Troubling Questions about the Government’s Motives and Tactics
By ELAINE CASSEL
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Monday, Mar. 07, 2005

Twenty-three-year-old, Houston-born American citizen Ahmed Omar Abu Ali has been returned to Virginia after twenty months in solitary confinement in a Saudi Arabian prison. But he returned only to face arraignment, on February 22, in U.S. District Court in Alexandria, Virginia.

The charge is that he conspired to commit terrorism- and, indeed, the FBI says that he admitted as much in the course of interrogations in Saudi prison. He is alleged to have plotted to assassinate President Bush – but is not charged with that conspiracy.

The case is far from as open-and-shut as the FBI might suggest. Indeed, a number of aspects of the prosecution are deeply troubling.

The Early History of Abu Ali’s Case: The Government Reverses Itself

At the end of the 2003 academic year at the Saudi university he was attending, Abu Ali failed to return home to the U.S. As a result, his family – Jordan-born, naturalized U.S. citizens living in Northern Virginia where I practice – contacted me to see if I could help.

In August 2004, attorneys filed suit in the U.S. District Court of the District of Columbia, on behalf of Abu Ali’s parents, in order to obtain his release. Among the attorneys was renowned constitutional rights scholar and Georgetown University law professor David Cole.

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 Saudi Arabia. But that never happened. Instead, the question of whether Abu Ali could be returned to the U.S. was litigated.

Before U.S. District Judge John Bates, the government took the position that Abu Ali was far too dangerous to ever be returned to the United States, and that the reason was so serious that it could not be disclosed even to the family’s attorneys. In other words, the government sought to proceed on secret evidence.

Then, the government reversed itself dramatically. It transported Abu Ali to the United States itself – thus mooting the question before Judge Bates of whether the government could proceed upon secret evidence to block his return.

In 2004, when Abu Ali’s parents had been begging the U.S. government to intervene, it had refused – claiming it was up to the Saudis whether he was released. With his return, however, it began to seem evident that the Saudis had been holding Abu Ali with U.S. consent – indeed, even at the U.S.’s behest. It now appears that FBI agents had the Saudis remove Abu Ali from his university class and take him to a Saudi facility for questioning in the summer of 2003.

It also became apparent that the U.S. could, all the time, have ensured Abu Ali’s return to the U.S. whenever it felt like it. After all, federal prosecutors had, during this time, extradited from Saudi Arabia to Alexandria another man in Saudi custody who was alleged to be (and acquitted of being) a terrorist and involved in the case of the Alexandria 11.

Apparently, however, the U.S. had taken advantage of this U.S. citizen’s choice to attend school abroad, to make sure he was held in prison there – where torture would be permitted, and counsel would not be provided. Indeed, unidentified sources have been quoted in the Washington Post and New York Times as saying that the government certainly would have preferred to have left Abu Ali in Saudi Arabia.

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 U.S. citizen, with the U.S.’s consent, in a foreign prison where due process is ignored and torture is common.

With Judge Bates perhaps unwilling to proceed against Abu Ali in absentia, the government felt it had to bring him home. To do so, they had to charge him with something–something that would at least sound serious, even if the underlying indictment (as I will explain below) fell far short of the media headline.

The Government Argues Abu Ali Ought to Be “Presumed Dangerous”

Abu Ali was arraigned, as noted above, on February 22. On February 24, a hearing on whether he would be released prior to trial was to occur. But the government managed to delay that hearing. It did so by arguing that the usual standard for pre-trial release should not apply.

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.

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.

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