The American Civil Liberties Union, citing news stories, reported Thursday that the Justice Department will shortly file terrorism charges and hold a trial in civilian court of a Qatari national, Ali Saleh Kahlah Al-Marri — the only detainee taken prisoner in the U.S. and still being held in this country.  The ACLU, which represents Al-Marri, issued a news release, found here.  A Washington Post story on the development is here. Other news organizations have similar accounts.

The Supreme Court on Dec. 5 agreed to hear Al-Marri’s challenge to the President’s authority to detain an individual inside the U.S. (Al-Marri v. Spagone, 08-368).  His lawyers contend that neither federal law nor the Constitution gives the President that authority.  The Court has scheduled oral argument in the case for April 27.  The Justice Department’s brief is due March 23 — a date the Department sought to allow time for officials to review Al-Marri’s case, as President Obama ordered on Jan. 22.

However, if criminal charges are filed, that could lead the Administration to take Al-Marri out of a Navy brig in Charleston, S.C., and put him in a civilian jail, and thus perhaps putting an end to his attempt to gain his release through a habeas petition.  The ACLU, in its announcement Thursday, indicated that it would try to persuade the Justices to go ahead and decide the case.

Al-Marri’s lead lawyer, the ACLU’s Jonathan Hafetz, said “it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the U.,S. is illegal and that this willnever happen again.”

The ACLU said that “a criminal indictment would not automatically resolve the issues that are pending before the Supreme Court.”

That raises the issue of whether the Court will react to criminal charges in Al-Marri’s case as it did nearly three years ago in another case involving a detainee captured and held in the U.S. — Jose Padilla, a U.S. citizen.

After allowing the military to transfer Padilla to civilian custody for criminal trial, the Court on April 3, 3006, refused without explanation to hear his appeal contesting his detention.  Since Padilla was then in civilian custody, Justice Anthony M. Kennedy wrote in a separate opinion speaking for three members of the Court, any claim he might have about a violation of rights if returned to military custody was “hypothetical.”

Kennedy also said that any ruling on the “fundamental issues” Padilla raised in challenging his military detention would be hypothetical.  Three Justices — one fewer than the minimum needed — would have granted review (Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter).

Padilla was tried in federal District Court in Miami and convicted on criminal charges in August 2007.  He is serving a 17-year, four-month prison sentence.

Al-Marri’s lawyers have contended that, while in military custody, he has been “subjected to torture and other abuse.”  That could be an issue in any criminal trial, if any evidence resulting from interviews while in military custody were offered.

President Bush had designated Al-Marri as an “enemy combatant.” That action was explained in part by a sworn statement by Jeffrey N. Rapp, director of a government intelligence task force on terrorism, detailing claims that Al-Marri had come to he U.S. a day before the Sept. 11, 2001, terrorist attacks, and, as a member of an al Qaeda “sleeper cell,” was sent to the U.S. to aid in post-9/11 terrorism in the U.S.

Rapp said the evidence came from “information that I have acquired in he course of my official duties,” and said he was familiar with interviews that FBI and Pentagon agents had conducted with Al-Marri once the military took custody of him June 23, 2003, after the enemy designation by the President.

The Bush Administration urged the Supreme Court not to hear Al-Marri’s case, defending as correct a Fourth Circuit Court ruling that had upheld the President’s power to detain Al-Marri.  The Bush Administration had never filed any charges against Al-Marri, and there was no indication that it ever planned to do so.

Posted in Al-Marri v. Spagone, Uncategorized