Wednesday, June 20, 2012
The article below originally appeared in the pages of Prism Magazine.
By William Fisher
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 charges, 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." The report also cites " … credible reports that security forces continued to torture and abuse detainees and prisoners, arbitrarily arrest and detain persons, and hold them in incommunicado detention."
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 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."
The indictment was later amended to add charges of conspiracy to assassinate the president, conspiracy to hijack aircraft, and conspiracy to destroy aircraft. The indictment alleged that Abu-Ali had joined a terrorist cell in Medina, led by senior al-Qaeda members Ali Al-Faqasi and Zubayr Al-Rimi, and that among the plots they were developing were a plan to assassinate the President of the United States, and a plan to mount 9/11-style attacks using planes transiting through the US.
Pretrial hearings began in the fall of 2005. The government's evidence was focused on the confession Abu-Ali had allegedly made while in Saudi custody. Abu-Ali challenged the admissibility of the confession, claiming: (1) it was involuntary due to alleged torture he had suffered at the hands of the Saudis; and (2) he should have been given certain constitutional protections (including Miranda warnings), because the interrogations were a joint venture between the FBI and Saudi authorities, rather than a purely Saudi interrogation, which would not have been subject to the same scrutiny under the U.S. Constitution.
After an extended pre-trial suppression hearing, in which Abu-Ali himself testified, Judge Gerald Bruce Lee, who presided over the case, ruled that Abu-Ali's confession to Saudi agents was admissible.
Abu-Ali testified that on the first day, his interrogators asked him whether he knew specific people and whether he knew about bombings in Riyadh. At one point, his blindfold was taken off. Abu-Ali said he then saw the bruised face of a man through a window in the door to the room. The man was asked if he knew Abu-Ali, and he shook his head no, then was taken away.
Abu-Ali testified he was not fed this day. He says the Saudis hit him, slapped him, punched him in the stomach, and pulled his beard, ears, and hair. He was not allowed to use the bathroom, even when he asked to wash up for prayers. The next day, the Saudis continued hitting him. At one point, he was taken from the chair in which he was sitting, and his handcuffs were handcuffed to a chain or other handcuffs in the floor, leaving him with his knees to his chest on the ground, hunched over with his head on his fists, and his feet shackled. Then someone began to strike him on the back and to yell, “confess!”
Abu-Ali said it was “very painful” and that it was the “first time I felt extreme pain.” Eventually, Abu-Ali told them he would cooperate. The beating stopped, and he was taken back to his cell.
The jury trial took place in November 2005. On November 22, 2005, after deliberating for two and a half days, the jury returned a unanimous guilty verdict on all counts. On March 29, 2006, Abu-Ali was sentenced to 30 years in prison for his crime.
On appeal, the United States Court of Appeals for the Fourth Circuit upheld the conviction but overturned the sentence on the grounds that the prior Court had deviated from federal sentencing guidelines which call for life in prison. Judge Lee re-sentenced Abu-Ali to life in prison.
In the “Supermax” prison in Florence Colorado, Abu-Ali is held in solitary confinement under “Special Administrative Measures” (SAMs).
“My brother has spent the past five years in solitary confinement, under 23-hour lockdown, in a 7x12 cell. He has one recreational hour in which he must get strip-searched if he wishes to leave his cell. He gets one unscheduled telephone call a month to his family, and receives the newspaper by the time news becomes history. If I send him a letter wishing him a happy birthday, he gets it 60 days later. When I visit him, once a year, I speak to him from behind a glass window. He is literally in a dungeon, over 20 meters beneath the ground,” says Mariam Abu-Ali, one of the prisoner’s sisters.
In August 2008, he requested permission to receive two books by Barack Obama, Dreams from My Father and The Audacity of Hope. Under SAMs, permission was denied by prison authorities on the grounds that the books contained material "potentially detrimental to national security."
Created in 1996, SAMs were imposed for a maximum of four months when a prisoner was deemed violent. Now, SAMs can be designated by the Attorney General for up to a year, and renewed continually thereafter resulting in perpetual isolation, a form of torture under international law.
Created in 1996, SAMs were imposed for a maximum of four months when a prisoner was deemed violent. Now, SAMs can be designated by the Attorney General for up to a year, and renewed continually thereafter “resulting in perpetual isolation, a form of torture under international law. The SAMs limit certain “privileges,” including, but not limited to, correspondence, visits, media interviews and telephone use,” Mariam Abu-Ali adds.
The financial and emotional impact of Abu-Ali’s trial and conviction on his family is different but no less painful. Prism discussed these issues with Mariam Abu-Ali, who is now 23, graduated from Georgetown, studying government and Arabic. She works for a not-for-profit that promotes Muslim values.
“We are not a family with a lot of money, so we were forced to ask for financial support from the community,” she told us.
“But there is so much Islamophobia in the country, and so much fear among American Muslims, that we weren’t able to tap into institutional resources such as Muslim American organizations or even mosques.”
She explained: “By and large most of those who gave money did so as individuals and did so secretly. Muslim organizations always came up with reasons they couldn’t support us.”
“Most people have no idea what it means financially when the government charges you with a crime. You need the best lawyers you can get, and lawyers are not cheap. Once the trial is over, if there is a conviction, you have to deal with prison visits. One of the truly draconian regulations at the Supermax is that there can only be two family visits a year. Each trip per person costs at least $2000. Once the prison authorities cancelled a family visit. Another time, we couldn’t scrape up the money,” she said, adding:
“Regardless of [inmates’] innocence or guilt, it is their right to be treated humanely. If we believe in the inherent dignity of each human being, then we should be outraged by these abuses. Unfortunately, abuse here in the United States rarely receives media attention.”
But the heart of the court’s pushback against the government came in Judge Bates’s eloquent memorandum written during the habeas hearing, before any criminal trial was contemplated. Judge Bates was a George W. Bush nominee to the court.
At one point, Judge Bates asked whether the government could identify “any case in which . . . even the legal theory for dismissal is not known to the other side?’ The government could not.”
He added: “Abu-Ali has been subjected to torture while in the Saudi prison. The United States does not offer any facts in rebuttal.”
He continued, “Abu-Ali was not captured on a battlefield or in a zone of hostilities -- rather, he was arrested in a university classroom while taking an exam.”
“Such principles, however, have never been read to extinguish the fundamental due process rights of a citizen of the United States to freedom from arbitrary detention at the will of the executive, and to access to the courts through the Great Writ of habeas corpus to challenge the legality of that detention.”
“The present posture of this case requires this Court to accept petitioner's well-supported allegations, to which the United States has not responded.”
Whether or not to allow the “confession” into the trial as evidence became moot when Ali was charged by the US with providing material support for a terrorist organization and conspiracy to kill President Bush.
With that, Judge Brady dismissed the Abu-Ali family’s habeas suit, and Ahmed’s trial on the government’s new criminal charges began the next day. The new judge was Gerald Bruce Lee, a Bill Clinton appointee.
The criminal trial took place in November 2005. On November 22, 2005, after deliberating for two and a half days, the jury returned a unanimous guilty verdict on all counts. On March 29, 2006, Ali was sentenced to 30 years in prison for his crime. While prosecutors had pushed for a life sentence, Judge Lee explained that the (relatively) light sentence was handed down because Abu Ali's actions "did not result in one single actual victim.”
One legal court-watcher was overheard to comment, “With this fear of terror and terrorists, a prosecutor could indict a ham sandwich, without the ham”
Abu-Ali appealed, only to get more bad news. The United States Court of Appeals for the Fourth Circuit not only upheld the conviction but overturned the sentence on the grounds that the prior Court had deviated from federal sentencing guidelines, which call for life in prison. Judge Lee then re-sentenced Abu-Ali to life in prison.
There are a number of take-aways from the Ali case. One is the complete and pathetic impotence of anyone who finds himself trapped between two sovereign but cooperating states. A second is the emotional and financial catastrophe for the family of the detained or convicted that begins well before a prosecutor is able to produce an indictment. A third corruption of due process occurs when either side indicts un-named conspirators, or introduces them as witnesses in court, without revealing their identity or the content of their testimony.
Finally, the Abu-Ali case may well represent a new twist in that quaint term, “extraordinary rendition.” Abu-Ali was a young man who was diverted from returning to his home in the US, and was instead snatched out of a college classroom during an exam and “rendered” to prison in a country not his home where inmates have a history of being mistreated. That is one of the classic definitions of “extraordinary rendition.”
Moreover, other hallmarks of “extraordinary rendition” also appear to be present: “disappearance,” lack of due process, intermittent or non-existent consular services, and absence of legal counsel.
The only difference here is that most of the parties to this “disappearance” knew exactly where Abu-Ali was most of the time. Those who didn’t know had the greatest need to know: The Abu-Ali family, who would make the arrangements for legal representation and try to ensure civilized treatment for their kin.
Prism discussed this issue with Mariam Abu-Ali.
She told us, “He wasn't buried in a secret CIA black hole prison, but we were not aware of his detention until the FBI raided our home a week later, and after that we had no access to him at all for over a month. So at this time we were not even sure if he was dead or alive.”
She added, “The US government also denied any involvement in his detention, so we did not know of the joint interrogations until much later/ post our lawsuit.”
The US Government lied to Abu-Ali and his family. His trial made clear that the case against him was being executed by the FBI and Saudi Security jointly. But anyone who has a government knows that governments lie. They lie legitimately to protect state secrets or illegitimately to cover-up their previous lies or other embarrassing incidents.
It’s too late to reverse what’s already done. Barring some legal miracle, Abu-Ali will spend the rest of his life in prison under what most experts agree is a cruel case of over-sentencing triggered by the Federal Guidelines the government fashioned to help judges to be judges.
The best that can be done now is for Abu-Ali to seek relief from the unnecessary and uncivilized regimen called SAMs – a regimen that in effect condemns the inmate to a life in solitary confinement. And what we know beyond doubt is the impact of isolation – on inmate health and life itself.
In a month or so, Abu-Ali will be back in Court asking the Justice Department to end the SAMs imposed on Abu-Ali. Let us hope the government lawyers still remember that Justice is half their name.