THE FACTS surrounding Ahmed Abu Ali's detention and possible torture in Saudi Arabia remain shrouded in diplomatic and law enforcement secrecy. Caution, therefore, is certainly in order in assessing the U.S. government's role in the arrest a year and a half ago of this American citizen and in his detention without charge or access to counsel ever since. But as U.S. District Judge John D. Bates put it last week in a compelling opinion on the case, Mr. Abu Ali's lawyers "have not only alleged, but have presented some unrebutted evidence, that [his] detention is at the behest and ongoing direction of United States officials." This evidence, Judge Bates wrote, is "considerable" though "of varying degrees of competence and persuasiveness." And he rejected the government's motion to dismiss the case, deciding that he needs to know more about the circumstances of Mr. Abu Ali's detention before concluding that the detention of an American by Saudi authorities is beyond the purview of U.S. courts.
Mr. Abu Ali was arrested in June 2003 while taking a final exam at a Saudi university. Around that time, three other Americans were detained as part of the same investigation. The others were extradited and charged here in connection with the operation of the alleged jihadist cell in Virginia that trained for terrorism using paintball. But Mr. Abu Ali was not extradited, though the FBI has suggested that he admitted in his Saudi interrogation seeking to form an al Qaeda cell. He and his parents claim there was no case to make against him, so American authorities -- instead of putting diplomatic pressure on the Saudis to release him -- have encouraged Saudi authorities to let him rot.
The story may well be more complicated than these allegations suggest. But instead of contesting them, the government has argued that no U.S. court has jurisdiction over the case. It's true that Mr. Abu Ali is not held by any agency of the American government, but Judge Bates rejected the notion that this fact ends the matter. "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," he wrote. "The Court concludes that a citizen cannot be so easily separated from his constitutional rights." In other words, if the U.S. government is subcontracting constitutional violations to a totalitarian regime, its own behavior can still be challenged.
This is clearly right. Less clear is what any court might do to remedy a constitutional violation if it ultimately finds one. It can hardly order the Saudi government to release Mr. Abu Ali. Nor can it easily order American diplomatic action, a matter entrusted to the executive branch.
That same executive branch, however, knows exactly what role this country may have played -- and may still be playing -- in the detention and possible torture of one of its citizens. If these allegations are true, it needs to immediately notify Saudi authorities that they should not continue holding Mr. Abu Ali on America's account. If, on the other hand, the Saudis are holding him for reasons of their own, America should be taking strong diplomatic action to help a citizen detained without charge abroad. If Mr. Abu Ali has done something wrong, he should be charged. If not, the United States should not be encouraging, or winking at, his persecution.