The U.S. government asked a judge yesterday to dismiss a Falls Church couple's challenge of their son's imprisonment based on reasons and evidence that would be kept secret from the family and the public.
Justice Department lawyer Ori Levi, while acknowledging that such a ruling would be unprecedented, told the judge "there's very little risk" that Ahmed Abu Ali, a U.S. citizen detained in a Saudi prison for 20 months, has been wrongly deprived of his freedom.
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"But the government's interest here in protecting national security is extraordinarily high," Levi said.
U.S. District Judge John D. Bates said at the hearing, however, that he had serious reservations about making such a critical decision based on information that would be presented to him privately in chambers. He said that although he was mindful of the government's concerns about national security, he would be reluctant to dismiss the family's claims of unjust imprisonment without a public explanation.
"This is about as close to a state-secrets shutdown as you can get," Bates said. Then he asked Levi, "How able is the court to resolve a matter fairly when it's only able to hear from you?"
Levi acknowledged that this was a "unique case" and that the government knew of no others in which a U.S. court had agreed to keep secret the reasons for rejecting someone's claim for liberty.
The judge did not indicate when he would make a decision about the government's request.
Abu Ali, 23, who was raised in Northern Virginia, has been detained in Saudi Arabia since he was arrested in June 2003 while studying at the University of Medina. He has not been publicly charged with any crime by Saudi or U.S. authorities.
His parents, originally from Jordan, sued the U.S. government last summer, alleging that the United States had arranged for their son to be held by the Saudi government on suspicion of terrorist acts and that U.S. authorities expected he would be tortured there.
Bates ruled in December that the parents could seek government documents to try to prove their allegation of a U.S. role in their son's imprisonment.
At yesterday's hearing, Bates noted that the federal appeals court in Washington has ruled that courts can use secret information to make some decisions. But he questioned Levi about whether any of those cases involved an interest as compelling as Abu Ali's, and Levi said no. In those other cases, courts have used secret evidence to bar someone from employment and deny someone a pilot's license.
"We're talking about freedom here," Bates said.
David Cole, one of the family's attorneys, told the judge he should not even consider secret evidence because the stakes are so high.
"The notion that the government can litigate a case involving a U.S. citizen's liberty entirely behind closed doors is unprecedented and totally contrary to the basic principles upon which this country was founded," Cole said.
Cole and the family said yesterday that the U.S. government is trying to shut down the case to avoid embarrassing disclosures that it was complicit in Abu Ali's imprisonment. They noted a Washington Post article last week reporting that the State Department had issued a formal request to the Saudi government asking it to indict Abu Ali or turn him over to U.S. custody.
"If any other U.S. citizen was held in this way, our government would be raising hell," Cole added. "Here our government has tried to keep it all secret."
The family alleges that Abu Ali is a victim of "rendition," a U.S. government practice of arranging for suspected terrorists to be interrogated and detained in other countries, beyond the reach of U.S. legal protections.
Levi told Bates that the judge can fairly, without input from Abu Ali's lawyers, sort out the proper course after seeing the secret information.
"One of the great things about America is we have an independent judiciary," Levi said. "This is not a black box where we're asking you to sign off on what we say."