So, former “enemy combatant” Ali Saleh Kahlah Al-Marri did indeed turn out to be an al-Qaeda operative. And a very dangerous one at that. Trained in al-Qaeda camps and schooled in chemical warfare, the dual Qatar-Saudi Arabian citizen admitted in a plea deal Thursday the government could prove he’d been sent to the U.S. by 9/11 mastermind Khalid Sheikh Mohammed to be part of a sleeper cell to launch further attacks.
But when President Bush designated al-Marri an “enemy combatant” in 2003, throwing him into a Navy brig in South Carolina for five years in violation of his habeas rights, some people began to think he really was just a student and not, as the government alleged, hard-core al-Qaeda.
Al-Marri defense attorney Andrew Savage told the New Yorker’s Jane Mayer for a story published in February:
“I don’t fear him, not personally and not for the United States,” Savage said. “Is he putting me on? Scamming me? Putting it over on me? I really don’t think so. I’m not naïve. I’ve defended multi-murderers, child murderers, child molesters, and all sorts of violent criminals. But I really don’t think Ali’s a terrorist.”
Not naïve? Give me a break!
Mayer’s piece is one of the few that thoughtfully explores the dilemma facing the Obama administration, which is under fire from the Left for defending the Bush positions on state secrets and other security matters. To wit: This stuff ain’t easy, folks.
Originally charged with credit card and identity fraud, al-Marri’s case presented a problem for the Bush administration. Inside the government, where officials had access to all the intelligence and investigatory material, it was clear al-Marri was a terrible danger. But what if a jury found otherwise? They do it all the time, even in the face of overwhelming evidence of guilt – just look at the Sami Al-Arian case that we’ve written about previously at Main Justice. If al-Marri hadn’t been convicted, he would have been deported, yes. But then he might have gone right back into circulation, working with al-Qaeda to plan more attacks on the United States.
But Bush’s solution – lock him up and throw away the key – is antithetical to everything the Founders envisioned when they wrote our Constitution.
Georgetown law professor Neal Katyal, who won the 2006 Hamdan case before the Supreme Court striking down Guantanamo military tribunals, and who is now the principal deputy solicitor general, has proposed a national security court to take on these difficult cases. This court would be staffed by lawyers with high-level clearances and judges who specialize in the national security. In this manner, some form of preventive detention consistent with the constitution could be achieved, he’s written.
Attorney General Eric Holder in a statement about the al-Marri plea recognized the balancing act. “Without a doubt, this case is a grim reminder of the seriousness of the threat we, as a nation, still face. 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.”
Still, the maximum sentence al-Marri faces is 15 years. That seems a bit lenient. There are Americans sitting in jail today for the rest of their lives for much lesser offenses. Al-Marri’s already been locked up for nearly eight years. Here’s hoping he doesn’t get credit for any time served.
