The year is 2003. In Saudi Arabia, the semester at the university American-born Ahmed Abu-Ali is attending in Medina is coming to an end. It’s exam time. Soon, he’ll be on a jet headed for his family’s home in Falls Church, Virginia.
But 23-year-old Abu-Ali never makes it to the airport. Or anywhere close. Instead he is arrested by Saudi security services “for questioning,” and imprisoned. And that’s where he would stay for the next twenty months. With no lawyer and no charge against him.
And where, Abu-Ali says, he was routinely tortured, including the occasion when a “confession” was squeezed from him under extreme duress. It was a “confession” of a conspiracy to organize an al-Qaeda cell in the US, and to use guns or a suicide mission to kill the president of the United States.
At the same time, Abu-Ali’s parents, naturalized US citizens living in Northern Virginia, find themselves crazed by the frustration of effectively having their son “disappeared” – a victim of extraordinary rendition in plain sight — and being unable to get a coherent story from either the Saudis, who are holding him, or the US, which they strongly suspect is apparently managing his incarceration.
Finally, in August 2004, after the FBI executed a search warrant on their home, Abu-Ali’s parents’ frustration reached a boiling point. They filed a habeas corpus lawsuit in the U.S. District Court of the District of Columbia, seeking a legal justification of Abu-Ali’s detention, and his ultimate release.
The legal team for the habeas action included high-profile constitutional rights scholar, Georgetown University law professor David Cole and other prominent civil rights lawyers, including Morton Sklar.
The government’s position had been that Abu-Ali was too dangerous to be brought to the US. But then it dropped its legal IED. It flew Abu-Ali to the United States. This mooted Judge Bates’s question, as lawyer Cassel put it, “whether the government could proceed upon secret evidence to block his return.”
Now that he was back in the States, it was a stretch to deny that the Abu-Ali’s Saudi detention was not with U.S. consent – indeed, according to attorney David Cole, his return was arguably facilitated at the U.S.’s behest.
It was only Judge Bates’s interest in Abu-Ali’s case that changed the government’s mind.
Judge Bates was concerned about the potentially indefinite imprisonment of a U.S. citizen, with the U.S.’s consent, in a foreign prison where due process is ignored and torture is common.
He had reason to be suspicious. Saudi Arabia’s human rights record had long been a disaster. It is generally acknowledged to be the most orthodox and repressive of the Arab regimes in the Middle East. It retains that role, even after the so-called Arab Awakening and the grisly situation in Syria.
The State Department Country Reports on Human Rights Practices for 2003 says Saudi Arabian security forces “tortured detainees” and that “torture and abuse were used to obtain confessions from prisoners.”
But now that Abu-Ali was physically in the US, the government had to charge him with something – presumably that would reassure the public that the government was waging the “war on terror” relentlessly, and successfully.
Abu-Ali was arraigned on February 22. The Government used Abu-Ali’s Saudi-prison confession, with an FBI agent testifying at the hearing on the bail motion, that Abu-Ali had confessed to Saudi officials that “he associated with persons involved with al-Qaeda, received things of value from them, and talked with one or more of them about how to assassinate President Bush, whether by car bomb or shooting.”
The government’s charge of conspiracy also seemed questionable. When the indictment was made available to the public, it raised an even larger question about the entire prosecution. Nowhere in the indictment is Abu-Ali tied to any terrorist event or action. Legal experts asked, “If his only transgression was conversation – speech — what is the crime? Where’s the beef?”
Plainly, there was not enough evidentiary support for a charge of conspiracy to assassinate President Bush. Conspiracy normally requires an agreement, and an overt act in furtherance of the agreement. Nothing in the indictment suggests that Abu-Ali either agreed to attempt to assassinate Bush, or took any action as a step to doing so.
So, instead, the indictment simply charges Abu-Ali with having “associated” with alleged terrorists. Specifically, it claims that he talked about wanting to kill Bush with these persons, and that he received money from one or more of them — for what purpose, it is unclear. Abu-Ali’s lawyers also argued that if their client had confessed at all, the confession was obtained under extreme duress – torture – and would have been inadmissible in court.
Justice Department attorneys said US courts lacked jurisdiction over cases involving US citizens in foreign custody. District Judge John D. Bates rejected the notion that “when the United States acts against citizens abroad it can do so free of the Bill of Rights.” He ordered the Justice Department to produce evidence establishing what role, if any, U.S. officials played in Abu-Ali’s arrest and detention.
The government’s “position is as striking as it is sweeping,” the judge said. He warned that its behavior would allow the government to arrest people and deliver them to another country in order to avoid constitutional scrutiny, or even “to deliver American citizens to foreign governments to obtain information through the use of torture.”
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