Concerned about government secrecy in a terrorism case, a federal judge expressed skepticism Friday at the Bush administration’s request to dismiss a lawsuit on behalf of a Virginia man held in Saudi Arabia.
The government is bolstering its effort to get the case thrown out by submitting classified information to U.S. District Judge John Bates that is unavailable to lawyers for imprisoned terrorist suspect Ahmed Abu Ali.
“This is about as close to a state secrets shutdown” of a case without the executive branch of government actually doing so, the judge said at a hearing.
One of Abu Ali’s lawyers, David Cole, argued that “the government would throw the adversarial process out the window” with classified information that the other side is not allowed to see.
The suit by Abu Ali’s family marks the latest instance in which the Bush administration is trying to keep terrorism suspects beyond the reach of U.S. courts.
Abu Ali’s family wants an American judge to order him returned to the United States, where he might face charges as part of an alleged terrorism training ring in Virginia.
Legal experts say the lawsuit by Abu Ali’s parents is the first on behalf of an American citizen detained in a third country at the U.S. government’s request. Bates has said Abu Ali’s family provided considerable evidence that the U.S. government orchestrated his capture.
Abu Ali, 23, was born in Houston, was valedictorian of his high school class in Falls Church, Va., and was imprisoned while attending a Saudi university on June 11, 2003. A federal prosecutor in Virginia has said Abu Ali joined an al-Qaida cell in Saudi Arabia in 2001.
Bates suggested the Bush administration’s position arguing for secrecy is unique because Abu Ali’s lawyers have no information about the government’s case.
Bates asked for any other instances in which even the legal theory for dismissing a case is unknown to the other side.
Justice Department lawyer Ori Lev replied that he knew of none, but that there is ample legal basis to throw out the case filed by Abu Ali’s family.
Lev cited several cases in which the government prevailed in somewhat similar circumstances.
But “freedom is at stake” for Abu Ali, while the cases the government cites don’t involve imprisonment, responded the judge.
Bates will decide whether he can rule on the Bush administration’s motion to dismiss the lawsuit based entirely on classified information that Abu Ali’s lawyers cannot see.
The judge asked Cole if he would file opposition to the government’s motion to dismiss the lawsuit.
“Would we file opposition to a motion we have not seen?” Cole asked, sounding incredulous. Cole said that he would, adding, “Everything we have filed has been fighting with shadows.”
Abu Ali’s family, living in northern Virginia, says U.S. officials want to keep Abu Ali in Saudi Arabia so he can be subject to torture and otherwise denied his constitutional rights. The U.S. government has said Saudi officials acted on their own.