It is a premise as old as the American legal system: The government has the burden of proof in criminal cases, and the accused is not required to say a word in his defense.
But when an American student charged in an al Qaeda plot to kill President Bush appears in court today seeking his release on bail, it is Ahmed Omar Abu Ali who will have to show that he is not a danger to his Northern Virginia community.
That's because of a little-noticed provision in the broad intelligence package Congress approved late last year. The measure makes it easier for judges to detain terrorism suspects, saying they will be denied bail unless they can show they are not a danger or a flight risk.
Abu Ali's detention hearing today in U.S. District Court in Alexandria is the first test of the revised law. Ali, who had been detained in Saudi Arabia for nearly two years, was charged in an indictment unsealed last week with plotting to kill Bush and to establish an al Qaeda cell in the United States. It was the first major terrorism case filed domestically since the intelligence measure was approved.
The Justice Department sought the bail revision as part of the crackdown on terrorism since the Sept. 11, 2001, attacks. It passed as part of intelligence agency changes proposed by the commission that investigated those attacks. But the package also includes a series of anti-terrorism measures, including provisions to loosen standards for FBI surveillance warrants and expand the sharing of U.S. grand jury information with foreign governments in urgent cases.
Federal prosecutors in Alexandria cited the law last week in court papers arguing that Abu Ali is a "grave danger" to the United States and should be detained without trial. But civil liberties advocates yesterday blasted the bail provisions, saying they essentially shift the burden of proof from the government to the defense and could allow the government to detain people indefinitely in future terrorism cases.
"It is a basic element of due process that the government has to prove its case to deprive anyone of liberty, even for a temporary period," said Timothy Edgar, legislative counsel for the American Civil Liberties Union. "That core principle is turned on its head when a defendant has to show that he is not dangerous or likely to flee to gain release, even though he is presumed innocent."
Mahdi Bray, a spokesman for Abu Ali's family, said family members are distressed about the new law because they feel it adds another hurdle to their long-standing effort to free him.
The charges against Abu Ali were filed publicly only after family members sued the government seeking his return from Saudi Arabia, where they contend he was tortured.
"They feel that the standards of American justice . . . have now been skewed against them in a way that may prohibit them from being with their son," said Bray, executive director of the Muslim American Society's Freedom Foundation.
John K. Zwerling, an attorney for Abu Ali, said he will file a motion today saying the bail provision should not apply because of Abu Ali's long detention. "They can't delay bringing him to the United States until they change the law and then take advantage of the change in the law," Zwerling said.
But Bryan Sierra, a Justice Department spokesman, defended the bail provision and pointed out that it was already used in other cases, primarily those involving major drug defendants. The changes enacted by Congress added material support of terrorism and terrorist financing violations to the charges for which defendants seeking release are presumed to be a danger and a flight risk unless they can rebut that presumption.
"Terrorism is obviously the department's most critical priority right now, so there's no reason why we would not seek to use these lawful tools in the terrorism context," Sierra said.
Abu Ali, 23, is charged with providing material support to al Qaeda, contributing services to al Qaeda and receiving funds from al Qaeda, along with conspiracy. The six-count indictment says he sought to become "a planner of terrorist operations" and compared him to leading al Qaeda figures associated with the Sept. 11 attacks.
Abu Ali's family and supporters deny the charges. Their allegations that Abu Ali was tortured, along with the government's reliance on evidence obtained from foreign sources, are among a number of factors that experts say could complicate prosecution of the case.
Staff researcher Julie Tate contributed to this report.