Alleged Bush Assassin Abu Ali

The curious case of Ahmed Omar Abu Ali is really a hybrid of the four biggest terror-law cases to arise since Sept. 11, 2001. It's a little bit John Walker Lindh, the so-called "American Taliban." It's a little bit Zacarias Moussaoui, the al Qaeda foot soldier the feds still can't get to trial. It's a little bit Yaser Esam Hamdi, the "enemy combatant" who last June won a big ruling from the Supreme Court. And it's a little bit Guantanamo Bay, where detainees are fighting to have federal courts recognize whatever rights they may have.

The Justice Department says things are a little more simple than that. The feds say that the Houston-born Abu Ali plotted to assassinate President Bush and to join and aid al Qaeda. They say that they found incriminating items at Abu Ali's home in Falls Church, Virginia (items which by themselves are not illegal to possess, you should know). They say that Abu Ali told his terror buddies that he wanted to become a terror planner like Muhammad Atta or Khalid Sheikh Muhammad; that he began living with known al Qaeda associates; and that he received money from those sinister folks to buy a laptop computer, a cell phone and some books that presumably were to be used in a terror plot here in the States. If convicted of all six charges, Abu Ali would face a maximum of 80 years in prison -- a life sentence, in other words.

Because it purportedly involves a plot against the President, because it involves many of the issues left unresolved by the early terror law cases, and because the defendant was the valedictorian of his religious school class in Virginia, the Abu Ali case shapes up to be not just one of the more interesting cases since the terror attacks on America, but also one of the most important. Will the executive branch regain the initiative in the legal fight against terrorism or will the federal courts continue their recent streak of siding with individual suspects over government power? Will Saudi intelligence officials be required to testify in some fashion about their treatment of Abu Ali? After all, the young man was apprehended and interrogated by them first. What about U.S. officials, here or abroad?

Will the Abu Ali case finally turn the judiciary's focus upon "extraordinary rendition," the practice whereby the U.S. may turn a blind eye to the abuse of terror suspects at the hands of foreign governments? If a U.S. citizen is tortured abroad, either with or without the government's consent, can he be successfully prosecuted here at home? Will the courts be able, finally, to balance the constitutional rights of citizens with the government's national security interests in a manner that reasonably satisfies both sides? The Abu Ali case could answer these questions, especially if it generates the sort of heat and light that gains the attention of the Supreme Court.

Unlike other terror suspects who have found themselves in Abu Ali's position, the defendant in this case already has offered a very detailed side of his story. In a pre-indictment lawsuit brought last year to challenge his detention, Abu Ali and his folks say he was tortured into confessing the crimes with which he is charged. They say that U.S. government officials initially left Ali high and dry in Saudi Arabia after his capture. They say that U.S. officials confirmed his torture by the Saudis -- they say a federal prosecutor told a lawyer for another terror suspects that Abu Ali is "no good for us here, he has no fingernails left." Ali's parents say that officials told them repeatedly that the government had no plans to charge their son. That is, until the government charged their son.

Why now? We may never know for sure. But 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.

The indictment doesn't take the heat off the feds -- they'll still have to provide Abu Ali's attorneys with information concerning their client's detention. And they ultimately will have to explain away the torture allegations. But now the heat is on Abu Ali as well, 80 years worth, and so the first old case the Abu Ali case reminds me of is the case against Lindh. In that case, a young American was captured overseas (Lindh was in Afghanistan, remember, with the Taliban in a fight with the Northern Alliance) and then returned to America to face terror support charges. Then, as now, there were great questions about post-arrest, pre-indictment interrogation sessions. After being made the poster child for treason, and in a political and legal climate much more emotional than the current one, Lindh pleaded guilty less than one year after the Twin Towers fell. He is now serving a 20-year sentence.

Likewise, the Abu Ali case smells of the Moussaoui case. Like Moussaoui, Abu Ali has been charged with conspiring to engage in terrorism here in the states. Like Moussaoui, Abu Ali already has put the government in the difficult position of having to provide information about its interrogation methods and results. Indeed, Moussaoui has sought, and received, testimonial access to one of the very people prosecutors say Abu Ali wants to be when he grows up -- Khalid Sheikh Muhammad. The Moussaoui case has been tied up now for over three years as the judicial and executive branches wrangle over how much evidence a terror suspect is entitled to. There is no reason to think that the Abu Ali discover process will be much smoother. In fact, if anything Abu Ali is entitled to more rights and protections, here and abroad, because he, unlike Moussaoui, is a U.S. citizen.

Speaking of U.S. citizens, the Abu Ali case also takes us back to the case of Yaser Esam Hamdi, the U.S.-born "enemy combatant" who was held indefinitely and incommunicado until the Supreme Court rescued him last June. Like Abu Ali, Hamdi was captured overseas and interrogated. The Hamdi case decided by the Supreme Court stands for the proposition that US citizens are entitled to certain due process rights no matter where they are captured and what the government initially says about their status. If that holds true in the Abu Ali case, does it preclude the sort of treatment the defendant says he received at the hands of the Saudis? And, remember, the government initially let all of us believe that Hamdi was too dangerous to be either tried or released -- until the feds pawned him off on the Saudis, who promptly let him go.

And that brings us to the Guantanamo Bay detention cases and the new "extraordinary rendition" cases that are swirling around federal courts these days. Like those cases, Abu Ali says he was mistreated by foreign nationals with the knowledge and consent of the U.S. government. Unlike the men in those other cases, however, Abu Ali is an American and now on trial in a civilian court. If federal judges seem a bit more sympathetic these days to foreign-born detainees, what in the world will they make of Abu Ali? Especially if only half of what he says is true about the methods the Saudis used upon him?

I just don't see an American judge allowing prosecutors to get to trial with a case that has even a scintilla of a suggestion that the defendant was tortured into confessing. But I would love to hear what the feds have to say as way of explanation for why they were so slow in coming to Abu Ali's rescue, even after the Saudis apparently said they had no interest in prosecuting him themselves. Are the feds bluffing? Are they hoping that by prosecuting Abu Ali they will force him to cave, a la John Walker Lindh? Or are they confident still that they will never have to offer details about how Abu Ali was treated? If Abu Ali wasn't treated poorly, why did a federal judge already order the government to reveal more about the matter? And if he was treated poorly, and if the government was indeed on the fence about charging him in the first place, why is there a criminal case at all?

Although I'm sure it doesn't feel that way right now to Abu Ali, Tuesday's federal terror indictment against him actually improves his lot in life. At least now the young man knows what charges he faces; knows (for the most part) what rules will apply in his case; and knows that his fate ultimately will be decided by a federal judge and jury. That's a far cry from living at the whim of Saudi intelligence officers. It's a far cry from having to guess at the evidence against you; and it's a far cry from wondering whether your fingernails are going to be ripped off you again after they have grown back.