Know Thy Enemy Combatant

The Bush administration decides who gets due process

Ali Saleh Kahlah Al-Marri, who was charged until recently with credit card fraud and lying to the FBI, is an "enemy combatant." Iyman Faris, who confessed in May to participating in a conspiracy to sabotage the Brooklyn Bridge, is not.

The government says both men were taking orders from Al Qaeda. So why is Faris in civilian custody, facing a 20-year prison sentence, while Al-Marri has been transferred to a military brig for indefinite confinement without charge or trial?

You might think the difference is citizenship: Faris is a U.S. citizen originally from Kashmir, while Al-Marri is a Qatari. But that can't be it, because two U.S. citizens—Yasser Esam Hamdi, captured in Afghanistan two years ago, and Jose Padilla, arrested in Chicago last year on suspicion of plotting to explode a radioactive bomb—have, like Al-Marri, been designated "enemy combatants."

Is it possible that the government simply did not have enough evidence to make a case against Al-Marri (which seems to be what happened with Padilla)? Not according to the Justice Department. "We are confident we could have prevailed on the criminal charges," Deputy Assistant Attorney General Alice Fisher said. "However, setting the criminal charges aside is in the best interests of national security."

How so? The Justice Department isn't saying, presumably because offering an explanation would not be in the best interests of national security.

You may be inclined to trust the government's judgment on such matters. That attitude is fine, provided the government always acts in good faith and never makes mistakes. But if you assume public officials are fallible and occasionally malicious, you may have qualms about giving them unilateral authority to lock people up and throw away the key.

According to the Associated Press, "Prosecutors say al-Marri had over 1,000 credit cards in files on his laptop computer, which also contained oaths to protect al-Qaida leader Osama bin Laden, photos of the Sept. 11 terror attacks, files detailing weaponry and dangerous chemicals and lists of militant Islamic Internet sites." Based on information from an "al-Qaida detainee in a position to know," the FBI determined that Al-Marri was a sleeper agent charged with helping members of the terrorist network get settled in the United States.

That certainly sounds sinister, but we have yet to hear Al-Marri's side of the story. And if the government gets its way, we never will.

Al-Marri's attorney says the Justice Department decided to drop the criminal charges against him and hand him over to the Pentagon because he refused to cooperate or plead guilty. There is obvious potential for abuse when defendants know that if they don't confess they can be sent to the brig with no questions asked, potentially for the rest of their lives.

That's the sort of pressure Iyman Faris faced. Citing "a lawyer who demanded anonymity," The New York Times reports that "prosecutors discussed the idea of declaring Mr. Faris an enemy combatant…and that may have influenced his decision to admit guilt to avoid the prospect of indefinite detention."

I have no reason to doubt that Faris really did discuss the Brooklyn Bridge's vulnerability to blowtorches with members of Al Qaeda. But it's not hard to imagine how a wrongly accused man in such a situation would feel compelled to plead guilty.

Hence the possibility of an "enemy combatant" designation can have an impact far beyond the suspects who are officially put in that category. In this light, reassurances that the designation has been used sparingly carry less weight.

The Bush administration maintains that its decisions about who deserves due process (or any kind of process at all) are not reviewable. So far the federal courts have not agreed. Even the U.S. Court of Appeals for the 4th Circuit, which upheld Yasser Hamdi's detention based on the government's assertion that he was captured while fighting with the Taliban, recognized that he had a right to a hearing.

The U.S. Court of Appeals for the 2nd Circuit, which is considering the government's appeal of a ruling that said Jose Padilla has a right to meet with an attorney, may go further. Unlike Hamdi, Padilla was not captured on a battlefield, and the 2nd Circuit tends to be less deferential to the government than the 4th.

Explaining how the government decides who is an "enemy combatant," the Justice Department's Fisher confessed, "There's no bright line." Let's hope the courts help draw one.