Al-Marri and the Torture Regime

Marty Lederman homes in on the critical detail in the al-Marri case: the Bush administration moved him from criminal to military detention solely in order to torture him, it appears. Money quote from the court:

The Government’s treatment of others [in the criminal justice system] renders its decision to halt al-Marri's criminal prosecution - on the eve of a pre-trial hearing on a suppression motion - puzzling at best. Al-Marri contends that the Government has subjected him to indefinite military detention, rather than see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process. We trust that this is not so, for such a stratagem would contravene Hamdi’s injunction that "indefinite detention for the purpose of interrogation is not authorized." 542 U.S. at 521.

We note, however, that not only has the Government offered no other explanation for abandoning al-Marri's prosecution, it has even propounded an affidavit in support of al-Marri's continued military detention stating that he "possesses information of high intelligence value." See Rapp Declaration. Moreover, former Attorney General John Ashcroft has explained that the Government decided to declare al-Marri an "enemy combatant" only after he became a "hard case" by "reject[ing] numerous offers to improve his lot by ... providing information." John Ashcroft, Never Again: Securing America and Restoring Justice 168-69 (2006). [My italics].

So it appears they decided to detain him in order to torture him. That's not constitutional.