement calls for a maximum sentence of 15 years -- a
penalty that could be reduced by several years if Marri gets credit for
time already served. By removing Marri from the courts in June 2003,
the Bush administration effectively sacrificed the ability of
prosecutors to throw the book at Marri when he was returned to the
system, military and legal experts say. And the Marri case suggests
that as the government pushes forward with plans to prosecute detainees
held at Guantanamo Bay, Cuba, it may again have to accept lesser
sentences for those who were subjected to physical and psychological
abuse.
There are up to 100 detainees in Guantanamo who are too dangerous to
release but who cannot be tried, according to Pentagon estimates. In
many cases, such as Marri's, their prosecution in federal court carries
risks that the government will have to make public classified material
or endure new revelations about abuse during detention and
interrogation.
The fear that some Guantanamo cases are not
prosecutable in federal court has sharpened debate within the Obama
administration about the need to maintain military commissions, in
which the rules of evidence are less stringent, according to sources
involved in the discussions. Obama criticized such tribunals during the
campaign, but some of his top officials, including Defense Secretary
Robert M. Gates, have said in recent days that the commissions remain
an option.
Responding to complaints from military groups that Marri's sentence
is too short, a Justice Department spokesman said the possible 15-year
term was the best deal the government could strike, given concerns
about the release of classified evidence and the impact of possible
testimony regarding Marri's mental state after prolonged solitary
confinement.
Marri "is a good example of how the government is going to have to
accept some compromise outcomes in tough cases, and we will see this
kind of outcome over and over again as they go through the Guantanamo
cases," said Matthew Waxman, a Columbia University law professor and a
former Pentagon official in charge of detainee issues during the Bush
administration. "The history and controversy of this case boxed in the
current administration and they were probably loath to litigate it, in
part not to have to defend past practices but also because of
litigation risks, including acquittal."
Since Marri and potential witnesses in his case, including Mohammed,
were interrogated using techniques later suspended by Obama, it is
possible the court could toss out statements obtained under duress.
Defense lawyers said in court papers that interrogators threatened
Marri, telling him he would be transferred to Saudi Arabia or Egypt,
where he would be sodomized and forced to watch the rape of his wife.
For the defense, the plea also had benefits. Marri, 43, eluded a
30-year prison sentence if an American jury, unlikely to be sympathetic
to a cohort of Mohammed's, had found him guilty of material support
rather than the conspiracy charge to which he pleaded guilty. In the
plea agreement, the government dropped the material-support charge.
Marri came to the United States to study and graduated from Peoria's
Bradley University in 1991. He later attended al-Qaeda training camps
in Afghanistan and was approached by Mohammed, who appreciated his
command of English and his having lived in the United States. The two
created codes for e-mail and phone communication once Marri reached the
United States, according to the plea agreement.
On the way to Illinois, where he had reenrolled at Bradley, Marri
stopped in Dubai to pick up $10,000 from Mustafa al-Hawsawi, who
allegedly financed the Sept. 11 hijackers. Hawsawi is now being held at
Guantanamo Bay.
Marri's sentencing is set for July 30. He still has the opportunity
to argue that he should be credited for the time spent in the brig.
During plea negotiations, Attorney General Eric H. Holder Jr., who
took a personal interest in the case, firmly opposed giving Marri any
credit for his time served in military custody, according to Justice
Department officials.
"Without a doubt, this case is a grim reminder of the seriousness of
the threat we, as a nation, still face," Holder said in a statement.
"But it also reflects what we can achieve when we have faith in our
criminal justice system and are unwavering in our commitment to the
values upon which this nation was founded and the rule of law."
Lawyers for Marri say justice demands that their client get a sentence of no more than 10 years.
"I think it would be an outrage if he was given no credit for the
period when he was stripped of his rights," said Jonathan Hafetz, a
lawyer with the American Civil Liberties Union's National Security
Project, who represented Marri in habeas proceedings while he was in
the brig. "The torture culture in Washington drove the Bush
administration to make an end run around the criminal justice system
that was illegal and unnecessary."
Bush administration officials have said treating Marri as an enemy
combatant who could be held indefinitely without charge was
unavoidable.
"Al-Marri rejected numerous offers to improve his lot by cooperating
with the FBI and providing information," wrote former attorney general
John D. Ashcroft in his book "Never Again: Securing America and
Restoring Justice." "He insisted on becoming a 'hard case.' "
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