In the coming days, Ali al-Marri, former enemy combatant, is scheduled to be released from federal criminal custody, clearing the way for his removal by immigration officials to Qatar, and thus ending a legal odyssey that began more than 13 years ago with Mr. al-Marri’s arrest by the FBI in Peoria, Illinois. [Disclosure: I served as al-Marri’s lead counsel in his habeas corpus challenge to his military detention]. Al-Marri’s case raised issues central to the war on terrorism, including the distinction between combatants and civilians, the legitimacy of responding to terrorism through a military, as opposed to law enforcement, approach, and the geographic scope of the armed conflict itself.   Above all, al-Marri’s legal challenge raised the important question—never definitively resolved—whether the president’s detention authority under the 2001 Authorization for Use of Military Force (AUMF) extended to individuals lawfully present in the United States. Below, I offer some lessons to be drawn from his case and suggest why it provides a cautionary tale against domestic military detention.

(Update: news outlets are reporting that al-Marri was returned on Jan. 17 to Qatar, where is now with his family.)

Beware the Revolving Door

Al-Marri’s case highlights how a system of domestic military detention is prone to legal manipulation. Al-Marri entered the United States on September 10, 2001, on a student visa. That December, he was arrested as a material witness in the 9/11 investigation. Two months later, the federal government charged him criminally. While the charges mainly centered on financial fraud, terrorism-related allegations lurked beneath the surface. In June 2003, on the eve of a Fourth Amendment suppression hearing and a month before his trial, President Bush declared al-Marri an enemy combatant and transferred him to Defense Department custody at the Navy brig in Charleston, South Carolina. Al-Marri became the third—and final—enemy combatant detained in the U.S. (Yaser Hamdi and Jose Padilla were the others). Al-Marri and Padilla would be the only two individuals detained as enemy combatants who were arrested in the United States (Hamdi was seized in Afghanistan and brought to the U.S. from Guantanamo in April 2002 after the government realized he was an American citizen).

Al-Marri’s habeas challenge to his military detention gradually worked its way through the courts. In July 2008, the full U.S. Court of Appeals for the Fourth Circuit issued a sharply divided opinion ruling that the president could detain al-Marri militarily under the AUMF as an alleged member of al Qaeda, but that the process afforded him by the lower court was constitutionally deficient. That December, the Supreme Court granted al-Marri’s petition for certiorari, teeing up the question that the Court had previously avoided in the Padilla litigation: whether president’s detention authority under the AUMF extended to individuals arrested in the United States. The Obama administration, however, returned al-Marri to the criminal justice system, charging him with material support for terrorism (MST) and mooting his habeas challenge. Al-Marri pleaded guilty to one-count of MST (the government, in exchange, agreed to drop the second MST count). The district judge sentenced al-Marri to eight years imprisonment, taking into account the more than five years that al-Marri had spent in military custody as well as the harsh conditions he endured there.

Al-Marri thus went from material witness to criminal defendant to enemy combatant and back to criminal defendant again. His case illustrates the revolving door nature of many post-9/11 detentions, in which the government shifted prisoners between detention sites and legal frameworks like pieces in a shell game to avoid judicial scrutiny (For another example, see the discussion in the Senate Committee torture report of the Bush administration’s transfer of several prisoners from a CIA facility at Guantanamo to avoid the possibility of habeas jurisdiction, which Steve Vladeck previously analyzed here). 

Torture and Detention

Although al-Marri is typically described as a detention case, it was really a case about torture. The Bush administration argued that the 2001 AUMF—enacted days after 9/11—should be interpreted to allow the military detention of an alleged al Qaeda “sleeper agent” (as it claimed al-Marri was) to prevent another terrorist attack on U.S. soil. But it could never justify why it was invoking that authority against an individual like al-Marri who was already in federal custody and facing criminal trial. The best test case for preventive detention would have been an individual whom the government believed was dangerous but could not charge with a crime for lack of admissible evidence, not an individual whom it had already charged and was preparing to convict. (Al-Marri, in fact, stood to face decades of imprisonment if convicted on the originally charged offenses, as described in this amicus brief by former federal prosecutors on behalf of the New York City Bar Association). Time and experience suggest that this purported category—the dangerous but otherwise undetainable except via military means—is a null set.

The Bush administration’s effort to apply the logic of wartime detention to al-Marri—characterizing his case as a kind of POW confinement for the modern era—belied its real motive. President Bush designated al-Marri an enemy combatant to engage in the type of coercive interrogation techniques that by June 2003 permeated U.S. counterterrorism operations and could not have been employed within the criminal justice system, with its guarantees of counsel and court access. Al-Marri’s physical location at a Defense Department facility in the United States may have persuaded the government to refrain from using its most controversial tactics, such as waterboarding. But interrogators nevertheless subjected al-Marri to “soft” torture, including sleep deprivation, stress positions, and extreme sensory deprivation, all designed to produce a sense of total dependency and helplessness. Al-Marri’s isolation at the Navy brig ranks among the most extraordinary in the U.S. history: sixteen consecutive months without any contact with the outside world, whether family members, attorneys, or ICRC representatives, and without any contact with other prisoners.

Geography and circumstance combined to make al-Marri’s case exceptional: he was living in the United States and facing criminal prosecution when he was designated an enemy combatant. But his case resembles others from this period in showing how the desire to use harsh interrogation methods drove the militarization of detention policy. Al-Marri was subjected to law-of war detention not because of shortcomings in the traditional criminal law approach, but rather because that approach did not countenance the kind of off-the-grid coercion embraced by the United States after 9/11.

Both Human Rights and Security Favor Criminal Prosecution

Prosecutions have long been the preferred method for addressing serious criminality, including terrorism. The criminal justice system contains numerous protections developed over centuries that are designed not only to safeguard individuals against wrongful imprisonment, but also to prevent their torture and abuse in custody. Al-Marri’s case shows how enemy combatant designations opened the door to such abuse. (The Senate Committee report reinforces the same point: had the U.S. prosecuted Khalid Sheikh Mohammed and other high-value detainees seized after 9/11, torture—or at least anything on the scale described in the Senate Committee report—would have been inconceivable).

But in addition to procedural safeguards and fair trial protections, criminal prosecutions afford defendants finality. As I have described in more detail in this article, the absence of a fixed sentence following criminal conviction remains a glaring flaw of law-of-war detention at Guantanamo, particularly for those individuals whom the United States has not cleared for release and has no intention of prosecuting. For most defendants, the certainty of a sentence—even a lengthy one—is far preferable to the vagaries of continued indefinite detention in a never-ending war.

These same attributes serve the security interests of states. The established rules and protections of federal courts diminish controversy, promote legitimacy, and deliver results within a reasonable time frame (A comparison between the successful prosecution of dozens of terrorism suspects by federal courts and the continued delays that have plagued the military trial of 9/11 defendants and others at Guantanamo powerfully illustrates this point). States, no less than defendants, benefit from finality. A criminal conviction does more than prevent controversy. Once convicted, a defendant is largely forgotten, while victims gain some sense of closure. Militarized detention, by contrast, not only invites controversy, but also can shift the focus from the defendant’s crimes onto the state’s conduct. And making terrorism suspects into victims does not advance any country’s security interests. For years, al-Marri’s military detention generated a barrage of media attention and sparked criticism of the U.S. government; once convicted, he virtually vanished from the public eye.

Domestic Military Detention: A Failed Experiment

While al-Marri’s case did not yield a definitive ruling on the scope of the president’s war powers, it did reinforce the dangers of domestic military detention and helped chill its future use. The Bush administration, to be sure, continued to defend al-Marri’s case until the end, unwilling to acknowledge that declaring him an enemy combatant was both illegal and a mistake. But, notably, President Bush did not designate any other individuals arrested in the United States enemy combatants after al-Marri; instead, after June 2003, his administration exclusively prosecuted all newly arrested domestic terrorism suspects in federal court. The Obama administration confirmed that the controversial practice of domestic military detention was off the table, explaining that it violated longstanding tradition. “Our military does not patrol our streets or enforce our laws, nor should it,” current CIA director John Brennan stated in 2011. The Obama administration, moreover, has thus far avoided the long-term military detention of terrorism suspects seized overseas by bringing them to the United States for criminal prosecution, albeit in a handful of cases after a relatively brief period of law-of-war detention on U.S. naval ships.

The allure of military-style solutions, to be sure, continues to attract the ideologically driven and politically opportunistic, who equate criminal prosecution with weakness and insecurity. Each new terrorism attack or foiled attempt—from the Boston marathon to Times Square—sparks calls by right-wing politicians and pundits for renewing a military approach. The French Prime Minister recently invoked similar sentiments in response to the attacks in Paris, declaring that France was “at war” with radical Islam.

The U.S. and other western governments will continue to employ military force in connection with select counterterrorism operations, whether to apprehend suspects in some instances or use deadly force against them in others. As Wells Bennett notes, “Our police and the FBI both have cadres of paramilitary personnel, whose deployment to hostage situations doesn’t typically imply martial law or the full unleashing of the dogs of war.”

But the resurgence of open-ended military detention in the United States is unlikely. 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.