Fourth Circuit Alibis Torture Confession in Abu Ali Case

Also posted at The Public Record

Last Friday, the Fourth Circuit Court of Appeals, long considered one of the most conservative courts in the the nation, rejected the appeal of Ahmed Omar Abu Ali, who was sentenced in 2005 for conspiracy to assassinate President Bush and make other terror attacks upon U.S. targets on behalf of Al Qaeda. Abu Ali, who is a U.S. citizen and the son of naturalized Jordanian parents, was arrested in June 2003 in Saudi Arabia and held there until the U.S. requested his extradition almost two years later. He was 23 years old and attending a Saudi university at the time of his arrest.

During his incarceration, the Saudis refused his repeated requests to see an attorney. At no time has Abu Ali ever been linked to an actual terrorist event or action. In 2003, the government secretly broke into his parents' home, utilizing provisions of the U.S.A. Patriot Act that allows warrantless search and seizure to go fishing for evidence of Abu Ali's "dangerousness."

Human rights groups such as Amnesty International and the ACLU have publicized the Abu Ali case, particularly as it highlighted the admissibility of coerced confessions in the trial of individual prosecuted in the government's so-called "war on terror". The controversy over admitting evidence obtained via torture, whether by domestic police or intelligence agencies, or by foreign governments, has roiled the government campaign to try high-profile prisoners held by the U.S. at in military tribunals at Guantanamo Bay, Cuba. Use of torture evidence lead to the resignation of government prosecutors in protest, and testimony last month from the former chief prosecutor of the tribunals that "higher-ranking officers exerted illegal influence over the process, pushing prosecutors to use coerced evidence."

A Dangerous Precedent

A statement by Amnesty International in March 2006 described the salient issue in the Abu Ali case:

Amnesty International remains seriously concerned that the trial of Ahmed Abu Ali was flawed as the jury was not allowed to hear evidence supporting his claim that he was tortured into confessing while he was held for one and a half years without charge or trial in Saudi Arabia. Amnesty International is seriously concerned that the case may have set a worrying precedent on the admissibility of torture evidence in US courts. Amnesty International urges that, if appealed, the courts will address this issue.

Now that the case has been appealed, and a decision rendered, we will see how the courts chose to "address this issue." But first, let's consider what occurred at the initial Abu Ali trial. Again, from Amnesty International:

Judge Gerald Bruce Lee ruled that only evidence that related directly to Ahmed Abu Ali's interrogation would be admissible, thus denying the defence the opportunity to present relevant contextual evidence. Judge Lee had ruled during pre-trial proceedings that the US government had shown by a "preponderance of evidence" that the statements made by Ahmed Abu Ali in Saudi Arabia were "voluntary", and that his incriminating statements were admissible at trial. During the trial, general statements from Saudi Arabian officials were used to undermine Ahmed Abu Ali's allegations whilst his defence lawyers were not allowed to present any evidence pertaining to Saudi Arabia's human rights record on torture....

Amnesty International is seriously concerned that the trial of Ahmed Abu Ali may have set a precedent in US courts of according unqualified support to the declarations of a foreign government regarding its human rights record as a means of rendering evidence admissible, including statements obtained by torture and ill-treatment.

What was the evidence that Ali's lawyers sought to present? It included documentation of Saudi human rights violations and use of torture, and the psychiatric evaluations done on Mr. Abu Ali himself, which supported the contention that his mental and emotional state was consistent to someone who had been tortured as he alleged. According to an ACLU document, Abu Ali was held in solitary confinement. "During the first three days of interrogation, he was punched, kicked in the stomach, struck with a hard object more than ten times, whipped while he was chained to the floor, and threatened with amputation or beheading." He did not see a U.S. embassy official for his first month of captivity. His "confession" came about three weeks later.

As for evidence of Saudi Arabian use of torture to obtain confessions, the court could have used documentation from the U.S. State Department Report on Saudi Arabia human rights practices released in March 2002, just one year prior to Abu Ali's arrest.

Shar'ia (Islamic law) prohibits any judge from accepting a confession obtained under duress; however, there were credible reports that the authorities abused detainees, both citizens and foreigners. Ministry of Interior officials are responsible for most incidents of abuse of prisoners, including beatings, whippings, sleep deprivation, and at least three cases of drugging of foreign prisoners. In addition there were allegations of torture, including allegations of beatings with sticks, suspension from bars by handcuffs, and threats against family members. Torture and abuse are used to obtain required confessions from prisoners (see Section 1.e.). There were reports that in detention centers some boys and young men were flogged, forced constantly to lie on hard floors, deprived of sleep, and threatened with whipping and other abuse.

The government report also notes that Saudi Arabia "has refused to recognize the mandate of the U.N. Committee Against Torture to investigate alleged abuses". Furthermore, the Saudis do not allow international observers to investigate complaints of torture. Interestingly, even in the Abu Ali case, FBI agents were not allowed to see or interview the prisoner while he was held in Saudi custody. (The FBI ultimately submitted a list of nine questions they wanted the Saudis to ask.)

Implausibility and Credibility Turned Upside Down

The unanimous decision by the Fourth Circuit to uphold the Abu Ali conviction (there was one dissent over the question of resentencing guidelines) rubber-stamps the decision by the trial court to suppress evidence that Abu Ali's confession was elicted under torture. This is their reasoning (from Friday's ruling -- I quote extensively, as it is a remarkable document, with emphases in bold my own editorial emendation):

Initially, the court properly recognized that "torture, and evidence obtained thereby, have no place in the American system of justice." Abu Ali, 395 F. Supp. 2d at 380. But, based on its evaluations of "the credibility of the witnesses," and "the quality of the evidence presented," id. at 374, the district court found itself "left with lingering questions concerning the credibility of Mr. Abu Ali and his claim that he was tortured," id. at 378. The court credited the testimony of the Saudi Arresting Officer and the Lieutenant Colonel (the Warden at the Medina detention facility where Abu Ali was held for two days following his arrest) that no Saudi official used coercive interrogation techniques on Abu Ali. The court found that the Lieutenant Colonel’s testimony that Abu Ali was never abused was believable while Abu Ali’s contrary testimony "raise[d] questions that bear on the defendant’s credibility." Id. at 373.

In addition, the court relied on the testimony of two other Saudi officials, the Brigadier General and the Captain, that the interrogation of Abu Ali in Riyadh "was conducted in the absence of threats or torture." Id. at 373. The court found "implausible" Abu Ali’s "claim about having been whipped" during the early period of his detention because several Saudi and American witnesses who observed him during this period reported behavior "that do[es] not coincide with how a recently beaten person would behave." Id. at 374. Moreover, the court found that "[s]ome aspects" of Abu Ali’s testimony "just do not flow logically," id. at 378, and observed that "during his testimony, there were times where Mr. Abu Ali seemed to deflect the question," id. Finally, the court considered, but found deficiencies in, the testimony of Abu Ali’s medical experts who supported his torture claim, crediting instead the testimony of the government’s experts that Abu Ali showed no physical or psychological signs of mistreatment.

The district court largely rested its legal conclusion that Abu Ali’s statements were voluntary on its factual findings concerning his claims of torture and abuse. Our thorough review of the record provides no basis for finding clear error in any of those findings. This, however, does not end our inquiry. We must evaluate the voluntariness of Abu Ali’s confessions de novo, looking to the totality of the circumstances to determine whether his will was "overborne." See Schneckloth, 412 U.S. at 225.

In making this evaluation, we consider that Abu Ali was not provided the legal protections — including prompt presentment and Miranda warnings — that the Constitution requires be provided to suspects by United States law enforcement officers. Saudi Arabia is a sovereign nation with its own legal system, and the failure to provide Abu Ali these protections does not, in and of itself, require exclusion of the statements Abu Ali made in Saudi custody. At the same time, we do consider the absence of these protections as one factor in the totality of circumstances in evaluating whether Abu Ali made his statements voluntarily....

In addition, the district court rejected Abu Ali’s testimony that the Saudis subjected him to coercive conditions of confinement. Instead, the court found believable the testimony of Saudi officers that they confined Abu Ali under reasonable conditions, including provision of three meals a day, and a cell with a bed, blanket and pillow. The court further found believable Saudi testimony that Saudi authorities did not question Abu Ali during his initial detention in Medina, and noted that Abu Ali’s own description of the Riyadh interrogation suggested that he was not questioned in Medina....

After consideration of all of the evidence and the extensive factual findings made by the district court, we conclude that Abu Ali’s statements were voluntary. Abu Ali was intelligent, articulate, and comfortable with the language and culture of the country in which he was detained and questioned. The district court found, based upon copious record evidence, that he was not tortured, abused, threatened, held in cruel conditions, or subjected to coercive interrogations. On the basis of the totality of these circumstances, we conclude that Abu Ali’s statements were "the product of an essentially free and unconstrained choice." Culombe, 367 U.S. at 602.

In summation, both the initial trial court and the Federal appeals court chose to believe the stories of the corrupt Saudi high police officialdom, and suppressed any evidence to the contrary. The professional observations and conclusions of medical and psychiatric personnel were ignored while "'Abu Ali’s "claim about having been whipped' during the early period of his detention" is rendered "implausible" because unidentified Saudi and American "witnesses" to the early period of his incarceration thought his behavior inconsistent "'with how a recently beaten person would behave.'" This is truly remarkable. Who were these Saudi and American witnesses? I thought that no American saw Abu Ali in the early days of his arrest. Beyond that, by what criteria were these "witnesses" able to judge how a beaten individual should act? We aren't told, nor are we expected to ask.

Rubber Stamp Court for Bush's Reign of Terror

The Fourth Circuit's decision in the Abu Ali case is a travesty of justice. It positions acceptance of coerced confessions as one of the centerpieces of Bush's planned prosecutions of "terror" suspects in his star chamber military tribunals. For a moment last summer, it looked as if even the arch-conservative Fourth Circuit wouldn't countenance Bush's imperial presidential dragnet. Writing in a decision regarding another U.S. citizen marked as an "enemy combatant," Ali Saleh Kahlah al-Marri, the same court wrote:

The government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.

But that was a year ago, and politics never does stand still. The judges reconsidering the Abu Ali case found no problem in ignoring a defendant's Miranda rights (which was another aspect of Abu Ali's appeal), or choosing to believe foreign torturers over examination of medical personnel, or even the studied opinions of the United States' own State Department. (The appeals court's refusal to consider the lack of Miranda and other legal rights as bearing upon the voluntariness of a confession is a further outrage that deserves its own full discussion.)

These judges also ignored obvious precedent. They never referred to United States v. Hall (1996), wherein the Seventh Circuit Court of Appeals reversed a kidnapping conviction when expert testimony relating to police interviews of the defendant were excluded.

The court noted that:

[O]nce the trial judge decided that Hall's confession was voluntary, the jury was entitled "to hear the relevant evidence on the issue of voluntariness and [the trial judge was to] instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances" (p.1344).

Yet, the judge in the Abu Ali trial disallowed psychiatric reports and government documentation of Saudi torture, and the high judges of the Fourth Circuit upheld this suppression of evidence. the Bush Administration and its military and CIA backers were handed a judicial victory in their war against the Constitution and equal justice under the law. As one of Abu Ali's own attorneys, Elaine Cassell, summarized the situation after the initial trial judgment, the Abu Ali case means:

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....

Then, 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.

The Abu Ali decision represents an ominous development in the government's attack on civil liberties, and a blow against those who struggle to end the hideous governmental practice of torture. I fear the decision will be felt from the kangaroo courts of Guantanamo to the asylum hearings of the INS, where applicants from countries across the globe -- many of them tortured by allied U.S. governments such as Saudi Arabia, Jordan, Egypt, Uzbekistan, and others -- seek safety and legal residency, often utilizing psychological evaluations as their only evidence of the torture they endured abroad.

Meanwhile, the decision has barely made a stir in the mainstream press or the so-called blogosphere, where the agony and ecstasy of discussing electoral politics mask the reality of state policies and oppressive actions that day in and day out act as a heavy yoke upon the shoulders of a desperate humanity.