Suspect Policy

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.

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