Hospitals & Asylums
Committee Against Torture
By Anthony J. Sanders
Re: United States v. Ahmed Omar Abu Ali Criminal Case No. 1:05CR53
Ahmed Omar Abu Ali v. US Department of Justice Office of Civil Rights HA-22-6-06
Ahmed Omar Abu-Ali is an American citizen who was falsely convicted of providing material support to the al Qaeda terrorist network. Born in Houston, Texas and raised in Falls Church, Virginia, Abu Ali was valedictorian of his class at the Islamic Saudi Academy high school in nearby Alexandria. In June 2003, he was arrested in Saudi Arabia while taking his final exams at the Islamic University of Medina. Twenty months later (Febuary 2005), he was transferred to US custody. Abu Ali's trial in September and October of 2005 garnered moderate media attention. The admissibility of information from his interrogation in Saudi Arabia was challenged due to allegations that his interrogations included torture. In late October 2005, Judge Gerald Bruce Lee, who presided over the case, ruled that his initial confession to Saudi agents, but not the later confession to FBI agents, was admissible. In documents unsealed on September 20, 2005, Abu Ali acknowledged wanting to join al Qaeda during his Saudi interrogation, but acknowledged that the conspiracy he was believed to have been involved in, to assassinate President Bush, was merely a fantasy, not an actual plot. On November 22, 2005, after deliberating for two and a half days, the jury returned a unanimous guilty verdict. On March 29, 2006, Ali was sentenced to 30 years in prison for his crime. While prosecutors had pushed for a sentence of life, Judge Lee explained that the (relatively) light sentence was handed down because Abu Ali's actions "did not result in one single actual victim. That fact must be taken into account."
1. The initial rendition of this case was for the
2. The day before the sentencing the General Counsel of the
US Department of Defense issued the statement that, “confessions made under
torture are not admissible”. The next
day voluntary confessions by detainees in
3. Eric Lichtlau reported Feb. 22 2005 in the New York Times
that Ahmed Omar Abu Ali had been accused of supporting Al Quaida by Saudi
police who arrested him during final exams at the Islamic University of Medina
Elaine Cassel practices law in
5. 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
6. In 2004, when Abu
Ali's parents had been begging the
7. 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
8. 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.
9. 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. 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.
10. 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
11. Hopefully, the
12. This search had
occurred incident to the prosecution of the "
13. 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.
14. 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.
15. 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?
16. 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
17. 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
18. The case of Achmed Omar Abu Ali began as a victory for the United States against Saudi Arabia under Art. 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 26 June 1987 that states, “the State shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible” and Art. 14(6) of the International Covenant on Civil and Political Rights of 23 March 1976, that states, “when a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law”. However, as the result of the indictment being categorically false is now entitled to mandatory restitution from a US probation officer under 18USC(77)§1593.