Al-Marri Attorney: It's The Constitution

Ali al-Marri
Ali al-Marri has been held, without charge, on a U.S. naval brig for more than three years. The Obama administration recently announced charges and said he would be tried in a civilian court.

A day after his most prominent client was indicted for terrorism offenses, Jonathan Hafetz was unusually gleeful for a defense attorney.

"This is an important step in restoring rule of law in America," Hafetz told CBS News at his Manhattan office at the American Civil Liberties Union. "He will finally get his day in court.

Hafetz's attitude stems from the unique circumstances of the case against Ali al-Marri, 43, an alleged al Qaeda operative from Qatar who has spent the past five-and-half years in solitary confinement in the U.S. naval brig in Charleston, S.C., without any charges levied against him.

"The key point is that in America, for 230 years, when we accuse people of wrongdoing, even acts of terrorism, we bring them to trial in our civilian courts. We don't lock them in Navy brigs and throw away the key," Hafetz says.

President Barack Obama reversed one of the most controversial Bush administration policies in the legal war on terror Friday by ordering an end to the indefinite detention of so-called "enemy combatants" on U.S. soil.

The Justice Department announced a new, two-count indictment against al-Marri for allegedly conspiring to provide and for providing material support for al Qaeda, the terrorist organization responsible for the Sept. 11, 2001, attacks on America that left nearly 3,000 people dead.

"Once the President has the power to declare someone 'the enemy,' whether it's acting on behalf of al Qaeda, another terrorist organization, or even any other criminal act, we've basically eliminated the most sacred protections under our system of government: the right to be presented before a jury, the right to be tried before a court of law," Hafetz says.

All along, attorneys for al-Marri and a pair of earlier "enemy combatants" detained on U.S. soil, Yasser Hamdi and Jose Padilla, argued that their clients should be charged with crimes or released.

Hamdi, a Saudi who by virtue of his birth in Louisiana held dual U.S. citizenship, was deported back to Saudi Arabia in 2004.

Padilla, from Chicago, once accused of plotting to detonate a radioactive "dirty bomb" in an American city, was held as an enemy combatant for three-and-half years, eventually charged with terrorism conspiracy in 2005, transferred to federal court in Miami, where he once lived, and convicted in a jury trial in 2007.

Al-Marri's long road to the criminal justice system actually began there seven-and-half-years ago.

He arrived in the U.S with his wife and five kids on Sept. 10, 2001, the day before the attacks, and enrolled in a computer science graduate program at Bradley University, in Peoria, Ill., where he'd earned a college degree a decade earlier.

But federal agents suspected al-Marri might be involved in plotting a "second wave" of attacks and arrested him in December 2001 as a material witness in the 9/11 probe. Later, the government levied criminal charges for allegedly possessing stolen credit card numbers and making false statement to investigators.

In court papers, the government said his computer contained files on critical U.S. infrastructure, like chemical plants, and lectures by Osama bin Laden, and in open court, a prosecutor once referred to al-Marri as an al Qaeda sleeper agent.

Prosecutors said a calling card belonging to al-Marri was used repeatedly to call a number in Dubai belonging to Mustafa al-Hawsawi, an al Qaeda facilitator who had wired tens of thousands of dollars to the 9/11 hijackers. (Al-Hawsawi is now among the "high value" detainees at the U.S. naval base at Guantanamo Bay, Cuba.)

In June 2003, right before al-Marri's scheduled trial for credit card fraud in Illinois, President Bush withdrew the case and transferred al-Marri to military custody.

David Rivkin, who served in the Justice Department under the first President Bush and in the Reagan administration, says the move was justified.

"Unfortunately, in this war, America is very much the battlefield. It was in the United States that we were attacked on Sept. 11th. It is here that our enemies are seeking to attack us again and again," Rivkin says.

The Bush administration consistently argued that declaring enemy combatants was within the president's constitutional powers as commander-in-chief.

"Remember this is something that is also supported by the Authorization to Use Military Force," Rivkin says, referring to the vote to retaliate against the perpetrators of 9/11 by Congress one week after the attacks.

But numerous, former military and government officials, from Clinton administration Attorney General Janet Reno to former Reagan FBI Director William Sessions, say the move was unconstitutional and filed briefs with the Supreme Court supporting al-Marri.

In a recent telephone interview with CBS News, one of al-Marri's brothers, Naji, also educated in the U.S., said Ali has a right to defend himself.

"I am not asking, 'Free Ali.' I am not asking to take Ali and send him back home," he continued. "All I am asking is to put my brother in court. Let's see if the guy is guilty or not."

Naji added that he doesn't believe Ali is a member of al Qaeda.

"If somebody want to do something, why he took his family with him?" Naji says. "If they have something -- prove it."

No date has been set for al-Marri's first court appearance. He is yet to be transferred from the military brig to a civilian jail.

The Supreme Court, which was due to hear arguments in April about the legality of al-Marri's military detention, must approve the Obama administration's application to move al-Marri. The administration has also asked high Court to cancel the arguments, saying the case is moot. Hafetz disagrees.

He says, "This is a fundamental issue in American constitutional law and it is imperative that the Supreme Court after years of litigation in this case and the Padilla case make clear that this type of indefinite military detention is not an option is not a choice."