April 3, 2006
presidential assassination plots are making headlines. In one, Saddam
Hussein, the recipient of a presidential assassination attempt, is on
trial for his life because those people involved with the aborted
scheme were held accountable to Iraqi law. In the other, a 25-year-old
U.S. citizen was sentenced to 30 years in prison for plotting to kill
the scenarios sound confusing, it is because they are. One president
faces death for being shot at and one student will be in prison for
most of his adult life for threatening another president. All
presidents arenít created equal.
The more we delve into the particulars, the more bizarre these cases become.
Saddam Hussein was in a motorcade in 1982 and the plotters began
shooting. In the end, Saddam was not hit, but many people were rounded
up and sent for questioning. Those who were part of the attack were
eventually put on trial and sentenced to death. Some of the
participants escaped and fled to Iran. One, in particular, is now the
Prime Minister of Iraq.
In Saddamís case, real bullets were fired by people trying to assassinate him. And, this was during
wartime as his country was fighting a bloody conflict against Iran.
Saddam sits in a prison awaiting judgement for being the president of a
country in which the justice system gave the death penalty for the
assassination attempt. His trial so far is a farce, a "kangaroo court."
This term is used to describe court proceedings that arenít fair and
the outcome is already predetermined. It is ironic that the term
"kangaroo court" first came into use in the U.S. state of Texas, Bushís
home turf. According to www.wordorigins.org:
Interestingly, the term kangaroo court,
meaning a criminal proceeding that is conducted for show and where the
defendant is inevitably going to be found guilty, is not of Australian
origin. The earliest use of the term was recorded in Texas, of all
places, circa 1850. The term Kangaroo court
was unknown in Australia until it was introduced there from America. No
one knows how this term arose, but it is usually assumed to be in
reference to how the defendant will be bounced from the court to the
gallows. Lighter suggests that the term may have arisen from the way a kangaroo court defies the law,
just as the kangaroo's appearance seems to defy the laws of nature.
Letís take a look at the case of Ahmed Omar Abu Ali. He is a 25-year-old U.S. citizen who was studying
in Saudi Arabia. Last week, he was sentenced to 30 years in prison for plotting to kill Bush.
only "proof" used to convict him was a confession he signed in Saudi
Arabia. Once he left the enlightened kingdom and returned to the U.S.,
he alleged that his signature was only given because he was severely
tortured. He recanted his confession.
one piece of paper, or a weapon, or a phone conversation, or anything
else was found to implicate Ali in an assassination plot; a plot that
never existed. Aliís life is ruined for allegedly threatening one
president, while Saddam faces the gallows for being a president who was
are many implications about the illegalities of Aliís case. I found an
article that is comprehensive that discusses Aliís legal plight. It
came from a legal, not political, source (www.FindLaw.com) used by
legal professionals. It was written a few days before Ali was sentenced.
The Strange Case of Ahmed Omar Abu Ali:
Troubling Questions about the Government's Motives and Tactics
By ELAINE CASSEL
Monday, Mar. 07, 2005
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
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.
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.
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.
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
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.
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
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.
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.
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"
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.
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
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.
The Government Relies on a U.S. Citizen's Saudi-Prison Confession
the hearing on the bail motion, an FBI agent testified that Abu Ali had
confessed to Saudi officials that he associated with persons involved
with al-Qaeda, received things of value from them, and talked with one
or more of them about how to assassinate President Bush, whether by car
bomb or shooting. (These persons are named in the indictment as
unindicted co-conspirators.) The government also claims to have a
videotape of this confession.
Ali's attorneys argued that if Abu Ali indeed confessed, he did so
under extreme conditions of confinement - conditions that included
torture. Confessions under such circumstances are not only deeply
inhumane; they are also notoriously unreliable.
also pointed out that Abu Ali had repeatedly been denied the right to
an attorney. Abu Ali's parents had asked the U.S. consulate in Saudi
Arabia -- who had infrequently sent an employee to visit Abu Ali in
prison -- to provide their son with an attorney. They were told the
Saudis would not allow it. Accordingly, no attorney ever met with Abu
Ali while he was incarcerated and doubtless tortured in Saudi Arabia.
the Alexandria judge will exclude the confession from evidence to be
heard at Abu Ali's trial. He could do so on the ground that Abu Ali
was, in effect, in U.S. custody - and thus, his Fifth Amendment rights
were violated. Or, the judge could do so on a simpler ground: that the
prejudicial effect of coerced confessions outweighs their probative
value. (Federal trial judges may make this prejudicial effect/probative
value balance for any piece of evidence the government seeks to offer.)
The Government Searches Abu Ali's Parents Home pursuant to the USA PATRIOT
government also admitted at the bail hearing that it had secretly
raided Abu Ali's parents' home in 2003 - apparently pursuant to the USA
PATRIOT Act -- and found what it deemed to be "radical" Islamic
writings. It also found a gun magazine - hardly unusual for Virginia.
This search had occurred incident to the prosecution of the "Alexandria 11." I have written about this group
in an earlier column. Abu Ali and his parents were certainly not among them - but because they lived in the same
community, apparently they fell under suspicion anyway.
Abu Ali's case, the government was able to use two arguably
unconstitutional laws--the USA PATRIOT Act, which allows secret,
warrantless searches, and the law the government invoked, which allows
pre-trial dangerousness to be presumed. Through the combination of
these laws, it was able to search secretly for supposed evidence of
dangerousness, craft an overblown indictment, flood the media with
dramatic press releases, and then dare the defendant to prove his
The Government's Indictment: Where's the Conspiracy?
When the indictment was made available to the public, it raised an even larger question about the entire prosecution.
Nowhere in the indictment is Abu Ali tied to any terrorist event or action. So what is his crime?
there was not enough support for a charge of conspiracy to assassinate
President Bush. Conspiracy requires an agreement, and an overt act in
furtherance of the agreement. Nothing in the indictment suggests that
Abu Ali either agreed to attempt to assassinate Bush, or took any
action as a step to doing so.
instead, the indictment simply charges Ali with having "associated"
with alleged terrorists. Specifically, it claims that he talked about
wanting to kill Bush with these persons, and that he received money
from one or more of them - for what purpose, it is unclear.
The very reason that the law of conspiracy requires an agreement and an overt act
is to prevent prosecutions like this one - based on alleged, vague
discussions that supposedly took place, but were never acted upon.
What Abu Ali's Case Signifies for America and the Rule of Law
The next development in the Abu Ali case may be a plea agreement. The government's case is obviously weak,
and its evidence depends on conduct that many view as unconstitutional - even appalling.
government will be in the same bind it is in the Zacarias Moussaoui
case. There, it has successfully argued that it cannot produce
witnesses because they are of such high intelligence value to the
government that they have to be kept in secret. It has also argued that
given that this is the case, the defendant can't subpoena these
witnesses because their appearance, pursuant to Moussaoui's Sixth
Amendment right to face his accusers, would be a grave threat to
If prosecutors offer Abu Ali a deal and he refuses, he will sit in jail for years as the case winds it way
through appeal after appeal, as his occurred in the Moussaoui saga.
Abu Ali pleads guilty, he will no doubt be placed under a gag order,
like that imposed on John Walker Lindh. It will require, most
certainly, that he never speak in public about anything related to the
court case, or about what happened to him while he was in Saudi
plea agreement may also require that Abu Ali return to Saudi Arabia -
as the agreement the government entered into with U.S. citizen Yaser
Hamdi did - even though that means he will be separated from his
family. (The agreement followed upon Hamdi's victory in his Supreme Court case.)
of his family, Abu Ali's family have not been able to visit him since
his return because they refused to agree to the government's rules: An
FBI agent had to be present during the visits, all their communications
had to be in English, and they could make no comment to anyone,
including the press of course, about any aspect of their visit. Is it
any wonder they refused?
To add insult to injury, the family has been ordered not to "communicate" with their son in the courtroom.
Did this extend to a smile, a loving glance, they asked the magistrate?
If Abu Ali's case does end in a plea agreement - or, worse, in a precedent blessing this prosecution as constitutional
- Americans' rights will have been very significantly diminished.
Such a result will mean that this nightmare is viewed as an entirely legal
reality: The U.S. can work with a foreign government to arrest and
imprison a U.S. citizen and torture him. It can allow the imprisonment
to go on indefinitely; Abu Ali's took over twenty months.
of U.S. allies, too, should beware: Canadian citizen Maher Arar was
kidnapped by CIA operatives from New York's Kennedy airport, and taken
to Syria for "questioning." There he remained for a year, until Syria
got annoyed with the United States and returned Arar to Canada.
if the U.S. (or allied country) citizen confesses under torture - and
virtually everyone does, even if the confession is a lie - the U.S. may
try to use the confession against him in a U.S. court, as well in a
foreign court. (We don't know why the intended Saudi prosecution of Abu
Ali got sidetracked. Could it be because the Saudis thought, as did the
Syrians about Maher Arar, that no crime had been committed?)
But, readers may object, what if the U.S. really thinks Abu Ali is a terrorist? The answer is that the U.S.
can still protect its citizens from him - consistent with the Constitution.
The U.S. could have promptly extradited him from Saudi Arabia to face
charges here. Once he was here, it could have honored his right, as a
U.S. citizen, to an attorney, a speedy trial, and a right to pretrial
release unless the government proved that he was a danger or a flight
This is not too much to ask. And it is what the Constitution requires.
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