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.
ELAINE CASSEL practices law in Virginia and the District of Columbia and teaches law and psychology. She doesn’t like being lied to. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. She can be reached at: firstname.lastname@example.org