CHARLESTON, South Carolina (Reuters) - The case of Ali al-Marri, accused of being an al Qaeda “sleeper” agent and held for 5-1/2 years at a U.S. military prison in South Carolina, will be an early test for President-elect Barack Obama.
In his first month in office, Obama will have to tell the Supreme Court whether he will abandon his predecessor’s claim that anyone the president deems a national security threat can be imprisoned indefinitely without charges in the United States.
Marri is the only person still held in the United States as an “enemy combatant.” His case is a test of the limits of presidential power and could also affect any plan to bring some of the 250 prisoners being held at a U.S. military base in Guantanamo Bay, Cuba, to U.S. shores.
The Supreme Court set a February 20 deadline for the new administration to file legal briefs in the case, forcing the hand of Obama, who takes office on January 20.
“The administration has to decide whether they’re going to pursue the case, whether they’re going to repatriate him,” said Andrew Savage, one of Marri’s lawyers and one of the few civilians allowed to visit him in the 5 1/2 years he has been held at the U.S. Navy brig in Charleston, South Carolina.
Obama has strongly criticized some of Bush’s “war against terrorism” policies but he has not publicly taken a position in Marri’s case.
“This case is not about politics. And it’s not even just Ali,” Savage said. “It’s about the rule of law and if we are a country that follows the rule of law. People say to me, ‘You son of a bitch, you’re working for this terrorist.’ I say no, I’m working for you.”
Marri a 43-year-old citizen of Qatar, entered the United States legally on September 10, 2001, and was arrested in December 2001 in Peoria, Illinois, where he was attending college.
He was detained as a material witness to the September 11 attacks, charged with credit card fraud and lying to the FBI and held for 18 months before the U.S. government dropped the charges in 2003. President George W. Bush then declared Marri an “enemy combatant” and moved him to the Navy brig, where he has been held in near isolation without charges.
Marri is suspected of being an al Qaeda “sleeper” agent sent by Osama bin Laden and accused 9/11 mastermind Khalid Sheik Mohammed to disrupt the U.S. financial system by hacking into bank computers.
The accusation is contained in a 2004 sworn statement by Jeffrey N. Rapp, a senior Defense Intelligence Agency official, but is not attributed to any individual.
“It’s like hearsay of hearsay of hearsay,” Savage said.
He called the accusation “quadruple speculation” likely obtained through the torture of Mohammed, whom the CIA has admitted it subjected to the simulated drowning technique known as waterboarding.
A federal appeals court ruled last year that Congress gave Bush the power to imprison Marri when it authorized the use of military force after the September 11 attacks by al Qaeda.
But the Supreme Court agreed to hear a challenge from Marri, whose lawyers argued that neither that law nor the Constitution allows indefinite military detention of a person lawfully residing in the United States, without charges or trial.
Marri’s jailers have recently loosened the terms of his confinement, allowing guards to talk to him and permitting him to read redacted newspapers and family letters, Savage said.
But when he first saw his client in 2004, Marri was held without a blanket or mattress in a dark and heavily air-conditioned steel and concrete cell, Savage said.
“He was cold all the time, he didn’t have any contact with the outside world, the windows were blackened out so he didn’t know if it was day or night,” Savage said.
Marri was chained to the floor in a fetal position, shaking from the cold, said his lawyer, who believes Marri was also subjected to a process he called “dry-boarding” during interrogation, with duct tape wrapped around his face and nostrils to impair breathing.
A Pentagon spokeswoman, Cynthia O. Smith, did not answer questions about Marri’s treatment. In general, the Defense Department does not tolerate abuse and “has gone to extraordinary lengths to provide the safest and most humane environment possible for the detainees in our custody,” she said.
The Pentagon has admitted destroying some videotapes of Marri’s interrogations and has refused to let his lawyers see others reportedly showing rough treatment.
Savage went to Qatar in November to meet with government officials and members of Marri’s family, including his younger brother, Jarallah, who was held at Guantanamo for 6 1/2 years on suspicion of attending an al Qaeda training camp in Afghanistan. He was released last summer without charges and said he hopes his brother will get his day in court.
“If he’s a criminal, OK, just give him his rights. If he’s not a criminal, why are they keeping him in a little cell?” he said. “If Obama needs to clean what George Bush did, it’s going to take a long time to clean. It will take a long time. Big job.”
Reporting by Harriet McLeod; Editing by Jane Sutton and Eddie Evans