Al-Marri’s new challenge to detention
on May 14, 2008 at 9:59 pm
In a new phase of the continuing controversy over destruction of government recordings showing harsh interrogation tactics used on detainees, attorneys for a Qatari national argued in a federal appeals court filing Wednesday that new evidence shows he is being wrongly held. The new document was filed on behalf of the only terrorism suspect still held by the military inside the U.S. — Ali Saleh Kahlah Al-Marri.
President Bush designated Al-Marri as an “enemy combatant” almost five years ago, leading to his detention by the military at the U.S. Navy brig in Charleston, S.C.  The Fourth Circuit, in docket 06-7427, is considering Al-Marri’s challenge to presidential authority to order him detained; a hearing by the en banc Court was held Oct. 31, and a decision is pending.
Based on a government document filed in a federal court in South Carolina at the end of April in a separate case filed by Al-Marri, his attorneys contended Wednesday that his designation as an enemy was “illegal because it was for the illegitimate purpose of interrogation” — a violation of the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld.
A letter making that argument, and transmitting two documents to the Circuit Court, can be downloaded here. Enclosed with the letter were the Justice Department’s April 30 filing in District Court (found here) that, in part, describes destruction of records of Al-Marri’s interrogation, and a May 6 filing in District Court by Al-Marri’s counsel (found here) further challenging the conditions of his imprisonment and discussing the interrogation records destruction.
Citing the new government paper, the Al-Marri letter said the government’s admission that officials destroyed tape recordings of the interrogations in the Navy brig, along with :other notes and working papers” about the interrogations, “demonstrates that Al-Marri was designated an ‘enemy combatant’ ” for the purpose of questioning him after he had refused to give information earlier when he was being held on civilian criminal charges.
The letter added:Â “The [government] filing thus supports Al-Marri’s position that even if the President otherwise could designate as an ‘enemy combatant’ a lawful resident arrested in the United States who was not part of the armed forces of an enemy government, never directly participated in hostilities, and was never on or near a battlefield,…the President’s designation of Al-Marri — who had already been detained in civilian custofy for eighteen months — was still illegal because it was for the illegitimate purpose of interrogation.”
The letter noted that the Fourth Circuit panel decision (set aside when en banc review was granted) had concluded that the Supreme Court in Hamdi had ruled that “indefinite detention for the purpose of interrogation is not authorized.”
(Even though the en banc Circuit Court has the Al-Marri challenge under advisement, federal appeals court rules allow the filing a new legal authorities that may bear on the legal controversy. Presumably, the government will respond to the new claims of Al-Marri’s counsel.)
In the government filing cited in the letter, the Justice Department was opposing a plea by Al-Marri’s attorneys for a new order requiring the government to preserve tapes and records about interrogation and to conduct a formal inquiry into destruction of such materials.
The document, beginning on page 9, described the destruction between December 2004 and March 2005 of “a number of the recordings” of questioning sessions with Al-Marri that had occurred in June 2003 and sometime in 2004. Also destroyed, the document said, were “other notes and working papers associated with those sessions.”  The filing said that the government, however, still holds “originals or copies of recordings of nine interrogations sessions.” Those will be preserved, it said, under new orders from Pentagon and intelligence agency officials.
The paper went on to say that “certain other recordings related to” Al-Marri “have been lost,” because they were overwritten after being recorded on security cameras.
The District Court filing for Al-Marri provided to the Circuit Court Wednesday outlined in detail what it said were the “brutal” methods of interrogation used on Al-Marri in the brig. It said that only one of the nine interrogations tapes that the government said remain has been publicly described, and it shows Al-Marri “being ‘manhandled’ by his interrogators, according to government officials.”
