JUAN GONZALEZ: One of President Obama’s first acts after taking office was to order the closure of the Guantanamo Bay prison camp. The move was heralded by many as a signal of Obama’s intention to move away from many of the Bush administration’s policies in the so called war on terror.

But how does Obama plan to handle prisoners designated as “enemy combatants”? And more importantly, is he going to continue the practice of imprisoning terrorism suspects indefinitely without charge or trial?

The answer may lie in the case of Ali Saleh Kahlah al-Marri. Al-Marri is the last enemy combatant imprisoned in the United States. He has been held in isolation at a naval brig in South Carolina for more than five years. He has never stood trial or been convicted of any crime.

On September 10th, 2001, al-Marri, who is a citizen of Qatar, arrived in the United States with his wife and kids. He had a student visa and said he was here to study computer programming at a university in Peoria, Illinois. That December, he was arrested as a material witness in the 9/11 attacks. In June 2003, al-Marri was supposed to stand trial. But President Bush ordered the military at the last minute to seize him and hold him indefinitely, thus keeping al-Marri out of court but also putting him into legal limbo. Al-Marri has always maintained his innocence. He has never confessed to anything, despite enduring so-called enhanced interrogation.

In a new article in The New Yorker, al-Marri has spoken out publicly for the first time since his arrest. He said through his lawyers, “I am not asking to be taken at my word and to be released. All I am asking for is to be treated like every other person in the United States who is accused of a crime, including terrorism, and to be given a fair trial in an American court.” His case is scheduled to be heard by the Supreme Court in April.

AMY GOODMAN: Investigative journalist Jane Mayer joins us now from Washington, D.C. Her latest New Yorker article is called “The Hard Cases: Will Obama Institute a New Kind of Preventive Detention for Terrorist Suspects?” She is the author of the book The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals.

Welcome to Democracy Now!, Jane. It’s good to have you with us.

JANE MAYER: Thanks so much, and happy anniversary.

AMY GOODMAN: Thanks very much. Well, why don’t you start off by just telling us Ali Saleh Kahlah al-Marri’s story, where he is, how he came to be there, and what’s happening now, what you learned in this first interview with his lawyers?

JANE MAYER: Well, he’s in the naval brig in Charleston, South Carolina, and he is held in isolation in the strangest kind of conditions. He’s got an entire wing of the prison to himself. It’s an eighty-bed wing. There’s a staff of forty that, you know, is devoted to taking care of just him, basically.

In the beginning, he was held for sixteen months in really horrible sort of sensory deprivation conditions without any kind of contact with human beings. Even the guards were ordered not to speak to him. He wasn’t even interrogated, interestingly enough. They put him in there basically to try to break him and make him talk, and he didn’t — they didn’t even try for the first, I don’t know, I think six months that he was there. And then they thought, after six months, you know, he’ll talk to anyone. And they went in, and they tried to get him to confess to being a member of al-Qaeda, and he said he was not, and he refused to talk to them further. They sort of gagged him at that point with a sock in his mouth, and he started to choke. And apparently all of this is on videotape someplace inside the Department of Defense.

Anyway, his conditions have improved a lot in recent years. He’s got very good lawyers. The American Civil Liberties Union has been fighting very hard on his behalf. They’ve now got him in quite humane conditions, except for the isolation and for the fact that he’s had no legal process. And that’s what this issue is about.

It’s going to hit the Supreme Court in April. And unless the Obama administration takes some kind of diversionary action, they’re stuck with a choice here: they’ve either got to defend the Bush administration’s position in front of the Supreme Court, or they’ve got to take some other position and figure out fast what to do, because their decision — their first papers on this are due in the — I guess it’s March 23rd. So they are trying to figure out a course. And in some ways, this is a big test of whether the Obama administration really is going to try to bring these people back inside the rule of law or continue with what Bush did, which was basically create a process where there were people outside the law on purpose, people with no rights.

JUAN GONZALEZ: And the basic theory of the Bush administration originally was that he was supposedly in the United — because he arrived here on September 10th of 2001, he was supposedly part of a second wave of al-Qaeda bombers?

JANE MAYER: That’s right. They say he’s a sleeper cell agent who was burrowing in, waiting for orders from al-Qaeda to organize the next wave of attacks. And there was — you know, there was a fair amount of weird information and evidence surrounding him. He’s got a — there was a search done of this laptop. It had information on poisonous chemicals of various sorts that could be used in gas attacks. He says that he was just doing research for a brother who is in the petrochemical business. There were cell phone calls to one of the organizers of 9/11. There was — there seemed to be — I think he had $13,000 in cash on him. And he had some of the lectures of bin Laden on his laptop.

So there was a lot of incriminating information, and he lied to federal agents, apparently — at least, he was charged with that — about an earlier trip he had taken to the United States. So they were set to try him on charges of credit card fraud and lying to a federal agent, and he was heading towards the courts, when, just before his trial, John Ashcroft, the Attorney General at the time, with an order from President Bush, unilaterally said, “This man is an enemy combatant. We’re not going to give him a trial. We’re going to just throw him in military detention indefinitely, because we consider him a danger.” And he has been there ever since.

AMY GOODMAN: We’re talking to Jane Mayer, staff writer for The New Yorker magazine. Her latest piece is called “The Hard Cases: Will Obama Institute a New Kind of Preventive Detention for Terrorist Suspects?” We’ll be back with her and Glenn Greenwald in a minute.

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AMY GOODMAN: Our guest, Jane Mayer, who’s got a new piece in The New Yorker called “The Hard Cases: Will Obama Institute a New Kind of Preventive Detention for Terrorist Suspects?” Juan?

JUAN GONZALEZ: Jane, one of the issues that you raise is the role — potential role of Neal Katyal as the new Deputy Solicitor General that Obama has named. He actually has, in the past, been involved in challenging the former Bush administration. He was involved in the Hamdan case against Defense Secretary Rumsfeld. But now you’re concerned that he may actually be proposing a new form of preventive detention. Could you talk about that?

JANE MAYER: Right. Well, he’s written about this in the past. He’s a proponent of creating some kind of new national security court to deal with terrorists, and the national security court would be empowered with the ability to preventively detain terror suspects if they are considered dangerous, but they were not yet — they hadn’t yet committed crime, so they can’t be charged with a particular crime.

He’s not alone in that. There are a number of lawyers who are trying to figure out whether the courts, as they’re currently constructed, the criminal courts, whether they can handle terrorists or whether — you know, are they criminals? Are they military suspects who should go in front of courts-martial? Or do we need some new kind of setup? And this is going to be, I think, a growing fight as we move forward. And the Obama administration has put together a task force, basically, to study these issues. And I think there are going to be people on both sides of this, I mean, because there are some very strong civil libertarians in the administration, as well. So it will be interesting to see.

You know, I looked at this particular case because it’s one of the ones where people say, “Well, the courts might not have been able to handle him.” And interestingly, what I found in going back was that the prosecutors in this case, who were, you know, very strong sort of law and order types from New York, said that they thought he could have been prosecuted and convicted, and they were very upset when the Bush administration took him and stuck him in the brig instead. So I think that when you look carefully at these cases, an awful lot of them actually hold up as cases that would go — do fine in the criminal courts. And so, you know, I have — I’m waiting to see whether there’s any real reason why we would need a national security court.

AMY GOODMAN: Jane Mayer —-

JANE MAYER: I’m not sure I see it.

AMY GOODMAN: —- you write about David Kelley, who you interviewed, former US attorney for the Southern District, New York, who supervised the early stages of the al-Marri case, revealing he had warned his bosses in the Justice Department that they were making a mistake by sidestepping the criminal courts.

JANE MAYER: That’s right. I mean — and in fact, what’s happened, because of the way they handled this case, they’ve made it harder to prosecute al-Marri now, because they had to agree to drop the charges as they moved him into military detention and to promise not to bring those same charges against. So now, as the Obama administration inherits this mess, they have to figure out what to do with this man. And if they want to bring him back inside the regular criminal system, they have to come up with charges that might be new charges, because they’ve agreed previously in the Bush administration not to charge him with the same thing.

So, basically, I mean, I have a certain amount of sympathy for the Obama administration at this point. They really have inherited a royal mess here. And I think they are trying to feel their way and move forward sort of to a whole new paradigm where they’re back inside the regular rule of law, but it’s just not that easy.

JUAN GONZALEZ: But their use, so far, of the state secrets privilege has also raised some flags, in your eyes, hasn’t it?

JANE MAYER: Sure. I mean, there’s the case, in the Jepesen case, was out in California, you’re talking about, where some of the detainees who were suing this — a company that helped in renditions, because they’re trying to get some justice for themselves after they’ve been renditioned into, you know, really horrible torture. And surprisingly, the Obama administration took the same position the Bush administration did, which was that this case couldn’t go forward because it would violate national security. And so, they invoked state secrets in that case.

Again, you know, I know — I mean, there’s been — all of us are watching this closely to sort of figure out where the Obama administration is. I think I’m probably more sympathetic to what they’re doing than many of the critics have been, including even a piece recently in the New York Times. I mean, I know — I think what they’re trying to do is move forward in the right direction and not re-litigate what happened in the past. I think the past has to be dealt with, personally. I think there needs to be some more accountability there, and I hope they move towards that situation.

In that state secrets case, it’s complicated. The problem is that what they’re dealing with there is that the CIA worked with other countries, particularly Morocco in that case, I think, and the feeling was, if the CIA — if in an open court we begin to describe all the liaison relationships that the CIA has with other countries, other countries are not going to allow the CIA to operate with them. And they thought there were — you know, it was a rotten position to be stuck in. And I think that’s what you were looking at there. And, you know, so — I mean, it’s worth criticizing, but I think it’s also — these questions that are left for them to defend are really awful.

AMY GOODMAN: Jane Mayer, we’re also joined by Glenn Greenwald.

After a month in office, the Obama administration has surprised many of its supporters by embracing key parts of the Bush administration’s counterterrorism strategy. Obama’s nominee for Solicitor General, Elena Kagan, has publicly endorsed Bush’s policy of indefinitely detaining suspected al-Qaeda members, regardless of where they’re captured. And CIA Director Leon Panetta has said the CIA might continue its extraordinary rendition program. The Obama administration has used the state secrets doctrine, as you were saying, Jane, to urge a federal judge to toss out a lawsuit by former CIA detainees and to prevent a federal court from reviewing the Bush administration’s warrantless spying program.

To discuss this, we’re joined by Glenn Greenwald, constitutional law attorney and political and legal blogger for Salon.com, author of three books. His latest, Great American Hypocrites: Toppling the Big Myths of Republican Politics. He’s joining us by video chat from his home in Brazil. We hope the audio is good enough.

Hi, Glenn. I don’t know if you’ve heard Jane Mayer speaking, but talking about the issue of state secrets, can you talk about your concerns?

GLENN GREENWALD: Well, I think that the biggest concern is not so much that the Obama administration thought there might be legitimate secrets to protect in this case, whether it’s specific rendition agreements with Morocco, as Jane alluded to. The problem is that there are two ways to use the state secrets privilege.

One is the traditional way that had been used since before the Bush administration, since 1953, which is to assert, on a document by document basis, that specific pieces of information are too classified and too secret to be allowed to be used in a judicial proceeding, and therefore they ought to be deemed privileged, the way that, say, attorney-client documents are or doctor-patient communications are, very specific and focused assertions of privilege over a specific document. I don’t think anybody — the ACLU or civil libertarians — have a problem with the assertion of privilege when it’s used in that way.

The problem is, is that what the Bush administration did was they converted that state secrets privilege from a document-specific means of excluding pieces of evidence to a shield of immunity to compel courts to dismiss entire lawsuits before there’s any proceedings at all, any effort to find out whether specific documents really are classified, whether there’s a way that will allow the plaintiffs to proceed and have their day in court without using classified information. That’s been the controversy, over the use of the privilege as a shield of immunity to protect the President from judicial accountability.

And if the Obama administration’s embrace of that theory, of that use of the privilege as a weapon that has been so disserving — had they really been concerned about specific agreements with Morocco, they could have simply said, “Well, send the case back to the district court, and with regard to specific documents, we will assert the privilege over them.” That’s not what they did. They embraced what they had long said was the abuse of the privilege when in the hands of the Bush administration.

JUAN GONZALEZ: And in the case of Binyam Mohamed, you’ve written how specifically the Obama administration has even joined in in threatening Britain, in terms of its possible release of information about activities that have occurred in the past. Could you talk about that?

GLENN GREENWALD: Yeah. That might actually be the most disturbing episode yet. I mean, the British government has acknowledged that it has in its possession what it calls exculpatory evidence with regard to Mohamed, namely information that it obtained from the CIA that the confessions, on which the Bush administration previously was relying to prosecute Mohamed in the military commission, was — were concessions that were obtained by very brutal torture, not waterboarding, not forced nudity or hypothermia, but hardcore, violent, brutal torture, including things like having his genitals sliced and being severely beaten and threatened at gunpoint.

And the British government said that they had this in their possession, but they refused to turn it over. The American government had refused to give him access to any of the information so that he could defend himself. And so, Mohamed went to the British court, and the British court said that he’s absolutely entitled to these documents, that international law and British common law do not allow countries to conceal evidence of torture and to send somebody into a military commission, where the death penalty might be imposed, and conceal documents that they might use to defend themselves.

And after the British court ruled that way, the British government said, “Well, the reason we can’t turn over these documents is because doing so would harm British national security, because the American government has threatened that if we conceal these — that if we disclose these documents or reveal to the world the facts and information that we have on how he was tortured, that they will terminate intelligence-sharing programs with us, meaning if they learn of a potential terrorist threat directed at British citizens or at our country, the American government won’t tell us any longer about the information that it receives.”

And the British court said, “Well, given those threats and given our obligation to protect British national security, we actually agree that these facts need to be concealed, and we’re going to keep out of our court decision any information shedding light on how Mohamed was tortured at the hands of American agents.”

And amazingly, the Obama administration issued a statement congratulating and praising the British government for keeping those secrets, and essentially reaffirming the threat by saying, “Now that you’ve agreed to keep this secret, we will continue our intelligence-sharing program.”

AMY GOODMAN: Jane Mayer, your response to Glenn Greenwald’s take on this?

JANE MAYER: Well, I mean, I think — you know, I’m a big fan of Glenn’s writings and follow it closely. I think that, you know, basically, this whole setup during the Bush years was a criminal situation, where you’ve got our government working with other governments doing things that were war crimes and violations of all kinds of rights. And the question for the Obama administration is whether they’re going to treat these things as criminal, or are they going to — they’re on the spot — are they going to cover them up? Right now, they’re trying to move forward and not get bogged down in what they see as something that’s divisive, politically poisonous, you know, a political problem for them.

I think it’s going to turn out to be a mistake for them to do this. I think they’ve — because these questions are going to keep popping up again and again. I mean, there are many other cases of detainees who also want to try to get some justice. I mean, there’s the Maher Arar case, who — you know, the detainee who was renditioned, the Canadian, who has been unable to get any kind of justice. There’s Khalid El-Masri, who was a German car salesman who was renditioned by the CIA. These people are all going to try to get some sort of justice for themselves. And I think the Obama administration — there are many, many other cases, too — is going to have to set up some mechanism to deal with this.

And they — you know, I’m giving them maybe a little bit more credit than Glenn is, because I think what they did in their first week in office was stupendous. They put out executive orders that said, from here on out, everybody’s got rights, everybody’s covered by the Geneva Conventions, the ICRC gets to see every detainee, we’re closing the black site prisons, we’re going to shut down Guantanamo. They are moving on — these things are not nothing; these things are really seriously great reforms.

And so, you know, the issue where things are getting hung up is in this issue of backwards looking — you know, what should we do with the criminal actions of the past? And do they get covered up, or is there going to be some kind of investigation and, you know, some kind of accountability? And I think that’s very much in play.

AMY GOODMAN: Glenn Greenwald, last word, and if you could also address rendition in that.

GLENN GREENWALD: Well, I mean, I actually agree with Jane that it’s a mixed picture, more than perhaps my answer might have suggested, because I was addressing two specific areas where I think the Obama administration has done the wrong thing. But she’s right that the executive orders issued in the first week were promising and encouraging, and there are complexities and conflicting pressures. They need to make sure the CIA doesn’t revolt over the idea that, you know, they’re going to be dragged into court for what they did. They’re figuring out ways to try and keep some of these secrets without becoming complicit in them.

I think the problem is, is that, exactly as Jane said, there’s going to be continuing pressure. There’s going to be real, you know, investigative reporters like Jane out there probably uncovering more and more facts about what was done, and it’s going to be increasingly difficult for the Obama administration to continue to participate in the concealment of these facts without, at some point, appearing to or in fact becoming complicit with them. And I think they’re fighting a losing battle.

As far as looking forward, you know, those executive orders were good, and they were encouraging, but they leave some of the trickiest questions open. You know, are we going to close Guantanamo but then move those due process-abridging military commissions inside the United States and call them national security courts, where they might be even worse? Are we going to, as you just asked and as Leon Panetta suggested, preserve some of the rendition policies that have led to such severe abuse and some of the most grotesque acts of the last eight years? I mean, these are all good questions that are very much unresolved. They’ve left most of the hard questions to the future. And I think those of us who opposed these abuses over the last eight years, the most important, the best thing we can do is to keep the pressure on the Obama administration and be skeptical about their motives and not praise them until their actual behavior and the evidence warrants it. That’s the check that I think they need to make sure they have, to the extent possible, [inaudible].

AMY GOODMAN: Glenn and Jane, we’re going to leave it there. Glenn Greenwald, thank you for joining us, albeit a problematic audio line, but a great video stream from Brazil, where you live. Glenn, constitutional law attorney and a political and legal blogger for Salon.com. His latest book is called Great American Hypocrites. And Jane Mayer — Jane Mayer is a staff writer for The New Yorker. Her latest article, called “The Hard Cases.” Thanks so much for joining us from Washington.