Ali Saleh Kahlah Al-Marri - Enemy Combatant

Enemy Combatant

Al-Marri was allowed access to legal counsel in October 2004. His lawyers report that al-Marri has described being subjected to extreme cold, with insufficient bedding and clothing. He has been deprived of all reading material, except a Qur'an. Unlike the cells at Guantanamo Bay, which all have an arrow painted on the floor that points toward Mecca, his guards reportedly decline to inform him of which direction is East. In addition to his cell's window being merely translucent (rather than transparent), he also claims to have no clock, preventing him from knowing the proper times to say prayers. He has also reportedly been deprived of personal hygiene items. The lack of such items have reportedly also rendered him unable to pray as a result of ritual impurity.

Al-Marri reported that he had not been interrogated for a year. His lawyer sought to obtain protection for him through the writ of habeas corpus.

In October 2008, 91 pages of memos drafted in 2002 by officers at the Naval Consolidated Brig, Charleston became public. The memos indicate that officers were concerned that the isolation and lack of stimuli was driving Ali Saleh Kahlah al-Marri, Yasser Hamdi and José Padilla insane.

On November 13, 2006, the United States Department of Justice asserted in a six-page motion with the United States Court of Appeals for the Fourth Circuit that, according to the Military Commissions Act of 2006, al-Marri should be tried in a military tribunal as an enemy combatant rather than in a civilian court.

The document begins:

Pursuant to Federal Rule of Appellate Procedure and Local Rule 27(f), respondent-appellee Commander S.L. Wright respectfully moves this Court to remand this case to the district court with instructions to dismiss it for lack of subject matter jurisdiction. Respondent-appellee has conferred with counsel for petitioner-appellant, and they agree with the briefing schedule proposed below. As explained below, the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366 (see Attachment 1), which took effect on October 17, 2006, removes federal court jurisdiction over pending and future habeas corpus actions and any other actions filed by or on behalf of detained aliens determined by the United States to be enemy combatants, such as petitioner-appellant al- Marri, except as provided in Section 1005(e)(2) and (e)(3) of the Detainee Treatment Act (DTA). In plain terms, the MCA removes this Court’s jurisdiction (as well as the district court’s) over al- Marri’s habeas action. Accordingly, the Court should dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions to dismiss the petition for lack of jurisdiction.

After a long legal battle the previously classified justification for Al Marri's detention was made public. On September 9, 2004, Jeffrey N. Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism submitted a 16 page sworn statement containing many allegations against Al Marri, including:

• Al Marri was to hack into the US banking system, and "to wipe out balances and otherwise wreak havoc with banking records in order to damage the U.S. economy."
• Investigator had found information about hydrogen cyanide on Al Marri's laptop... "The highly technical information found on al-Marri's laptop computer far exceeds the interests of a merely curious individual."

On June 11, 2007, in al-Marri v. Wright, the Fourth Circuit Court of Appeals ruled that the Military Commissions Act doesn't deny al-Marri his constitutional rights to challenge his accusers. The court ruled that al-Marri must be released from military detention to either be freed or to be placed in US civilian detention where the federal government would have to charge him with crimes. The court held an en banc rehearing of the ruling on October 31, 2007. In its decision issued on July 15, 2008 the Court voted 5-4 that if the Government's allegations are true, al-Marri can be held in military detention indefinitely as an enemy combatant, but he has not received sufficient due process to determine if these allegations are in fact true. The case is allowed to return to trial court but no particular proceedings have been specified.

On 9 November 2008, Jerry Markon, writing in the Washington Post, reported that al-Marri's lawyers had petitioned the United States Supreme Court to overturn the lower court ruling that allowed him to be treated as an enemy combatant in spite of being a legal resident of the USA.

On December 5, 2008, the Supreme Court agreed to hear al-Marri's case.

On January 22, 2009, President Barack Obama issued a memorandum requiring that al-Marri's status be reviewed in addition to the detainees currently held at Guantanamo Bay.

Al Marri pled guilty to conspiracy to support a terrorist group in 2009, and received a 15 year sentence. On October 12 2011 Tony Bartelme, writing in the Charleston Post and Courier reported on documents the paper had recently received from an 8 year old Freedom of Information Act request about the use of the consolidated brig in the "war on terror". Among those documents was a 2005 exchange of memos between the prison's commander, E.P. Giambastiani to Charles Stimson Deputy Assistant Secretary of Defense for Detainee Affairs. In the memos Giambastiani requested that al Marri, Hamdy and Padilla be transferred to Guantanamo. According to Bartelme:

"Logbooks and other information obtained by al-Marri's Charleston attorney, Andy Savage, revealed that Defense Department and CIA agents interrogated al-Marri for months, at one point wrapping his head in duct tape and stuffing his mouth, a tactic Savage called dry-boarding."