Suspect Policy

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It's difficult to see Faten Abu Ali's expression, since her white
veil leaves only her eyes uncovered. But those eyes are red, and her
voice quivers with fear. With good reason: Last week, the
government unsealed an indictment charging her 23-year-old son,
Ahmed, with aiding Al Qaeda terrorists and plotting to assassinate
President Bush--charges that could carry an 80-year prison
sentence. Yet, while frightened, she also feels vindicated. "We
consider it a victory just having our son here," she says.That's because, for the past 20 months, Ahmed Abu Ali, an American
citizen, wasn't here. He was detained at Al Hair Prison in Saudi
Arabia as a suspected terrorist, and, though he may indeed be one,
he was never charged with any crime. Not only did the Bush
administration never seek Abu Ali's extradition, but officials from
the Federal Bureau of Investigation also took part in his Saudi-led
interrogation--which, when the FBI was not there, may have included
torture. In response, Abu Ali's family filed a civil action against
the U.S. government last summer, petitioning Judge John Bates of
the D.C. Circuit to issue a writ of habeas corpus, which would have
forced the government to return Abu Ali to the United States. As
the case proceeded--over the objections of the Justice
Department--the government did just that: Abu Ali was suddenly
whisked back, appearing on U.S. soil for the first time in nearly
two years at federal district court last Tuesday, to face criminal
charges.

But the civil case doesn't just seek Abu Ali's return. It seeks a
determination that his detention and interrogation in Saudi Arabia
were unlawful, a determination that could challenge perhaps the
most controversial aspect of the war on terrorism: the policy of
"extraordinary rendition," whereby suspected terrorists are sent to
foreign allies, where their questioning need not be inhibited by
U.S. laws barring torture. Bates ruled in December that the U.S.
government had to disclose in court any information about its role
in Abu Ali's foreign detention, putting rendition on a path to
public scrutiny.

Ironically, Abu Ali's criminal indictment threatens that disclosure.
Now that he will stand trial, the original purpose of his civil
suit--returning him to the United States--has been satisfied, and
the Justice Department will seek to dismiss it. If Justice
succeeds, it will have preempted one of the most significant
attempts yet to cast light on extraordinary rendition. In other
words, an initial victory for Abu Ali might represent a setback for
keeping the war on terrorism in line with U.S. human rights
obligations.

In June 2003, after an Al Qaeda bomb in Riyadh killed more than 30
people, Saudi authorities arrested Abu Ali at the Islamic
University of Medina, where he was studying on a scholarship. Three
other American citizens were also detained, extradited to the
United States, and charged with involvement in a Northern Virginia
jihadist cell. Initially, American officials suspected Abu Ali of
being part of the same cell. Five days after Abu Ali's arrest, FBI
agents searched his family's house in Virginia and discovered
jihadist books and audio tapes, as well as a document on how to
avoid surveillance.

But Abu Ali was never charged with any wrongdoing. He remained in
Saudi custody--though he received visits from FBI interrogators. As
his imprisonment dragged on, some American officials became less
convinced of Abu Ali's involvement in terrorism. In June 2004,
Michael A. Mason, assistant director of the FBI's Washington field
office, told members of Abu Ali's Falls Church mosque that, when he
asked his colleagues whether "we have a continuing interest in this
individual ... the answer I got was no." But, if American
interrogators didn't have an interest in Abu Ali, prosecutors did:
Court papers filed by Abu Ali's parents allege that a State
Department consular official told them in June 2004 that the
Justice Department was still investigating their son.

All this led Abu Ali's family to believe that the United States was
using the Saudis to detain Abu Ali indefinitely and subject him to
conditions from which U.S. citizenship is supposed to protect
him--including torture, routine in Saudi Arabia. As a result, his
family filed the habeas corpus petition in July 2004. Justice
Department attorneys argued that U.S. courts had no jurisdiction
over American citizens held by foreign governments. But Bates, a
George W. Bush appointee, rejected this contention in mid-December,
ruling, "The Court concludes that a citizen cannot be so easily
separated from his constitutional rights. ... There is at least
some circumstantial evidence that Abu Ali has been tortured during
interrogations with the knowledge of the United States." He then
ordered the U.S. government to disclose evidence detailing its role
in Abu Ali's detention and interrogation.

Bates's order was the first ever to demand that the United States
publicly detail information about renditions. Not surprisingly, the
government has gone to what Bates called "highly unusual" lengths
to fight the judge's ruling. Last month, it filed a motion to
dismiss the case based not only on secret evidence, but also on an
undisclosed argument--a "legal argument [that] itself cannot be
made public without disclosing the classified information that
underlies it." But, before Bates could rule on the matter, Abu Ali
turned up in the United States to stand trial for providing
material support to Al Qaeda and intending to kill Bush.

According to a Justice Department spokesman, Bates's ruling "had
nothing to do" with the decision to finally indict Abu Ali, whom
the government says confessed the Bush plot to the Saudis in July
2003--a confession the defense will undoubtedly argue was coerced.
Not surprisingly, Abu Ali's lawyers see things differently. "The
timing speaks for itself," says David Cole, a Georgetown law
professor representing Abu Ali. "Only when the government was
threatened with having to disclose its arrangements with Saudi
Arabia regarding Mr. Abu Ali's detention did it take action, bring
him back, and indict him." And that's hardly the only matter under
dispute. In court last week, Abu Ali's lawyers attempted to show
evidence of torture. The next day, the government alleged that a
doctor who examined Abu Ali in the U.S. "found no evidence of any
physical mistreatment." And, in court Tuesday, the defense claimed
that, in between interrogation sessions with the FBI in September
2003, Abu Ali was "handcuffed to something overhead" by his Saudi
jailers.

In a hearing last Thursday, Bates gave Abu Ali's lawyers until next
week to file papers arguing against the dismissal of the civil
case. If Bates rules against them, however, efforts to publicly
examine the U.S. role in Abu Ali's detention and possible abuse
could founder, since a criminal case might not shed as much light.
"There are many things that could happen in a criminal proceeding.
The government could decide to treat him as an unlawful enemy
combatant," says Morton Sklar, another of Abu Ali's lawyers--a
decision that could seriously limit the information that would come
out of any proceeding. "You have no guarantee the facts are going
to come out." Similarly, legal experts say, the government could
seek to leverage the gravity of the charges against Abu Ali to get
him to drop the civil case as part of a plea agreement.

If the civil case goes away, the public could be denied a trove of
information about unspeakable acts. On March 13, 2002,
administration officials- -allegedly including then-White House
Counsel Alberto Gonzales--prepared a memo authorizing rendition.
Its contents have never been revealed, but its consequences have.
Australian citizen Mamdouh Habib, arrested in Pakistan in October
2001, alleges that the United States turned him over to Egypt, where
he was "suspended from hooks on the wall." Canadian citizen Maher
Arar, arrested by American officials at Kennedy Airport in
September 2002, was rendered to the Syrians, who allegedly beat him
for over a year.

The White House's official posture was expressed by Gonzales in
January. "It is my understanding that the United States does not
render individuals to countries where we believe it is more likely
than not they will be tortured," he wrote to the Senate Judiciary
Committee. But, in the war on terrorism, the United States believes
what it wants to about torture: Syria, after all, has a long
history of human rights abuses.

This see-no-evil posture is exactly what makes the civil case so
significant, whether or not Abu Ali is guilty. The civil case's
disclosure order could jeopardize the position that the
administration is unaware of what happens to detainees it sends to
foreign countries. "The filings suggest the case has the potential
to expose the fallacy of the clean-hands theory--that, if we just
send [suspected terrorists] to foreign countries, we're fine," says
Juliette Kayyem, director of the national security program at
Harvard University. That is, unless the administration shuts the
case down first.

By Spencer Ackerman

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