The U.S. Department of Justice may make legal history in seeking to dismiss a lawsuit on behalf of a U.S. citizen being held in Saudi Arabia without publicly disclosing its reasons, citing an "extraordinarily high" government interest in protecting national security issues in the case.
Other instances in which courts based their decisions on "secret information" have dealt with denial of a job or pilot’s license. This case is about a man’s freedom.
The citizen is Ahmed Abu Ali, a 23-year-old student who was arrested in Saudi Arabia in June 2003 while taking an exam at the University of Medina, and has since been held in a Saudi prison without charge or access to legal counsel.
Saudi authorities claim they have no case against Ali, and that his detention is at the behest of the U.S. government. The U.S. Government responds it had nothing to do with his arrest or imprisonment, but has declined to publicly produce any evidence to document this claim.
Agents of the Federal Bureau of Investigation visited Ali during his detention, and the U.S. has reportedly asked Saudi authorities to indict Ali or return him to U.S. custody.
Ali’s family charges that their son is a victim of "rendition" – a process in which suspects are taken to other countries and interrogated without the protection of U.S. laws. The practice is known to be used by the Central Intelligence Agency (CIA) and other agencies. Frequently, the targets of "rendition" are sent to or detained by countries known to torture prisoners.
At a hearing in Washington last week, Ori Levi, a Justice Department lawyer, told U.S. District Judge John D. Bates that while there is no legal precedent for dismissing the case, "there’s very little risk" that Ali has been wrongly deprived of his freedom.
"The government’s interest here in protecting national security is extraordinarily high," Levi said.
As reported by the Washington Post, Judge Bates said he had "serious reservations about making such a critical decision based on information that would be presented to him privately in chambers."
He said that although he was "mindful of the government’s concerns about national security, he would be reluctant to dismiss" claims of unjust imprisonment without a public explanation.
"This is about as close to a state-secrets shutdown as you can get," Bates said. "We’re talking about freedom here."
He asked Levi, "How able is the court to resolve a matter fairly when it’s only able to hear from you?"
David Cole, one of the family’s attorneys, said Judge Bates should not consider secret evidence.
"The notion that the government can litigate a case involving a U.S. citizen’s liberty entirely behind closed doors is unprecedented and totally contrary to the basic principles upon which this country was founded," Cole told IPS.
"You simply can’t have a fair system of justice in which one side gets to rely on evidence and argument that the other side can’t even see," he said.
Cole and the family charged that the U.S. Government is trying to have the case dismissed to avoid disclosing its role in Ali’s imprisonment. They cited a Washington Post article last week reporting that the State Department had issued a formal request to the Saudi government asking it to indict Ali or turn him over to U.S. custody.
Two months after his arrest, in September 2003, Ali was interrogated by FBI agents who reportedly threatened to declare him an "enemy combatant" and send him to Guantanamo Bay. Alternatively, he could stand trial in Saudi Arabia, where he would have no legal defense. He was then placed in solitary confinement for three months.
The Washington Post reported that the Saudi embassy said in an e-mail that a senior Saudi official had issued the following statement: Abu Ali "is being detained with the full knowledge and support of the U.S. government. There is an ongoing investigation regarding this individual. At this time, we have received no request for extradition."
More recently, the Post reported, Ali was told by Saudi authorities that his trial was approaching. U.S. officials have not facilitated legal representation, nor have they discovered what, if anything, he has been charged with.
"If any other U.S. citizen was held in this way, our government would be raising hell," Cole added. "Here our government has tried to keep it all secret."
Ali was born in Houston, Texas and raised in northern Virginia. The suit against the government was brought last summer by Ali’s parents, who are originally from Jordan. They allege that the U.S. arranged for their son to be held by the Saudi government on suspicion of terrorist acts and that U.S. authorities expected he would be tortured there.
In December 2004, Judge Bates ruled that the parents could seek government documents to try to prove their allegation of a U.S. role in their son’s imprisonment.
Levi told Bates that the judge can, without input from Ali’s lawyers, sort out the proper course after seeing the secret information. "One of the great things about America is we have an independent judiciary," Levi said. "This is not a black box where we’re asking you to sign off on what we say."
The judge did not indicate when he would make a decision about the government’s request.
U.S. interest in Ali stems from an alleged connection to a now-concluded Virginia terrorism case. At a July 2003 bail hearing, one of the Virginia defendants, Sabri Benkhala, said Ali was an associate of his who had allegedly confessed to belonging to al-Qaeda during interrogations that were conducted by Saudi Arabia authorities and observed by the FBI. Benkhala was acquitted of the charges.
