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By Declan McCullagh
Staff Writer, CNET News.com
September 22, 2006
"Police blotter" is a weekly CNET News.com report on the intersection of
technology and the law.
What: Man designated by President Bush as "enemy combatant" who
allegedly entered the United States to disrupt computer networks fights
When: U.S. District Judge Henry Floyd in South Carolina rules on Aug. 8.
Outcome: Court rejects defendant's request.
What happened, according to court documents: Ali Saleh Kahlah al-Marri
is a Qatari national who earned a bachelor's degree in business
administration from Bradley University in Peoria, Ill., in the 1990s. On
Sept. 10, 2001, he legally returned to the United States with his wife
and children, saying he was going to obtain a master's degree from
Bradley in computer science.
Three months later, the FBI arrested al-Marri in Peoria and held him as
a "material witness" until he was indicted on Feb. 6, 2002, and again on
Jan. 22, 2003. The charges include making false statements to the FBI,
making false statements in a bank account application and using a fake
ID for a bank account. Al-Marri has pleaded not guilty.
On June 23, 2003, President Bush designated al-Marri an "enemy
combatant" and ordered that he be held in a military detention facility.
Al-Marri was transported to the Naval Consolidated Brig in Charleston,
S.C., and apparently is still being held in solitary confinement there
In July 2004, al-Marri's attorney filed a legal request for a "writ of
habeas corpus," which would direct the military to produce its prisoner
in open court. The Bush administration opposed the motion and submitted
a declaration classified "secret" prepared by Jeffrey Rapp, the director
of the Joint Intelligence Task Force for Combating Terrorism at the
Defense Intelligence Agency. Rapp's remarkable 16-page declaration
(PDF), which is partially redacted, is what makes this case relevant to
Rapp's declaration says al-Marri "met personally" with Osama bin Laden
and was dispatched to the United States to "explore computer-hacking
methods to disrupt bank records and the U.S. financial system." In
addition, Rapp claims, "al-Marri was trained by al-Qaida in the use of
poisons and had detailed information concerning poisonous chemicals
stored on his laptop computer."
"Al-Qaida instructed al-Marri to explore possibilities for hacking into
the mainframe computers of banks with the objective of wreaking havoc on
U.S. banking records," Rapp said. The FBI reported that a probe of
al-Marri's laptop showed bookmarks to Web pages describing how to make
potassium cynanide, hydrogen cyanide and other poisons.
Finally, the declaration claimed, al-Marri's laptop had "numerous
computer programs typically utilized by computer hackers; 'proxy'
computer software which can be utilized to hide a user's origin or
identity when connected to the Internet; and bookmarked lists of
favorite Web sites apparently devoted to computer hacking." The FBI also
reported finding a list of 36 stolen credit card numbers on the laptop.
Normally, that kind of written someone-told-me declaration would be
considered "hearsay" and not directly admissible in a criminal
proceeding. But U.S. District Judge Henry Floyd ruled that in the Hamdi
v. Rumsfeld case, the Supreme Court said proceedings against alleged
enemy combatants can be reworked to permit hearsay evidence.
Floyd ruled that the test would be this: Whether al-Marri's lawyers had
"more persuasive evidence" than that presented by the Department of
Justice, a reversal of the normal burden of proof that says defendants
are innocent until proven guilty.
For their part, al-Marri's attorneys objected to this (PDF), saying
"Rapp has no personal knowledge of any asserted facts" and that their
client has the right to call witnesses on his behalf. (Rapp's
declaration said only that the information in it was "derived from
specific intelligence sources" that are "highly classified.")
In a normal criminal proceeding, al-Marri's lawyers would have had a
good argument. There's not much difference between computer hacking and
computer security research, after all, and plenty of graduate students
in computer science are intellectually curious about these topics.
What's more, the names of Web sites al-Marri allegedly had bookmarked
weren't even divulged in the declaration, nor did his attorneys have a
chance to review the laptop for themselves.
In the end, Floyd sided with the Bush administration. He ruled that
al-Marri "has received notice of the factual basis supporting his
detention and has been afforded a meaningful opportunity to rebut that
evidence," and he denied the writ of habeas corpus.
Excerpt from Judge Floyd's opinion: Hamdi, then, clearly permits the
introduction of the Rapp declaration by respondent at this initial stage
of the enemy combatant proceeding...Having determined that Hamdi
authorizes the consideration of hearsay evidence at the initial stage of
this enemy combatant proceeding, the court need go no further. Whether
the Rapp declaration would be admissible during the later phases of such
a proceeding is not a question before the court today.
Hamdi provides that once the government has offered evidence in support
of its continued detention of an alleged enemy combatant, the detainee
must be permitted "to present his own factual case to rebut the
government's return." In so doing, the detainee must present "more
persuasive evidence" to overcome the facts offered by the government.
As summarized by the magistrate judge, the petitioner asserts: A. He is
a civilian who came to the United States lawfully to pursue a graduate
degree at Bradley University. B. He denies he came to the United States
as an al-Qaida "sleeper agent" or he was otherwise a member of, or
affiliated with, al-Qaida. C. He generally denies the allegations
contained in the Rapp declaration as well as his designation as an
"enemy combatant." D. He denies he entered the United States to commit
"hostile or warlike acts," including acts of terrorism, or he is
otherwise a member of, or affiliated with, al-Qaida.
Despite being given numerous opportunities to come forward with evidence
supporting this general denial, petitioner has refused to do so.
Instead, he stated, "petitioner respectfully declines at this time the
Court's invitation to assume the burden of proving his own innocence, a
burden that is unconstitutional, unlawful, and un-American."
As the magistrate judge noted, this stance by petitioner ignores his
responsibility to prosecute this habeas action...Petitioner also
neglects his burden of persuasion on this habeas petition. Most
importantly--and most critically for petitioner--petitioner's refusal to
participate at this stage renders the government's assertions
uncontested. This leaves the court with "nothing specific...to dispute
even the simplest of assertions (by the government), which (petitioner)
could easily" refute, were they inaccurate. This puts petitioner in an
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