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February 22, 2005

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if it wasn't for that AARP, we'd have killed all these terrorists by now.

I bet he's gay.

American citizen tortured by Saudis before being sent here -- more of the same (since I doubt they would have done so without the American green light).

American citizen indicted on terrorism charge rather than Gitmoed -- a major improvement over Padilla!

I posted this once before but it's more relevant now:

These are excerpts from U.S. District Court Judge John D. Bates' ruling in Abu Ali v. Ashcroft, 2004 U.S. Dist. LEXIS 25239. This was issued last December; I don't know how I missed it. I have elided a lot and deleted the citations to make it shorter & more readable:

"I. The Arrest of Abu Ali Petitioner Ahmed Abu Ali ("Abu Ali") is an American citizen who was born in Houston, Texas. After graduating as valedictorian of his high school class in Virginia, he enrolled as a scholarship student at the Islamic University of Medina in Saudi Arabia. On June 11, 2003, while he was taking his final exam at the university, Saudi security officers entered his classroom and arrested him. Since that day, Abu Ali has been detained indefinitely in a Saudi prison without charge or access to counsel.

At about the same time that Abu Ali was arrested, three other Americans in Saudi Arabia were also apprehended by Saudi officials. Unlike Abu Ali, each of these individuals was extradited a month later to the United States. Once in the United States, they were charged, along with eight other Northern Virginia men, with undertaking paramilitary training to wage a terrorist jihad on behalf of Muslims. Abu Ali thus was the only American citizen not extradited to the United States and charged with a crime.

FBI agents raided Abu Ali's home in Virginia on June 16, 2003, less than a week after he was arrested in Saudi Arabia. The search warrant was issued by the United States District Court for the Eastern District of Virginia (the same court in which the Royer proceedings were located), and instructed the agents to look for weapons, cellular phones, and documents tending to show a conspiracy between Abu Ali and four of the defendants in the Royer case. Some time later, a prosecutor in the Royer proceedings would acknowledge that the search of Abu Ali's home was conducted "in connection with" the Royer prosecution.

Roughly five days after Abu Ali was arrested, and at about the same time as the raid on his home took place, FBI agents visited the Saudi prison in which Abu Ali was detained and watched as he was interrogated by Saudi officials. The prosecutor in the Royer case has acknowledged that this interrogation took place. The prosecutor says that during the interrogation Abu Ali confessed to joining a "clandestine al Qaeda cell" and admitted that "al Qaeda told him he must either conduct terrorist operations or return to the United States and establish an al Qaeda cell." Id.

II. The Months Following the Detention
....
Abu Ali's parents took their concerns to a newspaper reporter who had been covering the Royer prosecution. In a July 2003 article, that reporter quoted a Saudi Embassy spokesman as saying that the United States Legal Attache office -- the name for the FBI overseas station -- "had full and complete and [*8] direct access" to Abu Ali from the moment of his arrest....

In September 2003, several FBI agents traveled to Saudi Arabia and interrogated Abu Ali for at least four days. According to an affidavit from Abu Ali's mother, Abu Ali told her in a phone call that the FBI agents had threatened to declare him an enemy combatant and send him to Guantanamo Bay, Cuba, if he did not cooperate....Abu Ali's mother also says that Abu Ali told her the FBI agents threatened to put him on trial in Saudi Arabia without counsel.

Abu Ali's father, who works as a system analyst at the Royal Embassy of Saudi Arabia in Washington, D. C., prevailed on his contacts in the Saudi government to assist him in his search for information regarding the detention of his son. He claims that unidentified officials in the Saudi Embassy "consistently told me that Ahmed has not violated Saudi laws, and that there are no plans to prosecute him in Saudi Arabia." He also says that he spoke "to several high-ranking officials at the Saudi Embassy who are familiar with Ahmed's case, and whom I am unable to name for security and privacy concerns." Id. He claims that they "have described Ahmed's arrest and detention as an 'American case' that Saudi Arabia has no control over due to strong political pressure from the U.S. government to keep Ahmed in Saudi custody." Id. P 2.

Petitioners allege that they were receiving other indications at the time as well that the United States was behind the detention of their son. Abu Ali's father asserts that in September 2003 he asked a high-ranking government official in Saudi Arabia to visit his son in order to check on his safety. The official returned with the information that he "was instructed to 'stay away' because the U.S. was behind the case." Id. P 3. Abu Ali's parents also describe a November 2003 phone call in which Abu Ali told them that Consul Charles Glatz of the United States Embassy in Saudi Arabia had informed him that his case was in the hands of Washington, not the Saudi government....

Abu Ali's father states in an affidavit that members of the FBI and the U.S. Attorney's Office told his former attorney, Martin McMahon, that a grand jury had considered the case against Abu Ali and had found no evidence to indict him. See Aff. of Omar Abu Ali, Sept. 20, 2004, P 10. Abu Ali's father also says that friends and family members who were called as witnesses by the grand jury have confirmed that the grand jury deliberated from July 2003 through the first few months of 2004....

V. Allegations of Torture

Petitioners relate their growing concern that Abu Ali has been subjected to torture during his detention in Saudi Arabia. They maintain that they have received information from an unidentified eyewitness in Saudi Arabia who said that he saw Abu Ali experiencing so much pain in his hands that he was unable to pick up a pen to sign documents.

At the same time, petitioners cite two instances where the Assistant U.S. Attorney leading the Royer prosecution has allegedly made comments indicating that Abu Ali has had his fingernails removed. The first of these instances was allegedly in a meeting between the Assistant U.S. Attorney and the defendants in the Royer prosecution. According to petitioners, Seifullah Chapman, one of the defendants, reported to them in August 2004 that the prosecutor had said that Abu Ali "doesn't have to worry about clipping his fingernails anymore."

Salim Ali, a lawyer for one of the Royer defendants, describes in an affidavit a conversation that he claims he had with the same prosecutor while they were waiting at a courthouse in June 2003 after a hearing in the Royer case. Salim Ali says that he asked the prosecutor whether Abu Ali should be returned to the United States to face charges. He explains that the prosecutor "smirked and stated that 'he's no good for us here, he has no fingernails left.'" In a September 2004 phone call with Abu Ali, his parents mentioned the prosecutor's comments, to which Abu Ali replied, "there are hidden things which you don't know about that are even worse." ....When Abu Ali's mother asked Abu Ali about [a letter he had allegedly written], Abu Ali replied, "don't ask me these questions, it hurts me when you ask these questions." Abu Ali's mother asked him, "do they hurt you?", and he replied, "yes."

Thoughts:

1) He may well be guilty, then again he may not be. I would guess that the indictment means they have some evidence against them that will be in admissible in a U.S. Court, and I would guess that his interrogations and confessions in Saudi Arabia are not admissable. The grand jury did not indict him when it indicted the original defendants in the Northern Virginia case, which is why he was held in Saudi Arabia while they were extradited. So I'm guessing one or more of the Northern Virginia defendants has agreed to testify against Ali, possibly in return for a reduced sentence.

2) Guilty or not, it is utterly unacceptable and illegal for the United States government to treat a U.S. citizen in this way. If we allow this sort of thing it will eventually happen to the innocent as well as the guilty.

3) Even if all of the allegations of torture are true, I still hope his treatment in Saudi Arabia does not prevent him from being tried in the United States. This is only partly because I don't want to see terrorists walk free. It is also because we need some sort of mechanism of cleaning up this mess of overseas prisons we are using into a lawful system of dealing with terrorism suspects, that adequately protects both our lives and suspects' fundamental human rights. If we can't try people once they have been mistreated, we are going to default into a situation where people whose families have access to U.S. courts are eventually freed even if they are guilty, but people whose families lack that access or who don't have families simply disappear forever. I don't want that to happen. When it comes to evidence obtained under torture, it obviously should be excluded, but a suspect who has been tortured should not automatically be freed if there is admissible evidence that proves his guilt.
We're going to have to come up with other ways of disincentivizing U.S. officials not to mistreat suspects--civil liability, prosecution, or the loss of their jobs.

I don't know what U.S. law says about this.

"American citizen tortured by Saudis before being sent here -- more of the same "

No it isn't. None of the cases of extraordinary rendition that I know of involve U.S. citizens. It ought to alarm us.

Ah. I read the indictment. Sounds like a very strong case for the prosecution if co-conspirators 1-4 are testifying, and based on the allegations made I would guess that they are.

One last thing: here is Judge John Bates' full ruling.

"The indictment alleges that during that time frame, Ali received cash payments from an individual associated with al Qaeda to purchase a laptop computer, a cellular telephone and books, for the purposes of providing material support to al Qaeda. The indictment further alleges that co-conspirators discussed with Ali the manner and means by which he could provide material support to al Qaeda, including conducting a terrorist operation and establishing an al Qaeda cell in the United States. Ali allegedly received training from co-conspirators in Saudi Arabia in weapons, explosives and document forgery."

I don't think it is fair to sum up that as "someone who may have discussed...just discussed mind you, with no particular date or final method chosen, so I'm not sure it was ever a "plot"...the desire to assassinate the President (which I don't want to make light of, but which probably occurs worldwide on an average of 10 times per second)."

It strikes me that (if it can be proven) he was trying to set up an Al Qaeda cell in the United States. Whether or not that also involved an attempt on the President is pretty much irrelevant.

I'm not familiar with all of the particulars of this case, but I'm somewhat familiar with the workings of the Saudi justice system, as a Canadian (among others) was framed for a series of terrorist bombings in Saudi Arabia a few years ago, and was tortured repeatedly.

The way the system seems to work is that you are tortured into signing confessions. You are then taken before a magistrate, where you either confirm the signed confession and are jailed or executed, or you refute them, whereupon you are taken back to prison and retortured until you sign a new confession. Etc.

Actual facts don't seem to have much bearing on your guilt. If the proof of this plot is coming from the Saudis, I'd say it's suspect.

Also, given that the Saudis have had him since Sept 2003, a number of questions should be raised. A plot against the president should have been easily indictable, so the claims that the US had to send him to SA (along with protestations that the US had no say in the matter, as this was a question of Saudi jurisdiction) make this smell really bad.
Here's the WaPo article, which, in contrast to the front page converage on a plot against the President, was on A26.

All the following links and my comments on them should be taken with the point that IANAL.
Here's the pdf of the petition in the civil suit against Ashcroft detailing the defense allegations.

Here's the CBS news story about the suit against the government. By putting Ali on trial, I'm guessing it allows the government to avoid addressing any of these questions (and allows them to prevent discovery?).

The government has also apparently argued that the legal theory they are using must be kept secret.

Here is a page with pdfs of various human rights cases, and this page has the Abu Ali habeus corpus petition and the the petitioner's reply to the gov response. (here's the upper page to the site, which is for The World Organization for Human Rights USA, and here is the searchable download page)

Also, Abu Ali was apparently a scholarship student to University of Medina. I would suggest the possibility that the government is taking note of the fact that he may have received cash that went to purchasing items that are then taken as proof of terrorist intent. This way, any financing from a non-government source can be colored as terrorist. I don't know if this is the case, but the way they are stating the chain makes me think that they are relying on the testimony of his "co-conspirators" to make the linkage.

All this speculation is from someone sitting in front of a computer in Southern Japan, so please take it with the requisite salt. But if you don't accept it, I ask that you provide some cites and links (and non-legal explanation of why)

I don't think it is fair to sum up that as "someone who may have discussed...just discussed mind you, with no particular date or final method chosen, so I'm not sure it was ever a "plot"...the desire to assassinate the President (which I don't want to make light of, but which probably occurs worldwide on an average of 10 times per second)."

I see your point, but you might also take it up with the MSM, because if it's not fair for me to sum the indictment up as "someone who may have discussed...just discussed mind you, with no particular date or final method chosen, so I'm not sure it was ever a "plot"...the desire to assassinate the President" then it's equally unfair for the MSM to headline their stories with Man Accused of Plotting to Assassinate Bush.

To the DOJ's credit, they headline their press release "VIRGINIA MAN RETURNED TO THE UNITED STATES TO FACE CHARGES OF PROVIDING MATERIAL SUPPORT TO AL QAEDA" but they also drop names meant to suggest Ali is as bad as "the planner[s] of terrorist operations like Muhammad Atta and Khalid Sheik Muhammad."

Overall, I'll compare the objectiveness of my description against the MSM's or the DOJ's.

Lest one think it is just Fox News, all of the outlets seem to be highlighting the assassination angle. Don't mistake bias for incompetence.

"I see your point, but you might also take it up with the MSM"

Well sure, but we have standards that I certainly don't expect the mainstream media to uphold. ;)

Misleading, Edward, and I'm not saying this lightly. In Krugman's words, "But they shouldn't relax: if the past is any guide, the Bush administration will soon change the subject back to national security." Exactly who "changed the subject"? It wasn't the Bush administration, it was a federal district court. A grand jury returned an indictment on February 3rd and it was unsealed yesterday. Do you have any evidence that the Bush administration tampered with the timing of the unsealing of the indictment in order to get Social Security off the table? Or are you just speculating? If you're speculating, then there's a whole range of other things we can speculate about, all without similar shreds of evidence. Do you really think it's plausible that Bush folks would say in a December 2004 staff meeting something to this effect: "OK fellas, let's get that Abu Ali matter geared up just in case that Social Security initiative goes south." Quite frankly, there was no relevant purpose for sticking Krugman into this post, other than to insert an unfounded "I question the timing" smear. The subject of Abu Ali by itself should have been sufficient.

You also agreed with Krugman that the "Administration would soon conjure up some new national security crisis, like it always does when Bush can't get what he wants done domestically." Do you believe that the administration conjured up Ali? Do you believe that his indictment rose to the level of a "national security crisis? I'm failing to see the crisis here, and I'm disappointed that you are so amenable and pliable to Krugman's blatant hyperbole.

One other thing. In Katherine's 4:50pm comment, Martin MacMahon was referred to as Ali's father's former attorney. That should be worthy of an update, if anything to correct FoxNews' mistaken reportage.

As for your suggestion that FoxNews was trying to make MacMahon "not see [sic] quite so patriotic", I think you're wrong. FoxNews brought it up to suggest that MacMahon may have a conflict of interest in defending Moussaoui, given his ties to Bush and that he was in the running for a U.S. attorney slot.

That said, there are serious questions that need to be answered about the lengthy imprisonment, and without formal charges, of a U.S. citizen in a Saudi jail.

I don't think the timing of this has anything to do with social security. I would guess this CBS News opinion piece by Andrew Cohen nails it:

it's easy to speculate that the posture of the Abu Ali case against the government finally prompted the feds to lay their cards on the table. In that detention case, a federal judge in December ordered the government to provide information to Abu Ali's family (at that point he presumably was still being held by the Saudis) that would shed light on his detention; information the government had stubbornly refused to provide on national security grounds. Knowing that its legal position had become untenable, and thanks to increased public awareness about Abu Ali's story, it's entirely possible that the government decided it would roll the dice and try Abu Ali rather than authorize his release. The best defense is a good offense, you might say.

It also seems likely to me that they've convinced some of the men convicted in the Northern Virginia jihad case to testify against Ali since the initial decison to keep him in Saudi Arabia, and so they were able to convince the grand jury to issue an indictment this month, as they had not been able to in 2003.

As far as unsealing it, people were going to notice when Ali showed up in court, and he and his attorney were going to allege torture. I'm sure they preferred the case be introduced to the public with a headline of "Virginia Man Accused of Plotting to Assassinate President Bush" rather than a headline of "U.S. Citizen Alleges that Feds Had Him Tortured in Saudi Arabia". But that's the sort of standard PR strategizing that all politicians and governments do all the time, and I would guess that unsealing the indictment & giving it to the press was a PR move, it came from the prosecutors in charge of the case rather than from Karl Rove.

"That said, there are serious questions that need to be answered about the lengthy imprisonment, and without formal charges, of a U.S. citizen in a Saudi jail."

And, what, CB, do you think the chances are that we, the public, will ever get to hear the "serious questions" raised, in any kind of forum outside the occasional blog, still less any "answers" from anyone who counts?

The Abu Ali case is scarcely atypical of how the government has dealt with suspected "terrorists" in the post-9/11 climate-of-fear; the only difference in his case is the lurid assassination-plot subtext.

What makes you believe that issues of possible legal-system abuses (if any) in this case will ever be aired by an Adminstration whose response to criticisms of its treatment of terror suspects (echoed by its shills in the MSM and blogosphere) has been basically:

"It's about terrorism. Shut up."

Quite frankly, there was no relevant purpose for sticking Krugman into this post, other than to insert an unfounded "I question the timing" smear. The subject of Abu Ali by itself should have been sufficient.

The relevant purpose was the timing. Intentional or not, it was certainly worth noting. You are free to draw your own conclusions, but surely you can't not appreciate the fact that mere hours after Krugman predicts another national security crisis will be forthcoming to cover the Administration's floundering efforts with SS this story hits the papers. Even if it's not related, it's eery enough to warrant discussion.

You also agreed with Krugman that the "Administration would soon conjure up some new national security crisis, like it always does when Bush can't get what he wants done domestically." Do you believe that the administration conjured up Ali?

I believe it's likely that Katherine is right here:

I'm sure they preferred the case be introduced to the public with a headline of "Virginia Man Accused of Plotting to Assassinate President Bush" rather than a headline of "U.S. Citizen Alleges that Feds Had Him Tortured in Saudi Arabia".

So in that respect, they did conjure it up.

Do you believe that his indictment rose to the level of a "national security crisis?

Al Qeada is plotting to assasinate US President. National security crisis or not? You decide.

I'm failing to see the crisis here, and I'm disappointed that you are so amenable and pliable to Krugman's blatant hyperbole.

That's sweet, but you're projecting now. Krugman didn't describe the Ali case, per se, as a national security crisis, so the "hyperbole" charge seems misplaced. He simply pointed out the pattern and I pointed out that this Ali case seems to fit the pattern. Disappointment seems an overreaction, quite frankly.

"Al Qaeda is plotting to assasinate US President. National security crisis or not? You decide."

It wasn't much of a plot, as you noted. It would not be surprising for Al Qaeda to want to kill the president, and the plot seems to include conversations to the effect of "We could shoot him. Or maybe bomb him!" Obtaining a religious blessing does suggest some level of seriousness, but then, Bin Laden has reportedly sought and received a religious opinion justifying a nuclear attack on the United States.

If I remember my criminal law correctly, this would not be enough to charge someone with attempted murder, and in fact he hasn't been.

I mean, of course all assassination plots should be taken seriously. And a very intelligent Al Qaeda operative with U.S. citizenship could do a very great deal of damage, and should be taken any moer seriously. But as far as the assassination thing goes, I would be surprised if the Secret Service was not dealing with threats of this level pretty routinely.

By the way, a lot of the stories have described him as a high school valedictorian from Falls Church. I have several good friends who went to high school there, and was wondering if he was their class mate, but it turns out he was not at the public schools but at a private school called the Islamic Saudi Academy. It's financially supported by the Saudi government, and the Saudis also provide the curriculum there. According to a February 25, 2002 story in the Washington Post,

School officials would not allow reporters to attend classes. But a number of students described the classroom instruction and provided copies of textbooks.

Ali Al-Ahmed, whose Virginia-based Saudi Institute promotes religious tolerance in Saudi Arabia, has reviewed numerous textbooks used at the academy and said many passages promote hatred of non-Muslims and Shiite Muslims.

The 11th-grade textbook, for example, says one sign of the Day of Judgment will be that Muslims will fight and kill Jews, who will hide behind trees that say: "Oh Muslim, Oh servant of God, here is a Jew hiding behind me. Come here and kill him."

Several students of different ages, all of whom asked not to be identified, said that in Islamic studies, they are taught that it is better to shun and even to dislike Christians, Jews and Shiite Muslims.

Some teachers "focus more on hatred," said one teenager, who recited by memory the signs of the coming of the Day of Judgment. "They teach students that whatever is kuffar [non-Muslim], it is okay for you" to hurt or steal from that person.

Other teachers present more tolerant views, students said. Usama Amer, a veteran math teacher, is popular not only for his math skills but also for regularly allowing students free debate about topics within Islam.

"We do not teach hatred," Amer said.

Ali's father worked at the Saudi embassy.

If the charges of torture are true, and the charges against Ali are true--this story is just so layered with betrayals, on all sides.

Dang it, Katherine, you took away my moral clarity -- now I don't know who to be outraged at. The story I heard on NPR made the US's accusations sound very implausible, but now, once again, I have to retreat to agnosticism.

Perhaps this is premature, but assuming the charges against Ali turn out to be true, does that vindicate the US's actions in this case? If not, what would've been the ideal course of action? And what would/should they have done if they had a similar suspect but with no ties to Saudi Arabia or any other foreign country?

" I don't know who to be outraged at."

If the charges of torture are true and the charges against Ali are true? Just about everyone involved in this case except the federal judges and Ali's defense lawyers.

"Perhaps this is premature, but assuming the charges against Ali turn out to be true, does that vindicate the US's actions in this case?"

No. Absolutely not. The U.S. government cannot have foreign governments hold a U.S. citizens without charge on our behalf, and smirk and crack jokes about the likelihood that they are torturing him. Even if they are guilty, it is both illegal and immoral. And when they first decided to have Saudi Arabia hold him for us instead of sending him back to the U.S., not only had he not been found guilty by a court of law; a U.S. grand jury had heard the evidence against him and declined to indict him. That's why he wasn't extradited.

If the charges against him are true (IF), his guilt is that much worse because he is a U.S. citizen. But if his charges our true, our government's treatment of him is also that much worse because he is a U.S. citizen. It's a mutual betrayal, and neither side's betrayal excuses the other's.

And, what, CB, do you think the chances are that we, the public, will ever get to hear the "serious questions" raised, in any kind of forum outside the occasional blog, still less any "answers" from anyone who counts?

Are we disagreeing, Jay? I don't think we are.

And when they first decided to have Saudi Arabia hold him for us instead of sending him back to the U.S., not only had he not been found guilty by a court of law; a U.S. grand jury had heard the evidence against him and declined to indict him.

This is the part that I'm wondering about. If the feds have someone that they're convinced is a terrorist or actively working with terrorists, but they don't have enough evidence to convict in a US court, what should they do? How committed should we be to the principle of "innocent until proven guilty"? I'm 100% against the torture aspect of this case, and if we advocated it, condoned it, or winked at it, I'll continue to be outraged at our goverment for it; but I'm less certain about what the ideal course of action would have been.

The relevant purpose was the timing. Intentional or not, it was certainly worth noting.

Then I take it that neither you nor Krugman have evidence to back up your baseless statements, Edward. If you believe your comment "worth noting", I suggest it's also worth noting that you don't have a scintilla of evidence to back it up.

So in that respect, they did conjure it up.

Again, you're long on insinuation and short on facts. The actual title of the USDOJ press release was "Virginia Man Returned to the United States to Face Charges of Providing Material Support to al Qaeda." How the national media packaged the indictment with the plot-to-assassinate-the-president lede is a question for the national media and their daily and routine efforts to sensationalize a story.

National security crisis or not? You decide.

I already did. What's your decision? As for Krugman and the so-called "patterns" that he sees, he provides no evidence of patterns past or present, and neither do you.

kenB: This is the part that I'm wondering about. If the feds have someone that they're convinced is a terrorist or actively working with terrorists, but they don't have enough evidence to convict in a US court, what should they do?

Release that person. What else can they do? Given how many people the feds been "convinced" are terrorists or actively working with terrorists, who have turned out not to be terrorists or actively working with terrorists, I wouldn't give up your right to due process just because the feds say "we're convinced kenB's a terrorist but we haven't got any actual evidence".

What else can they do?

Well, it's been demonstrated that they can in fact do something else, legally and morally questionable as it may be.

But yes, I'm not prepared to trust the feds to take over the determination of guilt. It's just that scenarios like this remind me of the potential drawbacks of the "innocent until proven guilty" principle.

I do still wonder what they would've done if this was not an Abu Ali who went to Saudi Arabia to study but a John Smith who just happened to have become a Muslim extremist.

kenB: It's just that scenarios like this remind me of the potential drawbacks of the "innocent until proven guilty" principle.

Hell, if the feds are convinced you're a terrorist, they can take away your passport, keep you under round-the-clock surveillance, and tap your phone... and I'm sure they will. But actually jailing you just because they're "convinced" - no. Not only is it just a bad idea, they've been wrong overwhelmingly often in the past.

Well, it's been demonstrated that they can in fact do something else, legally and morally questionable as it may be.

Sadly true. But I thought you were asking what should they do...

A very informative post and discussion, but I'll go one step further and say that presuming that the Omar Abu Ali indictment is a ploy to divert attention from the SS debate smacks of a serious case of paranoia. Krugman's, that is, unless you adopt it for your own.

"This is the part that I'm wondering about. If the feds have someone that they're convinced is a terrorist or actively working with terrorists, but they don't have enough evidence to convict in a US court, what should they do? How committed should we be to the principle of "innocent until proven guilty"? I'm 100% against the torture aspect of this case, and if we advocated it, condoned it, or winked at it, I'll continue to be outraged at our goverment for it; but I'm less certain about what the ideal course of action would have been."

Except in a dire emergency, I think we ought to follow U.S. law. If U.S. law is inadequate to dealing with the war on terrorism we should pass a statute changing it, but until then, except in a dire emergency, we should follow it.

When it comes to U.S. citizens, there is a binding federal law called the "Non-Detention Act", which states "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." It's not entirely clear whether Ali was imprisoned "by the United States" as a legal matter, but Judge Bates' ruling suggests that he probably was. If so, I can't think of a statute that his detention would be "pursuant to". The use of force resolution that O'Connor relied on in Hamdi does not apply in a classroom in Saudi Arabia far, far away from any Afghan battlefield or Al Qaeda camp. If he were genuinely being held by the Saudi government for crimes in Saudi Arabia I would say fine, as long as we provided the standard consular protections and tried to make sure he got a real trial and was not tortured. But that doesn't seem to be what happened.

So, I would say: keep him under tight surveillance, whether in the U.S. or Saudi Arabia, until there's enough evidence to charge him with a crime. And if you feel that is not a good enough option, get Congress to pass a statute providing legal grounds for his detention.

Another option would be to detain him as a material witness for the grand jury. The U.S. has been doing this a lot sincde 9/11 in a way that is morally and legally questionable, but I do think it is clearly preferable to having someone held in a country that practices torture.

If he were an immigrant you might have a legal basis for detaining or deporting him on immigration charges, and the non-detention act would not apply.

Some sort of military tribunal is also a potential solution, but you'd have to provide for it by statute and conform to Constitutional requirements. When it comes to U.S. citizens captured in a civilian setting rather than on a battlefield, I am very much inclined to say: charge them with a crime, suspend the writ of habeas corpus, or keep them under surveillance but do not imprison them. Again, if there is a legitimate basis for a foreign government to imprison them that's another situation, but that doesn't seem to be the case here.

I think it is a giant tactical mistake to feel like we have to come up with the ideal solution before we can object to the sort of thing that happened to Abu Ali. None of us knows enough about the facts, and few of us know enough about the law, to come up with the ideal solution. But I can come up with many solutions that are better than what we did.

"And when they first decided to have Saudi Arabia hold him for us instead of sending him back to the U.S., not only had he not been found guilty by a court of law; a U.S. grand jury had heard the evidence against him and declined to indict him."

I'm confused, wasn't he being held in Saudi Arabia based on their belief that he was involved in a bombing in Saudi Arabia? I thought we brought him here only when it became clear that they weren't prosecuting him for that there.

Sebastian--read pages 3-14 of Judge Bates opinion, or my excerpts in the 4:49 pm post yesterday.

It's a motion to dismiss, so Bates is making all reasonable factual inferences in favor of the plaintiffs. His parents are obviously interested parties, but these are sworn affidavits. And given that the government has kept all of its evidence secret and has also tried to keep its legal arguments for dismissing the case secret, this is the only version of the facts we have to go on as far as the circumstances of Ali's detention.

Again, I stress that the judicial system in Saudi Arabia is a joke, and that any evidence they may provide or allegations of involvement in any crimes should be suspect.

Also see pages 12-17 of the habeas petition filed on Ali's behalf. (It's from this page of court documents, which LJ linked to above.)

Some of the events sound similar to the Sampson case, where a Canadian was arrested, imprisoned, torured repeatedly, and condemned to death by public beheading (thankfully, he's free now).

References:

Background of the case
Article
Accompaying piece on the Saudi judicial system

My brother was a foreign worker in Saudi Arabia at the time, and had to get out quickly. The speculation is that westerners were targeted with bombs by jihadists, and the security forces covered it up by arresting and charging westerners for the attacks. As I said, facts don't seem to be a big part of the justice system.

tomsyl - just to be clear, Krugman's column came out before the Abu Ali announcement. It was merely speculation, given the past jiggering with terror alert levels and such, that something similar was likely to occur. He (Krugman) has made no connection between his speculation and the Abu Ali indictment.

I understood thast from Edward's post, JerryN, but I stand by my paranoia comment. And we'll see in subsequent columns whether Krugman tries to link his prediction to the Omar Abu Ali story.

Here is another article about the Saudi school that Abu Ali graduated from.
The article has this;
Last year, Ahmed Abu Ali of Falls Church, the school's valedictorian in 1999, was arrested in Saudi Arabia on suspicion of joining a cell of al-Qaida. He had reportedly expressed admiration for Mohamed Atta, ringleader of the Sept. 11 hijackers, and planned to emulate him, according to FBI testimony in another federal terrorism case.

Two other former students at the school were denied entry into Israel in 2001 and were found to be carrying what federal officials described as a "farewell letter" in anticipation of a suicide mission.

So if there was testimony in another case, then why was Ali not extradited? Very curious.

I find myself very uncomfortable about this line of attack because of the example of the Japanese-American internment, where participation in Japanese schools and cultural activity were often used as evidence of loyalty to Japan. The article that Katherine quotes is here. I think it is important to add this observation

"I wouldn't be surprised if some teachers are sometimes anti-American or anti-Semitic," said Abdulwahab Alkebsi, whose 12-year-old daughter attends the Islamic Saudi Academy. "But I don't want it to be that way.

"I choose the school because of the same reason why all American parents choose private schools -- it's a better environment and no peer pressure of drugs and being a sex symbol at too young an age. But there are other American values -- like freedom of speech and assembly -- that we should be teaching our kids to respect."

My concern is with this intersection between Saudi Arabia and US law enforcement. The organization cited in the post article, the Saudi Institute, which I will be plowing thru. It will be interesting to see what tack they take on this.

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