How the Feds Bungled the Ali Saleh al-Marri Case

President Obama cannot undo the mess his predecessor created by his fixation on torture.


Ali Saleh al-Marri is a convicted conspirator who entered the United States before 9/11 in order to create a dreaded sleeper cell here that might someday launch an attack on Americans similar to what we witnessed earlier this month in Paris. When the feds woke from their slumber on 9/11, they wisely began to search immigration records for persons who came here with no discernible purpose from places known to spawn terrorist groups and who had overstayed their visas. Al-Marri was one such person.

The feds arrested him, originally on the visa violation, and then, after connecting the dots, on a series of conspiracies to aid terrorist organizations here and elsewhere.

After he was arrested by the FBI in Peoria, Illinois, and while he was being held in federal custody, he was kidnapped by U.S. military officials who arrived at the lock-up purporting to possess the lawful authority to seize him, authorized by President George W. Bush himself.

Bush had signed an order declaring al-Marri an enemy combatant and directing the military to seize him from the custody of federal prosecutors and bring him to a Navy brig. In several of the numerous cases it lost, the Bush administration argued to federal courts that once it declared a person an enemy combatant, the person was stripped of all rights.

There was and is no such category in American law as enemy combatant. The Bush administration made it up from historical terminology. But the post-9/11 era was a fearful time, and most folks accepted Bush's unconstitutional stripping of rights from detained persons as a route to safety. Al-Marri would soon be stripped of more than his rights, and that would lead to less safety for the rest of us.

Al-Marri is in the news this week because he was recently released from a federal prison and returned to his native Qatar. He was involved in a prisoner swap for an innocent American couple wrongfully imprisoned there. The release of al-Marri has the neocons accusing President Obama of "letting free a known terrorist."

In our system, the president wears many hats. One is the chief federal law enforcement officer and another is the chief diplomat. In the former, he is subject to the laws Congress has written; in the latter, he is subject only to the Constitution. In the execution of foreign policy, he cannot commit a crime, of course, but if he did, he probably would not be prosecuted.

He recently secured the release of U.S. Army Sgt. Bowe Bergdahl by swapping him for five known al-Qaida leaders who had been held for 11 years without charges at the prison camp at Gitmo. Obama arguably provided aid to a terrorist organization by sending al-Qaida leaders back to their organization—a felony for which his Department of Justice has successfully prosecuted Americans whose behavior was far more benign than his own.

Yet, the courts have been loath to interfere with any president's execution of foreign policy, no matter its apparent lawlessness. The courts permitted Abraham Lincoln to use troops to rob American banks, rape American women, and burn state and federal courthouses; they permitted Woodrow Wilson to prosecute those who sang German beer hall songs in public during World War I; and they permitted FDR to execute unsuccessful German saboteurs in the U.S. without any meaningful trial.

Because al-Marri was tortured by the U.S. Navy for two years, he pleaded guilty to one low-level crime, instead of to the true conspiracies with which he was involved—and he received a reduction in his sentence commensurate with the number of days he endured the torture. The feds agreed to this because they were fearful of revealing what the Navy had done to him. He had served 87 percent of his federal sentence by the time of his release last month. The standard period of sentence service in the federal system before release is 85 percent.

The feds shot themselves in the foot on this al-Marri case. They had much evidence against him. They needn't have kept him naked, blindfolded, shackled and wearing earplugs for months. He should have been prosecuted aggressively and humanely in a federal court in Chicago or New York City, where the feds have yet to lose terror prosecutions and the trials are basically fair. Instead, after he was arrested by the FBI, kidnapped by the military and brought to a Navy brig in South Carolina, he endured a systematic, fruitless, detrimental-to-justice, rarely-heard-of-in-modern-American-history authorized prisoner abuse.

The troops who tortured al-Marri are lucky; they could have and should have been court-martialed. The authorities who ordered it should have been prosecuted. If this had been the other way round—if the FBI had kidnapped him from military custody and tortured him (this is unthinkable today)—the FBI agents would have been fired and prosecuted.

Under federal law, all convicted federal prisoners are in the custody of the president. He can pardon, release, trade, or commute a sentence for any prisoner as he sees fit. But he cannot undo the demonstrable legal mess a predecessor created by his fixation on torture.

NEXT: School Made 11-Year-Old Girls Pull Down Their Pants for Disgusting Inspection

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  1. The Judge: “Calling all Bush apologists.”

      1. I thought the last sentence would provoke some reaction: “But [President Obama] cannot undo the demonstrable legal mess a predecessor created by his fixation on torture.”

        As far as who the apologists might be, UnCivil, time will tell.

      2. I can think of some Canadians who want to send Americans into war.

        1. Not this one.

  2. Good Job Judge – an article with no rhetorical questions! I knew you had it in you.

    1. What if the Judge were able to keep a New Year’s resolution?

  3. Yet, the courts have been loath to interfere with any president’s execution of foreign policy, no matter its apparent lawlessness.

    How many divisions does the Supreme Court have? And if they tried to arrest the current president, you’d never hear the end of the cries of “RACISM!”

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  5. OK, here is where I get labeled a “Bush apologist”, I guess.

    IF we are at war with the various terrorist organizations (and it is clear to me that they believe they are at war with us) then this swine IS an “Enemy Combatant” and should be treated as such. Where I blame Bush is that we should have held a very basic MILITARY trial (as, I believe, prescribed by long established international law on dealing with spies during wartime) to prove his status, squeezed him dry, and shot him. That is what one does to spies during wartime, and as an enemy combatant in our country and not in uniform, a spy is what he was.

    The idea that he is, or ever was, entitled to a civilian trial is a fantasy of the Left. I suspect this is because so much of the Left spent so much of the 1980’s & ’90s playing “Radical Chic” footsie with various terrorist groups, and if they admit that that body of international law applies they would have to face that THEY could be tried as traitors. Since if they were in Bush’s place, that scared the piss out of them.

    Bush, whatever his other faults, seems to have felt he had more important things to be doing than prosecuting a bunch of Leftwing nitwits for the kind of stupidity that disgraced Lindbergh.

    Why Libertarians buy into the “Oh, we mustn’t treat enemy combatants like enemy combatants” nonsense is beyond me.

    1. OK, lazy me;

      “Since if they were in Bush’s place, that scared the piss out of them.”

      should have been “Since if they were in Bush’s place that is about what THEY would have done, that scared the piss out of them.”

    2. When did Congress and the President declare war? That is right, they never did!

      1. Yeah they never did,and ,anyone arrested on U.S. soil is considered to have the same rights as anyone one arrested for any other crime.It’s say’s all persons,not citizens.

      2. Yeah they never did,and ,anyone arrested on U.S. soil is considered to have the same rights as anyone one arrested for any other crime.It’s say’s all persons,not citizens.

      3. Congress does not need to declare war if war has been declared on us. That’s basic. It’s where we are poling our noses into other peoples’s wars that that becomes an issue.

        1. That said;


          Saying that that is NOT a declaration of war is chopping semantics, amd chopping themmrather fine too.

        2. So if some random guy declares war on the United States and goes out and kills people, he should be treated the same as a uniformed soldier of a national army? Terrorism is first and foremost a crime. Granting it a special status opens the door to the government eroding our rights by labeling someone a terrorist, who is thus entitled to fewer legal rights. I can understand, and would agree with the argument if he was a militant captured in Iraq or Afghanistan, not someone arrested in the USA.

          1. No. He should be treated the same as a soldier caught out of uniform behind his enemy’s lines. As a spy.

            He isn’t a U.S. citizen. He was in violation of his visa, meaning he isn’t a guest.

            IF Bush had, for whatever reason, decided to treat him as a civilian, I wouldn’t have a problem with the decision. But it wasn’t the only option legally available. Where somebody screwed up is by NEITHER treating him as an out-of-uniform enemy (brief military trial, summary execution) NOR treating him as a civilian.

            Pick ONE.

    3. You cannot be at war with a concept. How do you win, when the concept surrenders?

      1. In this case, anyone arrested for marijuana should be devoid of all rights, because Nixon.

      2. No, but you can make it consistently too expensive for people to pursue that concept at your expense.

  6. I am sure the guy learned his lesson. He will go home now and be a good boy.

  7. It seems that the military seized al Marri because they wanted information, not because they wanted to try him as an enemy combatant in military court. I’m not sure what I think of that.

    In the heat of the situation after 9/11, it maybe makes sense. But in final analysis, I agree that he should have been prosecuted as a spy, but by the FBI and not the military.

    Shouldn’t congress be working on laws that will clarify things for the next time?

    1. Shouldn’t congress be working on laws that will clarify things for the next time?


      1. Yeah, dumb question.

    2. The thing is, there ARE laws clarifying this. A lot of people consider them harsh and inhumane, but they exist and they are clear. Where Bush screwed up is by not sticking to them.

      We have a person who considers himself to be at war with us. He was inside our borders, not in uniform, and otherwise conducting himself as a spy. We would have been within our rights under international laws to which we are signatory to squeeze him like an orange, shoot him, and hold a trial afterwards as a formality.

      Instead, we allowed the pants-wetters to guilt us into doing something less harsh, but which is not provided for in law. The anti-war faction (or, lets face it, anti-Bush) wanted us to comply with their vague understanding of a bunch of international law that we have NOT signed, and which has noir really been tested for practicality (to the extent that it hams it has failed).

      So, I’m not happy with what Bush did, but what I wish he had done is a good deal harsher than most anti-Bush people want.

      We are at war. We have been at war, not since 9/11, but since the late 1960’s at least. We have spent entirely too much time on diplomatic games and playing nice-nice. The results do not in any way justify the costs. It is time we reminded the Islamic world why annoying us is a catastrophically bad idea.

      The Iraq war was a start.

      1. The whole purpose of the way our justice system operates is (supposed to be at least) to fairly determine guilt beyond a reasonable doubt. If you’re giving the government the power to declare someone devoid of all rights because of presumed guilt of a crime, then legal protections of our rights are worthless.

        1. How is jailing someone, without bail, not “giving the government the power to declare someone devoid of all rights because of presumed guilt of a crime”, or at least the most basic of rights, the right to walk free?
          It is done all the time and would be demanded if a murderer, or someone who promised to kill as many Americans as he could, did so after having been identified as such.

  8. The military stealing ,that’s that it is,a suspect from civilian law enforcement is a scary,and illegal use of force.

  9. I didn’t know Yanni had resorted to terrorism.

    1. I had the same thought.

      Are we, um, “profiling”?

  10. “He should have been prosecuted aggressively and humanely in a federal court…”

    No, he should’ve been shot. Or hung. Either would be historically justified.

    1. Why? What did he do?

    2. Yeah, let’s give the government the power to execute people without trial! What could possibly go wrong?

  11. Unfortunately Judge Napolitano, who is generally good on the Constitution, also ascribes to a view of it as a suicide pact.
    There are enough “outs” in the document to allow a president to bend it in the interest of our survival.
    If only the one we have now wanted that.

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