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Ahmed Abu Ali is an American--a resident of Falls Church, Virginia. In the summer
of 2003, Abu Ali was taking final exams in a Saudi Arabian university, and looking
forward to returning home to his family in Northern Virginia for the summer.
But Abu Ali did not come home. Instead, Saudi law enforcement authorities forcibly
removed him from his classroom and imprisoned him for twenty months. Later,
as I detailed in an
earlier column, Abu Ali did return to Virginia--but to face federal charges
of conspiracy to aid and abet terrorism.
This September, the government added new charges in a new indictment. And this
October, Judge Gerald Lee denied Abu Ali's motions to suppress, as evidence,
what the government alleges are confessions to several serious terrorism crimes.
(He also denied Abu Ali's related motion to dismiss the charges in light of
the way the evidence was procured.) Now, the trial has begun.
In this column, I will explore some troubling aspects of the indictment and
the interrogation that gave rise to it.
Why the Charges Against Abu Ali Are Shaky
Abu Ali is charged with plotting to bring al Qaeda members into the U.S. by
means of Mexico, to commit aircraft piracy, and to kill President Bush through
the use of suicide bombers and snipers. Abu Ali faces possible life imprisonment
on these very serious charges. But whether there ever was such a conspiracy
is doubtful.
Consider, first, that all of Abu Ali's alleged co-conspirators are unnamed.
Some, it seems, have been convicted in connection with other Alexandria "terrorism"
cases (including the Paintball
cases) as well. Their "cooperation" with prosecutors could lead
to reductions in their long sentences.
Consider, too, that typically, a conspiracy charge requires not just talk,
but an "overt act." And here, the only acts the government alleges
are purchases of a cell phone and a laptop.
So this case is really about talk. Yet much of the government's evidence regarding
what Abu Ali allegedly talked about, comes from his interrogation by his Saudi
captors and FBI agents, in a Saudi prison--interrogation that was not only unconstitutional,
but highly unreliable.
Can Evidence Coerced by Saudi Interrogators Be Used in a U.S. Court?
Abu Ali was interrogated by the Saudis without any of the safeguards that Americans
are afforded in U.S. court. He did not have the right to an attorney. He was
not informed of his Miranda rights. And he was not protected against coercive
self-incrimination.
Yet now, American prosecutors will be using Abu Ali's unconstitutionally-procured
statements against him in an American court. How did this happen?
To aid the judge in deciding whether to allow the statements to be admitted, defense
attorneys questioned Abu Ali's Saudi interrogators--with the help of Arabic translators
-- by live audio and satellite feed from Saudi Arabia to the federal courthouse
in Alexandria, Virginia. Supposedly for "security reasons," the Saudi
officials were allowed to testify under pseudonyms. (Prosecutors and defense attorneys
were also present in Saudi Arabia as well as in Alexandria).
What the Saudi Interrogators Claimed: No Torture, Voluntary Confessions
The Saudis said it was their idea--not the United States' -- to initially detain
Abu Ali in June 2003, as a part of their investigations into the May 2003 bombing
of a residential compound in Riyadh.
But shortly after the Saudis arrested Abu Ali, they said, Alexandria prosecutors
"ordered" them to ask Abu Ali some questions. This admission puts
the lie to any claim that this was not, in effect, a joint U.S.-Saudi scheme
of imprisonment and interrogation
Had Abu Ali's interrogation taken place in the U.S., it would have been plainly
unconstitutional. Kept in solitary confinement (allegedly for his own protection),
Abu Ali was repeatedly interrogated from 8 p.m. to 6 a.m. (according to his
captors, because it was too hot during the day, and not to deprive him of sleep),
a commonly used coercive interrogation tactic. He was also often shackled and
chained during questioning. At some point, Abu Ali was ordered to put his "confessions"
into writing and read them aloud while being videotaped.
The Saudis denied use of any torture.
What the FBI Agents Claimed: No Attempt to Circumvent Miranda Protections
The FBI agents who traveled to Saudi Arabia also testified. They explained
that they had watched from behind a one-way mirror while Saudis conducted interrogations.
They eventually participated in their own interrogations, with and without their
Saudi counterparts. Emails from FBI agents to Alexandria prosecutors assured
them that the Saudis would do whatever the US told them to do.
This is further evidence that the Saudis and Americans were engaged in a joint
enterprise to detain and interrogate Abu Ali.
With U.S. prosecutors calling the shots, and doing some of the interrogating,
why weren't Abu Ali's constitutional rights honored? The FBI agents testified
that Miranda was not applicable, nor was Abu Ali provided a lawyer, because
Abu Ali was not a U.S. criminal suspect. Rather, they say, they were just talking
to Abu Ali to gather intelligence.
But that crucial assertion, too, utterly lacks credibility. Of course the FBI
came to Saudi Arabia to investigate charging Abu Ali with a crime--which was
exactly what they later did. If it were purely for intelligence purposes, wouldn't
they have sent interrogators from the CIA or the Department of Defense?
What the Doctors Testified: Evidence of Beatings and Trauma
Abu Ali's attorneys introduced the testimony of physicians who believed that
scars on Abu Ali's back were evidence of beatings. Prosecution experts said
these scars were either self-inflicted, or acne scars. But what we know of Saudi
interrogation practices makes the defense experts' testimony far more compelling.
Defense psychological experts said that Abu Ali was suffering from post-traumatic
stress syndrome, brought on by his imprisonment and interrogation. Prosecution
psychologists said he was well-adjusted, and any maladjustment symptoms were
feigned. Again, the defense's experts were more credible: Who among us would
not be traumatized by being interrogated for months in a Saudi prison?
Judge Lee's Opinion Wrongly Finds That No Laws or Rights Were Violated
In light of the evidence presented, how could Judge Lee let this case go forward?
He defended his reasoning in a 113-page decision. But his logic comes down
to taking the FBI's word for the proposition that the interrogation was designed
to obtain intelligence, and was not part of a criminal investigation--and thus
that Abu Ali did not enjoy the rights of a criminal suspect.
By adopting the government's implausible spin on the facts, Judge Lee concluded
that Abu Ali had no rights at all.
It is not clear at what point Abu Ali, in fact, became a suspect, but we do
know Abu Ali's indictment was suspiciously and closely related to developments
in the habeas corpus case filed by Abu Ali's parents in federal court in the
District Columbia, before Judge John Bates.
So, if we take the government's word for it (as Judge Lee did), Abu Ali never
was a suspect. But, he suddenly became a defendant when it appeared that Judge
Bates was having some problems with the government's position that Abu Ali--then
in Saudi Arabia--was so dangerous he could not be returned to the U.S.
Judge Lee Rewards the Government's Unconstitutional Tactics
Judge Lee excluded no evidence, rewarding the government for its decision to
interrogate an American in a Saudi prison using Saudi tactics. He repeatedly
concluded that the methods and tactics used against Abu Ali did not "shock
the conscience," the Supreme Court's standard for excluding confessions
on the ground that they were not voluntarily given.
Even if the evidence about physical beatings was not wholly convincing, to
conclude that a confession is voluntary when given in a Saudi prison under harsh
interrogation tactics over an eighteen-month period, much of it in solitary
confinement, without a lawyer, defies credibility.
Judge Lee also ruled that Abu Ali had no speedy trial right because at no time
was he under arrest by the United States; rather, he was simply an intelligence
target. Judge Lee found no credence in the defense position that the Saudis
were acting as agents of the U.S. in order to circumvent U.S. constitutional
rights.
But he should have: The government's own emails boasting of the Saudis' doing
what they were told; the questions fed to the Saudis by the FBI; the joint and
U.S.-only interrogations in Saudi prisons; and the well-known U.S.-Saudi alliance,
are all evidence that the Saudis acted as U.S. agents--though also on their
own behalf as well.
While Judge Lee ignored the weakness of many of the government's claims, he
honed in on any perceived inconsistency between Abu Ali's versions of events
and the interrogatories his attorneys submitted--seeing such inconsistencies
as a sign of Abu Ali's "cunning."
The Practice Of Unconstitutional U.S. Interrogations In Foreign Prisons
Must End
Dana Priest, writing for the Washington Post last week, confirmed what Amnesty
International and others had thought for some time: The CIA is running a chain
of prisons outside the United States. Its captives are alleged terrorists. Rights--whether
under the Geneva Conventions or the U.S. Constitution--are ignored.
The Post article describes prison cells consisting of underground tunnels,
hidden not just from the light of day, but from the prying eyes of the U.S.
Congress and the American taxpayers who foot the bill. Government sources admit
that the prisoners are subject to intense interrogation. Some have been imprisoned
for years.
As odious as these imprisonments and interrogations are, like it or not, the
CIA's ability to operate outside the constraints of law has a long history in
this country. This is not the case with federal criminal justice system, whose
accountability makes it the best in the world.
Abu Ali's shocking treatment is the first that tests the notion that Americans
can be imprisoned abroad by their government, interrogated by foreign and domestic
law enforcement, and be denied all rights as coercive confessions are obtained
to be used against them in a U.S. court. (The value of Abu Ali's confessions
cannot be underestimated, given that at least some of the unnamed co-conspirators
are thought to be convicted terrorists themselves.)
Abu Ali, if convicted, won't find much sympathy on appeal to the U.S. Court
of Appeals for the Fourth Circuit or the U.S. Supreme Court. Justice John Roberts
and, if confirmed, a Justice Samuel Alito, are strong proponents of virtual
unbridled executive and prosecutorial powers, especially in the "war"
on terrorism.
Abu Ali's case may be the beginning of the end of differences between the U.S.
criminal justice system and those of repressive, undemocratic regimes like Saudi
Arabia, its partner in this case. In terms of criminal cases, the Bill of Rights
is being tested like never before in Judge Lee's courtroom. So far, the cherished
rights are on the losing side.
The only consolation--if there is any at all--is that at least the government
was forced to bring Abu Ali to the U.S. so that we can see what it is doing
to one of its citizens. In the future, Americans may be sitting in one of those
underground interrogation cells in a CIA prison. We won't know their names,
and they won't be heard from again.