The Brief Writer

Ted Olson, the former Solicitor General of the United States, has been picked by the governor of Rhode Island to join the state's appellate team in arguing about Indian land. Mr. Olson's fee for appearance in the case is a flat fee of $200,000.00. Read about it here.

The Fourth Circuit Court of Appeals has issued a case where it trumpets the "customary processes of the criminal justice system" in the realm of terror prosecution.

Unlike some others suspected of terrorist acts and designs upon the United States, Abu Ali was formally charged and tried according to the customary processes of the criminal justice system. Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it.

Ahmed Omar Abu Ali was convicted by a jury of nine criminal counts arising from his affiliation with an al-Qaeda terrorist cell located in Medina, Saudi Arabia, and its plans to carry out a number of terrorist acts in this country.

In May 2003, al-Qaeda carried out a number of suicide bombings in Saudi Arabia. Saudi authorities received orders to raid several suspected terrorist safehouses in Medina and found evidence pertaining to Abu Ali. He was arrested at Islamic University and his dorm room was searched. He was later interrogated and admitted his affiliation with a Medina cell and its plans to conduct terrorist operations within the United States.

With that confession, Saudi officials notified the FBI who subsequently searched Abu Ali's house in Virginia. In its search, the FBI discovered a printout of the buddy list of email addresses from MSN Hotmail account Ahmedabuali@hotmail.com, which contained an address of abumuslim99@hotmail.com for al-Qahtani, an address book containing the name of al-Qahtani, a two-page article praising the 9/11 attacks in this country, a handguns magazine addressed to Ali which contained a feature article on methods for the concealed carrying of handguns, and an email message from an unknown individual to Ali discussing opportunities for Muslim fighters in the conflict between Muslim rebels and Russians in Chechnya. The FBI was also allowed to watch through a one-way mirror Saudi officials interrogate Ali although it was not allowed to do its own interrogation and the Saudis ignored the FBI's requested.

A federal grand jury returned an indictment against Abu Ali and Saudi officials surrendered him to U.S. authorities. He proceeded to trial, was convicted on all charges, and sentenced to 360 months imprisonment.

The primary argument in Abu Ali's appeal concerned the admissibility of his Saudi interrogations and his right to confront witnesses against him.

The trial court allowed, over his objection, the introduction of his various statements and confession made to Saudi officials. Abu Ali complained that he 1) was never brought before a judicial officer for a probable cause determination, 2) he was never given Miranda warnings, and 3) his statements were the result of torture (court uses the word "involuntary.").

The court rejected Abu Ali's claim that he was required to be brought immediately before a judicial officer upon arrest on the basis that it did not find that there was any "working arrangement" between the United States and Saudi Arabia prior to his arrest. The court held that because the United States did not collaborate in his arrest his argument was without merit.

The court considered his Miranda challenge and noted that the United States cannot dictate the protections provided to criminal suspects in foreign jurisdictions. Consequently, voluntary statements obtained from a defendant by foreign law enforcement officers, even without Miranda warnings, generally are admissible. The court cited the "working arrangement" exception, namely, where the foreign jurisdiction acts as an agent of the United States. From the applicable case law, the court derived one general rule: more presence at an interrogation does not constitute "active" or "substantial" participation for a joint venture or working arrangement. The court rejected Ali's issue on the basis that the FBI was not an active participant in his interrogation. The court decided against Ali on this issue even though the FBI had submitted questions to the Saudi authorities.

The court rejected his argument that his statements were the product of torture on the basis of the district court's record:

Initially, the court properly recognized that "torture, and evidence obtained thereby, have no place in the American system of justice." ... But, based on its evaluations of "the credibility of the witnesses," and "the quality of the evidence presented," ... the district court found itself "left with lingering questions concerning the credibility of Mr. Abu Ali and his claim that he was tortured," ... 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."

In addition, the court relied on the testimony of two other Saudi officials, the Brigadier General and the Captain, that the interrogation [*39] of Abu Ali in Riyadh "was conducted in the absence of threats or torture." ... 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." ... Moreover, the court found that "[s]ome aspects" of Abu Ali's testimony "just do not flow logically," ... 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.

The court also held that the government presented sufficient independent evidence to "fortify" the truth of his confessions.

Finally, the court rejected his claim that the depositions of the Saudi officials in Riyadh violated his Confrontation Clause rights. The district court had not allowed him to travel to Saudi Arabia, but instead formulated a live, two-way video link where the witnesses could see and hear him during their testimony. Further, he was allowed to speak privately with his attorneys (during deposition breaks) who had traveled to Saudi Arabia to be personally present during the depositions. The court rejected his claims that he was entitled to "face-to-face" testimony on the basis that the United States's national security interests outweighed the defendant's constitutional right and the district court had put in place sufficient procedures to ensure the reliability of the testimony.

The case appears to pave the way for future prosecutions of terror suspects, even those on foreign soil, as the nation's national security interests are deemed by the courts to substantially outweigh a defendant's individual constitutional rights.

Read more at The Wall Street Journal Blog, the Wall Street Journal, and the Washington Times.