Background
An American citizen born in Houston Texas, Ahmed Abu-Ali was detained at the behest of the United States government while studying in Saudi Arabia. No arrest warrant was issued by a neutral magistrate to ensure that there was probable cause to believe that he had committed a crime before arresting him during his exam. When his dorm was searched and his belongings seized by Saudi Mabahith or intelligence officers, no search warrant was obtained to protect his interest in the seized property. He was not brought before a judge soon after his arrest for a probable cause hearing; in fact, he was detained for over 20 months without being charged or knowing why he was arrested. Since Saudi Arabia was the one arresting, searching, and detaining, there was no violation of the Fourth Amendment because no American government official was acting. Thus, the United States government ordered his arrest, but did not afford Ahmed any of his constitutional rights as theMabahith executed the arrest, search, and detention without probable cause.
Fourth Amendment: Search and Seizure
According to the Saudi authorities, they did not have any reason to detain Ahmed. He had not committed any crimes to their knowledge, and they had nothing except a request from the United States to arrest him. When the Mabahith interrupted Ahmed’s exam, they had no reason to believe that he had committed any crime. However, based on the F.B.I’s request, they arrested him and searched his dorm, seizing his laptop and other items without a warrant or any suspicion that evidence for any crime would be found in his room. He was subsequently taken to jail in Medina before being transferred to the notorious Al Haer Prison in Riyadh. If Ahmed was in the United Stated States, his arrest, the search of the room, and his detention would be in violation of the Fourth Amendment. Ahmed’s proxy detention by the Saudi authorities gave the government unfettered discretion to act without providing him any protection.
Fifth Amendment: Coerced Confession
While in Al Haer Prison, Ahmed was chained to the floor, with his knees on the floor and his back exposed and repeatedly struck, until he bled. His beard was pulled and his stomach was kicked as his torturers yelled, “confess, confess!” His will was eventually broken, and he agreed to cooperate. Only then did the beating stop. He touched his back with his hand, and skin fell off his back from the beating; his hand was covered in blood. The F.B.I sent the Saudis questions to ask during Ahmed’s interrogation, and the Saudis accepted the questions and allowed the F.B.I agents to watch the interrogation through a one-way mirror, which prevented Ahmed from seeing them. The Saudis also prepared a written confession and asked Ahmed to read it to the camera as they recorded. The confession included a plot to assassinate President Bush and implicated Ahmed in conspiracies among members of a Saudi Al Qaeda cell. As he read the confession, Ahmed sought confirmation and approval from the Saudi officials, repeatedly asking “tamam?” This confession tape was given to the F.B.I. less than two months after Ahmed’s arrest. In U.S. courts, confessions are not admissible unless they are voluntarily obtained. Ahmed’s confession was not only a result of un-Mirandized custodial interrogation; he was forced to read a prepared confession under the threat of actual and imminent torture. Having been tortured in the same prison, Ahmed knew that if he did not cooperate and read the confession, he would be beaten again. That is not a voluntary confession that should be admitted in an American court. However, when Ahmed was tried mostly based on this tortured confession, the judge did not exclude the confession tape. He did not believe that Ahmed was tortured despite his detailed testimony regarding the torture, the expert’s report regarding the scars on Ahmed’s back and diagnosing Ahmed with Post Traumatic Stress Disorder as a result of the torture, and an affidavit from an American lawyer, who was told by the prosecutor Mr. Kromberg that Ahmed could not be brought to the U.S. because he was “no fingernails left.” The jury was only provided with the confession video without seeing the torture expert’s report about Ahmed’s torture and PTSD symptoms. The State Department has human rights reports about countries around the world, and Saudi Arabia is reported to have many human rights abuses in its prisons, including torture. However, the jury was not allowed to see any of that information. The tortured confession was presented alone with a translation, and Ahmed was convicted.
Sixth Amendment: Confronting Anonymous Witnesses
Ahmed was not only detained for nearly two years without any charges or assistance of counsel, when he was charged, he could not confront his accusers in open court. The court allowed Saudi Mabahith officers to testify anonymously from Saudi Arabia via teleconference without the threat of penalty for perjury. They swore to tell the truth, but there was no threat of penalty for perjury because they were protected by their government, and their identity was not revealed. These witnesses were not made to face Ahmed and look at him in open court as they testified that Saudi Arabia does not torture its prisoners, and Ahmed could not confront his accusers adequately. However, this testimony was presented to the jury. Ahmed’s proxy detention allowed the prosecutors to obtain a confession from Ahmed and to subsequently rely on the testimony of his Saudi jailers regarding their prison policies and practices.
Mistrial?
During closing arguments, the prosecutor told the jury that if Ahmed was acquitted, he would “kill us,” pointing at the jurors and himself. He repeated this before the judge threatened to declare mistrial, but the jury had already heard it several times. Nevertheless, the judge did not declare mistrial, and Ahmed was convicted on all counts.
Eighth Amendment: Cruel and Unusual Punishment
Since his conviction, Ahmed has been incarcerated in the ADX Florence supermax facility in Colorado, which houses the most dangerous prisoners in the United States. Ahmed’s charges did not involve any harm to any individual as the judge noted in his sentencing memorandum. Nonetheless, he is held in solitary confinement in a 7’X12’ cell under the strict security Special Administrative Measures (SAM). Under SAM, Ahmed’s contact with the outside world is strictly controlled and limited. He is only allowed to call his family’s landline during certain days of the month for a set number of minutes and can only send and receive letters from his immediate family, which does not include his grandmother. His no-contact jail visits are also limited to his immediate family, so when his parents and siblings visit, they are seated behind sound-proof glass and can only speak with him on the phone. The jail also screens any reading materials he requests and has even denied him access to President Obama’s two books, Dreams of My Father and The Audacity of Hope,on the grounds that the books contained material “potentially detrimental to national security.” Ahmed is subjected to frequent strip searches and is only allowed one hour a day outside his cell, during which he can exercise or play sports alone. Under these conditions, Ahmed has gone on a hunger strike for a long period of time. He is subjected to detention conditions that killers, rapists, and other very dangerous convicts face –all because of a tortured confession obtained during his proxy detention in Saudi Arabia. Without this proxy detention, Ahmed would have been afforded his constitutional rights and would not have been convicted. His torture and conviction was made possible by the shredding of the Constitution.
Why should I care?
Ahmed is filing a petition for a writ of habeas corpus to challenge his detention. He has been in prison for over 8 years, two of which were in a Saudi prison without any charges or representation. Nine years ago, Ahmed, an American citizen, would not have imagined that he would be in prison today. He was talking to his brother on the phone about his then upcoming visit to his family in Falls Church and about getting married only a few days before he was arrested in an exam room. This could have been you. Today, with the enactment of the National Defense Authorization Act (NDAA), Congress has given the president unprecedented power to indefinitely detain American citizens. At the time of Ahmed’s proxy detention in Saudi Arabia, President Bush did not have as much power as the president currently does. The NDAA is a threat to your rights as an American citizen. If you do not stand up and act to free Ahmed today, one day, you too may be subjected to unjustified detention, but it may not be proxy detention since the United States government now has the power to detain you directly without charging you –and indefinitely!