Trying the Enemy

Back in January, The Counterterrorism Blogs Jonathan Winer recounted the story of Ali Saleh Khalah Al-Marri

On January 28, a group of 19 former government officials with experience in intelligence and national security filed an amici curiae brief with the Supreme Court in the case to provide the court a brief finding that holding Ali Saleh al-Marri in the U.S. as an enemy combatant for seven years on U.S. soil without charge has been dangerously counterproductive in combating terrorism....

The facts that have been alleged regarding Al-Marri's criminal and terrorist-related activities are disturbing to say the least. According to the original federal criminal indictment of Al-Marri, he had more than 1750 credit card numbers and names of account holders at the time of his arrest and false identification documents. The government also alleged that Al-Marri used a calling card to call a number in Dubai linked to the reputed al-Qaeda financier Mustafa al-Hawsawi. Federal agents found folders labeled "jihad arena" and "chem," in his computer which the government said contained information on the poisonous gas hydrogen cyanide. His computer had links to Web sites related to weaponry and satellite equipment, as well as the text of lectures by Osama bin Laden.

Assuming all of this is true, the government should be well situated to try Al-Marri not only on a variety of serious fraud-related criminal charges, but for terrorist acts. Indeed, Al-Marri was initially criminally charged within the U.S. Justice system following his arrest in late 2001. On June 23, 2003, he was then designated by President Bush as an enemy combatant and transported from the Central District of Illinois, where he was being held pending criminal charges, to the Naval Consolidated Brig in Charleston, South Carolina, for detention by the Department of Defense. He has been there ever since, without trial, consigned to indefinite imprisonment in the absence of any facts ever having actually been found by a trier-of-fact, rather than merely asserted by the government.

Mr Winer argued that it was good for the US to try this man in a US court to show the Jihadists how we do things under the rule of law,

As one of the 19 bipartisan group of experts who joined the team on the brief led by Suzanne Spaulding, formerly Assistant General Counsel at the CIA and General Counsel for the U.S. Senate Select Committee on Intelligence, I thought it might be useful to highlight why such a politically-diverse group of people all felt so strongly that the U.S. needs to end the indefinite military imprisonment of a man who if the facts are as alleged by the government was a highly-dangerous terrorist at the time of his 2001 arrest in Illinois.

In a nutshell, terrorism lives off ideological stories. These stories, or narratives, become incorporated in worldviews which however twisted, are constantly incorporating new facts. As stated in the brief:

"Subjecting individuals apprehended inside the United States to indefinite military imprisonment as enemy combatants, instead of putting them on trial, invigorates the false – but widely accepted – narrative that the United States is engaged in a war on Islam, using its vast power to victimize Muslims, and that the terrorist is a noble warrior engaged in a holy war. Such treatment of a terrorism suspect is so far outside the traditions of this Nation that it undermines the credibility of our commitment to equality, justice, and the rule of law. The result is a powerful recruitment tool for violent extremists who claim allegiance to Islam, and greater risk to the security of the Nation."

Right. Well. Al-Marri got his day in court, or more correctly was permitted by the Obama Justice Department to cop a plea: a single count of material support to terrorism which carries a maximum sentence of 15 years. He's already served 8 years.

So he pled out to "material support" instead of actually being tried as a terrorist even though, according to the Justice Department press release

Between 1998 to 2001, al-Marri attended various terrorist training camps where he learned the use of weapons and operational security tradecraft that al-Qaeda employed to avoid detection, conceal their communications and protect their operations. These methods included prearranged codes and other techniques to protect communications, counter-surveillance techniques and the protection of information on computers. 

During these trips, al-Marri stayed in safe houses in Pakistan, which he agrees the government would prove were run by al-Qaeda. While in the terrorist training camps and safe houses, he used the nickname "Abdul-Rahman al-Qatari,"  and provided al-Qaeda operatives with his family contact information so they could inform his family should he be killed or "martyred" during an al-Qaeda mission.

In 2001, al-Marri was approached by Khalid Sheikh Mohammed, who was then the external operations chief for al-Qaeda, about assisting al-Qaeda operations in the United States. Al-Marri agreed to do so and knew at the time that he entered into the agreement with Khalid Sheikh Mohammed that he was providing himself to al-Qaeda to further their terrorist objectives. Al-Marri was also aware that al-Qaeda was responsible for attacks against the United States, including the 1998 bombings of two U.S. Embassies in East Africa, and the 2000 attack on the USS Cole. In addition, he was aware of the 1996 and 1998 "fatwas" issued by Usama bin Laden against the United States.

Al-Marri was instructed by Khalid Sheikh Mohammed to enter the United States no later than Sept. 10, 2001, with an understanding that he was to remain in the United States for an undetermined length of time. Khalid Sheikh Mohammed also directed al-Marri to meet with Mustafa al-Hawsawi (hereinafter al-Hawsawi) in Dubai, United Arab Emirates, where al-Hawsawi provided him with $10,000. Al-Marri knew that al-Hawsawi was associated with al-Qaeda and agrees that the government would prove at trial that al-Hawsawi was a primary financier of the September 11th attacks.

Mr Winer argued that we could trust the US Court system to deal with enemy combatants.

As argued in our amicus brief, our efforts to discourage terrorism, too, are undermined by Al-Marri's continued indefinite detention. It is time for us to return to our roots as a society that trusts in legal processes rather than in an all-powerful unitary executive with unfettered unilateral discretion to decide who is an enemy combatant, and therefore, that person's fate, forever.

Was his trust misplaced? Did he suspect that the Justice Department would let a known enemy of the United States and facilitator of the 9/11 attacks cop a plea? I don't know. But that is what you risk when you try to fight a war through the legal system instead of using battlefield rules.

Andrew McCarthy summarizes the fallout

The Obama administration has already outright released, with no trial, Binyam Mohammed, an al-Qaeda operative who, like al-Marri, was assigned by KSM to carry out mass-murder attacks in the United States after 9/11. Now, al-Marri has been given a plea agreement that grossly undersells the grave seriousness of his war crimes. If Holder's objective was to demonstrate that George W. Bush was wrong to detain al-Marri as an enemy combatant and that the criminal-justice system "works," this sweetheart deal suggests the opposite.

Jihadists were not impressed by our strategy of fighting them in the courtroom through the 1990s. But at least they knew the few of them we managed to apprehend and indict got slammed. I wonder what they're thinking now.

My guess is that the message to Jihadists is precisely the opposite of what Mr Winer (et. al.) had hoped to convey.