Among the many ironies of the case is the fact that the Justice Department had gathered enough evidence against Mari to send him to jail for many years, if only the Bush administration had allowed his trial to go forward. But before allowing him to be transferred to the military, the presiding judge in the case ruled that the charges against him had to be “dismissed with prejudice,” which meant that he could not be charged with the same crimes again, to protect the prisoner’s right against double jeopardy. “As a result,” Mayer writes, “if the Obama Administration decides to charge him in the criminal system now, it has to bring a different set of charges, unless Marri’s lawyers offer a deal.”
Mayer quotes Andrew McCarthy, a National Review contributor and former federal terrorism prosecutor who defended Marri’s transfer to the brig, even though the criminal-justice system seemed to be well on its way to neutralizing Marri as a public safety threat. Why was this a good idea? Because “there’s always the chance the court will release a defendant on bail.” We all remember what a big problem that was after September 11th—federal judges rushing to bail out terrorist suspects before they went on trial.
In his 2006 book, Never Again, former Attorney General John Ashcroft wrote that “Al-Marri rejected numerous offers to improve his lot by cooperating with the F.B.I. investigators and providing information. He insisted on becoming a ‘hard case.’” Mark Berman, an early member of Marri’s defense team, told Mayer that the Bush administration “really just wanted to interrogate him” in a rough manner. “No doubt about it.”
Mayer then quotes Justice John Paul Stevens dissent in the 2004 case of Rumsfeld v. Padilla. What Stevens said succinctly summarizes the central issue at the heart of all of the debates over torture, preventive detention, and “extreme rendition”:
Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure.… For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.