By Andy Worthington
December 05, 2008 “Information Clearinghouse”
In brighter times, before a fog of fear descended on the United States, and the discourse of decent men and women was coarsened by an acceptance of the use of torture as a “no-brainer,” it would have been inconceivable that an American could have been held for seven years without charge or trial on the US mainland, in a state of solitary confinement so debilitating that he is said to be suffering from “severe damage to his mental and emotional well-being, including hypersensitivity to external stimuli, manic behavior, difficulty concentrating and thinking, obsessional thinking, difficulties with impulse control, difficulty sleeping, difficulty keeping track of time, and agitation.”And yet, this is exactly what has happened in the case of Ali Saleh Kahlah al-Marri. A Qatari national — and legal US resident — al-Marri had studied computer science in Peoria, Illinois in the 1980s, had graduated in 1991, and had legally returned to the United States on September 10, 2001 to pursue post-graduate studies, bringing his family — his wife and five children — with him. Three months later, on December 12, 2001, he was arrested at his home by the FBI, and taken to the maximum security Special Housing Unit at the Metropolitan Correctional Center in New York, where he was held in solitary confinement as a material witness in the investigation into the 9/11 attacks.
In February 2003, al-Marri was charged with credit card fraud, identity theft, making false statements to the FBI, and making a false statement on a bank application, and was moved back to a federal jail in Peoria, but on June 23, 2003, a month before he was due to stand trial, the charges were suddenly dropped when President Bush declared that he was an “enemy combatant,” who was “closely associated” with al-Qaeda, and had “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.” Also asserting that he possessed “intelligence,” which “would aid US efforts to prevent attacks by al-Qaeda,” the President ordered al-Marri to be surrendered to the custody of the Defense Department, and transported to the Consolidated Naval Brig in Charleston, South Carolina.
Al-Marri had already been held for 18 months, and had suffered in the Metropolitan Correction Center, where, in the wake of the 9/11 attacks, Muslim immigrants — 762 of the 1,200 men in total who were rounded up for investigation — were subjected to physical and verbal abuse, held in conditions of confinement that were “unduly harsh,” and often denied basic legal rights and religious privileges, according to a 2003 report by the Justice Department. However, his ordeal began in earnest at the brig.
As was recently revealed through the disclosure of military documents following a Freedom of Information request (PDF), al-Marri, along with two American citizens also held as “enemy combatants” — Yaser Hamdi and Jose Padilla — was subjected to the same “Standard Operating Procedure” that was applied to prisoners at Guantánamo during its most brutal phase, from mid-2002 to mid-2004. This involved the use of “enhanced interrogation techniques,” including prolonged isolation, painful stress positions, exposure to extreme temperature, sleep deprivation, extreme sensory deprivation, and threats of violence and death.
Although the treatment of prisoners at Guantánamo was disturbingly harsh, it can be argued — with some confidence, I believe — that the treatment of al-Marri, Hamdi and Padilla was worse than that endured by the majority of the Guantánamo prisoners, as all three suffered in total isolation. The exceptions to this are the handful of Guantánamo prisoners who also endured years of solitary confinement — including the released British national Moazzam Begg, and British resident Shaker Aamer, who is still held at the prison, and has been in solitary confinement since August 2005.
Held alone in cellblocks that were otherwise unoccupied, al-Marri, Hamdi and Padilla had to survive without even the small comforts available to most of the Guantánamo prisoners, who, when not held in isolation as a punishment or as a prelude to interrogation, could at least communicate with the prisoners in the cells adjacent to them, and could take advantage of what lawyer Clive Stafford Smith has called the “incredible prisoner bush telegraph,” through which information is conveyed around the prison.
In the case of Hamdi (who was picked up in Afghanistan in November 2001 and initially held in Guantánamo until it was discovered that, although he had lived in Saudi Arabia since he was a child, he was born in Baton Rouge and was an American citizen), the effects of this near-total isolation were already apparent in June 2002, just a month after his transfer from Guantánamo. As one of the officers responsible for him explained in an email to his superiors, “with no potential end in sight and no encouraging news and isolated from his countrymen, I can understand how he feels … I will continue to do what I can to help this individual maintain his sanity, but in my opinion we’re working with borrowed time.”
In the case of Jose Padilla, who was held in strict solitary confinement for 21 months, the effects of his isolation were so intense that it has been reported that he literally lost his mind (his warders described him as “so docile and inactive that he could be mistaken for ‘a piece of furniture’”). Al-Marri’s experience was similar. As his lawyers explained in May this year, in court documents protesting his treatment (PDF), for the 16 months that he was held incommunicado,
He was denied any contact with the world outside, including his family, his lawyers, and the Red Cross. All requests to see, speak to, or communicate with Mr. al-Marri were ignored or refused. Mr. al-Marri’s only regular human contact during that period was with government officials during interrogation sessions, or with guards when they delivered trays of food through a slot in his cell door, escorted him to the shower, or took him to a concrete cage for “recreation.” The guards had duct tape over their name badges and did not speak to Mr. al-Marri except to give him orders.
Noting his exposure to the “enhanced interrogation techniques” mentioned above, al-Marri’s lawyers also explained that interrogators told him that “they would send him to Egypt or to Saudi Arabia to be tortured and sodomized and forced to watch as his wife was raped in front of him.” They also threatened to make him “disappear so that no one would know where he was,” and on several occasions stuffed his mouth with cloth and gagged him with duct tape. “One time,” the lawyers noted, “when Mr. al-Marri managed to loosen the tape … interrogators re-taped his mouth even more tightly. Mr. al-Marri started to choke until a panicked agent from the FBI or Defense Intelligence Agency removed the tape.” On other occasions, “for periods of up to eight days at a time, Mr. al-Marri was placed in a completely bare and cold cell simply for refusing to answer questions.”
Perhaps the most disturbing treatment al-Marri suffered during this period was the suppression of his religious freedom. His lawyers observed that
Mr. al-Marri’s observance of Islam was restricted and degraded so severely that he could not adhere to the most elemental tenets of his faith. He was denied water to purify himself and a prayer rug to kneel on when praying. Mr. al-Marri was also denied a kofi to cover his head during prayer; when he used his shirt as a substitute, he was punished by having his shirt removed. Mr. al-Marri was prohibited from knowing the time of day or the direction of Mecca, preventing him from properly fulfilling the Islamic requirement of praying five times a day. The only religious item that Mr. al-Marri was permitted was a Qur’an, and his copy of the Qur’an was sometimes taken away to facilitate interrogation and at other times was degraded and abused.
In June 2004, the US Supreme Court made two significant rulings regarding the rights of prisoners detained in the “War on Terror.” One, Rasul v. Bush, granted habeas corpus rights to the Guantánamo prisoners, allowing lawyers access to the prison to begin filing briefs asking why the prisoners were being held, and the other, Hamdi v. Rumsfeld, did the same for US “enemy combatants,” although in a rather more muddled manner. Although eight of the nine justices determined that the President could not indefinitely imprison a US citizen without basic due process rights, they were unable to agree about the extent of the prisoners’ rights.
The most immediate impact of these rulings on the “enemy combatants” held on the US mainland was the repatriation of Yaser Hamdi to Saudi Arabia in August 2004. Padilla (photo, left) and al-Marri were less fortunate. Although both gained access to lawyers, and the brutal interrogations came to an end, the government was unwilling to grant them any further rights. In Padilla’s case, the government continued to hold him until November 2005, when, with the Supreme Court circling once more, the supposed justification for holding him — his alleged involvement in a “dirty bomb” plot — was dropped, and he was moved to the federal court system to face sketchy charges of providing material support for terrorism, which, nonetheless, led to a conviction in August 2007, and a 17-year sentence in January 2008.
Al-Marri was even unluckier. Although he too was granted access to counsel — in October 2004 — his lawyers noted, in the submission in May regarding his treatment, that “access initially was monitored and severely curtailed,” and, crucially, that, because he was a resident and not a citizen, the government “refused to recognize that Mr. al-Marri had a legal right of access to counsel (and still refuses to recognize that right to this day”).
Moreover, his lawyers explained that, although there was an improvement in his conditions of detention, these conditions “remained unbearably brutal and harsh.” They noted that he “continued to be confined to a 9 by 6 foot cell,” and was “denied regular opportunity for exercise,” and also stated:
The single window in Mr. al-Marri’s cell remained darkened with an opaque covering that prevented Mr. al-Marri from seeing the outside world or knowing the time of day. His cell had only a sink, toilet and hardened (metal) bed affixed to the wall. Mr. al-Marri had no chair on which to sit and no blanket, pillow, or any other soft item inside his cell. For more than two years, Mr. al-Marri was denied a mattress, causing him discomfort and pain whenever he lay down …
Mr. al-Marri was confined to his cell for 24 hours a day, 7 days a week, for months at a time. Once Mr. al-Marri was forced to spend more than 20 days in his metal bed in his freezing cell, shivering under a thin, stiff “suicide blanket,” unable even to stand because the floor was too cold and his socks and footwear had been taken away from him.
As part of a deliberate policy of controlling almost every aspect of his life “to cause disorientation, discomfort, and despair,” al-Marri continued to be deprived of all external stimuli — he had no access to books, newspapers, magazines, TV or radio — and began showing evidence of the mental collapse mentioned at the start of the article.
His conditions of confinement improved after August 2005, when his lawyers first filed a formal complaint about his treatment, and they noted in May this year that he is “now permitted to move about his cell block (though he remains the only prisoner there) and is given adequate time for recreation.” He is also in regular contact with his family by telephone, although his first phone call was not allowed until April 29, 2008, and was only arranged after his lawyers discovered that his father had died.
Nevertheless, the naked truth about al-Marri’s detention is that the five and a half years that he has spent in solitary confinement in the Charleston brig — on top of the 15 months that he was isolated in the Metropolitan Correction Center — makes him possibly the most isolated prisoner in American history. This would be disturbing enough if he had actually been convicted of a crime, but is all the more distressing because he has never been allowed anywhere near a courtroom.
This is not for want of trying on the part of his lawyers — and of certain judges. Last June, a panel of three judges in the Fourth Circuit appeals court dealt a blow to the administration’s claims by ruling that “the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’”
At the time, it looked as if this ruling might stand, but the government appealed, and when the Fourth Circuit reconvened en banc to deliver a second ruling in July this year, the voices of reason — four judges led by Diana Gribbon Motz — were overruled by their five colleagues. In the words of Judge William B. Traxler, whose swing vote confirmed the court’s otherwise divided ruling, “the Constitution generally affords all persons detained by the government the right to be charged and tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the United States to military detention unless they fall within certain narrow exceptions … The detention of enemy combatants during military hostilities, however, is such an exception. If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities.”
Judge Motz and the dissenters took exception to the mention of “the duration of the relevant hostilities.” After citing the 2007 State of the Union Address, in which President Bush claimed that “the war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others,” Judge Motz noted, “Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a ‘war on terror’ has no bounds.”
What disturbed the dissenters the most, however, were other elements of the ruling. Judge Motz noted that her colleagues had endorsed the President’s dictatorial right to imprison US citizens — as well as US residents — as “enemy combatants” without charge or trial, and also noted that they had claimed that the President did not even have to allege, as he did with Hamdi and Padilla, that an “enemy combatant” had either been in Afghanistan or had ever raised arms against US forces.
The dissenting judges also supported al-Marri’s lawyers, who had pointed out that the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and that, although a District Court had previously held that the President was authorized to detain al-Marri under the Authorization for Use of Military Force (the September 2001 law authorizing the President to use “all necessary and appropriate force” against those involved in any way with the 9/11 attacks), Congress explicitly prohibited “the indefinite detention without charge of suspected alien terrorists in the United States” in the Patriot Act, which followed five weeks later.
Judge Motz’s conclusion — “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them ‘enemy combatants,’ would have disastrous consequences for the Constitution –and the country,” — should have sounded the alarm for anyone concerned with the Constitutional rights of Americans, but although Judge Traxler joined Judge Motz and her colleagues in ruling that al-Marri was entitled to some sort of review of the basis of his detention, there has been no progress in the intervening months. Al-Marri is now waiting to see if the Supreme Court, which was deciding whether to take up his case on November 25, will indeed challenge what Judge Motz called “a claim to power that would … alter the constitutional foundations of our Republic.”
The question remains, of course, as to why al-Marri was held as an “enemy combatant” in the first place, and although there are many unexplained elements in his story — involving the alleged large-scale credit card fraud that led to his initial arrest, an unexplained visit to New York in 2000, and questions about research on his computer into chemicals that could be used in explosives — he has always maintained that the allegations against him, as laid out in an FBI declaration, are untrue: specifically, that he “associated with high-level al-Qaeda members, met with Osama bin Laden, volunteered for a ‘martyr mission,’ and was ordered to enter the United States before September 11, 2001, to facilitate terrorist activities and explore the possibility of disrupting [the US] financial system via computer hacking.”
What’s particularly worrying about the FBI’s declaration is that the primary source for the allegations is Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, who was seized in Pakistan in March 2003, just three months before al-Marri was declared an “enemy combatant,” and subjected to the ancient torture technique known as waterboarding. During his tribunal at Guantánamo in March 2007, Mohammed stated that he had given false information about other people while being tortured, and, although he was not allowed to elaborate, I traced several possible victims of these false confessions in an article last summer, including Majid Khan, one of 13 supposedly “high-value” detainees transferred with Mohammed to Guantánamo from secret CIA prisons in September 2006, Saifullah Paracha, a Pakistani businessman and philanthropist held in Guantánamo, and his son Uzair, who was convicted in the United States on dubious charges in November 2005, and sentenced to 30 years in prison.
It’s possible, therefore, that al-Marri is another victim of Mohammed’s false confessions, obtained through torture, and that other allegations may have come from Mustafa al-Hawsawi, an alleged al-Qaeda financier, captured with Mohammed, who was also held in CIA custody before his transfer to Guantánamo. The government has alleged that al-Marri was in contact with al-Hawsawi before his arrest, but al-Marri has repeatedly denied the allegation.
Whatever the truth, however, the correct venue for ascertaining Ali al-Marri’s guilt or innocence has never been, and never will be, through long years of torture and extreme isolation in a military brig in South Carolina. I can only hope that the Supreme Court, which now has a long track record of opposing the Bush administration’s attempts to justify holding prisoners without charge or trial, will realize the importance of his case, recognizing not only how it degrades America’s moral standing and her “constitutional foundations,” but also how — in terms of what has been done to Ali al-Marri on behalf of the American people — it is a repugnant way to treat a fellow human, whether a foreigner, a “resident alien,” or a US citizen.
In one sentence that reveals the depths to which the Bush administration has sunk in the treatment of Ali al-Marri, Stuart Grassian, a Boston psychiatrist and an expert on the effects of solitary confinement, explained, after being allowed to meet him at the Charleston brig, that he had “only very uncommonly encountered an individual whose confinement was as onerous as Mr. al-Marri’s, except for individuals who had been incarcerated brutally in some third-world countries.”
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press). He wrote this article exclusively for Cageprisoners.
Note: See here for a detailed archive of legal documents relating to the case.