Breaking News

Lingering issues for Al-Marri

Update 9 a.m.: Al-Marri’s plea agreement can be downloaded here.

Nearly two months after the Supreme Court took off of its docket a major case on presidential detention power, the individual involved — Ali Saleh Kahlah Al-Marri, a Qatari and Saudi national — has pleaded guilty to criminal charges in a regular federal court.  But the plea bargain disclosed on Thursday leaves unsettled a number of issues, and those raise the prospect that the case at some point may return to the Court.

In particular, Al-Marri’s lawyers indicated in the plea agreement that they will attempt to get credit for him against his prison term — up to 15 years — for the more than seven years he has been in federal civilian or military custody.  They apparently also will press for even less prison time, with the argument that he was abused and kept in inhumane conditions for much of the time he was being held in a Navy brig in South Carolina as an “enemy combatant.”

The Supreme Court had agreed last December to hear Al-Marri’s challenge to his detention (Al-Marri v. Spagone, 08-368), and was scheduled to hold oral argument on it this week.  However, the Obama Administration decided to move Al-Marri out of military custody, and obained criminal charges against him.  At the Administration’s request, the Court on March 6 ended the case (see this post, including a link to the Court’s order), and allowed Al-Marri’s transfer to civilian custody for trial on two criminal charges.  The Court formally closed tje detention case on April 9, sending the documents back to the Fourth Circuit Court; the Circuit Court’s decision against Al-Marri had been vacated by the Justices.

On Thursday, in U.S. District Court in Peoria, Ill. — the city where Al-Marri had been living and where he was first taken into federal custody in late 2001 — the former detainee pleaded guilty to one of the two counts against him: conspiracy to provide “material support” to the Al-Qaeda terrorist network.  (A Justice Department news release on the plea is here, and a statement by Attorney General Eric H. Holder, Jr., is here.)

U.S. District Judge Michael M. Mihm has set sentencing for July 30.  The Justice Department said Al-Marri “faces up to 15 years imprisonment, a $250,000 fine, a life term of supervised release, and a $100 mandatory special assessment.”  The Justice Department signaled in the plea agreement that it “reserves the right to oppose” any claim that Al-Marri should get less than a 15-year prison term.  And that is where future controversy may center.

While Al-Marri agreed not to challenge his guilty plea and the resulting conviction, and agreed not to pursue any habeas challenge, he explicitly did not give up the right to seek credit for being in custody since his initial arrest on Dec. 12, 2001. He agreed not to seek to withdraw his guilty plea because of the sentence he is given, but that would still leave the sentence open to challenge if not reduced, either for time already in custody or because of the conditions of his confinement.

The two sides did agree on a number of sentencing factors under the federal Sentencing Guidelines, but it is up to Judge Mihm to actually set the sentence.  The prosecutors and Al-Marri’s lawyers agreed that the judge should consider as a favorable factor for Al-Marri that he moved fairly quickly to decide to plead guilty, thus sparing the prosecution the effort of preparing for trial.  That agreement, though, is also not binding on the judge.

Among other provisions in the plea deal, Al-Marri agreed not to oppose potential deportation either to Qatar or to Saudi Arabia, but he  said he understood that he would not be deported until he has served any prison term imposed on him.

In return for Al-Marri’s guilty plea, and his admission of an extended series of actions of planning to carry out terrorist activities, the government dropped the second charge against him, accusing him of providing material support to terrorism.  That was the second count in the indictment; the first, to which he admitted guilt, was conspiracy to commit the same crime.

The plea agreement showed Al-Marri agreeing to much wider involvement in terrorist planning, and actual steps to carry out terrorist acts, than had previously been made public by the government.  President George B. Bush had designated him as an “enemy combatant” based on far less than government investigators ultimately developed in what the Justice Department said was a global probe.