350 F.Supp.2d 28 (D.D.C. 2004), Civ. A. 04-1258, Abu Ali v. Ashcroft

Docket Nº:Civ. A. 04-1258
Citation:350 F.Supp.2d 28
Party Name:Abu Ali v. Ashcroft
Case Date:December 16, 2004
Court:United States District Courts, District of Columbia
 
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350 F.Supp.2d 28 (D.D.C. 2004)

Omar ABU ALI, et al., Petitioners,

v.

John ASHCROFT, et al., Respondents.

No. CIV.A. 04-1258JDB.

United States District Court, District of Columbia.

Dec. 16, 2004

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[Copyrighted Material Omitted]

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Morton Sklar, World Organization for Human Rights USA, Washington, DC, Counsel for petitioners.

Judry L. Subar, Ori Lev, United States Department of Justice, Civil Division, Washington, DC, Counsel for respondents.

MEMORANDUM OPINION

BATES, District Judge.

"The writ of habeas corpus commands general recognition as the essential remedy to safeguard a citizen against imprisonment by State or Nation in violation of his constitutional rights." United States v. Morgan, 346 U.S. 502, 506 n. 3, 74 S.Ct. 247, 98 L.Ed. 248 (1954) (quotation omitted). This case requires the Court to give substance to those words. Petitioner Ahmed Abu Ali ("Abu Ali") is a citizen of the United States who, through his parents, has filed a petition for a writ of habeas corpus against several officials of the United States ("respondents" or "United States") challenging his ongoing detention since June 2003 in a prison of the Kingdom of Saudi Arabia allegedly at the behest and ongoing supervision of the United States.

Petitioners have provided evidence, of varying degrees of competence and persuasiveness, that: (i) the United States

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initiated the arrest of Abu Ali in Saudi Arabia; (ii) the United States has interrogated Abu Ali in the Saudi prison; (iii) the United States is controlling his detention in Saudi Arabia; (iv) the United States is keeping Abu Ali in Saudi Arabia to avoid constitutional scrutiny by United States courts; (v) Saudi Arabia would immediately release Abu Ali to United States officials upon a request by the United States government; and (vi) Abu Ali has been subjected to torture while in the Saudi prison. The United States does not offer any facts in rebuttal. Instead, it insists that a federal district court has no jurisdiction to consider the habeas petition of a United States citizen if he is in the hands of a foreign state, and it asks this Court to dismiss the petition forthwith. The position advanced by the United States is sweeping. The authority sought would permit the executive, at his discretion, to deliver a United States citizen to a foreign country to avoid constitutional scrutiny, or, as is alleged and to some degree substantiated here, work through the intermediary of a foreign country to detain a United States citizen abroad.

The Court concludes that a citizen cannot be so easily separated from his constitutional rights. Earlier this year, the Supreme Court confirmed the fundamental right of a citizen to be free from involuntary, indefinite confinement by his government without due process. See Hamdi v. Rumsfeld, --- U.S. ----, ----, 124 S.Ct. 2633, 2647, 159 L.Ed.2d 578 (2004); id. at 2661 (Scalia, J., dissenting); see also Rasul v. Bush, --- U.S. ----, ----, 124 S.Ct. 2686, 2692, 159 L.Ed.2d 548 (2004). Abu Ali was not captured on a battlefield or in a zone of hostilities--rather, he was arrested in a university classroom while taking an exam. The United States has therefore not invoked the executive's war powers as a rationale for his detention--instead, the United States relies on the executive's broad authority to conduct the foreign affairs of the country as a basis to insulate Abu Ali's detention from judicial scrutiny. There are, to be sure, considerable and delicate principles of separation of powers that dictate caution and will narrow the inquiry in this case. Such principles, however, have never been read to extinguish the fundamental due process rights of a citizen of the United States to freedom from arbitrary detention at the will of the executive, and to access to the courts through the Great Writ of habeas corpus to challenge the legality of that detention.

The present posture of this case requires this Court to accept petitioners' well-supported allegations, to which the United States has not responded. The United States' broad assertion of authority, and corresponding contention that this Court lacks jurisdiction, cannot withstand petitioners' assertions at this time. The Court will accordingly authorize expeditious jurisdictional discovery in this matter to further explore those contentions. The process of defining the scope of that discovery is set out in the accompanying order. In the meantime, the request of the United States to dismiss the petition for lack of habeas corpus jurisdiction will be denied.

BACKGROUND 1

I. The Arrest of Abu Ali

Petitioner Ahmed Abu Ali ("Abu Ali") is an American citizen who was born in

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Houston, Texas. See Petition ¶ 25; id. Ex. A (Birth Certificate). After graduating as valedictorian of his high school class in Virginia, he enrolled as a scholarship student at the Islamic University of Medina in Saudi Arabia. See Petition pp 26-27. On June 11, 2003, while he was taking his final exam at the university, Saudi security officers entered his classroom and arrested him. Since that day, Abu Ali has been detained indefinitely in a Saudi prison without charge or access to counsel. See Petition pp 26-28.

At about the same time that Abu Ali was arrested, three other Americans in Saudi Arabia were also apprehended by Saudi officials. See id. ¶ 29. Unlike Abu Ali, each of these individuals was extradited a month later to the United States. See id. Once in the United States, they were charged, along with eight other Northern Virginia men, with undertaking paramilitary training to wage a terrorist jihad on behalf of Muslims. See United States v. Royer, Crim. No. 03-296-A (E.D.Va.). Abu Ali thus was the only American citizen not extradited to the United States and charged with a crime.

FBI agents raided Abu Ali's home in Virginia on June 16, 2003, less than a week after he was arrested in Saudi Arabia. The search warrant was issued by the United States District Court for the Eastern District of Virginia (the same court in which the Royer proceedings were located), and instructed the agents to look for weapons, cellular phones, and documents tending to show a conspiracy between Abu Ali and four of the defendants in the Royer case. See Petition ¶ 31; id. Ex. B (Search Warrant). Some time later, a prosecutor in the Royer proceedings would acknowledge that the search of Abu Ali's home was conducted "in connection with" the Royer prosecution. See Petition ¶ 32; Aff. of Omar Abu Ali, Sept. 20, 2004, ¶ 10.

Roughly five days after Abu Ali was arrested, and at about the same time as the raid on his home took place, FBI agents visited the Saudi prison in which Abu Ali was detained and watched as he was interrogated by Saudi officials. See Petition ¶ 32; Aff. of Omar Abu Ali, Sept. 20, 2004, ¶ 5. The prosecutor in the Royer case has acknowledged that this interrogation took place. Id. The prosecutor says that during the interrogation Abu Ali confessed to joining a "clandestine al Qaeda cell" and admitted that "al Qaeda told him he must either conduct terrorist operations or return to the United States and establish an al Qaeda cell." Id.

II. The Months Following the Detention

Abu Ali's parents, also petitioners in this matter, assert that Abu Ali was held incommunicado for at least a month after his arrest. See Petition ¶ 33. They claim that they sought assistance from the State Department, but their requests were initially ignored. See Aff. of Omar Abu Ali, Sept. 20, 2004, ¶ 7. Later, they say, the State Department told them that Saudi Arabia did not permit the United States Embassy to have access in the first month of his detention, and that the Saudis had failed to respond at all to several diplomatic notes regarding Abu Ali. See id.

Abu Ali's parents took their concerns to a newspaper reporter who had been covering the Royer prosecution. In a July 2003 article, that reporter quoted a Saudi Embassy spokesman as saying that the United States Legal Attache office--the name for the FBI overseas station--"had full and complete and direct access" to Abu Ali from the moment of his arrest. The Saudi

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official explained: "For us, it was a representative of the U.S. So the U.S. Embassy had full access, as far as we were concerned." Id. At about this time, Abu Ali's parents say they threatened to sue the State Department for failing to secure the safety of a United States citizen. They claim that, in response, Matthew Gillen, the Director of U.S. Consular Affairs in Saudi Arabia, met with Abu Ali in the Saudi prison in early July. Abu Ali's parents also received the first of several phone calls from their son on July 31, 2003. See id. From that point on, they would maintain intermittent contact with Abu Ali through reports from consul visits and occasional phone conversations.

In September 2003, several FBI agents traveled to Saudi Arabia and interrogated Abu Ali for at least four days. See Petition ¶ 36; Aff. of Faten Abu Ali, Aug. 18, 2004, ¶ 1. According to an affidavit from Abu Ali's mother, Abu Ali told her in a phone call that the FBI agents had threatened to declare him an enemy combatant and send him to Guantanamo Bay, Cuba, if he did not cooperate. 2 See Aff. of Faten Abu Ali, Aug. 13, 2004, ¶ 1. Consul Gillen would later tell the family that Abu Ali had also told him about this threat during one of his consul visits to the prison. See Petition ¶ 36; Aff. of Omar Abu Ali, Aug. 13, 2004, ¶ 1. Abu Ali's mother also says that Abu Ali told her the FBI agents threatened to put him on trial in Saudi Arabia without counsel. See Aff. of Faten Abu Ali, Aug. 18, 2004, ¶ 1.

Abu Ali's father, who works as a system analyst at the Royal Embassy of Saudi Arabia in Washington, D.C., prevailed on his contacts in the...

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