The Rough Justice of War

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The Abu Ali case appears to be based largely on evidence gathered by the foreign-intelligence service of a Saudi regime that has scant regard for human rights. The best witnesses against Abu Ali, who vehemently denies all the charges, are other prisoners in Saudi jails or members of the Saudi domestic-security service who conducted the interrogations. But, acknowledges a senior U.S. counterterrorism official, "it's unlikely we'll ever get them here to testify." One key witness is dead: the al-Qaeda operative with whom Abu Ali allegedly discussed assassinating Bush was killed in a shootout with the Saudis in September 2003. And the trial will be complicated by rising public criticism of Washington's policy of having terrorism suspects interrogated in third-party countries like Egypt and Jordan, where governments use methods of persuasion not allowed in the U.S.

Abu Ali and his family have gone public with accusations that he was tortured while in Saudi custody. During his first appearance in a Virginia court, he offered to strip down and show his scars. The U.S. and Saudi Arabia reject the accusations. In a brief filed by the U.S., prosecutors say neither consular officials and FBI agents who visited Abu Ali in detention nor an American doctor who examined him after the Saudis handed him over saw any signs of mistreatment. On the 20-hr. journey to Washington on the FBI's G-5 jet, a U.S. official says, agents reported he looked "as healthy as a horse," chatting easily and never once complaining of any prior mistreatment. But in the civil case initiated by Abu Ali's family, Judge Bates said, "There has been at least some circumstantial evidence that Abu Ali has been tortured during interrogations, with the knowledge of the United States."

Even the indictment against Abu Ali is not as devastating as the government has implied. Instead of charging him with terrorism conspiracy, the U.S. had only enough to go with the lesser charge of material support to terrorism. The evidence: Abu Ali allegedly associated with figures suspected of ties to al-Qaeda, who gave him money to buy a laptop and cell phone, and he allegedly professed a desire to become a "planner of terrorist operations like Mohammed Atta." Though Abu Ali does not appear to be particularly resourceful or hardened, a Justice Department official notes, "the problem is, What if he hooks up with somebody [who is]?" If convicted on only those modest counts, he still could face up to 80 years in prison.

Justice officials shrug off any weaknesses in the case. "We wouldn't have brought it unless there was some confidence we'd be able to prove it in a court of law," says one. The same officials claim that criticism of the particulars in this case and others like it misses the point. Since 9/11, they say, their marching orders have been very clear: disrupt first, prosecute later. That may mean potentially sacrificing a legal victory by gathering evidence in unorthodox or inadmissible ways, or resorting to the Al Capone strategy of using lesser charges--like immigration violations, minor perjury or food-stamp fraud--to keep a suspect off the street. That can make for rough justice. Says an official: "The American people want it all ways. They want the disruption, and they want it to look pretty."