Indictment Backs Role of Federal Courts in Terrorism Cases
February 27, 2009
“Al-Marri is ending up in federal court, right back where he started, and where he belonged all along. President Obama is telling the world that US federal courts are fully capable of prosecuting terrorism cases.”
Jennifer Daskal, senior counterterrorism counsel

(Washington, DC) - US President Barack Obama's decision to criminally charge Ali Saleh Kahlah al-Marri, a US resident who has been held as an "enemy combatant" since 2003, is a major break with the Bush administration's abusive counterterrorism policies and a strong endorsement of the federal courts' role in prosecuting terrorism suspects, Human Rights Watch said today. 

"Al-Marri is ending up in federal court, right back where he started, and where he belonged all along," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch. "President Obama is telling the world that US federal courts are fully capable of prosecuting terrorism cases." 

Al-Marri, a Qatar citizen, was lawfully in the United States on a student visa when he was arrested in December 2001 for credit card fraud. He was weeks away from trial in 2003 when the Bush administration declared him to be an "enemy combatant," removed him from the criminal justice system and transferred him to a military brig in South Carolina, where he has been for the past five-and-a-half years. He was held incommunicado for 16 months before he was finally allowed to meet with attorneys and has still not been permitted to have any contact with his wife, other family members or friends. In an indictment issued on February 27, 2009, al-Marri was charged with conspiracy and material support for terrorism. 

"No one arrested in the US should ever have to fear being declared an ‘enemy combatant' pulled from the justice system and held for years without charge," Daskal said. "Today, President Obama has taken a step to undo the unlawful practices of the past."

Al-Marri's lawyers began challenging his detention in 2004. In July 2008, the US Court of Appeals for the 4th Circuit ruled in a split decision that the 2001 Authorization for Use of Military Force gave the president the power to detain al-Marri as an enemy combatant. But it also ruled that al-Marri had the right to challenge this designation in the courts through a petition for habeas corpus.

Both the Bush administration and al-Marri separately appealed that decision to the Supreme Court, and the government's brief to the Supreme Court in the case was due in March. The decision to criminally charge al-Marri will likely make the pending Supreme Court case moot.

Al-Marri - along with Yaser Hamdi and Jose Padilla - was one of just three detainees since 9/11 to be held as an "enemy combatant" in the United States. In June 2004, Hamdi, a US citizen born to Saudi Arabian parents, won the right to challenge the legality of his detention in the Supreme Court ruling in Hamdi v. Rumsfeld. Three months later, the Bush administration released Hamdi to Saudi Arabia on condition that he give up his US citizenship.

The case of Padilla, who is also a US citizen, closely mirrors that of al-Marri. Initially arrested on a "material witness" warrant in May 2002, he was declared an "enemy combatant" on June 9, 2002, and handed over to military custody. Three-and-a-half years later, as the Supreme Court was considering whether to rule on the legality of his detention, the Bush administration mooted Padilla's legal challenge by returning him to the federal court system and charging him with conspiracy to commit terrorism.

Padilla was convicted in 2007 and sentenced to 17 years and four months in prison.  Although the Bush administration had long claimed that Padilla had planned to build and detonate a radiological "dirty" bomb in the United States, none of those allegations were ever presented in his criminal case.   

"The examples of both al-Marri and Padilla should be cautionary tales to those who support preventive detention without charge, and a reminder that terrorism cases belong in federal courts," Daskal said.