Thoughts on the Al-Marri Release

In October 2009, Ali Saleh Al-Marri was sentenced to more than eight years in prison under a plea deal the Al Qaeda sleeper agent had struck with federal prosecutors. Quietly, on January 16, Al-Marri was released---having served just over five years of his time. Reports the Washington Post:

Ali Saleh Mohammad Kahlah al-Marri, 49, was released from a maximum security prison in Florence, Colo., on Friday, officials at U.S. Immigration and Customs Enforcement (ICE) said. Hours later, he boarded a commercial flight at Denver International Airport, escorted by ICE officers, and began his journey back to the Qatari capital, Doha. Marri’s release and deportation, carried out without fanfare, is a milestone for the Obama administration as it seeks to unwind the web of military detentions and legal cases that resulted from the Sept. 11, 2001, attacks on the United States.

You remember Al-Marri. He's the Al Qaeda guy who was first held as a material witness, then prosecuted in federal court, then whisked to military detention for several years and then---at the start of the Obama administration---brought back to federal court, where he pled guilty to conspiracy to aid Al Qaeda. He's bad and scary guy who came here on the eve of the September 11 attacks, having volunteered his services to Khalid Sheikh Mohammed. And now he's free. In lots of cases with civil liberties implications, there's a tendency to confuse the principle with the person. Jane Mayer, for example, once wrote of one of Al-Marri's lawyers:

Although he had been skeptical about Marri, he has become convinced that he poses no danger. “I don’t fear him, not personally and not for the United States,” [Andrew] Savage said. “Is he putting me on? Scamming me? Putting it over on me? I really don’t think so. I’m not naïve. I’ve defended multi-murderers, child murderers, child molesters, and all sorts of violent criminals. But I really don’t think Ali’s a terrorist.”

You can judge for yourself whether Savage, and maybe Mayer herself, were a bit naive. Here's a brief excerpt from Al-Marri's plea deal, which will give you a sense of the man:

the defendant met Khalid Sheikh Mohammed and other members and associates of al Qaeda. The defendant offered his services to al Qaeda. In 2001, the defendant was approached by Khalid Sheikh Mohammed, who was then the external operations chief for al-Qaeda, about assisting al Qaeda operations in the United States. The defendant agreed to do so and knew at the time that he entered into the agreement with Khalid Sheikh Mohammed to assist al Qaeda operations in the United States that he was providing himselfto al Qaeda to further al Qaeda's terrorist objectives. The defendant was instructed by Khalid Sheikh Mohammed to enter the United States no later than September 10, 2001, with an understanding that he was to remain in the United States for an undetermined length of time. . . . The defendant researched online information related to various cyanide compounds. The defendant's focus was on various cyanide substances, including hydrogen cyanide, potassium cyanide, and sodium cyanide. The defendant reviewed toxicity levels, the locations where these items could be purchased, and specific pricing of the compounds. The defendant also studied various commercial uses for cyanide compounds. The defendant also explored obtaining sulfuric acid. The defendant agrees that the government would prove at trial that sulfuric acid is a well known binary agent which is used in a hydrogen cyanide binary device to create cyanide gas, and that this is the method taught by al Qaeda for manufacturing cyanide gas. The defendant further agrees that the government would prove at trial that his research into various cyanide compounds is consistent with the type of research conducted by persons trained in camps teaching advanced poisons courses to terrorist organizations, including al Qaeda. The defendant also agrees that the government would prove at trial that an almanac recovered in the defendant's residence was bookmarked at pages showing dams, waterways and tunnels in the United States, which is also consistent with al Qaeda attack planning regarding the use of cyanide gases.

It is a mark of the sort of guy Al-Marri is, in fact, that before he suddenly went home to Qatar, the Bureau of Prisons was holding him in Florence. I had missed Al-Marri's release, about which I learned only yesterday from Shane Harris while we were taping an episode of Rational Security. But I see now that it has drawn unsurprising reactions: Andy McCarthy, writing National Review under the headline, "Obama Releases Convicted Terrorist al-Marri," declares it "appalling." Over at Just Security, one of Al-Marri's former lawyers, Jonathan Hafetz, has a thoughtful piece arguing that his case "provide[d] 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." A few thoughts: First, Al-Marri should not be free. The facts he admitted to in his plea bargain should have kept him locked up for a long time---and those are only the facts to which he admitted. This was an operational Al Qaeda terrorist on U.S. soil in a period of extreme danger. A system that puts him on a plane home now has, in a meaningful sense, failed in its protective function. We can hope that he has outgrown his past and no longer wishes to help Al Qaeda, that the Qataris will keep a close eye on him, or that he is sufficiently exposed so as to be of limited danger now in any case. All of this may well be true. But we shouldn't have to hope. Second, the fact that Al-Marri is now free is, as Hafetz notes, a creature of the failed experiment of domestic military detention. McCarthy blames it on Obama, on Holder, and on the fact that Al-Marri faced trial in civilian court. None of this is persuasive. The government may have gained in the short-run from treating Al-Marri as an enemy combatant; it protected information from disclosure at a criminal trial, and it got to interrogate him for a long period of time. But these things came at a huge price. That price was in compromising the criminal case against him and making a stiff sentence much harder to obtain. Third, conflict between short-term intelligence interests and the long-term incapacitation has not arisen in more recent cases nearly as acutely because the government has gotten dramatically better both at deconflicting intelligence and law enforcement interests in real time and at navigating the criminal justice system so as not to compromise either. It's an imperfect process, one that always leaves the talk shows babbling about whether a suspect should have been Mirandized earlier or later. But the value of navigating those decisions well is that people like Al-Marri who are caught today are not going be freed as soon as he has been. And they're not becoming civil liberties poster children either. That's a good thing. It's good for civil liberties and it's good for public safety. Finally, fourth, it's a really good thing we have an NSA.