Image: Ali al-Marri
Peoria County Sheriff's Office via EPA
Ali al-Marri, a Qatari national, i the only person being held in the United States as an "enemy combatant."
NBC News and news services
updated 2/26/2009 7:00:04 PM ET 2009-02-27T00:00:04

In what would be the clearest break yet from the Bush Administration's legal strategy in the war on terror, the Justice Department is preparing criminal charges against the only person still held inside the United States as an enemy combatant.

Ali al-Marri, who has been held at the U.S. Navy brig in Charleston, S.C., would be charged and tried in regular civilian court under a plan now being worked out, Justice officials say. The Bush administration claimed al-Marri trained with al-Qaida in Afghanistan, had direct contact with Osama bin Laden and Khalid Sheikh Mohammed, and was sent to the United States to help carry out further attacks.

Al-Marri arrived in Peoria in September 2001 with his wife and five children to do graduate work at Bradley University. Three months later he was charged with credit card fraud and possession of false ID's. Then in 2003, a month before he was to stand trial, President Bush declared al-Marri an enemy combatant and an al-Qaida agent. Since the day he was seized — June 23, 2003, al-Marri has been in Navy custody. 

Transfer could avert Supreme Court hearing
The transfer could avert a Supreme Court hearing in April and a subsequent ruling that would govern other cases against accused terrorists. To justify holding al-Marri, the Bush administration claimed the president has the wartime authority to send the military into any U.S. neighborhood, capture a citizen and hold him in prison without charge, indefinitely.

One of the people familiar with the al-Marri case said prosecutors plan to charge al-Marri with providing material support to terrorists, a charge similar to what he would have faced if tried by a military tribunal.

Putting al-Marri into the federal court system follows a similar move made by the Bush administration with another enemy combatant, Jose Padilla. Padilla, once held at the same brig as al-Marri, was eventually convicted of terror-related charges in federal court in Florida.

President Barack Obama's administration faces a mid-April deadline to tell the Supreme Court what it intends to do in his case. Al-Marri's lawyers have challenged the government's authority to pick up people on American soil, declare them enemy combatants, and detain them indefinitely.

The lower courts have been divided over the issue. But in the most recent decision, the U.S. Court of Appeals for the 4th Circuit ruled 5 to 4 that the president can detain people in the U.S., including American citizens, indefinitely without charge. Obama's Justice Department was to have decided whether to pursue that claim of presidential power or change course.

By charging al-Marri in civilian court, it would dodge that question of presidential authority.

The Associated Press reported that prosecutors were planning to send al-Marri to a federal court in Illinois.

'It's an important step'
Justice Department spokesman Dean Boyd declined to comment on the plans for al-Marri.

"If this is true, it's an important step," said Jonathan Hafetz, one of al-Marri's lawyers. "This is what should have happened seven years ago. Indefinite military detention, without charge, of people with legal residence in America is illegal."

Video: Criminal charges for terror suspect Yet such a move may derail the legal challenge Hafetz and the American Civil Liberties Union have brought to the Supreme Court.

"It's vital for the Supreme Court to review the case and make that clear once and for all," said Hafetz. "Otherwise the government will be free to do the same thing again."

The new administration might not want to force the court to decide that issue, thereby preserving the possibility that Obama or future presidents could exercise that power.

The government says al-Marri is an al-Qaida sleeper agent who has met Osama bin Laden and spent time at a terrorist training camp in Afghanistan.

Credit card fraud
After he was arrested as a material witness in late 2001, authorities first charged him with credit card fraud. Later, officials said he had strong links to al-Qaida terrorists, so President Bush declared him an enemy combatant and transferred him to the military brig.

In court documents, the government contends that al-Marri met with bin Laden in the summer of 2001 and "offered to be an al-Qaida martyr or to do anything else that al-Qaida requested."

A government summary of the case — declassified in 2006 — indicated al-Marri was closely tied with senior al-Qaida leadership, including Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11 attacks. Al-Marri's brother was also seized by U.S. officials and sent to the Guantanamo Bay detention facility.

"Al-Qaida sent al-Marri to the United States to facilitate other al-Qaida operatives in carrying out post-Sept. 11, 2001 terror attacks," the government contended.  

The Associated Press contributed to this report.

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