To the Teacher
After 9/11, the Bush administration's "war on terror" resulted in the indefinite detention of what it called "enemy combatants," at Guantanamo and elsewhere. Only a few of such detainees have been charged and tried. Many have been released to their countries of origin. Still others remain in detention.
The first student reading below tells the story of Al Saleh Kahlah al-Marri, who is the only "war on terror" prisoner now detained on American soil. The central question is, Does the Constitution permit his indefinite detention? The Bush administration's answer was yes. The Obama administration decided recently to charge and try him in an American court, but left open decisions about other detainees.
The second reading examines the diverse situations of the 241 people still detained at Guantanamo, of the original 775 or so. A number of controversial issues about what should be done with these detainees are now before Justice Department officials.
Discussion questions follow as well as a "constructive controversy" activity and a suggestion for writing.
Teachers may also find useful the following earlier materials in the high school section of TeachableMoment: "Restoring the Rule of Law," "The Supreme Court, Habeas Corpus & Guantanamo," "The Constitution, War Crimes & Guantanamo Justice," and "Presidential Power: Guantanamo's 'Enemy Combatants.'"
Student Reading 1:
Al-Marri: Detention without charge or trial
The arrest
Ali Saleh Kahlah al-Marri came to America with his family on September 10, 2001, from the tiny country of Qatar on the Persian Gulf. He had a student visa and apparently intended to study computer engineering at a university in Peoria, Illinois.
Two months later he was arrested for being an Al-Qaeda "sleeper agent" and providing aid to terrorist groups. Before al-Marri's scheduled trial in June 2003, President Bush ordered the military to imprison him indefinitely as an "enemy combatant" at the U.S. Navy brig in Charleston, South Carolina. Al-Marri became the only enemy combatant to be held in the United States and is still there in isolation five-and-a-half years later. He is denied visits from his family. For 16 months he was not allowed to meet with attorneys either. Al-Marri has consistently maintained that he is innocent of any terrorist involvement.
Al-Marri's treatment
David Kelley, a lawyer who supervised the early part of al-Marri's detention, thought the government's case was "solid." According to Jane Mayer, who interviewed Kelley, he "was told to push him hard, which he did, but al-Marri kept professing his innocence... For the first six months, al-Marri was kept in an eight-foot-by ten-foot cell with one blacked-out window, no social interaction, and nothing to do or to read...The Department of Defense ordered the removal of the mattress, pillow, and Koran... Al-Marri was also deprived of visits from the Red Cross, in violation of international laws. He was denied hot food, and consistently felt cold..."
A local lawyer for al-Marri in Charleston, Andrew Savage, said, "'It was a psychological effort to devalue him. He was going crazy. He thought the smells from the nearby paper mill were poisoning him...[he] started feeling 'tingles' all over, and began hallucinating that microphones had been installed in his cell. 'He was getting delusional.'"
Al-Marri was chained in a fetal position on the floor, according to Savage. When he started to chant prayers rather than listen to the interrogators' questions, Savage said, they tried to silence him by wrapping duct tape around his mouth. But as they started to tape a sock in his mouth he began to choke, causing the agents to panic and stop. The episode was documented by closed-circuit surveillance cameras, Pentagon officials have confirmed.
A spokesman for Lieutenant General Michael Maples, the director of the Defense Intelligence Agency, told the New York Times that Maples considered al-Marri's treatment "acceptable." But, the Times reported, "the Pentagon has refused to share the tape of the gagging...with Al-Marri's defense team...[and] could prove damaging should the case go to trial."
Al-Marri's condition improved after Savage filed suit. He is still in solitary, but is now allowed reading material, can make two phone calls a year to his family (but not have visits from them), and has access to an exercise room with a TV set. He cannot watch the evening news, but enjoys Stephen Colbert's and Jon Stewart's programs. ("The Hard Cases," The New Yorker, 2/23/09)
The constitutional issue
Does the Constitution permit the president to order the indefinite detention of an individual living legally in the United States?
The American Civil Liberties Union (ACLU) answered no and took the lead role in al-Marri's defense. Last year a Virginia appeals court ruled that al-Marri's detention was legal. But the Supreme Court agreed to hear the ACLU's challenge. It also ordered the Justice Department "to file a brief with the Supreme Court declaring whether it was continuing to hold to the Bush administration's position that the government had the authority to detain legal residents like Mr. Marri indefinitely, without charges." (New York Times, 2/28/09)
President Obama's Justice Department has now indicted al-Marri on charges of conspiracy and material support for terrorism that will be tried in a federal court. This decision enabled the new president to avoid, for the time being, taking a position on the Bush administration policy. The Supreme Court subsequently decided not to hear arguments on the Virginia appeals court ruling.
"While the government did not defend its power to detain Mr. Marri at present," wrote reporter Glenn Greenwald, "it left open the possibility that he or others might be subject to military detention as enemy combatants in the future." The Justice Department told the court that "Any future detention...would require new consideration under then-existing circumstances and procedure." Writes Greenwald: "This action means not only that Obama could imprison legal residents or even American citizens as 'enemy combatants,' but could even re-declare al-Marri himself to be an 'enemy combatant' if he's acquitted in his trial." (Glenn Greenwald, www.salon.com, 3/7/09)
In May, Marri confessed to having attended Al Qaeda training camps from 1998 to 2001 and offered his services to Khalid Sheikh Mohammed, who American officials regard as the architect of 9/11. "In eight minutes of tearful testimony on Thursday (10/29/09), Mr. Marri told the judge he was sorry that he had helped Al Qaeda, and no longer wished harm to the American people." He faced 15 years in prison, but was sentenced to something more than eight years by a judge who considered the time he had already served. ("Admitted Qaeda Agent Receives Prison Sentence, New York Times, 10/30/09)
For discussion
1. What questions do students have about the reading? How might they be answered?
2. Why was al-Marri detained and imprisoned?
3. Why, until recently, was he not charged with some crime?
4. How would you evaluate his treatment in prison?
5. As things stand now, does the Constitution permit the president to order the indefinite detention of an individual living legally in the United States? Why or why not?
6. What is the position of the Obama administration on al-Marri? About charging and trying other terrorist suspects?
Student Reading 2:
Other "enemy combatants"
Geneva Conventions
The Bush administration's treatment of prisoners during its "war on terror" raises a number of constitutional, human rights, and international treaty issues for the Obama administration.
The Geneva Convention and other international treaties to which the United States is a party have regulations for the humane treatment of prisoners, but say nothing about "enemy combatants," a term adopted by the Bush administration. Bush officials believed it was vital to distinguish between regular soldiers (who belong to a national army and are protected by treaties as well as U.S. law) from people who do not wear uniforms, are not members of a country's army, but who attack U.S. troops and civilians. These combatants, the Bush administration believed, should be viewed as potential terrorists, and therefore should be denied rights prisoners ordinarily have and can be detained indefinitely without charge or trial.
Al-Marri is an example. He was not a soldier of any nation, so when U.S. authorities detained him in 2001 and decided that he was a terrorist threat, they classified him as an "enemy combatant" and treated him accordingly—until Barack Obama became president.
Detainee Treatment
Example #1: Last June the Supreme Court ruled that Guantanamo prisoners held as "enemy combatants" have the constitutional right to habeas corpus. This is a right going back to 14th century England requiring that a prison inmate be brought to court so the court can determine whether the individual has been imprisoned lawfully or should be released. As a result of the Supreme Court's finding, 23 men who had been detained at Guantanamo were declared in court not to be enemies of the U.S.
But 20 are still imprisoned at Guantanamo. U.S. officials have not yet figured out where to send them. The Bush administration would not allow them to live in the United States despite the court ruling. If returned to their country of origin, they might be tortured. Other countries have refused to admit them. President Obama has not yet explained how he will deal with such situations.
Example #2: In February 2008, the Bush administration announced its intention to charge six Guantanamo inmates with murder because of their links to the 9/11 attacks. Among them is Khalid Sheikh Mohammed, who is usually referred to as the mastermind of 9/11. When President Bush left office these men had still not been charged or tried. Nor have any of the remaining 241 Guantanamo prisoners. Some 525 have been released since 2002.
For U.S. prosecutors, charging detainees with a crime and taking them to trial poses serious problems. They might have reliable information that the detainee is a threat but can't prove it—or can only prove it with classified information that cannot be revealed. Another problem is that they might want to present evidence in court that was obtained by methods that are unacceptable to American judges. For example, Khalid Sheikh Mohammed and Abu Zubaydah, another accused terrorist, are known to have been tortured in waterboarding sessions. The CIA videotaped some of these sessions but later destroyed them. A criminal investigation of this action began last spring.
Because of such problems, Jack Goldsmith, a former Justice Department official in the Bush administration, thinks the U.S. should adopt a preventive detention law to "legitimate holding people for a long term." Others, like Elisa Massimino, executive director of Human Rights First, oppose such a measure because it "would perpetuate the problem of Guantanamo and put us right back in the same dead end we are in now." (William Glaberson, "Post-Guantanamo: A New Detention Law?" New York Times, 11/15/08)
Example #3: President Bush made repeated statements opposing torture: "Torture is never acceptable." (1/27/05) "We don't believe in torture." (3/16/05) Two years ago he announced that "a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency." At these places, the president said, "the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful."
According to a report of the International Committee of the American Red Cross (ICRC), detainees they interviewed told of interrogation practices that included: simultaneous forced exposure to "very cold" temperatures and "very loud repetitious music" for 24 hours; placement for one to two hours in a small, air-restricted box that required a "crouch" position; forced nakedness in a pitch black cell for two weeks in "a standing position, feet flat on the floor, but with arms above the head" and "fixed with handcuffs and a chain to a metal bar"; and being collared around the neck and "slammed" repeatedly against the walls of an interrogation room. The ICRC conclusion is that such treatment "constituted torture." (Mark Danner's New York Times report, "Tales from Torture's Dark World," quotes from an ICRC document based on confidential ICRC detainee interviews at Guantanamo that were not intended for the public but were obtained by the author. New York Times, 3/15/09)
Among other tortures in the Bush administration's "alternative set of procedures" were waterboarding, sexual humiliation, sleep deprivation, exposure to temperature extremes, and physical mistreatment that led to the deaths of more than 100 prisoners in U.S. custody. These procedures were attested to by not only the ICRC, but the U.S. military and human rights groups.
Two days after taking office, President Obama said, "We believe we can abide by a rule that says, We don't torture, but we can effectively obtain the intelligence we need." His intelligence director, Dennis Blair, told the Senate Intelligence Committee "that techniques beyond the 19 currently approved for military interrogators could be authorized...and that some interrogation procedures would need to remain secret so potential adversaries could not train to resist them." ("Obama Reverses Key Bush Policy, but Questions on Detainees Remain," New York Times, 1/23/09)
At the same time, the new president also ordered the closing of the CIA's network of secret foreign prisons and, within one year, the Guantanamo detention camp. During this time officials will have to resolve complex questions about prosecuting, continuing to detain, and releasing prisoners. The president did not discuss the fate of hundreds of other detainees held in prisons at Bagram Air Base in Afghanistan.
But he did announce that his administration will not use the term "enemy combatant." Lawyers in his administration wrote, "The president has authority to detain persons" who had anything to do with 9/11 or "who were part of, or substantially supported, Taliban or Al Qaeda forces."
For discussion
1. What questions do students have about the reading? How might they be answered?
2. What is the difference between a prisoner of war and an enemy combatant? Why did the Bush administration invent the latter and regard doing so as very important?
3. What difference would it have made to Al-Marri if he had been classified as a prisoner of war?
4. What is habeas corpus? Why is this right guaranteed in the Constitution and regarded as a vital human right?
5. Why did the Bush administration decide to detain terrorist suspects indefinitely instead of taking them to court if they had committed crimes?
6. What problems does the Obama administration face in its decision-making about Guantanamo and other suspected terrorists at Bagram or elsewhere? Why are these problems difficult to solve?
7. What is the position of President Obama on torture? On "enemy combatants"? In each case, how different will his policies be from President Bush's? What makes you think so?
Constructive controversy
What should the United States government do with suspected terrorist detainees? Charge them with a crime and try them in court? Yes, would be the answer of the ACLU and Human Rights Watch. Detain them indefinitely? Yes, would be the answer of Jack Goldsmith and others who support a preventive detention law.
One way of organizing a class for the study of a controversial issue is to involve students in a constructive controversy, which emphasizes information-gathering, small group work, group consensus, and the preparation of arguments from multiple points of view. For details, see "Engaging Your Class Through Groupwork."
For writing and citizenship
After completing the constructive controversy, assign a well-developed paper in which students discuss how they think suspected terrorist detainees should be dealt with and why they have reached those conclusions.
Following student and teacher discussion of the resulting papers and any revisions, invite students to send their papers to President Obama, their two senators, and perhaps to Justice Department officials.
This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org