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The outsourcing of prisoners

Published February 13, 2005

Some things you read about the Bush administration make you feel as though the ground has shifted under your feet, that time-tested rules about the limits of government are no longer valid and that who we are as Americans has been irreversibly altered.

That's the feeling I get when reading about Ahmed Abu Ali, an American citizen who, by all accounts, sits in a Saudi Arabian prison without charge at the direction of the American government while his parents and human-rights lawyers desperately try to gain some measure of due process for him.

Abu Ali has been in detention since June 2003, when he was arrested by Saudi security officers as he was taking his final exam at the Islamic University of Medina. Abu Ali, 23, was born in Houston and was valedictorian of his high school class in Virginia. When he was arrested, three other Americans were also detained in Saudi Arabia, but they were extradited to the United States within a month. They were part of a group charged with engaging in paintball exercises and other paramilitary training for the purpose of one day, possibly, assisting an Islamic group to force India out of the disputed territory of Kashmir.

Abu Ali was the only one not returned to the United States, apparently because no grand jury has found enough evidence to indict him. So he has been left to sit in a foreign prison as a way to keep him beyond the reach of our laws. A recent press report suggests that the United States has asked for Abu Ali's return, but his attorneys are in the dark about this and the Justice Department didn't respond to my query.

This outsourcing of prisoners is the new paradigm of American justice. An estimated 150 terrorist suspects, presumably mostly noncitizens, have been "rendered" to foreign prisons at the behest of our intelligence services. Their detention is secret and unaccounted for, even to Congress.

In the Feb. 14 issue of the New Yorker, a brilliant article by Jane Mayer titled "Outsourcing Torture" describes this situation in far more detail than a column allows. These prisoners are part of the American "disappeared," a term that used to apply to the tactics used by brutal dictators.

During this last year and a half, Abu Ali has been seen and interrogated by Saudi security officials and the FBI. The Saudi prison system is well known for torture and abuse.

Meanwhile, Abu Ali's parents have enlisted the support of lawyers at the World Organization for Human Rights USA and eminent Georgetown law professor David Cole, who has been a pivotal figure in fighting the excesses of the "war on terror." In December, U.S. District Judge John Bates in Washington, D.C., ruled that a habeas corpus petition, asserting that Abu Ali has been illegally imprisoned at the behest of the United States, may go forward.

The Bush administration sought to defeat the petition, saying the federal courts have no jurisdiction because Abu Ali is being held by a foreign government. In its court filings, the administration claimed that "even where the United States allegedly has been involved in the prisoner's incarceration in the first place," American courts are precluded from reviewing the legality of the imprisonment.

The judge expressed disbelief at this assertion. "The position is as striking as it is sweeping," he wrote.

"The full contours of the position would permit the United States, at its discretion and without judicial review, to arrest a citizen of the United States and transfer her to the custody of allies overseas in order to avoid constitutional scrutiny . . . or even to deliver American citizens to foreign governments to obtain information through the use of torture."

Bates, a Bush appointee to the federal bench, said this could never stand in a country that respects the rule of law.

And there is the rub, since this administration has abandoned the rule of law in the name of fighting terrorism. But this nation has fought evils as great as Islamic jihadists before, including slave owners, the Nazis and our homegrown terrorist organization, the Ku Klux Klan, all without abandoning our principles.

The authors of the new book, The Torture Papers: The Road to Abu Ghraib, say it succinctly: "A government cannot pick and choose what rights to afford itself, and what lesser privileges it confers on its captives, and still make any valid claim to fairness and due process."

Someone needs to hand the president a copy of A Man for All Seasons and earmark the page where Sir Thomas More is taken to task by his son-in-law because he frees an enemy who has violated no law. The son-in-law proclaims that he would "cut down every law in England" to get at the devil. "Oh?" More retorts. "And when the last law was down, and the devil turned round on you, where would you hide?"

The president is cutting down the trees that gave root to our freedoms and sheltered us from arbitrary government. Americans will soon have no place to hide from the devil that is the imperial presidency, and we will wonder how the ground shifted so seismically when all we were doing was standing still.

[Last modified February 13, 2005, 01:21:55]

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