An American student charged in a conspiracy to kill President Bush can have his own doctor examine him for evidence that he was tortured while in Saudi custody, a federal judge in Alexandria ruled yesterday.
In granting the defense request, the judge took no position on whether Ahmed Omar Abu Ali of Falls Church was, in fact, tortured in Saudi Arabia before being flown back to the United States and charged last month. Defense attorneys contend that he was -- and that he has the scars on his back to prove it. Prosecutors say a doctor who examined Abu Ali concluded he wasn't.
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The ruling raises the prospect of clashing experts on one of the most important issues surrounding the case. Abu Ali, 24, is charged with material support of al Qaeda in a plot to kill Bush and establish an al Qaeda cell in this country. The government says he confessed to the assassination plot and admitted discussing with members of al Qaeda his plans to conduct a Sept. 11-style terrorist attack in the United States.
But Abu Ali's attorneys and family members contend that any statements he made while detained in Saudi Arabia were obtained through torture. The allegation is one of many potential complications that legal experts say could make the case difficult to prosecute in a U.S. courtroom.
If the doctor for the defense finds evidence of torture, U.S. District Judge Gerald Bruce Lee will have to decide whether the defense or government expert is more credible, said Carl Tobias, a law professor at the University of Richmond Law School. "We have dueling experts in almost every other kind of case. Why not here?" Tobias said.
Even if the judge decides Abu Ali was tortured, legal experts have said the defense will face a series of hurdles in getting the case thrown out. Abu Ali would need to show, according to some experts, that U.S. personnel participated in the torture.
In his ruling yesterday, Lee gave defense attorneys until April 25 to notify him if they plan to use torture as grounds to have Abu Ali's statements thrown out before trial or if they plan to raise the torture allegations at trial.
An attorney for Abu Ali did not return telephone calls yesterday. Prosecutors declined to comment.
Saudi security officials arrested Abu Ali in June 2003 while he was attending a university there. He was suspected of having connections to people involved in the bombing of three Western residential compounds in Riyadh, which killed 23 people, law enforcement officials have said.
Federal prosecutors unsealed the six-count indictment against Abu Ali on Feb. 22. At a detention hearing a week later, an FBI agent testified that Abu Ali had admitted while in Saudi custody that he and other members of an al Qaeda cell in Saudi Arabia planned to hijack airplanes overseas and crash them into targets in the United States. The conspirators also discussed plans to kill members of Congress, blow up ships in U.S. ports and aircraft at U.S. military bases and free terrorist prisoners at Guantanamo Bay, Cuba, the agent testified.
The charges followed a lawsuit that Abu Ali's family filed in federal court in the District, contending that he had been tortured and that the U.S. government had condoned it.
Any defense doctor who examines Abu Ali must submit to a security background check and abide by the strict conditions under which Abu Ali is held, Lee wrote in his ruling. The medical exam will not be monitored by the FBI, which monitors visits Abu Ali receives other than from his attorneys. The rules also prohibit anyone who visits Abu Ali from discussing the visits with the media.
Abu Ali's parents have protested the measures, saying the government will not allow them to speak with their son in Arabic. Law enforcement officials said family members may speak with Abu Ali in Arabic but only with an interpreter in the room. They contend that is needed to ensure that he does not try to communicate with the outside world.