'Enemy Combatant' Languishes in a South Carolina Brig

How to describe Ali Saleh Kahlah al-Marri? The basic bio is easy. He’s a native of Qatar, a member of a prominent Arab tribe. Forty-one-years-old with a mess of coal hair and a beard speckled with gray. Married with five children. Holds a degree in business administration from a small university in Illinois.

And since 2001, when U.S. government agents grabbed al-Marri and accused him of plotting heinous crimes against America, he’s been one of the Bush Administration’s prize prisoners, a trophy captured during the War on Terror.

After reciting these facts, rendering a portrait of the man becomes a challenge -- the U.S. government has thrust him into a vortex, a place from which only minuscule fragments of information dribble out.

Some three-and-a-half years ago, the Pentagon effectively disappeared al-Marri, dubbing him an "enemy combatant," confining him to a solitary cell in the military brig at the Charleston Naval Weapons Station in South Carolina. For seventeen interrogation-heavy months, they barred him even from talking to his attorneys. Now they are the only ones he can talk to.

Citing security concerns, the Defense Department refused to let this reporter interview al-Marri, or even visit the brig to get a sense of how the facility operates. "There are no media visits due to the unique circumstance that an alleged Al Qaeda operative is being held there," says Defense spokesman Navy Lieutenant Commander J. D. Gordon. "There are a wide variety of operational security concerns."

Thus we know very, very little about al-Marri. What does his voice sound like? Is it smooth or raspy? Is it a deep baritone or whiny and high-pitched or somewhere in between? What about his eyes? Do they flit around anxiously? Do they lock onto the person he’s conversing with? Does he cast them sullenly towards the floor?

We can’t tell you.

Is he, as the government contends, an Al Qaeda operative connected to the 9/11 attacks, a guy who surreptitiously moved around money for jihadists and cooked up chemical warfare recipes on his home computer?

We can’t tell you.

Could he be innocent, a victim of this paranoid age?

We can’t tell you.

Despite the informational blackout, we can tell you this: Experts outside the armed forces characterize the conditions of al-Marri’s incarceration -- along with those of a handful of better known prisoners, including alleged dirty-bomb schemer Jose Padilla -- as a subtle brand of torture. Pentagon investigators found problems with the treatment of enemy combatants at the South Carolina brig, according to an internal report obtained by The Progressive.

Now, thanks to recent moves by the administration of George W. Bush -- moves that reflect a drastic restructuring of the American justice system -- al-Marri could languish in this purgatory for decades to come without facing any sort of trial.

The Defense Department has "never admitted that he has any rights, including the right not to be tortured," says Jonathan Hafetz, one of al-Marri’s lawyers. "They’ve created a black hole where he has no rights."

The Arrest

With the government gagging al-Marri and disseminating little information about him, we've got to rely heavily on the court record -- hundreds of pages of paperwork filed in four different federal courthouses -- to tell his story.

One key document is an affidavit written up days after September 11, 2001, by Nichols Zambeck, a special agent with the FBI. That document makes for chilling reading, accusing al-Marri of running a sophisticated credit card fraud operation, and implying he may have somehow been involved in raising or circulating money for the world’s most notorious terrorist group.

At the time in question, al-Marri was dwelling in Peoria, Illinois, and working on a master’s in computer science at Bradley University, the same school he’d attended while earning a BA in business in the 1991.

While he claimed to be studying, al-Marri was actually living in a motel and using a fake name to open a trio of bank accounts for a fake company called AAA Carpet, according to Zambeck and the FBI. The bureau also alleges that al-Marri opened an account with a credit card processing firm, allowing AAA Carpet to conduct credit card transactions. That account was purportedly used to siphon money from twelve stolen credit cards, although agents reportedly discovered evidence of a much larger scam -- more than 1,000 credit card numbers on al-Marri's laptop computer.

When digital analysts with the FBI scrolled through the files on al-Marri’s computer they came across a host of unsettling material, according to Zambeck: audio lectures by Osama bin Laden and his fellow jihadists; photos of the 9/11 attacks; a folder marked "chem" filled with data on deadly chemicals; bookmarked websites about weaponry, computer hacking, phony IDs, and satellite equipment.

What Zambeck and company portray as a direct connection to Al Qaeda comes in the form of several phone calls allegedly made by al-Marri to a phone number in the United Arab Emirates.

The phone number in the Emirates allegedly belonged to Mustafa Ahmed al-Hawsawi. The 9/11 Commission describes al-Hawsawi as an "Al Qaeda media committee member" and "financial and travel" planner for the attacks on Manhattan, and when federal prosecutors tried 20th hijacker Zacarias Moussaoui, they labeled him a "co-conspirator." Allegedly, al-Hawsawi helped the hijackers travel from Pakistan to the Emirates and on to the U.S. in preparation for the attacks.

After the FBI arrested al-Marri in December 2001, prosecutors charged him with seven criminal offenses, including unauthorized possession of credit card numbers, making false statements to a bank, and using a phony ID to scam a bank.

His lawyers insist the government has hyped the case against him. "There’s been no evidence presented" that al-Marri is an Al Qaeda operative or ally, says Hafetz, an attorney with the Brennan Center for Justice at NYU School of Law, and one of several lawyers working on al-Marri’s case. Hafetz adds, "He’s asserted his innocence."

Under normal circumstances, a jury would have considered his guilt or innocence, by now, a half-decade later, and rendered a verdict, pushing al-Marri into a prison sentence or cutting him loose. But these are not normal times.

The shift and the treatment

After a string of court hearings in the United States of America v. Ali Saleh Kahlah al-Marri, the Bush Administration, in 2003, switched tacks. A month before al-Marri was to stand trial in Illinois, the President, with a stroke of the executive pen, wiped the case out of existence. Saying al-Marri "represents a continuing, present, and grave danger" to the country, Bush labeled al-Marri an "enemy combatant" and turned him over to the Defense Department. Instantly, the strictures of the criminal justice system no longer applied. Fundamental rights were out the window: al-Marri could now be held indefinitely without charge in a military prison, could be denied a lawyer, could be denied not only a speedy trial but any trial. Thus began his habitation of a 9’ by 6’ concrete cell in the naval brig in Charleston.

While progressives and liberals raised concerns about the hundreds shipped from the battlefields of Afghanistan and Iraq to the prison camp in Guantánamo Bay, Cuba, few realized that right here on American soil al-Marri was facing a similar fate -- jailed without charge.

For the first seventeen months of al-Marri’s incarceration in Charleston, the Defense Department did not allow Hafetz and al-Marri’s other attorneys to communicate with him in any way. He had no contact with family, friends, or anyone other than government personnel.

After many months of interrogation, al-Marri finally got to see his lawyers. He quickly filed a lawsuit alleging that he’d been subjected to torturous living conditions. According to the suit, al-Marri "has suffered inhumane, degrading, and physically and psychologically abusive treatment at the brig in violation of this country’s most basic laws and fundamental norms."

Hafetz says aside from some sporadic recreation periods, his client is kept caged in his cell 24 hours a day, seven days a week, and surveilled constantly by a video camera. For much of his time, al-Marri had nothing in his cell but a thin mattress and blanket, although at times he didn’t even have those items. When he leaves his cell now, the isolation continues, Hafetz says. He’s cuffed and shackled, his ears covered with noise-diffusing headphones, his eyes shielded by opaque goggles.

"He had no books, no magazines, nothing. He was in a black box," recalls Hafetz. "The isolation is very, very detrimental to him and clearly unconstitutional. He has not had any contact with anyone but his attorneys for the past three years. He hasn’t been able to talk to his wife and five children."

Lieutenant Commander Gordon gives this response. "The government in the strongest terms denies allegations of torture, allegations made without support and without citing a shred of record evidence," he says. "It is our policy to treat all detainees humanely."

After the lawyers started agitating over his conditions, al-Marri began to get letters from his wife and children in Qatar, although the missives are thoroughly redacted. He’s now able to read newspapers, as well, but those, too, are heavily censored.

The report

A high-level Pentagon report obtained by The Progressive reveals that all has not been right at the South Carolina brig. The report, dated May 11, 2004, is entitled: "Brief to the Secretary of Defense on Treatment of Enemy Combatants Detained at Naval Station Guantánamo Bay, Cuba, and Naval Consolidated Brig Charleston." It was written by Naval Vice Admiral A. T. Church III and by Marine Brigadier General D. D. Thiessen. Its task: "Ensure Department of Defense orders concerning proper treatment of enemy combatants."

They found numerous problems at both facilities. At Charleston, where al-Marri was held, these included the following citations:

"One detainee has Koran removed from cell as part of JFCOM [Joint Forces Command] interrogation plan. Muslim chaplain not available."

"One detainee in Charleston has mattress removed as part of JFCOM-approved interrogation plan."

"One detainee in each location currently not authorized ICRC [Red Cross] visits due to interrogation plans in progress."

"One detainee in Charleston has Koran, mattress, and pillow removed and is fed cold MREs as part of interrogation plan.” (This citation had a footnote that added: “After completion of current interrogation," removal of the Koran as an incentive "will no longer be used at Charleston.")

"Limited number and unique status of detainees in Charleston precludes interaction with other detainees. Argument could be made that this constitutes isolation."

In the "Summary of Findings," it added about Charleston: 'Christian chaplain used to provide socialization, but could be perceived as forced proselytization."

For all these problems, the report nevertheless concluded: "No evidence of noncompliance with DoD orders at either facility." The authors did take as an assumption, they wrote, that "treatment provided for in Presidential and SECDEF orders constitutes ‘humane treatment.’ "

The law

After President Bush shipped al-Marri to South Carolina, his plan to try al-Marri and other detainees in military commissions hit a serious snag. In a series of decisions, the U.S. Supreme Court invalidated the commissions, saying they trampled on basic legal protections and military justice rules, and violated the 1949 Geneva Convention. This fall, Congress passed -- and Bush signed -- the Military Commissions Act, a legal rewrite intended to appease the high court.

In the view of many legal scholars, the Military Commissions Act throws open the door for the use of secret evidence, coercive and even torturous interrogation tactics, and, perhaps most seriously, suspends habeas corpus for noncitizens, including legal residents. A cornerstone of the American justice system, habeas corpus is the legal doctrine allowing prisoners to challenge their confinement in court.

Even though al-Marri could now be tried by a military commission, there’s no guarantee of that actually happening. And it’s not clear that a military commission would try al-Marri in a transparent, public process.

The problem, says Hillman, the Rutgers professor, is that the Military Commissions Act, in contrast to the rules governing criminal prosecutions, sets no timeline for bringing charges. "If the MCA stands as written, the U.S. government has little motivation to move forward in pressing charges," argues Hillman. "I hope that political pressure will intervene and force a solution, but the legal situation under the MCA gives detainees like al-Marri no reason to hope for either release or trial."

There are two ways to look at the al-Marri narrative. He may truly be the cunning, ruthless character the government has made him out to be. Or he may not. Without an open, public trial, we’ll never know whether al-Marri really is a terrorist, whether he truly was collaborating with Bin Laden’s minions when the towers dropped.

Hafetz says his client is eager to have his day in criminal court. "If they have evidence to prove these guys are who they say there, why are they so afraid to go in front of a judge? They’re running scared of having a court hearing. To me that speaks volumes," he says. 'Part of the purpose of a trial is to get the truth out, to expose what happened."

The case "raises fundamental questions about America and how it values its traditions," Hafetz continues. 'Since the nation’s founding, we’ve held that people accused of a crime deserve a trial."

When Ali Saleh Kahlah al-Marri closes his eyes in his blank-walled cell, under the surveillance camera, what does he dream about?

We can’t tell you.

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