Twenty-three-year-old, Houston-born American citizen Ahmed Omar Abu Ali has been returned to Virginia after twenty months in solitary confinement in a Saudi Arabian prison. But he returned only to face arraignment, on February 22, in U.S. District Court in Alexandria, Virginia.
The charge is that he conspired to commit terrorism- and, indeed, the FBI says that he admitted as much in the course of interrogations in Saudi prison. He is alleged to have plotted to assassinate President Bush - but is not charged with that conspiracy.
The case is far from as open-and-shut as the FBI might suggest. Indeed, a number of aspects of the prosecution are deeply troubling.
The Early History of Abu Ali's Case: The Government Reverses Itself
At the end of the 2003 academic year at the Saudi university he was attending, Abu Ali failed to return home to the U.S. As a result, his family - Jordan-born, naturalized U.S. citizens living in Northern Virginia where I practice - contacted me to see if I could help.
In August 2004, attorneys filed suit in the U.S. District Court of the District of Columbia, on behalf of Abu Ali's parents, in order to obtain his release. Among the attorneys was renowned constitutional rights scholar and Georgetown University law professor David Cole.
The day the suit was filed, the State Department - which had previously refused to provide information to Abu Ali's parents - notified them that their son would be charged with crimes of terrorism in Saudi Arabia. But that never happened. Instead, the question of whether Abu Ali could be returned to the U.S. was litigated.
Before U.S. District Judge John Bates, the government took the position that Abu Ali was far too dangerous to ever be returned to the United States, and that the reason was so serious that it could not be disclosed even to the family's attorneys. In other words, the government sought to proceed on secret evidence.
Then, the government reversed itself dramatically. It transported Abu Ali to the United States itself - thus mooting the question before Judge Bates of whether the government could proceed upon secret evidence to block his return.
In 2004, when Abu Ali's parents had been begging the U.S. government to intervene, it had refused - claiming it was up to the Saudis whether he was released. With his return, however, it began to seem evident that the Saudis had been holding Abu Ali with U.S. consent - indeed, even at the U.S.'s behest. It now appears that FBI agents had the Saudis remove Abu Ali from his university class and take him to a Saudi facility for questioning in the summer of 2003.
It also became apparent that the U.S. could, all the time, have ensured Abu Ali's return to the U.S. whenever it felt like it. After all, federal prosecutors had, during this time, extradited from Saudi Arabia to Alexandria another man in Saudi custody who was alleged to be (and acquitted of being) a terrorist and involved in the case of the Alexandria 11.
Apparently, however, the U.S. had taken advantage of this U.S. citizen's choice to attend school abroad, to make sure he was held in prison there - where torture would be permitted, and counsel would not be provided. Indeed, unidentified sources have been quoted in the Washington Post and New York Times as saying that the government certainly would have preferred to have left Abu Ali in Saudi Arabia.
It was only Judge Bates's interest in Abu Ali's case that changed the government's mind. Laudably, Bates was concerned - as we all should be -- 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.
With Judge Bates perhaps unwilling to proceed against Abu Ali in absentia, the government felt it had to bring him home. To do so, they had to charge him with something--something that would at least sound serious, even if the underlying indictment (as I will explain below) fell far short of the media headline.
The Government Argues Abu Ali Ought to Be "Presumed Dangerous"
Abu Ali was arraigned, as noted above, on February 22. On February 24, a hearing on whether he would be released prior to trial was to occur. But the government managed to delay that hearing. It did so by arguing that the usual standard for pre-trial release should not apply.
Typically, in a criminal case, to block a defendant's release on bail, the government must prove the defendant's dangerousness or his likelihood of fleeing. But here, the government took the position that the defendant, Abu Ali, had the burden of proving to the court that he would not be a danger to national security, before being released on bail. It did so based on 2004 federal legislation stating that people charged with terrorism-related crimes were presumed to be too dangerous to be released unless they proved otherwise.
The Eighth Amendment requires that "excessive" bail shall not be required, and constitutional due process applies to federal pre-trial criminal proceedings. Moreover, two centuries of law have mandated that the government has to prove that a defendant would be a flight risk or danger to the community if not released on the condition he pay bail and/or comply with other requirements.
More fundamentally, our system depends on the idea that we jail people for criminal conduct, not merely the government's insistence that they are "dangerous." In order to honor this principle, we have made sure that we have no common law crimes - only those specifically defined by statute.
The importance of this principle simply cannot be overstated. Without it, governments could simply lock up unpopular minorities, political opponents, and political dissidents - and as South American and Eastern European history shows us, they have.
The Government Relies on a U.S. Citizen's Saudi-Prison Confession
At the hearing on the bail motion, an FBI agent testified 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. (These persons are named in the indictment as unindicted co-conspirators.) The government also claims to have a videotape of this confession.
Abu Ali's attorneys argued that if Abu Ali indeed confessed, he did so under extreme conditions of confinement - conditions that included torture. Confessions under such circumstances are not only deeply inhumane; they are also notoriously unreliable.
They also pointed out that Abu Ali had repeatedly been denied the right to an attorney. Abu Ali's parents had asked the U.S. consulate in Saudi Arabia -- who had infrequently sent an employee to visit Abu Ali in prison -- to provide their son with an attorney. They were told the Saudis would not allow it. Accordingly, no attorney ever met with Abu Ali while he was incarcerated and doubtless tortured in Saudi Arabia.
Hopefully, the Alexandria judge will exclude the confession from evidence to be heard at Abu Ali's trial. He could do so on the ground that Abu Ali was, in effect, in U.S. custody - and thus, his Fifth Amendment rights were violated. Or, the judge could do so on a simpler ground: that the prejudicial effect of coerced confessions outweighs their probative value. (Federal trial judges may make this prejudicial effect/probative value balance for any piece of evidence the government seeks to offer.)
The Government Searches Abu Ali's Parents Home pursuant to the USA PATRIOT
The government also admitted at the bail hearing that it had secretly raided Abu Ali's parents' home in 2003 - apparently pursuant to the USA PATRIOT Act -- and found what it deemed to be "radical" Islamic writings. It also found a gun magazine - hardly unusual for Virginia.
This search had occurred incident to the prosecution of the "Alexandria 11." I have written about this group in an earlier column. Abu Ali and his parents were certainly not among them - but because they lived in the same community, apparently they fell under suspicion anyway.
In Abu Ali's case, the government was able to use two arguably unconstitutional laws--the USA PATRIOT Act, which allows secret, warrantless searches, and the law the government invoked, which allows pre-trial dangerousness to be presumed. Through the combination of these laws, it was able to search secretly for supposed evidence of dangerousness, craft an overblown indictment, flood the media with dramatic press releases, and then dare the defendant to prove his innocence.
The Government's Indictment: Where's the Conspiracy?
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. So what is his crime?
Plainly, there was not enough support for a charge of conspiracy to assassinate President Bush. Conspiracy 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 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.
The very reason that the law of conspiracy requires an agreement and an overt act is to prevent prosecutions like this one - based on alleged, vague discussions that supposedly took place, but were never acted upon.
What Abu Ali's Case Signifies for America and the Rule of Law
The next development in the Abu Ali case may be a plea agreement. The government's case is obviously weak, and its evidence depends on conduct that many view as unconstitutional - even appalling.
The government will be in the same bind it is in the Zacarias Moussaoui case. There, it has successfully argued that it cannot produce witnesses because they are of such high intelligence value to the government that they have to be kept in secret. It has also argued that given that this is the case, the defendant can't subpoena these witnesses because their appearance, pursuant to Moussaoui's Sixth Amendment right to face his accusers, would be a grave threat to national security.
If prosecutors offer Abu Ali a deal and he refuses, he will sit in jail for years as the case winds it way through appeal after appeal, as his occurred in the Moussaoui saga.
If Abu Ali pleads guilty, he will no doubt be placed under a gag order, like that imposed on John Walker Lindh. It will require, most certainly, that he never speak in public about anything related to the court case, or about what happened to him while he was in Saudi custody.
The plea agreement may also require that Abu Ali return to Saudi Arabia - as the agreement the government entered into with U.S. citizen Yaser Hamdi did - even though that means he will be separated from his family. (The agreement followed upon Hamdi's victory in his Supreme Court case.)
Speaking of his family, Abu Ali's family have not been able to visit him since his return because they refused to agree to the government's rules: An FBI agent had to be present during the visits, all their communications had to be in English, and they could make no comment to anyone, including the press of course, about any aspect of their visit. Is it any wonder they refused?
To add insult to injury, the family has been ordered not to "communicate" with their son in the courtroom. Did this extend to a smile, a loving glance, they asked the magistrate?
If Abu Ali's case does end in a plea agreement - or, worse, in a precedent blessing this prosecution as constitutional - Americans' rights will have been very significantly diminished.
Such a result will mean that this nightmare is viewed as an entirely legal reality: The U.S. can work with a foreign government to arrest and imprison a U.S. citizen and torture him. It can allow the imprisonment to go on indefinitely; Abu Ali's took over twenty months.
Citizens of U.S. allies, too, should beware: Canadian citizen Maher Arar was kidnapped by CIA operatives from New York's Kennedy airport, and taken to Syria for "questioning." There he remained for a year, until Syria got annoyed with the United States and returned Arar to Canada.
Then, if the U.S. (or allied country) citizen confesses under torture - and virtually everyone does, even if the confession is a lie - the U.S. may try to use the confession against him in a U.S. court, as well in a foreign court. (We don't know why the intended Saudi prosecution of Abu Ali got sidetracked. Could it be because the Saudis thought, as did the Syrians about Maher Arar, that no crime had been committed?)
But, readers may object, what if the U.S. really thinks Abu Ali is a terrorist? The answer is that the U.S. can still protect its citizens from him - consistent with the Constitution.
How? The U.S. could have promptly extradited him from Saudi Arabia to face charges here. Once he was here, it could have honored his right, as a U.S. citizen, to an attorney, a speedy trial, and a right to pretrial release unless the government proved that he was a danger or a flight risk.
This is not too much to ask. And it is what the Constitution requires.