Terror Watch: Al-Marri: Testing Obama's New Legal Strategy

The Obama administration's hopes of bringing "enemy combatants" into American courtrooms passed its first test Wednesday: a federal magistrate found that accused Qaeda "sleeper" agent Ali Saleh Kahlah al-Marri was a "danger to the community" and should be locked up until he could be tried in federal court on terror charges.

A diminutive, bespectacled 43-year-old Qatari citizen who spent nearly six years in the U.S. Navy brig in Charleston, S.C., under orders from President Bush, al-Marri showed up in a federal courtroom in Charleston sporting a long, flowing black beard, a white turban and a blue sweatshirt. He listened intently as his lawyers portrayed him as a loving and devoted family man who bears no animus to the United States, enjoys watching NASCAR races on television and wants nothing more than to return home to his wife and young children.

But federal prosecutors—and, more important, magistrate Robert Carr—were having none of it. "He was here under the command and control of Al Qaeda," proclaimed prosecutor Michael Mullaney. "He was here as a sleeper with Al Qaeda."

Mullaney, the chief of the Justice Department's counterterrorism section, described al-Marri as a dedicated jihadist who attended Qaeda training camps in Afghanistan and was dispatched by 9/11 architect Khalid Sheikh Mohammed to the United States on Sept. 10, 2001, to plot new terror attacks. Mullaney charged that al-Marri, who was ostensibly supposed to study at Bradley University in Peoria, Ill., attended no classes and instead spent time researching "toxins" online.

Most, if not all, of Mullaney's assertions tracked the contents of a 16-page unsourced declaration filed four and a half years ago by a Defense Intelligence Agency official, Jeffrey Rapp, to justify Bush's designation of al-Marri as an enemy combatant. But that was persuasive enough for magistrate Carr, who brusquely brushed aside the requests of al-Marri's lawyers that their client be released on bond and ordered the prisoner returned, for now, to the custody of U.S. marshals. Al-Marri is due to be shipped back this weekend to Peoria, where he will be formally arraigned on Monday on federal charges that he provided material support to terrorism.

Given the notoriety of al-Marri's case, the ruling was hardly a surprise. But it was nonetheless an important early victory for the Obama Justice Department as it develops a new strategy for dealing with dangerous terror suspects. Although many of the particulars have yet to be worked out, a primary goal of Attorney General Eric Holder is to try as many hard-core terrorists as possible in federal courts (including at least some of those now in Guantánamo), where they will be afforded the full panoply of constitutional rights. This stands in marked contrast to the initial Bush administration approach of viewing the "war on terror" as primarily a military conflict rather than a law-enforcement problem.

Al-Marri's case is significant because it symbolizes this shift—and will constitute a major test of whether the Obama approach will work in high-profile cases. After al-Marri's arrest by the FBI in December 2001, senior U.S. counterterrorism officials concluded that he was a highly dangerous figure who had been dispatched to launch a "second wave" of domestic attacks that were widely feared in the aftermath of 9/11. Over the objections of some Justice Department prosecutors who wanted to indict him, and despite the fact that he was legally in the country with a valid green card, the White House ordered that al-Marri be transferred to the custody of the U.S. military. The White House's goal: to break al-Marri and force him to provide intelligence on the plans of Al Qaeda. To make sure that happened, he was kept in solitary confinement, denied access to his lawyers and subjected to aggressive interrogation techniques—including sleep deprivation, painful stress positions and loud noises—that "bordered on, and sometimes amounted to, torture," according to his lawyers.

The strategy never worked. Not only did al-Marri never confess, he refused to engage with his interrogators, at times chanting Qur'anic verses rather than provide even basic information about his past, according to one U.S. interrogator who tried and failed to gain his cooperation (and who asked not to be identified talking about matters that remain classified). In the meantime, al-Marri's lawyers challenged the basis for his detention, describing it as one of the supreme examples of the Bush administration's extraordinary claims of executive power.

The constitutionality of al-Marri's treatment—the question of whether the president has the right to lock up legal U.S. residents and hold them indefinitely without charging them with a crime—was due to be argued before the Supreme Court this spring. But rather than endorse the Bush position on executive detention, the Obama Justice Department indicted al-Marri last month. Now it will have to prove its case where many constitutional scholars say it should have been all along—in a federal court.