Showdown Nears Over Terrorism Detentions

One moment he was preparing for trial on relatively routine criminal charges in the nation’s heartland and the next he was gone, designated an enemy combatant by President Bush and spirited away to a military brig in South Carolina.

Government authorities want to hold Ali Saleh Kahlah Al-Marri indefinitely, saying they believe he may be a “sleeper cell operative” working to settle foreign terrorists in the United States. But Al-Marri’s lawyers say his abrupt transfer is unfair and deprives him of the protections of the U.S. court system.

The dispute, headed for a showdown this month in a federal courthouse in Peoria, Ill., is being called a test case that could set the standard for how far the Justice Department, the Pentagon and, ultimately, the White House can go in detaining terrorism suspects in their efforts to protect the nation.

Al-Marri, a 37-year-old native of Qatar, entered this country with his family on Sept. 10, 2001, the eve of the terror attacks on New York and the Pentagon. Before the year was out, he was arrested by FBI agents in central Illinois on charges of fraud and making false statements to authorities. He would have gone on trial in Peoria next Monday.

Instead came a turn of events that not only triggered Al-Marri’s removal to military custody but could foreshadow the fates of Jose Padilla and Yaser Esam Hamdi, U.S. citizens who also have been named enemy combatants. Al-Marri’s case could also affect the government’s prosecution of Zacarias Moussaoui, a French citizen facing terrorism charges in federal court and who could be named an enemy combatant. Al-Marri declined to cooperate and plead guilty, choosing a jury trial in federal court. Then he was abruptly removed to a military brig, an imprisonment that could last as long as the war on terror.

Defense attorneys have asked U.S. District Judge Michael H. Mihm in Peoria to free Al-Marri, and a response from government attorneys is due today. Mihm is set to hear arguments from both sides July 28 before ruling.

Al-Marri “may prove to be the test case,” said Eugene R. Fidell, president of the National Institute of Military Justice, a private organization that analyzes military legal issues.

“But it’s a little like a legal Belmont Stakes as the various cases pull ahead or fall behind in the race to the Supreme Court,” Fidell said. “We won’t know for a while which will be the landmark case and which will be follow-ons.”

Jennifer K. Elsea, a legislative attorney with the Congressional Research Service, a nonpartisan organization that studies national legislation, said Congress’ authorization of the enemy combatant statute was never intended to be invoked so broadly.

When the war on terror began, Bush said no American citizens would be designated enemy combatants and that they would be tried in open court, with their constitutional rights protected.

But that has not always been the case.

John Walker Lindh is an American citizen from Northern California who was captured fighting for the Taliban in Afghanistan. Following Bush’s directives, he was returned to this country and prosecuted in federal court in Virginia, eventually pleading guilty.

From there, the standard begins to blur.

Hamdi too is an American, born in Louisiana, and he too was captured on the Afghan battlefield. But unlike Lindh, he was taken to Guantanamo Bay and, after his nationality was confirmed, he was named an enemy combatant and transferred to a Navy brig in Norfolk, Va.

Padilla, accused of plotting to detonate a radioactive “dirty bomb,” is also an American citizen, born in New York and raised in Chicago. But unlike Lindh or Hamdi, he was arrested in this country, immediately named an enemy combatant and taken to the Navy brig at Charleston, S.C.

The rule also has not been uniformly applied to foreigners.

Richard Reid, a British citizen who attempted to bring down a transatlantic flight with a shoe bomb, was prosecuted in federal court in Boston and pleaded guilty there.

The case of Moussaoui, suspected of being the 20th hijacker in the Sept. 11 plot, is in federal court in Virginia. Complications in the prosecutors’ case stemming from Moussaoui’s request to meet with a suspected Al Qaeda leader, however, have raised questions about whether the government should confer on him enemy combatant status. That leaves Al-Marri -- a foreigner arrested in this country who was being prosecuted here but suddenly was shifted into military custody at the Naval Consolidated Brig in Charleston.

“The Bush administration has once again done an end-run around the criminal justice system,” said Wendy Patten, U.S. advocacy director for Human Rights Watch. “This kind of military detention has no place in a country committed to the rule of law.”

But the government strongly defends its transfer of Al-Marri.

The president, in his June 23 declaration of Al-Marri as an enemy combatant, contended that he “is closely associated with Al Qaeda” and has been “engaged in conduct that constituted hostile and warlike acts, including conduct in preparation for acts of international terrorism.”

More important, the president said, Al-Marri “represents a continuing, present and grave danger to the national security of the United States, and detention of Mr. Al-Marri is necessary to prevent him from aiding Al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens.”

Lawrence S. Lustberg of Newark, N.J., one of Al-Marri’s attorneys, said his client lawfully entered the U.S. with his wife and five children to pursue a master’s degree at Peoria’s Bradley University, where he earned a bachelor’s degree in 1991.

The FBI arrested him on Dec. 12, 2001, on a material witness warrant and took him to New York as part their Sept. 11 investigation. According to Lustberg, Al-Marri “was held in solitary confinement, locked down without exercise or recreation and was under constant monitoring.”

He was indicted in New York on fraud and false statement charges. But the indictment was dismissed and a second grand jury indictment was obtained in Peoria, where he was charged with seven counts of making false statements to the FBI and identity fraud.

Jan Paul Miller, the U.S. attorney in central Illinois, said Al-Marri lied about phone calls to a man in the United Arab Emirates believed to be associated with Mustafa Ahmed Al-Hawsawi. According to court records, Miller said, Al-Hawsawi is an unindicted co-conspirator in the Moussaoui case.

Prosecutors in Washington and Illinois also have said that Khalid Shaikh Mohammed, Al Qaeda’s operations chief now in U.S. custody, has identified Al-Marri as a conduit for helping Al Qaeda operatives get settled in this country for future attacks.

In addition, prosecutors said Al-Marri’s laptop computer held the numbers of hundreds of stolen credit cards that were to be used to fund terrorism, as well as anti-American literature.

Lustberg, said he knows only that defense attorneys were preparing for a July 21 trial on the charges of false statements and fraud when suddenly, on June 23, everything changed.

Lustberg said prosecutors went to court in Peoria and dismissed the charges against Al-Marri, then moved him to military custody in South Carolina.

Lustberg said that because prosecutors dropped the case “with prejudice,” they cannot reinstate the charges. He said if the defense can convince Mihm that Al-Marri does not meet the enemy combatant standard and that the transfer was improper, he should be released.

Lustberg said he has had no luck getting in contact with his client, despite letters and phone calls to the Pentagon and Department of Justice. “They don’t even respond,” he said.

Lustberg said that after Al-Marri was removed from Peoria, the local jail sent the defense team his Koran and prayer rug. They mailed it to the brig in South Carolina but, Lustberg said, “We don’t even know whether that got to him either.”