Steve August 14, 2020
suspect-policy

It’s difficult to see Faten Abu Ali’s expression, since her white veil leaves only her eyes uncovered. But those eyes are red, and her voice quivers with fear. With good reason: Last week, the government unsealed an indictment charging her 23-year-old son, Ahmed, with aiding Al Qaeda terrorists and plotting to assassinate President Bush—charges that could carry an 80-year prison sentence. Yet, while frightened, she also feels vindicated. “We consider it a victory just having our son here,” she says.

That’s because, for the past 20 months, Ahmed Abu Ali, an American citizen, wasn’t here. He was detained at Al Hair Prison in Saudi Arabia as a suspected terrorist, and, though he may indeed be one, he was never charged with any crime. Not only did the Bush administration never seek Abu Ali’s extradition, but officials from the Federal Bureau of Investigation also took part in his Saudi-led interrogation—which, when the FBI was not there, may have included torture. In response, Abu Ali’s family filed a civil action against the U.S. government last summer, petitioning Judge John Bates of the D.C. Circuit to issue a writ of habeas corpus, which would have forced the government to return Abu Ali to the United States. As the case proceeded—over the objections of the Justice Department—the government did just that: Abu Ali was suddenly whisked back, appearing on U.S. soil for the first time in nearly two years at federal district court last Tuesday, to face criminal charges.

But the civil case doesn’t just seek Abu Ali’s return. It seeks a determination that his detention and interrogation in Saudi Arabia were unlawful, a determination that could challenge perhaps the most controversial aspect of the war on terrorism: the policy of “extraordinary rendition,” whereby suspected terrorists are sent to foreign allies, where their questioning need not be inhibited by U.S. laws barring torture. Bates ruled in December that the U.S. government had to disclose in court any information about its role in Abu Ali’s foreign detention, putting rendition on a path to public scrutiny.

Ironically, Abu Ali’s criminal indictment threatens that disclosure. Now that he will stand trial, the original purpose of his civil suit—returning him to the United States—has been satisfied, and the Justice Department will seek to dismiss it. If Justice succeeds, it will have preempted one of the most significant attempts yet to cast light on extraordinary rendition. In other words, an initial victory for Abu Ali might represent a setback for keeping the war on terrorism in line with U.S. human rights obligations.

In June 2003, after an Al Qaeda bomb in Riyadh killed more than 30 people, Saudi authorities arrested Abu Ali at the Islamic University of Medina, where he was studying on a scholarship. Three other American citizens were also detained, extradited to the United States, and charged with involvement in a Northern Virginia jihadist cell. Initially, American officials suspected Abu Ali of being part of the same cell. Five days after Abu Ali’s arrest, FBI agents searched his family’s house in Virginia and discovered jihadist books and audio tapes, as well as a document on how to avoid surveillance.

But Abu Ali was never charged with any wrongdoing. He remained in Saudi custody—though he received visits from FBI interrogators. As his imprisonment dragged on, some American officials became less convinced of Abu Ali’s involvement in terrorism. In June 2004, Michael A. Mason, assistant director of the FBI’s Washington field office, told members of Abu Ali’s Falls Church mosque that, when he asked his colleagues whether “we have a continuing interest in this individual … the answer I got was no.” But, if American interrogators didn’t have an interest in Abu Ali, prosecutors did: Court papers filed by Abu Ali’s parents allege that a State Department consular official told them in June 2004 that the Justice Department was still investigating their son.

All this led Abu Ali’s family to believe that the United States was using the Saudis to detain Abu Ali indefinitely and subject him to conditions from which U.S. citizenship is supposed to protect him—including torture, routine in Saudi Arabia. As a result, his family filed the habeas corpus petition in July 2004. Justice Department attorneys argued that U.S. courts had no jurisdiction over American citizens held by foreign governments. But Bates, a George W. Bush appointee, rejected this contention in mid-December, ruling, “The Court concludes that a citizen cannot be so easily separated from his constitutional rights…There is at least some circumstantial evidence that Abu Ali has been tortured during interrogations with the knowledge of the United States.” He then ordered the U.S. government to disclose evidence detailing its role in Abu Ali’s detention and interrogation.

Bates’s order was the first ever to demand that the United States publicly detail information about renditions. Not surprisingly, the government has gone to what Bates called “highly unusual” lengths to fight the judge’s ruling. Last month, it filed a motion to dismiss the case based not only on secret evidence, but also on an undisclosed argument—a “legal argument [that] itself cannot be made public without disclosing the classified information that underlies it.” But, before Bates could rule on the matter, Abu Ali turned up in the United States to stand trial for providing material support to Al Qaeda and intending to kill Bush.

According to a Justice Department spokesman, Bates’s ruling “had nothing to do” with the decision to finally indict Abu Ali, whom the government says confessed the Bush plot to the Saudis in July 2003—a confession the defense will undoubtedly argue was coerced. Not surprisingly, Abu Ali’s lawyers see things differently. “The timing speaks for itself,” says David Cole, a Georgetown law professor representing Abu Ali. “Only when the government was threatened with having to disclose its arrangements with Saudi Arabia regarding Mr. Abu Ali’s detention did it take action, bring him back, and indict him.” And that’s hardly the only matter under dispute. In court last week, Abu Ali’s lawyers attempted to show evidence of torture. The next day, the government alleged that a doctor who examined Abu Ali in the U.S. “found no evidence of any physical mistreatment.” And, in court Tuesday, the defense claimed that, in between interrogation sessions with the FBI in September 2003, Abu Ali was “handcuffed to something overhead” by his Saudi jailers.

In a hearing last Thursday, Bates gave Abu Ali’s lawyers until next week to file papers arguing against the dismissal of the civil case. If Bates rules against them, however, efforts to publicly examine the U.S. role in Abu Ali’s detention and possible abuse could founder, since a criminal case might not shed as much light. “There are many things that could happen in a criminal proceeding. The government could decide to treat him as an unlawful enemy combatant,” says Morton Sklar, another of Abu Ali’s lawyers—a decision that could seriously limit the information that would come out of any proceeding. “You have no guarantee the facts are going to come out.” Similarly, legal experts say, the government could seek to leverage the gravity of the charges against Abu Ali to get him to drop the civil case as part of a plea agreement.

If the civil case goes away, the public could be denied a trove of information about unspeakable acts. On March 13, 2002, administration officials—allegedly including then-White House Counsel Alberto Gonzales—prepared a memo authorizing rendition. Its contents have never been revealed, but its consequences have. Australian citizen Mamdouh Habib, arrested in Pakistan in October 2001, alleges that the United States turned him over to Egypt, where he was “suspended from hooks on the wall.” Canadian citizen Maher Arar, arrested by American officials at Kennedy Airport in September 2002, was rendered to the Syrians, who allegedly beat him for over a year. The White House’s official posture was expressed by Gonzales in January. “It is my understanding that the United States does not render individuals to countries where we believe it is more likely than not they will be tortured,” he wrote to the Senate Judiciary Committee. But, in the war on terrorism, the United States believes what it wants to about torture: Syria, after all, has a long history of human rights abuses. This see-no-evil posture is exactly what makes the civil case so significant, whether or not Abu Ali is guilty. The civil case’s disclosure order could jeopardize the position that the administration is unaware of what happens to detainees it sends to foreign countries. “The filings suggest the case has the potential to expose the fallacy of the clean-hands theory—that, if we just send [suspected terrorists] to foreign countries, we’re fine,” says Juliette Kayyem, director of the national security program at Harvard University. That is, unless the administration shuts the case down first.

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