Every time a detainee is released from Guantanamo and sent to another country, it makes headlines. But very few people noticed last week as another man caught up in what was the “war on terror,” Ali Saleh Kahlah al-Marri, left for his home country, Qatar. Still, it was al-Marri who came close to making constitutional history while he was in the country.
When future historians look back on the early 21st Century in America, they would find it very significant if the government had ever succeeded in emptying the military prison at Guantanamo Bay, Cuba, and then closed it down. But they may also take notice of what al-Marri and his lawyers almost did.
Al-Marri came to the United States in September 2001, a few days after the 9/11 terrorist attacks that led the Bush administration to declare “war” on terrorism. He was soon caught up in that conflict, one of only three individuals who were captured inside the U.S. and then detained as “enemy combatants.” He was in the country legally on a student visa.
Along the way, he and his lawyer, Jonathan L. Hafetz (then with the American Civil Liberties Union, now a law professor at Seton Hall), persuaded the Supreme Court to take on this issue:
“Does the Authorization for the Use of Military Force authorize — and if so does the Constitution allow — the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al-Qaeda to engage in terrorist activities?”
That issue brought a direct constitutional challenge to the authority of the U.S. president to order domestic detention of someone who was legally in the country. The Court accepted review of that potentially momentous issue in December 2008. At the time, al-Marri was being held in a Navy brig in South Carolina, where he had been sent after President George W. Bush in June 2003 named him an “enemy combatant.”
As the Supreme Court case began to unfold, early in the Obama administration, the government decided on a switch. Al-Marri was taken out of the Pentagon’s control, and shifted to the civilian criminal justice system, where he would be charged with providing “material support” to terrorism. Some lower court judges protested that the government was manipulating the legal system, to evade Supreme Court review of presidential detention authority.
However, the Supreme Court allowed the transfer, and the case before the Justices came to an end in March 2009 without a decision. Within two months, al-Marri had pleaded guilty to one count of providing material support to terrorism. He was sentenced to eight years and four months in prison.
With some “good time” credits, he completed his sentence last week, and was deported to his native Qatar on Friday. That made no headlines. But whatever threat the government found him to be, it was ultimately handled within the normal criminal justice system — and that was, itself, a bit of a triumph for his lawyers and for attorneys representing others who might be accused of terrorism crimes.
Defense attorneys representing those caught up in terrorism cases have long preferred the definite outcomes that normal criminal prosecution have produced, rather than the years-long doubt and uncertainty that has been the future of those sent to Guantanamo Bay for detention, most of them without any criminal charges pursued against them.
Even those at Guantanamo who have been accused of terrorism-related crimes have no assurance that their cases will move forward before the seriously troubled military war crimes tribunals set up at Guantanamo Bay. Even the five individuals facing charges of planning the 9/11 terrorist attacks are nowhere near a definite date for trial, as they would be if, like al-Marri, they had been shifted into the civilian court system.
Each release from Guantanamo, of a detainee who has not been charged, has been a victory for the detainees’ lawyers, even as it advances the prospect that President Obama may someday come close to emptying that prison and perhaps approach the time when that experiment comes to an end.
By some measures, the Guantanamo experiment seems like a failure. There is little if any proof that its existence made America a safer place or that it reduced the threat of global terrorism. And it has produced unending conflict between the White House and Congress over proper detention policy.
The Supreme Court has stepped in from time to time to provide some legal rights for those held at Guantanamo, but even in this thirteenth year of that experiment, the lower courts are still struggling with how — or whether — to apply the Constitution to those imprisoned there.
That makes the contrast with al-Marri’s case more vivid. He had his day in court and without delay, he had the full benefit of the constitutional safeguards that go with trial in civilian court, he served his time, and, on Saturday, he was back home in Qatar.
Just before al-Marri left the country, his lawyer, Jonathan Hafetz, wrote that “al-Marri’s case highlights how a system of domestic military detention is prone to legal manipulation….The al-Marri case may not have produced a conclusive ruling on whether domestic military detention is authorized under current law or permissible under the Constitution. But it did provide a compelling example of why military detention is such a bad idea, while reinforcing the wisdom behind the long tradition of prosecuting terrorism suspects in civilian court.”