The incompetence began when
al-Marri was facing trial for fraud in 2003 in Peoria. There’s no doubt
that he was guilty, and would have been found guilty. But the Bush
Administration wanted al-Marri to reveal information about al-Qaeda. So
they decided to name him an "enemy combatant" in order to have full
control over him and perhaps use their "enhanced interrogation"
techniques. In fact, the Bush Administration was so anxious to have
al-Marri as an "enemy combatant" that they agreed to drop the fraud
charges "with prejudice," meaning that he could never be charged with
them again. Reports indicate that the Bush Administration never got any
worthwhile information from al-Marri; the "enemy combatant" designation
was an utter failure.
This was the first major error of the Bush Administration. If
al-Marri had been convicted on fraud, the years he spent in prison for
that would not be deducted from his 15-year sentence. In essence, by
naming al-Marri an "enemy combatant," the Bush Administration ended up
reducing his time in prison.
The second major mistake of the Bush Administration was the torture
of Khalid Shaikh Mohammed. By torturing Mohammed rather than using
normal interrogation techniques, the Bush Administration made all of
the evidence he provided inadmissable in any court. If the more
reliable and effective interrogation techniques that reject torture had
been used, prosecutors would have been able to tie al-Marri directly to
terrorism.
The problem for prosecutors today is that al-Marri had never been an
operational terrorist, and although he was an al-Qaeda agent, he was
sent as a sleeper agent to the US to coordinate al-Qaeda’s follow-up
operatives arriving after 9-11, operatives who never arrived due to the
global crackdown on al-Qaeda. Without Mohammed’s evidence and without
the fraud evidence that the Bush Administration had tainted and
dismissed with prejudice, prosecutors were in a very difficult position
to prove that al-Marri had done anything illegal.
That’s why they felt forced to agree to a relatively short 15-year
sentence, which may be further reduced by the time spent as an "enemy
combatant." Once again, we’re all paying the price for the failures of
the Bush Administration.
Below is an article I wrote last month for the Indy, the alternative
newspaper in Normal, Illinois, about 50 miles from Peoria where the
al-Marri trial was going to take place. It’s an update of an article I
originally wrote in 2003.
The Terrorist from Central Illinois
By John K. Wilson
Ali Saleh Kahlah al-Marri has spent the last five years in
indefinite executive detention in the U.S. Naval Consolidated brig in
Charleston, South Carolina as an "enemy combatant." That’s a long way
from Peoria, where al-Marri came with his wife and five children on
Sept. 10, 2001 to enroll as a graduate student in computer science at
Bradley University (which he had attended as an undergraduate two
decades ago).
But al-Marri will soon be back in Peoria. Last week, a federal grand
jury in Peoria indicted Al-Marri on terrorism charges. The Obama
Administration, anxious to reverse the Bush Administration policies and
avoid an almost certain defeat in the Supreme Court, has decided to try
al-Marri in the regular court system.
Back in 2003, the Indy reported on al-Marri’s complicated story, and
it is important to re-visit how we got to this point, and how badly the
Bush Administration bungled the al-Marri case. While the government
portrays al-Marri as a key al-Qaeda figure in America, he is also the
center of a fight over whether civil liberties will be sacrificed to
fight the "war on terrorism." On June 23, 2003, George W. Bush
designated al-Marri as the third "enemy combatant" in America,
depriving him of all legal rights.
While evidence of al-Marri’s involvement in illegal and perhaps
terrorist activities has steadily accumulated, so too did the fact that
the government is violating his constitutional rights with little
justification. The Bush Administration’s efforts to deny al-Marri his
rights have done nothing to protect America from terrorism, and its
mishandling of the al-Marri case could eventually allow him to go free.
When the FBI first questioned al-Marri, at his apartment in West
Peoria on Oct. 2, 2001, it was based on a police stop where al-Marri
was found to have a briefcase full of cash (Al-Marri reportedly
received over $13,000 in cash from Mustafa Ahmed al-Hawsawi, the
financier who bankrolled the September 11th attacks).
A tip from a US Cellular salesman worried about al-Marri’s cell
phone calls to the Middle East may also have led to a deeper
investigation. Because his enrollment forms at Bradley had listed two
different birthdates, the FBI paid a visit to al-Marri. FBI agents
continued to investigate al-Marri, and on Dec. 11, 2001, visited his
home again. They say al-Marri gave them permission to search his
apartment and his laptop.
On al-Marri’s laptop, FBI computer experts found files with more
than 1,750 credit card numbers, along with bookmarked websites about
computer hacking, credit card fraud, buying hazardous chemicals, and
making fake driver’s licenses. Al-Marri’s computer also included proxy
software used to conceal identity on the internet, and hacker programs
used to gather information about other people’s computers.
Al-Marri’s laptop also indicated his support of bin Laden, including
an Arabic prayer that "Neither the U.S. nor anyone living in it will
dream of security/safety before we live it in Palestine and before the
infidel armies leave the land of Mohammed," and that God should
"protect" and "guard" Usama bin Laden. The laptop also included audio
files of lectures by bin Laden, lectures advising how to train in
al-Qaeda camps in Afghanistan, photos of the 9-11 attacks and of
prisoners held in Kabul, and a note in Arabic declaring: "Neither the
U.S. nor anyone living in it will dream of security/safety before we
live it in Palestine and before the infidel armies leave the land of
Mohammed."
On Dec. 12, al-Marri returned to the FBI offices, but this time he
asked for a lawyer, and refused to take a polygraph test. Agents
confronted him with a list of 36 expired credit cards numbers on two
sheets of paper in his laptop’s carrying case, a list that included the
owners’ names and expiration dates. Al-Marri claimed that the
handwriting on the sheets wasn’t his, and said he knew nothing about
them. On orders from the New York City offices, federal agents arrested
al-Marri that afternoon as a "material witness." After a few weeks in
the Peoria County Jail, al-Marri was flown to New York and put in the
Special Housing Unit at the Metropolitan Correctional Center.
On Dec. 14, 2001, FBI agents got a search warrant for al-Marri’s
apartment, and found an almanac with business cards used to mark pages
showing U.S. dams, reservoirs, waterways and railroads. They also found
an Arabic prayer calling for the defeat of the "villainous" Christians
and Jews in Palestine, Afghanistan, Kashmir and Chechnya.
The Credit Card Scheme
On Jan. 28, 2002, al-Marri was arrested and charged with
unauthorized possession of "more than 15" access devices — the
credit-card numbers — with the intent to defraud. He was indicted on
the charge Feb. 6, 2002. After al-Marri and his attorneys decided that
Manhattan was a bad place for a terrorism suspect to go on trial, they
asked for the venue to be moved back to central Illinois, where the
alleged crimes had taken place, so the government dropped the charges
in New York and re-filed them in Peoria.
In the summer of 2000, al-Marri came to central Illinois and created
a fake company, AAA Carpets, in room 209 at the Time Out Motel in
Macomb, Il., using the name Abdullakareem A. Almuslam. Western Illinois
University student Matt Stiles, who hooked up a high-speed internet
connection for al-Marri, told the Chicago Tribune, "He said it was very
important that he have fast Internet service." According to Stiles,
"All I know is he sat around and was on the Internet all day."
Al-Marri used a false name and stolen Social Security number to open
accounts at three banks in Macomb, and opened a credit card processing
account. Using stolen credit card numbers, al-Marri processed fake
transactions, and then moved the money out before the credit card
companies and banks figured out the fraud.
Although al-Marri denied the allegations, the evidence against him
seemed overwhelming. Six of the stolen credit card numbers used by
"Almuslam" were later found on al-Marri’s laptop. A witness in Macomb
picked al-Marri out of a photo line-up as the man calling himself
"Almuslam." Fingerprints on the "Almuslam" bank documents in Macomb
matched al-Marri. Airline records show that an Ali S. al-Marri took a
flight from Saudi Arabia to Frankfurt and then O’Hare on May 25-26,
2000.
The summer "Almuslam" was in Macomb, he made a call to a travel
agency, arranging for a flight by a man named Ali al-Marri, who took a
flight from Peoria to Chicago and then New York on Aug. 18, 2000, and
then returned the next day, missing the connection to Peoria. Al-Marri
soon left the country, and flew from Frankfurt back to Saudi Arabia on
Aug. 21, 2000.
But the Macomb evidence proves that al-Marri was a criminal, not
necessarily a terrorist. In January 2003, federal prosecutor
Michael McGovern told a judge that al-Marri had used credit card fraud
to provide "material support" to al-Qaeda, but no evidence of this has
ever been publicly produced.
The Al-Qaeda Phone Number
In addition to the fraud charges, al-Marri was also charged with two
counts of lying to federal agents. The government accused al-Marri of
falsely denying that he called a phone in the United Arab Emirates, and
of falsely claiming that he hadn’t been in the country in 2000 when the
credit card fraud was perpetrated.
On four occasions in 2001, al-Marri tried (unsuccessfully) to call a
number in United Arab Emirates using public pay phones in Illinois. On
Sept. 23, a call was made from a store in Peoria near his apartment,
using a phone card that was also used on al-Marri’s cell phone on Sept.
27 and his home phone on Oct. 24. On Oct. 14, the same number was
called around 2am using the same phone card from a gas station in
Springfield; around the same time, al-Marri’s cell phone was used near
Springfield. On Nov. 4, the number was called twice from pay phones in
Chicago, using a second phone card; that same phone card was used three
days later from al-Marri’s home phone.
The FBI was suspicious of the phone number because it was used on
Sept. 3, 2001 by Ramzi Bin Al-Shibh to transfer money to Zacarias
Moussaoui, the "20th hijacker" for the 9-11 attacks. The phone number
was also listed by al-Qaeda financier, Mustafa Ahmed al-Hawsawi
(arrested in Pakistan on March 1, 2003 along with Khalid Shaikh
Mohammed). Al-Hawsawi, who is accused of sending money to the 9-11
hijackers, listed the number on a withdrawal slip from a United Arab
Emirates (UAE) bank.
The number was also called by 9-11 hijacker Mohamed Atta, who
listed the phone number when he sent a Fed Ex package to the UAE on
Sept. 4, 2001. The 9-11 hijackers returned leftover money to the
account opened by al-Hawsawi shortly before the attacks. The phone
number was also used in the transfer of money to Ramzi Muhammad
Abdullah bin al-Shibh, whom American officials believe was intended to
be another 9-11 hijacker. But when questioned by the FBI about it,
al-Marri denied calling the phone number or knowing al-Hawsawi. On Dec.
23, 2002, al-Marri was charged with making false statements to the FBI
denying that he called the number.
The Enemy Combatant
While al-Marri was awaiting his trial, the US got a lucky break in
capturing Khalid Shaikh Mohammed, the global leader of al-Qaeda
operations, on March 1, 2003. Under torture (including waterboarding),
Mohammed revealed some information about the al-Qaeda network, and
named al-Marri as "the point of contact for AQ operatives arriving in
the US for September 11 follow-up operations." Newsweek claimed that
Mohammed described al-Marri as "the perfect sleeper agent because he
has studied in the United States, had no criminal record and had a
family with whom he could travel."
But one Newsweek reporter admitted to a Peoria Journal-Star
columnist there wasn’t evidence of contact with other al-Qaeda
operatives. "That’s the mystery here," reporter Daniel Klaidman said.
"If he was the main contact, we probably would’ve seen more evidence of
him talking to others." Because some of the information linking
al-Marri to terrorism was acquired using torture, it’s unreliable and
cannot be allowed in a court of law.
According to the government, al-Marri trained at al-Qaeda’s al
Farooq camp in Afghanistan, including training in chemical weapons, and
pledged service to Osama bin Laden, offering himself for a "martyrdom"
mission. Some detainees reportedly identified al-Marri as being at the
al-Farooq camp, and said that he offered to die for al-Qaeda. With this
additional information, the Bush Administration decided to name
al-Marri an enemy combatant–even though he was arrested on American
soil, and has never been accused of carrying out any acts of violence.
Bush’s June 23, 2003 order declared that "al-Marri engaged in
conduct that constituted hostile and war-like acts, including conduct
in preparation for acts of international terrorism," and he "represents
a continuing, present and grave danger to the national security of the
United States." The order claimed that the enemy combatant designation
was "necessary to prevent him from aiding al-Qaeda in its efforts to
attack the United States or its armed forces, other government
personnel, or citizens."
The Defense Department said al-Marri’s status was changed ‘‘due to
recent credible information provided by other detainees in the war on
terrorism. Enemy combatant status may be used to describe an individual
who, under the laws and customs of war, has become a member of or
associated himself with hostile enemy forces, thereby attaining the
status of a belligerent.’’
This doesn’t describe al-Marri at all, even if the worst accusations
against him are true. First of all, there is no declared war with
al-Qaeda, because al-Qaeda is a terrorist group, not an enemy nation.
Second, al-Marri’s alleged membership in the group is tenuous at best.
Third, al-Marri was never a belligerent of any kind. A statement from
Human Rights Watch charged, "The United States cannot declare a
criminal suspect, including a suspected member of al-Qaida, an enemy
combatant, except where there has been direct participation in an
international armed conflict."
Jan Paul Miller, federal prosecutor for central Illinois, filed to
dismiss the criminal case without prejudice--meaning that the
government could later reinstate the charges. And the judge seemed
willing to support that ruling, but wanted to give defense attorneys
time to prepare a response. However, the government was under orders to
get al-Marri into military custody immediately, and rather than have a
few hours delay for a response by al-Marri’s attorneys, they agreed to
dismiss the charges with prejudice, which means al-Marri can never be
prosecuted for his acts of credit card fraud and lying. This critical
decision may come back to haunt the government now that al-Marri’s
enemy combatant status is overturned.
The fact that al-Marri was already in jail awaiting trial on fraud
charges made the sudden rush by the Bush Administration even more
puzzling. Alice Fisher, deputy assistant attorney general, told the
media, "We are confident we would have prevailed," but dropped the
charges in order to help fight terrorism. Fisher has admitted that
investigators do not believe that al-Marri was "specifically tasked" to
plot a chemical or biological attack in the United States. Instead,
Newsweek reports that government officials believe al-Marri was
assigned to hack into the computer systems of U.S. banks. Al-Marri also
frequently visited websites on the production of hydrogen cyanide, a
lethal gas that al-Qaeda plotted to use in America. Given al-Marri’s
suspected role, why was it necessary to shift the case to military
tribunals, which cannot rule on the dismissed charges of fraud and
lying?
According to an ABC News report, al-Marri was made an "enemy
combatant" because "the government does not want senior al-Qaeda
leaders testifying about classified information in open court." Yet
this explanation is not plausible, since the fraud charges against
al-Marri wouldn’t have required any classified information. Classified
information might come out only if terrorism charges are filed against
him, but it’s doubtful that evidence acquired more than five years ago
would seriously undermine the war on terror.
Putting the Pressure on al-Marri
The real reason for "enemy combatant" status was revealed
anonymously to journalists. United Press International reported that a
Justice Department official said "that the actual reason for the change
in status was to pressure him to cooperate." According to the anonymous
official, "If the guy says ‘Even if you give me 30 years in jail, I’ll
never help you.’ Then you can always threaten him with indefinite
custody incommunicado from his family or attorneys." Attorney General
John Ashcroft declared, "An individual with that kind of situation is
an individual who might know a lot about what could happen, might know
the names of individuals, information being so key to intelligence and
prevention."
On May 7, 2003, federal prosecutor David Kelley, according to
al-Marri’s attorney, threatened al-Marri that if he continued a plea of
innocence, "the circumstances of his confinement, which were already
severe, would be further aggravated." For years, al-Marri was kept in
solitary confinement.
Even if al-Marri didn’t confess under this "pressure," the
government hoped that making al-Marri an "enemy combatant" might give a
lesson to al-Qaeda supporters who were reluctant to cooperate. CNN
reported that "senior FBI official" said the al-Marri case had
implications for other terrorism suspects: "If I were in their shoes,
I’d take a message from this."
Frank Dunham, a defense attorney representing Zacarias Moussaoui and
Yassir Hamdi, called this a significant admission: "In front of appeals
courts, they have argued that enemy combatant status prevents the
horror of having corporals and sergeants having to follow Miranda
warnings and chain-evidence requirements. They have also argued for the
national security implications of allowing it. But never a frank
admission that it offers them more leverage in plea bargains and
cooperation."
When Constitutional rights are abandoned solely for the sake of
intimidating prisoners, it indicates a serious threat to civil
liberties. As Emily Tynes of the ACLU observes, "The Department of
Justice’s treatment of al-Marri reads like a case study in abuse of
power." Tynes notes, "He will be held in a military brig indefinitely,
without opportunity for trial, without the opportunity for counsel,
without access to the outside world or even, necessarily, sunshine. He
now has no rights. He now has no privileges. He is persona non grata."
Unfortunately, few people were concerned about the violations of
civil liberties in the al-Marri case. Then-Congressman Ray LaHood (now
a member of Obama’s cabinet) told WGLT about the al-Marri case at the
time: "I guarantee you, if these folks get lawyers, they will have
their day in court." LaHood claimed, "I don’t see too many crocodile
tears being spread around this country for these people. I guarantee
you, there’s enough civil liberties groups to look after their
interests." LaHood may have been unaware of the fact that an "enemy
combatant" is denied the constitutional right to a lawyer.
Former judge Andrew Napolitano, the senior judicial analyst at Fox
News, noted in the Los Angeles Times about the al-Marri case, "We have
tried the likes of Timothy McVeigh and Charles Manson, Al Capone and
O.J. Simpson, Tokyo Rose and the Rosenbergs. So who is an enemy
combatant? Not John Walker Lindh, who fought alongside the Taliban. Not
Zacarias Moussaoui, who the government says helped plan the 9/11
attacks. Not Lyman Faris, who allegedly plotted to blow up the Brooklyn
Bridge. The Constitution protected their rights. Who is an enemy
combatant? Today, it can be anyone the president wants. And that is
terrifying."
Hamdi v. Rumsfeld
Al-Marri’s case was the first time any president has ever stopped a
judicial process by declaring someone an "enemy combatant." The fraud
and lying charges against al-Marri could have carried penalties of five
to 30 years in prison, with fines of up to $1 million on each count.
Clearly, there was no immediate danger that al-Marri would be released
to organize terrorist activities if not for the "enemy combatant"
designation. To the contrary, al-Marri could have been kept in prison
for years on fraud and lying charges, and by the time he was scheduled
for release, terrorism charges could be filed without any danger to
national security. Because the government did not file any terrorism
charges against him, al-Marri would have no right to call any witnesses
with potentially sensitive information. The public information already
released in indictments was more than sufficient to convict al-Marri.
By refusing to respect civil liberties, the Bush Administration
could have ended up allowing an al-Qaeda agent to get away with his
crimes. Many experts felt that the Obama Administration might release
al-Marri and send him back to his home country, Qatar. But with his
skills in computer fraud, Al-Marri can pose a threat to America from
anywhere in the world.
Most important of all, the Bush Administration has put the Bill of
Rights at risk by treating it so cavalierly as an inconvenience to be
dismissed whenever it suits the "war on terror." Ali al-Marri is not an
innocent man. But until he is granted his rights and his day in court,
we will all see our civil liberties reduced. The only way the
terrorists can ultimately win is to lead us to reject the freedoms
considered fundamental to our democracy.
Crossposted at DailyKos.