Outsourcing Detention

By JOANNE MARINER
Monday, Dec. 20, 2004

Ahmed Abu Ali, a twenty-three-year-old Northern Virginia man, is being held without charges in Saudi Arabia. Arrested in June 2003, he has spent eighteen months in custody but has yet to see a lawyer.

Omar Abu Ali, Ahmed's father, says that after his son was arrested in Saudi Arabia, he and his wife turned to the U.S. State Department for help. Publicly, the State Department proclaims that one of its "most essential tasks" is to provide assistance to U.S. citizens incarcerated abroad. Because detainees in Saudi Arabia often face torture and other abuse, Abu Ali's parents must have imagined that U.S. efforts could be critically important in protecting their son.

As the weeks went by, Abu Ali's parents received worrying reports that their son was indeed being tortured. They claim that an eyewitness informed them that Ahmed's hands were in such pain that he was unable to pick up a pen.

But perhaps more shocking than what Abu Ali's parents learned about their son's treatment, was what they discovered about its causes. A U.S. district court ruling issued last week cites evidence suggesting that U.S. officials initiated their son's arrest, that the U.S. government is behind their son's continued detention, and that the reason the U.S. is keeping their son in Saudi Arabia is to avoid the scrutiny of the federal courts.

In short, far from trying to protect Abu Ali, the American government may have simply outsourced his abuse.

Torture on Demand

Abu Ali is a U.S. citizen, born and raised in this country. Having graduated as valedictorian of his high school class in Virginia, he was in Saudi Arabia for university studies at the time of his arrest.

The arrest, according to evidence presented by Abu Ali's parents in federal court, was orchestrated by the United States. Within days of the arrest, they claim, FBI agents were attending Abu Ali's interrogations, and within a week, another group of agents had raided their home in Virginia, seeking evidence of a terrorist conspiracy.

Saudi officials have reportedly described the detention as an American concern and have said that they would release Abu Ali if the U.S. requested it. According to Abu Ali's parents, U.S. State Department and embassy officials have said that their son would be freed as soon as the U.S. Justice Department's investigation was done.

In its most recent country reports on human rights, the U.S. State Department mentions credible claims that the Saudis have "abused detainees, both citizens and foreigners." Abu Ali's parents presented evidence suggesting that their son was tortured during interrogations with the knowledge of U.S. officials.

Responding to the parents' petition in federal court, Justice Department attorneys asserted that the courts lack jurisdiction over cases involving U.S. citizens in foreign custody -- no matter how deeply involved the U.S. government is in their arrest, detention or abuse.

"This position is as striking as it is sweeping," said District Judge John D. Bates in the opinion that accompanied his ruling. It would, the judge warned, allow the government to arrest people and deliver them to another country in order to avoid constitutional scrutiny, or even "to deliver American citizens to foreign governments to obtain information through the use of torture."

Quoting a landmark 1957 case, the judge rejected the notion that "when the United States acts against citizens abroad it can do so free of the Bill of Rights." Without ruling definitively on the question of jurisdiction, he ordered the Justice Department to produce evidence establishing what role, if any, U.S. officials played in Abu Ali's arrest and detention.

"We Send Them to Other Countries"

Last week's ruling was another defeat for the Bush administration's efforts to detain people outside of the law. As with the Supreme Court's decision last summer in a case involving detainees in indefinite custody on Guantanamo, the court found that claims involving the violation of fundamental rights should not be lightly dismissed on jurisdictional grounds.

It is probably no coincidence that Abu Ali's parents filed suit in federal court exactly a month after the Supreme Court issued its landmark ruling in the Guantanamo case. In that case, similarly, the Administration deliberately chose a detention center that it hoped would put the detainees beyond the reach of the U.S. courts.

Abu Ali's situation may not be unique, or even so unusual. The United States has developed a whole host of practices since the September 11 terrorist attacks that appear to be designed to evade judicial scrutiny of the detention and interrogation of suspected terrorists.

Indeed, in December 2002, the Washington Post described the transfer of suspected al-Qaeda members from U.S. custody to countries such as Syria, Uzbekistan, Pakistan, Egypt, Jordan, Saudi Arabia, and Morocco, where they were tortured or otherwise mistreated.

As an unnamed U.S. official told the Washington Post at the time: "We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them." It is up to the courts to stop these abuses.


Joanne Mariner is a human rights attorney. Her previous columns on the detainee cases and the "war on terrorism" are available in FindLaw's archive.

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