McLEAN, Va. A federal appeals court upheld the conviction Friday of a Virginia man convicted of joining al-Qaida and plotting to assassinate President Bush, but said that he must be resentenced.
The 4th U.S. Circuit Court of Appeals rejected a 30-year prison term and ordered a new sentencing hearing for Ahmed Omar Abu Ali. Prosecutors had argued that the judge improperly deviated from federal sentencing guidelines that called for life in prison.
The ruling is a major victory for prosecutors in one of their most high-profile terrorism cases.
Born in Houston, Abu Ali, 27, grew up in the Washington suburb of Falls Church and was valedictorian of a private Islamic high school. He joined al-Qaida after traveling to Saudi Arabia to attend college in 2002. As a member of a Medina-based al-Qaida cell, Abu Ali discussed numerous potential terrorist attacks, including a plan to assassinate Bush and a plan to establish a sleeper cell in the United States.
Abu Ali challenged his conviction, saying that a videotaped confession he made to Saudi authorities had been obtained through torture and should have been tossed out of court. He also said he had the scars on his back to prove he had been whipped in Saudi custody.
The government strongly denied torture, and said the Saudis treated him well. The appeals court agreed that Abu Ali made a voluntary confession.
U.S. Attorney Chuck Rosenberg said in a statement that "Abu Ali was part of a dangerous al-Qaeda (sic) cell that sought to carry out attacks against and within the United States, and we are pleased that the appellate court affirmed this important conviction on every count."
The three-judge panel's ruling upholding the conviction was unanimous; the ruling ordering a new sentencing hearing was split 2-1, with Judges J. Harvie Wilkinson III and William B. Traxler Jr. voting to remand and Judge Diana Gribbon Motz dissenting.
Trial Judge Gerald Bruce Lee had discretion to sentence Abu Ali to anywhere from 20 years to life in prison. The appellate majority said Lee made too much of the fact that Abu Ali's assassination plot never got off the ground, and that Lee improperly compared Abu Ali's case with that of "American Taliban" John Walker Lindh, who was sentenced to 20 years after striking a plea bargain admitting that he gave his services to the Taliban in Afghanistan.
The judges cited the case as an example of the federal judiciary's ability to handle terror trials while safeguarding individuals' constitutional rights without jeopardizing national security.
"We are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it," the court wrote.
David Laufman, who prosecuted the case for the government and is now in private practice with the Kelley Drye law firm, said the Abu Ali case was by far the most complex case he undertook.
In addition to the questions about torture, the trial involved use of the rarely invoked "silent witness" rule. The rule involves the presentation of secret, classified evidence to the jury, but the evidence is never made public.
The case also involved an unprecedented level of cooperation with the Saudi government, and was the first time the kingdom allowed its internal security personnel to testify in an American court, Laufman said.
Defense lawyer Joshua Dratel said Friday he plans to appeal the rulings to the full 4th Circuit panel of judges. Mistakes at trial regarding secret evidence "are the kind of error that defies the notion of 'harmless,"' Dratel said.
In its ruling, the court said the judge was correct in keeping the information out of public view but should have allowed Abu Ali himself to see it so he could discuss it with his lawyer. But the appellate court ruled that the error was essentially harmless.