Jane Mayer Details Obama's 'Hard Cases' Journalist Jane Mayer expects that an upcoming Supreme Court case will force the Obama administration to clarify its policy towards fighting terrorism — and define its stance on preventative detention of suspected terrorists.
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Jane Mayer Details Obama's 'Hard Cases'

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Jane Mayer Details Obama's 'Hard Cases'

Jane Mayer Details Obama's 'Hard Cases'

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TERRY GROSS, host:

This is Fresh Air. I'm Terry Gross. We may soon get an indication of how the Obama administration plans on changing the Bush administration's policies for detaining alleged terrorists. The Supreme Court is expected to soon hear a case challenging the government's right to indefinitely detain Ali al-Marri, an alleged al-Qaeda sleeper agent who has been held incommunicado in a military brig for more than fiver years. Al-Marri is the only alleged enemy combatant now detained on mainland America.

The Obama administration is required to file a reply to the challenge by March 23rd. Journalist Jane Mayer says the case will no doubt establish legal principles that will have ramifications for the 240 or so designated unlawful enemy combatants held in the military prison in Guantanamo Bay, Cuba.

Mayer writes about this case, and the questions it raises in the current edition of The New Yorker. The article is titled, "The Hard Cases: Will Obama Institute A New Kind Of Preventive Detention For Terror Suspects?" Mayer is the author of the bestseller, "The Dark Side: The Inside Story Of How The War On Terror Turned Into A War On American Ideals."

Jane Mayer, welcome back to Fresh Air. Before we get to what's at stake in this case, let's talk about al-Marri's story. He's from Qatar and arrived in the U.S. on September 10th, 2001, the day before the terrorist attacks. When was he arrested, and what was he charged with?

Ms. JANE MAYER (Staff Writer, The New Yorker; Author, "The Dark Side: The Inside Story Of How The War On Terror Turned Into A War On American Ideals."): Well, he was arrested in December of 2001. When he came to America, it was to - he said to study computer programming at a small university in Peoria, Illinois, and he brought his wife and his five children with him. And he actually studied there before as an undergraduate.

He came back to do graduate level courses, and he was arrested as a material witness to the 9/11 attacks. That was the first thing he was arrested on. He was also arrested on charges of credit card fraud and charges of lying to a federal official, the FBI agent that interviewed him.

GROSS: Now, ordinarily, he would have been tried in criminal court for credit card fraud and for lying to federal agents, but he ended up in a military brig instead of the criminal justice system. On what grounds was he put in military detention?

Ms. MAYER: Well, he became something of a legal guinea pig for some of the Bush administration's theories about what you could do in the war on terror. Basically, he was heading towards trial, just a regular trial in criminal court in Illinois, and instead, on June 23rd, 2003, President Bush unilaterally designated him what he called an unlawful enemy combatant and ordered that he'd be seized by the military. And so rather than going on trial where he was supposed to be on trial maybe a month or so later, he was put on a military jet and sent to the naval brig in Charleston, South Carolina where he has been held ever since.

GROSS: So this was just by Executive Order. Was that a new precedent?

Ms. MAYER: Well, they had done something similar with Yaser Hamdi and with Padilla. But what was different about the al-Marri case is he was picked up in this country. He was somebody who was in his own home in Illinois and designated an enemy combatant on the basis of what looked like sort of suspicious activities. So he was not picked up abroad. He was the one guy who was picked up in this country and then declared an enemy combatant by the president and held in military detention.

GROSS: Let's talk about the conditions that al-Marri has been held in in the military brig. There's been different stages, a stage of a very harsh treatment and a stage of much better treatment. During the period of harsh treatment, was al-Marri tortured?

Ms. MAYER: Well, I guess it depends on your definition of torture. He entered the naval brig in Charleston pretty much at the height of the most coercive and abusive interrogation policies during the Bush years.

2003 was a very, very tough year for detainees, and in the beginning, he was subjected to sort of tremendous sensory deprivation and isolation. For 16 months, he was not allowed to talk to anybody, he was given nothing to read and nothing to do. No daylight, they blacked out a window and just basically kept in a cell where he had kind of, you know, just disappeared into his own mind. For 16 months, he was not allowed to see a lawyer either.

Then the Supreme Court ruled that that kind of detention was illegal and that even detainees in the war on terror had - should have some right to a lawyer.

GROSS: And then, when lawyers were finally allowed to he him, they thought that he was starting to lose his mind.

Ms. MAYER: They did. When they finally got in, they were alarmed. He seemed like an altered personality. He'd been very gregarious before. At this point, he seemed scattered and paranoid. He thought there were microphones all around in the walls. He thought he was being poisoned by the smell of a paper mill that was coming through the air vents nearby, and he was quite paranoid and scattered in this thoughts, which was different from how he'd been.

He's actually a very unusual person. He - first of all he's fluent in English because he studied in an American college, and he kind of has an American sense of humor. He was - he's kind of a wise acre kind of guy who likes to crack jokes, and he's very social. So when his lawyers saw him after this isolation period, they were really upset because he seemed to be an altered personality.

GROSS: And how is he being treated now?

Ms. MAYER: Well, these days, I mean, I - one of the most unusual things about this story is that he's being treated, in some ways, better than almost any prisoner I can think of in the country. He is now - they joke, they call him the emir of the SHU. The SHU is the acronym for the special housing unit for dangerous prisoners down in the naval brig.

And he has been kept alone in a wing of 80 beds. He's got a staff of 40 people waiting on him. He's got regular access to three different cells, one of which is his library, another of which is his sleeping room. He's got a visiting room that he calls his summer chalet, and he's got a day room that he's the only person who uses. It's 1,000 square foot day room with exercise equipment, it has an elliptical among other things, and he's got a 32-inch screen TV and a computer that he can use, though it doesn't have the Internet.

GROSS: Jane, would you describe why this case is on it's way to the Supreme Court?

Ms. MAYER: Sure. I mean, it is a test of possibly the most extreme point of view from the Bush administration about the powers of the executive which is - in the Bush years, they argued that the president had the power to, on his own, identify and detain an enemy combatant in the war on terror. On his own, the president could basically point to someone, say he's an enemy combatant, lock him up - and lock him up until the end of war on terror which, of course, has never really been defined. But the idea is the end of hostilities.

So there has been a challenge by the American Civil Liberties Union to this concept saying that this violates the Constitution and the Bill of Rights, and that you can't just single-handedly have the executive to lock people up. And so that case is going towards the Supreme Court, and the question is, it was going towards the Supreme Court before Obama was elected. The question that's now in front of the Obama administration is, are they going to argue the same position that Bush did or are they going to try to change course here?

GROSS: And there's actually several other issues that this case raises including who is the soldier, who's an enemy combatant, and who is the civilian?

Ms. MAYER: Truly. I mean, in the Bush paradigm, the whole world was a battlefield, including the United States, and anybody - they defined an enemy combatant at one point as anybody who is in the Taliban or al-Qaeda, but also anybody who supports those groups or anybody who is associated with an organization that supports those groups which gets you - it's a very, very broad definition.

At one point, a lawyer from the Bush administration said that even a little old lady in Switzerland, for instance, who gave a charitable donation to an organization that wound up with the money going towards the Taliban or al-Qaeda, even if she didn't know that's where the money was going, she too could be an enemy combatant, and thus be accused of crimes and locked up.

If you're just joining us, my guest is Jane Mayer. She's a staff writer for The New Yorker. Her new article in the current edition is called, "The Hard Cases: Will Obama Institute A New Kind Of Preventive Detention For Terrorist Suspects?" And it's about the case of Ali al-Marri who is the only alleged enemy combatant being held in mainland America. His case is about to come before the Supreme Court.

Now, al-Marri is a very interesting case in part because he may be very dangerous, and a lot of people believe he is very dangerous. But it may be impossible to find him guilty under the criminal justice system because - why?

Ms. MAYER: Well, this is the question for the Obama administration. This is what makes these - all these questions so hard. There are obviously risks here. Al-Marri is a man who has been accused during the Bush years of being a sleeper agent, an al-Qaeda sleeper agent who supposedly came here the day before the 9/11 attacks in order to burrow in and wait for orders and organize the next wave of attacks against Americans.

And the evidence against him that was picked up by the FBI included information in his computer and other information that was sort of lying around his apartment and his minivan. On his computer, he had lectures from Bin Laden. He had cell phone call records that seemed to link him to the finance - the main financier for the 9/11 attacks. He had $13,000 in cash that seemed strange for him to have, and he also had information on his laptop that seemed to be doing research into deadly poisons, things that could be used in deadly gas attacks, cyanide in particular.

So, this was a pretty alarming picture that the FBI began to pick up of this man, piecing it together, and they were beginning to bring a criminal case against him as we discussed. But instead the Bush administration took him out of the criminal system and put him into the military system and held him. They feared that he was too dangerous to risk putting on trial.

GROSS: What does that mean - too dangerous to risk putting on trial?

Ms. MAYER: Well, this is what I was trying take a look at because this is an issue that is not just backwards looking. What's happening is the Obama administration is now inheriting all the cases from the Bush years that are still - you know, down in Guantanamo, and this case in particular, but also looking forward to what are they going to do if they get terror suspects into their custody. What are we going to do with them?

And the question is can our old-fashioned criminal system - with its courts and also our military criminal system with the courts martial - can those handle terror suspects? Or do we need something new? Is there some reason why terror suspects are different? And there are people who argue that you can't really try terror suspects in our courts because the evidence against them is too shaky, it's too international, it won't hold up in court, it may come from sources that you don't want to expose. There are all kinds of arguments against this that are being made right now. So, what I wanted to do in the story was take a look at what is supposed to be one of these hard cases and see what would people think. Could he have been prosecuted in the courts?

GROSS: We'll never know now because under double jeopardy, even if he's taken out of the military system, he can't be put back in the criminal system and tried for the charges that he was initially brought up on.

Ms. MAYER: That's right. When the Bush administration moved him out of the criminal system, they had to agree to drop the charges against him with prejudice, meaning they can never charge him again with the same crimes.

So, I wanted to go back over this case because I think there's a big argument developing about whether or not these kinds of people can be prosecuted. And what I found, I think, is maybe surprising in some ways, which was that a number of the prosecutors who handled al-Marri's case, at the time were very upset when he was taken from criminal system, including the U.S. attorney in the southern district of New York, a man named David Kelley. And they actually thought they had a great case against him. They thought he could have been prosecuted. They still think that the criminal courts are up to the job, and they think that this experiment just made things more difficult.

So, I think this is a cautionary tale in some ways. Take a close look at this case, and you may come out thinking that, in fact, the United States courts are the very best vehicle for handling terror suspects. They've handled a lot of terror suspects in the past and convicted a lot of them and sent them away for life. Whereas when you look at the kind of newfangled system that was set up on Guantanamo, it's had nothing but trouble.

GROSS: OK, but, you know - so there's the criminal justice system versus the military system. But your article says, you know, is there a third way? Is there a third way of dealing with alleged terrorists who may be very difficult to convict, but at the same time, may be genuinely dangerous? What is the third way that's being proposed?

Ms. MAYER: Well, what Obama has set up is a task force, a cabinet level task force, to study this. So, they are looking at this. And I've interviewed Obama's White House counsel Greg Craig here, and he says that they left the door open on purpose to take a look at the possibility of setting up something called a National Security Court, which would be a new kind of system of judges that would just specialize in terrorism cases, who would have a power that we don't have in the United States right now which is to hold people, to detain them in prison, before they've committed a crime on the basis of thinking that they're dangerous.

And what you would do - it's called some kind of a preventive detention and what you would do would be to hold them for, you know, a period of time, maybe a couple of months, while the law enforcement authorities try to see if they can make a case against the person.

GROSS: What problems is preventive detention intended to solve?

Ms. MAYER: Well, it's aimed at holding potentially dangerous people and keeping them from committing crimes. And in particular, the argument is that you can't wait till terrorists have created an attack and all the carnage has already taken place in order to arrest them. You need to try to prevent them from committing these crimes in advance.

The problem, of course, is that it can sort of spill over into the notion of kind of thought crimes, people who seem dangerous but haven't committed a criminal act. That's a category of people that we don't ordinarily arrest and detain in this country.

GROSS: You know, it might be that preventive detention is one of those situations where you would maybe trust that - if there were people in charge whose motives and actions you trusted, but if there were people running the government whose motives and actions you didn't trust, a power like that could really be abused.

Ms. MAYER: Well, yeah, I mean, it could certainly turn into some kind of star chamber where, you know, a corrupt political power could start picking up just political enemies and that's why we try not to have those kinds of powers in the hands of a few people in this country. It's been tried in Britain, and it's very controversial over there, as well. They can hold people for three weeks or so at this point. And there have been many, many fights about it.

The thing that I think that was interesting to me here, though, was in interviewing many prosecutors who were pretty much hard-nosed law and order people, people who dealt with terror cases, they say they don't, as far as they can tell, need these new powers. They actually have a lot of tools for already arresting people for things like conspiracy charges, material witness charges. There are a lot of ways you can detain people under our current criminal system.

And so the question I was trying to look at is was there a need really - is there a need for this? And, you know, in the al-Marri case, I think, surprisingly, I came to the conclusion from interviewing the people around the case was, they would have done better with the criminal system.

GROSS: How serious - can you tell how serious the Obama administration is about instituting some kind of preventive detention?

Ms. MAYER: Well, it's a live possibility. You've got a number of, not many, but some very powerful members of the Justice Department who have opened the door to discussing this, and some of whom are proponents. One is Neal Katyal, who is the deputy solicitor general, meaning he's the number two person whose going to argue in front of the Supreme Court for the Obama administration's positions. And his boss, Elena Kagan, during her confirmation hearings also left open the door for this recently.

GROSS: So, we'll see?

(Soundbite of laughter)

Ms. MAYER: We will see.

GROSS: And will we see as early as the Supreme Court decision? Will the Supreme Court decision necessitate a speedy answer to this question about preventive detention?

Ms. MAYER: I think what the Obama administration does in the al-Marri case will begin to give you an indication of what direction they're trying to go in on this. My guess from having interviewed a number of people in the administration is if they can possibly charge this man with crimes and try to put him through the regular criminal system, they will be delighted because they would much rather return to the old system of criminal justice in this country which has, you know, managed to handle a number of terror cases before 9/11.

So I think right now, what they're doing is looking carefully at this case and seeing what can we charge this man with, or can we cut a deal where he is sent back to his home country, which is Qatar, and where he'll be monitored. I think that they look at this preventive detention issue as a place they really wish they didn't have to go, but they've got an open mind, and they're thinking if we have to, we'll go there.

GROSS: Now, another thing that this case calls into question is the value of information that was gotten under torture because the witness against al-Marri is Khalid Sheikh Mohammed, who gave the information against him under torture.

Ms. MAYER: That's right. I mean, one of the reasons this is such a hard case for the Obama administration is it was made such a hash of by the Bush administration. When they went outside the rule of law, it makes it very, very hard to bring any of these cases back in, again. I was warned about this by a well-known lawyer in Washington named Jamie Gorelick, who was the deputy - the attorney general in the Clinton years.

And when I started reporting on this thing, she said, you know, once you take them outside the law, it's really hard to bring them back, and it is because once you've violated somebody's rights, in this case, Khalid Sheikh Mohammed was waterboarded, it's impossible to tell whether the information he gave was reliable or not in this - when he accused this man because he was being tortured at the time. So that's already a problem.

Al-Marri can probably argue that he was tortured by being put - subjected to sensory deprivation for 16 months in the way that he was. And once his rights are violated, it's again, very hard to put him on trial because in this country, that usually is the kind of argument that the defense lawyer can make to get you off the hook. So it's been made a mess of by the Bush administration and now it's inherited by Obama whose somehow got to clean this up.

GROSS: This is Fresh Air. I'm Terry Gross back with Jane Mayer. She's been covering politics on the war on terrorism for The New Yorker. She's also the author of the bestseller "The Dark Side: The Inside Story of How the War on Terror Turned Into A War On American Ideals."

In the current edition of The New Yorker, she writes about the case of Ali al-Marri, the only alleged enemy combatant currently being held in mainland America. His case is about to come before the Supreme Court, and it will likely establish legal principles that will have ramifications for current and future alleged enemy combatants.

Al-Marri is an alleged al-Qaeda sleeper agent. He was originally dealt with in the U.S. criminal justice system. But in 2005, President Bush ordered him to be put in the military brig where he has been held incommunicado.

Now, one of the rulings being challenged in the Supreme Court decision is a decision that says quote, "our colleagues hold that the president can order the military to seize from his home and indefinitely detain anyone in this country, including an American citizen, even though he has never affiliated with an enemy nation, fought alongside a nation's armed forces or born arms against the U.S. anywhere in the world."

So the ruling under which al-Marri was put into military detention could apply to any American who was suspected of having some kind of connection to al-Qaeda or the Taliban. So that's being challenged in the Supreme Court decision.

Ms. MAYER: It is, yeah. Who is an the enemy combatant is the issue here. And it's interesting because in this case, because it's never really - he's never been tried as a terrorist. We've not been able to really evaluate the evidence against him, which is one of the frightening things about it is that there is a secret evidence here. So there could be secret evidence that's held back against other people in these kinds of cases where you could be picked up, charged with being an enemy combatant and not have a chance to see the evidence against yourself or challenge it in a court.

GROSS: During his first week in office, President Obama issued several Executive Orders pertaining to how to deal with alleged terrorists. Can you kind of sum those up for us, and tell us what you think that indicates about the direction the Obama administration is heading in?

Ms. MAYER: You get a lot of cynical comments from the outgoing Bush administration people. In fact, I was going to mention that I interviewed John Ashcroft, who was the former attorney general, and he said that, in the end, he thought that Obama was going to do exactly what Bush did, and he said that the only differences between them on terrorism was going to be that one who spelled his name Obama and other spelled his name Bush.

So, they went out kind of sneering at the hopes of the Obama administration to handle these problems differently. But in the very first week in office, in his second full day, actually, in the Oval Office, President Obama issued three Executive Orders and several memoranda which completely overhauled the Bush administration's war on terror.

They basically undid all of the most egregious excesses. They wiped out the previous seven years worth of legal opinions from the Justice Department that had justified things like torture. And they set a date for closing Guantanamo, a year from then. They set up task forces to study how to do it, and they also put every detainee held by the United States under the Geneva Conventions so that no longer could anybody be held in a way that was cruel or inhumane, which wiped out the whole issue of torture.

GROSS: Meanwhile, the Justice Department's Ethics office is in the final stages of a report that criticizes Bush administration lawyers who wrote legal opinions that justified waterboarding and other coercive interrogation techniques. And as the lawyers who gave the legal justification for these techniques, a lot of people say it gave cover - legal cover - to torture. Do you get any sense from the Obama administration about whether President Obama would want to prosecute, either, you know, the lawyers or anyone else involved with what many believe was torture?

Ms. MAYER: My sense is that Obama himself is very reluctant to leave the charge to prosecute Bush officials for torture. I think that it violates his notions of bipartisanship, and I think he recognizes that it might be politically toxic. That said, I think if somebody else takes up this issue, maybe Congress, I'm not sure that they would be completely opposed to seeing some kind of inquest here. I think that this development that you mentioned is just the first development, and it's a very important one.

GROSS: Do you want to explain what this forthcoming report is about on Bush administration lawyers?

Ms. MAYER: Yeah. Well, what's going on in the Justice Department is actually really interesting because the main hurdle for anybody who wants to hold the Bush administration accountable for possibly for war crimes, for torturing people, is that almost everything that was done during the Bush years to detainees was blessed by the lawyers in the Justice Department. They wrote memos that allowed the president to basically break the laws. They said that laws couldn't stop the president from acting in the countries defense and - which meant that the president could literally order torture. Those legal memos have been called golden shields, providing cover for everybody in the Bush administration.

But what's happening now inside the Justice Department, we're beginning to learn, was that a small office there has been investigating whether the lawyers really fell down on the job by issuing these opinions, giving out these golden shields, and whether they should be held accountable themselves for having acted unprofessionally. And apparently, there is a stinging report that is beginning to surface that's goings hold some of those lawyers accountable.

GROSS: And what does holding them accountable mean?

Ms. MAYER: Well, a report documenting it would be I think the beginning of a process where it's possible that the lawyers in the Justice Department who sanctioned torture could be disbarred. They could be potentially fired from their jobs where they are, in some cases, teaching as law professors. It's possible that they could even be charge with crimes, I think it's improbable.

But once you have stripped back the notion that the legal opinions they rendered were good, then the cover for all the people who followed their legal opinions is a lot less secure. You're basically beginning to talk about criminal actions that were taken throughout the government that were sanctified by sort of phony legal policies.

GROSS: Before we end this conversation, there's one detail I have ask you about in your New Yorker piece on Ali al-Marri, who is the only alleged enemy combatant being held in mainland America. And in the article you mention that in his military prison, he has a TV. It took him years to get one, but he has a TV. He's not allowed to watch the news, but he does watched Stephen Colbert and Jon Stewart, and he loves both of their shows. That's such an interesting detail so the first thing I want to know is how do you find that out?

Ms. MAYER: (Laughing) He's got lawyers who really know him well by now. There is one in particular down in Charleston, South Carolina named Andy Savage who goes - and he talks to him every few days on the phone and goes to see him every few weeks, and they describe what his life was like to me.

It is the strangest thing. I mean, you would really never imagine it, but basically, this alleged enemy combatant has spent seven years without a trial sitting down in a tiny cell in Charleston which is now turned into a whole wing of the prison to himself where he's not allowed to read the news, but as you say, he loves Stephen Colbert and Jon Stewart. He calls Jon Stewart, that Jewish guy, and he's sitting there following the election this way. I think that probably the Bush administration had no idea what it was creating when it set this process up.

GROSS: But I also want to know, what's the explanation for barring him from watching news? I mean, in a way, you would think you'd want an alleged terrorist suspect, particularly somebody from another country, to watch the news, to learn what America really is like as opposed to a lot of cock-eyed conspiracy theories about what America is like.

Ms. MAYER: I think the theory was that it might incite him somehow and particularly, you know, things about the war in Iraq or stories about what's happening in Israel and Gaza. Those kinds of things they're afraid are going to sort of get him upset and then make him less compliant as a prisoner possibly. The other thing that he really likes is Oprah.

(Soundbite of laughter)

Ms. MAYER: Most of his time he spends really reading Islamic religious text, but he's got a funny sense of humor. He's an unexpected, improbable guy for a possible sleeper cell member. And you know, I think that what you see in this if you step back, to me anyway, is that this process that was set up as an alternative to the criminal justice system in America, just, it's kind of ludicrous how it's wound up. Seven years this man has been sitting there without a trial watching Stephen Colbert and Jon Stewart. It really is not necessarily better than putting somebody on trial and sending them to spend life in prison if they're guilty.

GROSS: Well, now I will have to see not only what the Obama administration does regarding policies on alleged terrorists, I'm also going to have to see if Jon Stewart or Stephen Colbert mentions your article on their show.

(Soundbite of laughter)

Ms. MAYER: I'm waiting.

GROSS: Jane Mayer, thank you so much for talking with us.

Ms. MAYER: Great to be with you. Thank you.

GROSS: Jane Mayer's article about the case of alleged enemy combatant Ali al-Marri is in the current edition of the New Yorker. Coming up, Ta-Nehisi Coates talks about growing up the son of a former Black Panther. This is Fresh Air.

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