FIGHTING IN THE SHADOWS

By William Fisher

The defense team in the case of a 23-year-old American citizen held in a Saudi Arabian prison for over a year without charge has had to respond to a U.S. Government motion to dismiss the case without ever seeing the government’s motion.

David Cole of the Georgetown Law Center, one of Ali’s defense attorneys, said, “I’ve been involved in many secret evidence cases before, but never where a U.S. citizen’s liberty has been at stake. The government maintains that it can dispose of a legal challenge to a U.S. citizen’s detention without even allowing his lawyers to see the evidence or the argument being used against him. We are left to fight shadows."

Ali, a Houston-born student, was arrested in Saudi Arabia in June 2003, while taking an exam at the University of Medina, and has since been held in a Saudi prison without charge or access to legal counsel. Saudi authorities claim they have no case against Ali, and that his detention was at the behest of the U.S. Government. The U.S. Government claims it had nothing to do with his arrest or imprisonment, but has declined to publicly produce any evidence to document this claim. Agents of the Federal Bureau of Investigation visited Ali during his detention. The U.S. Government has reportedly asked Saudi authorities to indict Ali or return him to U.S. custody.

The suit against the government was brought last summer by Ali’s Jordanian-born parents, who contend that their son is in de-facto detention by the U.S. government. They allege the U.S. arranged for their son to be held by the Saudi government on suspicion of terrorist acts and that U.S. authorities expected he would be tortured there. In December 2004, U.S. District Judge John D. Bates ruled that that the parents could seek government documents to try to prove these allegations, but the government maintains the documents are secret.

The defense team believes the government is trying have the case dismissed to avoid disclosing its role in Ali's imprisonment.

In a new brief filed on behalf of Ali’s parents, the defense contends that “no court at any level” has ever dismissed a case “where the physical liberty of a U.S. citizen is at stake. To the contrary, courts have consistently held that reliance on secret evidence in proceedings where physical liberty is at stake violates due process.”

The brief continued, “The government’s interest in national security cannot be so all-encompassing that it requires that [Petitioners] be denied virtually every fundamental feature of due process.”

“Nothing is more fundamental to the American system of justice than the notion that adversarial testing is the best way to avoid error and protect individual rights,” the brief said. The government “cannot both keep evidence secret and use it affirmatively to block any legal challenge to the detention of a U.S. citizen,” the defense brief declared.

The government has argued that U.S. courts have no jurisdiction over what happens to an American citizen held abroad. But the defense says, “No court has found that the state secrets privilege may trump a U.S. citizen’s right to be free from unlawful incarceration.”

The defense brief contends that “one would be hard pressed to design a procedure more likely to result in erroneous deprivation” of Mr. Abu Ali’s liberty than dismissal of his case “based on a secret, one-sided presentation of facts and legal argument.”

The government, according to the brief, “has taken the position that the Court should review unrebutted evidence and argument, and actively participate in the factual development of the case. But the Court cannot take the place of an advocate. Even when courts have the opportunity to review secret evidence, they have consistently ruled the petitioners’ rights are not adequately protected” when they have no access to the evidence to be used against them.

It adds that the government’s latest motion to dismiss “is nothing less than an attempt to unilaterally proceed under the flawed ‘discovery proposal’ it previously advanced. The government seeks to short-circuit discovery altogether by instead submitting a one-sided, secret presentation of its version of the facts on the very issue discovery was designed to illuminate – whether Mr. Abu Ali is in the United States’ constructive custody.”

As evidence that the U.S. is involved in Ali’s detention in Saudi Arabia, the brief charges that “less than 24 hours after this Court’s recent hearing…Ali was allowed to call his parents for the first time since November, but allowed to speak for only ten minutes and was not allowed to answer any questions about his treatment at the prison or consular visits.”

Ali‘s family charges that their son is a victim of ‘rendition’ – in which suspects are taken to, or held by, other countries and interrogated without the protection of U.S. laws. The practice is known to be used by the Central Intelligence Agency (CIA) and other agencies. Frequently, the targets of ‘rendition’ are sent to or detained by countries known to torture or abuse prisoners.

At an earlier hearing in Washington last week, Judge Bates said he had “serious reservations about dismissing the case “based on information that would be presented to him privately in chambers”. He said that although he was “mindful of the government's concerns about national security, he would be “reluctant to dismiss” claims of unjust imprisonment without a public explanation.”

Two months after his arrest, in September 2003, Ali was interrogated by FBI agents, who reportedly threatened to declare him an “enemy combatant” and send him to Guantanamo Bay, or put him on trial in Saudi Arabia, where he would have no legal defense. He was then placed in solitary confinement for three months.

But “The Washington Post” reported that the Saudi embassy said in an e-mail that a senior Saudi official had issued the following statement: Abu Ali "is being detained with the full knowledge and support of the U.S. government. There is an ongoing investigation regarding this individual. At this time, we have received no request for extradition."

Abu Ali’s parents are being represented by the prominent Washington, D.C. law firm of Arnold & Porter, The World Organization For Human Rights USA, an advocacy group, and Mr. Cole.

U.S interest in Ali stems from an alleged connection to a now-concluded Virginia terrorism case. During a July 2003 bail hearing for one of the Virginia defendants, Sabri Benkhala, said Ali was an associate of his who had allegedly confessed to belonging to al-Q’aeda during interrogations that were conducted by Saudi Arabia authorities and observed by the FBI. Benkhala was acquitted of the charges.

No date has been set for the judge's decision.