WASHINGTON -- With the recent transfer of terror suspect Jose Padilla to a Miami prison to await trial, the sole remaining "enemy combatant" in the United States, Ali Saleh Kahlab al-Marri, still sits in the Charleston Naval Brig, awaiting the outcome of a slow legal battle over how to dispense justice when a terrorism suspect is a legal alien.
In the eyes of the government, al-Marri is an al-Qaida sleeper agent sent to the U.S. heartland to help the terrorist network's operatives get settled here for follow-up attacks after Sept. 11, 2001.
His lawyers say al-Marri, 40, is an innocent civilian who legally came to the U.S. with his family to earn a master's degree in engineering at Bradley University in Peoria, Ill.
Arrested in West Peoria in December 2001, al-Marri, a Qatari national, was declared an enemy combatant by President Bush on June 23, 2003, and has been held in solitary confinement at the South Carolina Navy brig since. Al-Marri was effectively out of reach of the U.S. legal system until the Supreme Court declared in June 2004 that enemy combatants have some legal rights.
"Enemy combatant" is the name the Bush administration has used to label some terrorism suspects. These "combatants" lack rights traditionally assigned to criminal defendants and prisoners of war. The three enemy combatants initially held in the U.S. - the rest are imprisoned at Guantanamo Bay, Cuba - have been in a strange legal limbo, in part because of their differing circumstances.
Al-Marri and Padilla were arrested on U.S. soil, but unlike al-Marri, Padilla is a citizen. A third combatant, Yaser Hamdi, was a U.S. citizen picked up on a battlefield in Afghanistan.
Al-Marri's predicament, and the glacial pace of its resolution, is a cautionary tale for millions of noncitizen legal U.S. residents, according to Jonathan Hafetz, one of his attorneys.
"The government can say, 'We think you're a bad guy. We're just going to hold you because we think you are,'" said Hafetz, of the Liberty and National Security Project at the Brennan Center for Justice in New York.
A federal court in South Carolina ruled in July that as a noncitizen, al-Marri could not simply demand that the government charge him with a crime or release him. The ruling noted that the decision "does not close the door to this court to [al-Marri]," but it did not spell out what al-Marri needed to do to challenge his enemy combatant status.
In December, the court said al-Marri was entitled to "receive notice of the factual basis for his classification [as an enemy combatant], and a fair opportunity to rebut the government's factual assertions by presenting more persuasive evidence before a neutral decisionmaker."
But his lawyers say that standard, borrowed from the Supreme Court's June 2004 decision, stacks the deck against al-Marri because some of the evidence against him is secret and unavailable.
And the public portion of the government's evidence consists of a sworn statement from a federal agent who did not have firsthand knowledge of the assertions about al-Marri's alleged ties to al-Qaida, Hafetz said. The allegations include phone calls he made and material on his laptop.
A Justice Department spokesman declined to comment on al-Marri's case. But as in all enemy combatant cases, government lawyers in court papers call for giving the president a free hand in dealing with detainees. Their arguments in the al-Marri case lean heavily on the Supreme Court's June 2004 decision regarding Hamdi.
The justices ruled that Hamdi was entitled to a hearing to contest his enemy combatant status but that national security considerations justified compromises, including possibly the use of secondhand information not normally admissible in court.
The government argues that, as a noncitizen U.S. resident, al-Marri cannot demand more rights or protections than those contemplated for a citizen such as Hamdi.
But Hafetz said the Supreme Court's hearing framework seeks to avoid interference with military operations, a concern specific to the case of Hamdi, who was picked up on the Afghan battlefield. He said it should not apply to al-Marri, who was arrested in the U.S., where obstructing the military is not an issue.
The hearing envisioned for Hamdi never occurred. He was released and allowed to go home to Saudi Arabia in October 2004 after forfeiting his U.S. citizenship.
Padilla, likewise, has not faced a hearing on his enemy combatant status. The one-time Chicago gang member was arrested at O'Hare International Airport in May 2002. Bush later declared Padilla an enemy combatant.
In January, Padilla was transferred from military control to the custody of the Justice Department in Miami to face terrorism charges unrelated to the allegations used to detain him as an enemy combatant.
According to his lawyers, al-Marri has not been interrogated in more than a year. Since being moved to the brig, he has not been allowed visits with his wife and five children, who live in Saudi Arabia.
Accusations against Ali al-Marri include that he made a series of telephone calls in late 2001 to a phone number in the United Arab Emirates used by suicide hijacker Mohammad Atta and others involved in the Sept. 11 attacks. The government says the phone number belonged to Mustafa Ahmed al-Hawsawi, an alleged al-Qaida paymaster.
Andrew Zajac writes for the Chicago Tribune.