Full opinion text
MEMORANDUM OPINION LEE, District Judge. THIS MATTER is before the Court on the Defendant Ahmed Omar Abu Ali’s Motion to Suppress and Motion to Dismiss. The defendant, Mr. Ahmed Omar Abu Ali, is charged under various statutes that preclude a citizen from rendering, or conspiring to render, assistance or support to a designated foreign terrorist organization. Mr. Abu Ali is charged with joining Al-Qaeda and participating in a plan to carry out terrorist activities within the United States, including a conspiracy to assassinate the President of the United States. Mr. Abu Ali was arrested on June 8, 2003, in Saudi Arabia by the Saudi government in connection with an investigation of the Riyadh bombings that occurred in May, 2003. In his Motion to Suppress, Mr. Abu Ali asserts two principal arguments. First, he alleges that he was tortured while in Saudi custody and that the statements he allegedly made in detention are, therefore, involuntary and must be suppressed. Second, Mr. Abu Ali contends that the United States and the Saudi Government acted as partners or “joint venturers” in his arrest and lengthy detention in Saudi Arabia. He also argues that the Saudi government’s search of his dormitory room in Medina and the search of his residence in Falls Church, Virginia, violated his Fourth Amendment rights against unreasonable searches and seizures. In his Motion to Dismiss, Mr. Abu Ali contends that because his arrest and lengthy detention were at the direction of the United States Government using the Saudi Arabia Government as a partner, joint venturer, or surrogate, the Indictment must be dismissed because the delay in his prosecution violates the Speedy Trial Act and his Sixth Amendment right to speedy trial. The issues presented by these motions are set forth below. The defendant’s motions are all denied because the Court, after having heard nearly fourteen days of testimony, is persuaded that the government has met its burden of proving that Mr. Abu Ali’s statements were voluntary, and that the alleged defects in the aforementioned searches and Indictment do not violate Mr. Abu Ali’s rights under the Fourth or Sixth Amendments. With regard to the defendant’s Motion to Suppress, the issues before the Court are: (1) whether any incriminating statements allegedly made by the defendant during his time in Saudi Arabia were made “involuntarily” as a result of “gross abuse” and “inherently coercive conditions” and are therefore inadmissible under the Due Process Clause of the Fifth Amendment; (2) whether any incriminating statements allegedly made by the defendant were obtained by U.S. and Saudi officials in a manner that “shocks the conscience” of the Court and are therefore inadmissible under the Due Process Clause of the Fifth Amendment; (3) whether any incriminating statements allegedly made by the defendant during his time in Saudi Arabia were obtained through custodial interrogations either (a) by United States and Saudi officials acting together in a “joint venture” or (b) by Saudi officials acting as “agents” of the United States, and are therefore inadmissible because the defendant was not afforded his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (4) whether the search of the defendant’s dorm room in Medina, Saudi Arabia, conducted by Saudi officials was unlawful because it lacked probable cause and therefore any evidence seized in that search should be suppressed; (5) whether the search of the defendant’s home in Falls Church, Virginia, was authorized pursuant to information obtained from an unlawful interrogation of the defendant and therefore any evidence seized in that search should be suppressed. The Court denies the defendant’s Motion to Suppress because it finds: (1) that the government has demonstrated by a “preponderance of the evidence” that any incriminating statements allegedly made by the defendant were “voluntary” and not the result of “gross abuse” or “inherently coercive conditions” and therefore that the statements are admissible evidence for trial; (2) that neither the conduct of U.S. nor Saudi law enforcement officials in the arrest, detention, or interrogation of the defendant “shocks the conscience” of the Court; (3) that (a) U.S. law enforcement officials did not act in a “joint venture” with Saudi officials in the arrest, detention, or interrogation of the defendant and (b) Saudi law enforcement officials did not act as agents of U.S. law enforcement officials, and therefore Miranda warnings were not required; (4) that Saudi law enforcement officials did not act in a “joint venture” with U.S. law enforcement officials when conducting their search of the defendant’s dorm room in Medina, Saudi Arabia, and therefore that the Fourth Amendment is inapplicable to that search; (5) that there is no evidence that the warrant underlying the search of the defendant’s home was unlawful or lacked probable cause. With regard to the defendant’s Motion to Dismiss, the issues before the Court are: (1) whether the conduct of United States and/or Saudi law enforcement officials in the detention and interrogation of the defendant “shocks the conscience” of the Court in violation of the Due Process Clause of the Fifth Amendment and thus requires the Court to divest itself of jurisdiction and dismiss the Indictment; (2) whether the current prosecution of the defendant, following his two-year detention in Saudi Arabia, violates the Speedy Trial Act, 18 U.S.C. § 3161(b) (2000), and therefore requires dismissal of the Superseding Indictment; (3) whether the current prosecution of the defendant, following his two-year detention in Saudi Arabia, violates the defendant’s Sixth Amendment right to a speedy, public trial and therefore requires dismissal of the Superseding Indictment; (4) whether the current prosecution of the defendant is a “presumptively vindictive response” to the habeas corpus petition filed by his parents on July 28, 2004, and therefore violates the defendant’s due process rights under the Fifth Amendment. The Court denies the defendant’s Motion to Dismiss because it finds: (1) that neither the conduct of U.S. nor Saudi law enforcement officials in the arrest, detention, or interrogation of the defendant “shocks the conscience” of the Court; (2) that the government complied with the Speedy Trial Act because the criminal Indictment against the defendant was filed prior to his being taken into federal custody on federal charges, and therefore was filed within thirty (30) days of his arrest on federal charges as required by the statute; (3) that the Sixth Amendment right to speedy trial does not attach until the defendant has been indicted or arrested, and the defendant has not been prejudiced by any pretrial delay since the time of his indictment on federal charges on February 3, 2005, and his subsequent arrest on February 21, 2005; (4) the current prosecution is within the prosecutorial discretion of the government and the defendant has not advanced sufficient evidence to establish prosecutorial vindictiveness on the part of the government. For the foregoing reasons, the Court denies the defendant’s Motion to Suppress and Motion to Dismiss. I. BACKGROUND A. Statement of the Case On June 8, 2003, the defendant, Mr. Ahmed Omar Abu Ali, who is an American citizen from Falls Church, Virginia, was arrested in Medina, Saudi Arabia, based on information obtained by Saudi law enforcement officials that he was a suspected member of the al-Faq’asi terrorist cell located in Saudi Arabia. The defendant, who at the time was a student in Saudi Arabia, was held in Medina by the Saudi national security police, known as “the Ma-bahith,” for several days, and his dorm room in Medina was searched by Saudi law enforcement officials. Following his detention in Medina, Mr. Abu Ali was transported to a Saudi detention facility in Riyadh, Saudi Arabia. While at the facility in Riyadh, the defendant, upon interrogation by Saudi officials, allegedly made a number of incriminating statements regarding his involvement with a number of terrorist plots. The Mabahith agreed to a U.S. government request to allow the Federal Bureau of Investigation (“FBI”) and the U.S. Secret Service (“Secret Service”) to provide questions for the defendant and to observe an interrogation of him through a two-way mirror. On June 15, 2003, FBI officials observed the defendant when he was interrogated yet again by Saudi law enforcement officials and allegedly made more incriminating statements and admissions. On July 18, 2003, the defendant allegedly made out a handwritten confession which he was videotaped reading on July 24, 2003. In September 2003, the FBI interrogated the defendant without giving him Miranda warnings. Although Mr. Abu Ali allegedly made incriminating statements during the course of those interrogations, the government has indicated that it does not plan to use any statements obtained from those interrogations in its case-in-chief. The defendant, through his Motion to Suppress and Motion to Dismiss, moves the Court to exclude all of the incriminating statements allegedly made by him because he alleges, among other things, that he was (1) tortured by Saudi officials to elicit those statements and (2) denied his constitutional rights under Miranda. Among his allegations of torture, the defendant maintains that Saudi officials: (1) “whipped” him on his back; (2) slapped him in the face and pulled on his beard, ears, and hair; (3) kicked him in the stomach; (4) subjected him to sensory deprivation by placing him in a cell that was fully and continually lit and by interrogating him an excessive number of times, typically beginning late at night and continuing into the following morning; (5) chained him to the ground so that he was forced to stay in a crouching position; and (6) chained him with his hands above his head for a long period of time. B. Findings of Fact and Conclusions of Law in Support of the Court’s Rulings In ruling upon the Motion to Suppress and the Motion to Dismiss, the Court is called upon to review all of the evidence presented in the case, including witness testimony, and to make findings of fact and conclusions of law concerning a number of issues. In this case, the Court must make a primary determination as to whether the incriminating statements allegedly made by the defendant were made “voluntarily” and therefore whether those statements will be admissible evidence at trial. The Court makes the following findings of fact and conclusions of law after having had an opportunity to consider the witnesses’ testimony, consider their demeanor on the stand, and observe the contrasts in their demeanor and the consistencies and inconsistencies in their testimony. The Court will not summarize in detail all of the various witnesses’ testimony in this Opinion. Instead, the Court will make a general review of the facts pertinent to the Motion to Suppress and the Motion to Dismiss. 1. The Government’s Evidence Surrounding the Defendant’s Arrest and Detention. Prior to the suppression hearing, the Court heard seven (7) days of live testimony from several Saudi government officials who were involved in the arrest and detention of Mr. Abu Ali. The witnesses appeared via satellite realtime video and audio transmission from Saudi Arabia to the federal courthouse in Aexandria pursuant to Federal Rule of Criminal Procedure 15 and a protective order. For security reasons, the witnesses were permitted to testify under oath via pseudonyms on a split screen television set up where they could be observed and heard by the defendant, his counsel, and prosecutors in Alexandria, Virginia. The court reporter in Alexandria made a realtime transcription of the testimony. Simultaneously, defense counsel, prosecutors, and an Arabic translator were present with the witnesses in Saudi Arabia. First, the Saudi government officials (hereinafter “Government officials”) testified that two compounds in Riyadh were bombed, killing thirty-nine (39) people, including nine (9) Americans. The Government officials investigated this terrorist incident and developed a list of the nineteen (19) “most wanted” individuals alleged to be associated with the bombing and the terrorist group M-Qaeda. Government officials reported that a detained suspect whom they had questioned identified “Reda” as a member of the Al-Qaeda cell who remained at large. This suspect later identified a photograph of Mr. Abu Ali from a Medina University student photo book. The suspect said that “Reda” was a student at the Islamic University and was an American or European citizen of Arabian background. He stated that “Reda” was either Syrian or Jordanian. Government officials then received an order to arrest “Reda,” and they went to the Islamic University and met with university officials to locate “Reda.” The Government officials’ order was to arrest “Reda” and to search him and his belongings. Later a written order was issued. The Arresting Officer testified that his orders did not include interrogating the suspect. Rather, he was only to arrest, search, detain, and send “Reda” to Riyadh for interrogation. The Arresting Officer went to Mr. Abu Ali’s classroom after being directed there by the school registrar. The Arresting Officer said he did not go inside the classroom. He asked a university official to ask Mr. Abu Ali to come outside the classroom building. Mr. Abu Ali exited the classroom building where seven government officers were present. The government officers were not wearing police uniforms nor displaying weapons. The Arresting Officer testified that he told Mr. Abu Ali that the officers had a subject they wanted to talk to him about. The Arresting Officer put his hand on Mr. Abu Ali and escorted him to the waiting police cars. Mr. Abu Ali was handcuffed as he got into the car. Mr. Abu Ali rode in the backseat of a car between two officers. Mr. Abu Ali was taken to his dormitory room where his belongings were gathered up. Mr. Abu Ali was not mistreated in the car. At Mr. Abu Ali’s dormitory room, the Government officials searched the room and gathered his belongings. Mr. Abu Ali was present and pointed out his belongings to the Government officials. Ex. 27 at 87 (July 11, 2005 hearing). The Arresting Officer testified that it is customary in Saudi Arabia to search a suspect’s residence when the suspect is taken in for questioning. Mr. Abu Ali was then transported to the Medina field office detention center. The Arresting Officer denies using or observing anyone else using physical force of any land against Mr. Abu Ali. The Arresting Officer denied having any orders to beat Mr. Abu Ali, to whip him, or to apply any physical force to him. The Arresting Officer testified that they have orders not to use force against suspects, but to treat them with respect. He reported that Mr. Abu Ali was treated with respect and that Mr. Abu Ali did not resist and was respectful. Mr. Abu Ali’s testimony on his treatment up to the time he arrived at the Medina facility is consistent with the testimony of the Arresting Officer. The Arresting Officer was specifically questioned about whether the United States government provided his government with information about “Reda” or Mr. Abu Ali, or if the United States government or law enforcement was involved in supplying information to arrest Mr. Abu Ali, and the Arresting Officer said “no.” None of the Saudi government officials or the FBI agents who testified offered evidence that the United States was involved in the Saudi government’s decision to arrest and to detain Mr. Abu Ali. 2. Mr. Abu Ali’S Detention in Medina, Saudi Arabia. The Lieutenant Colonel-Warden (“Lieutenant Colonel,” “Warden”) of the Medina facility where Mr. Abu Ali was detained adamantly denied that Mr. Abu Ali was tortured, beaten, deprived of sleep, or questioned in Medina. He stated that the Government has a policy against torture and physical abuse of prisoners or suspects, and that the policy is enforced. He denied that Mr. Abu Ali was abused at the Medina detention facility. The Warden described the detention facility as a residential type building. Each cell has a bed, mattress, blanket, pillow, prayer rug, and a Koran. The Warden testified that for the first two days or so, lights are kept on at all times and there are cameras in each room so the guards can observe the prisoners. There are no tapes of Mr. Abu Ali’s stay because the tapes are routinely recorded over. Three meals are provided each day, and prisoners can select from several meal choices. Because there is no kitchen in the building, the prison has to send out for food for the facility. 3. Saudi Officials Deny that Mr. Abu Ali was Interrogated in Medina, Saudi Arabia. The Lieutenant Colonel testified that he was not ordered to question Mr. Abu Ali and that neither he nor anyone on his staff interrogated Mr. Abu Ali in Medina. He stated that when he first observed Mr. Abu Ali two hours after he had entered the prison, he did not see any bruises or signs that Mr. Abu Ali was in distress. The Lieutenant Colonel’s testimony held up under cross-examination, and the Court finds no reason to discredit his testimony. ' 4. Mr. Abu Ali’s Detention in Riyadh, Saudi Arabia. Mr. Abu Ali was transported to the Riyadh prison, and the statements in controversy in the instant Motions were allegedly made by him there on June 11, 12, 15, and July 24, 2003. The Brigadier General and the Captain of the prison testified about their contact with Mr. Abu Ah in Riyadh. The Brigadier General and the Captain were Mr. Abu Ali’s principal interrogators in Riyadh. The sum and substance of the Brigadier General and the Captain’s testimony coincide in several material respects.. . First, the Brigadier General and the Captain were questioned extensively by both sides concerning Mr. Abu Ali’s claims that he was tortured, beaten, deprived of sleep, food, water, denied use of a bathroom or a mattress, and use of other facilities in Medina or Riyadh in order to secure statements. Each adamantly denies that they directed, participated in, or were aware of any government official torturing Mr. Abu Ali or engaging in any such behavior. Second, the Brigadier General and the Captain deny that the United States government had any role in the arrest and detention of Mr. Abu Ali. As far as they know, the Saudi investigation and roundup of the nineteen individuals most wanted in connection with the Riyadh bombings produced information that led to Mr. Abu Ali’s arrest. They admit that in June 2003, they were ordered to conduct some questioning of Mr. Abu Ali so the FBI could observe Mr. Abu Ali and to receive some questions from the FBI to ask of Mr. Abu Ali. Third, the Brigadier General and the Captain testified that when they met with Mr. Abu Ali on the first night, he appeared to be tense and anxious about being arrested. Mr. Abu Ali told them he feared that the Saudis would turn him over to the United States government. Each officer testified that they tried to assure Mr. Abu Ali that their investigation only concerned the Riyadh bombings and the Al-Qaeda cell which was operating in Saudi Arabia. The Brigadier General testified that upon the defendant’s arrival in Riyadh, he was kept in a solitary cell .to keep him away from other terror cell suspects and to prevent the cell members from influencing each other to refuse to cooperate. Mr. Abu Ali was initially questioned in a conference room at the jail by the Captain and the Brigadier General. The interrogation occurred in the evening after evening prayers and continued into the early morning hours because it is very hot during the day, as is the custom in Saudi Arabia. The practice of questioning and working during the night was not an attempt to deprive Mr. Abu Ali of sleep. The Court notes that many of our court sessions in this case were conducted during what are the evening hours in Saudi Arabia. In the first and second interrogation sessions with Mr. Abu Ali, he was nervous and upset, but respectful. Mr. Abu Ali sat in a chair at the table. According to the Brigadier General, Mr. Abu Ali sat straight up, and rocked back and forth, in the chair. The Brigadier General and the Captain did not detect any bruises or sense any discomfort in the defendant’s physical condition. Neither the Brigadier General nor the Captain observed the defendant hold himself in a way to guard his back, as he might if his back were injured or bruised. On the contrary, the Brigadier General and the Captain reported that when the defendant relaxed, he rocked with his back firmly in the chair. The Captain also reported that, at one point, Mr. Abu Ali sat with one foot on the chair and swivelled. The Brigadier General and the Captain testified that Mr. Abu Ali was not blindfolded or handcuffed during interrogations. They stated that Mr. Abu Ali was granted breaks, access to food, water, a bathroom, and refreshments during breaks in questioning. The Captain testified that during the second session when Mr. Abu Ali began his lengthy and detailed confession, Mr. Abu Ali “sprung information like a springing water balloon.” The session lasted nearly seven hours because Mr. Abu Ali was very forthcoming. The Captain said that once he confronted the defendant with the names “Ashroff ’ and “Reda” and other information, Mr. Abu Ali asked, “Do you have al-Faq’asi? Did you arrest all of them?” The Captain falsely told Mr. Abu Ali that al-Faq’asi was in the room next door to the interrogation room. Mr. Abu Ali looked nervous. The Brigadier General testified that after this exchange, Mr. Abu Ali said that in the event the Saudis were to hand him over to the United States, he would deny his confession. The Brigadier General placated Mr. Abu Ali by telling him that the United States did not know about his arrest with the cell, and that he would be tried in Saudi Arabia with members of his cell. The Brigadier General assured Mr. Abu Ali that he would be treated fairly by his Muslim brethren. On cross-examination, the Brigadier General acknowledged that Mr. Abu Ali may expect, but he did not say, that as a Muslim, Mr. Abu Ali would expect to be treated fairly. The Brigadier General admitted that he has threatened an inmate before. As the Court’s notes indicate, he once tied a person to a tree for five minutes in connection with questioning. He denies engaging in such behavior in this case. To be sure, some of the testimony of the Captain was questionable. The Captain said he never used force on a suspect. The Captain said he has never had a suspect refuse to be questioned by him or to sign a written confession statement log. He has been an interrogator for seven years, and, according to him, each person he questions confesses or gives a statement. Additionally, the warden from the Medina prison described the detention facility in Medina as a residential type building without a kitchen where the prisoners were permitted to order their meals. 5. The July 24, 2003, Videotape of Mr. Abu Ali Reading his Confession. During the interrogation process, on July 24, 2003, Mr. Abu Ali was taken to an interrogation room and directed to read his written statement. The videotape was played for the Court, not to consider its content, but so that the Court could observe Mr. Abu Ali’s demeanor during the reading. Mr. Abu Ali acknowledged in court that he did not know he was being videotaped when he read this statement. In Mr. Abu Ali’s own words, his behavior on the videotape was “nuts.” The Court concurs that the behaviors exhibited during the tape show noteworthy demeanor. During the tape, it is apparent that Mr. Abu Ali is under some stress because a person outside camera range is telling him to read the statement and observing him the whole time. Mr. Abu Ali appears at times to be relaxed, smiling, and laughing. He seemed to laugh at a mention of “Al-Qaeda” and yawns at one point in the videotape. Mr. Abu Ali acknowledged in his testimony that he ad libbed certain statements that are not in the prepared text spontaneously and without orders from his interrogators. He asked for water and received it while reading the statement. In two instances, he exhibited unusual behavior. In one place, he acknowledges receiving certain training to conceal his identity and he laughs and says something to the effect of, “Well I guess that did not work out” or “I guess we see how that worked out.” Additionally, he was reading a statement when he spontaneously, without direction, simulated cocking a weapon or automatic type rifle. 6. The Live Testimony in Alexandria, Virginia. The Suppression Hearing testimony also included live testimony from a number of witnesses in this Court beginning October 11, 2005 and ending on October 20, 2005. Again, the Court will not recount in detail all of the witnesses’ testimony. Rather, the Court will generally review certain testimony that is most pertinent to the instant Motions. Special Agent Maria Joycs: Agent Maria Joycs is a supervisory special agent with the FBI assigned to the Counterterrorism Unit. She was deployed to Riyadh, Saudi Arabia in May 2003 to investigate the bombings that occurred on May 12, 2003, in which nine (9) American citizens were killed. She testified that no one from the United States had anything to do with Mr. Abu Ali’s arrest and detention. On June 10, 2003, Agent Joycs sent an e-mail to her supervisors, based on information received from a memorandum from the Mabahith on June 9, 2003, informing them that the Mabahith were interrogating Mr. Abu Ali. The Mabahith memorandum to the United States stated that the Saudis had a lead that an American citizen detained in Saudi Arabia had a plan for a terrorist operation. The June 9, 2003, memorandum identified Mr. Abu Ali as the detainee and informed the FBI that his interrogation was underway. The memorandum did not describe any terrorist plan. Upon learning of his arrest, the FBI sought access to Mr. Abu Ali. Agent Joycs wrote a memorandum to the Saudi officials requesting an interview with Mr. Abu Ali on June 10, 2003. See Gov’t Ex. 72. The Mabahith responded on June 12, 2003 that the FBI may see Mr. Abu Ali “soon,” which Agent Joycs interpreted as a denial. See Gov’t Ex. 6S. Agent Joycs said she first heard of a report that Mr. Abu Ali might have a plan involving the President of the United States on June 13, 2003. FBI headquarters directed FBI Agent and Legal Attache Eduardo Sanchez to seek to secure immediate access to Mr. Abu Ali, to investigate the allegations to determine if the plan was imminent, and to determine whether Mr. Abu Ali was associated with Al-Qaeda. Again, the Saudi government denied the FBI direct access to Mr. Abu Ali. The June 15, 2003, Interrogation of Mr. Abu Ali and the FBI-Secret Service Role. The Mabahith refused to allow the FBI and Secret Service to interrogate Mr. Abu Ali despite requests through various channels. However, the Saudi government agreed to allow the FBI and Secret Service to observe its interrogation of Mr. Abu Ali on June 15, 2003, and to provide questions for Mr. Abu Ali. In preparation for this interrogation, Agent Joycs, Agent Glenn Posto, and others in the Legal Attache’s (hereinafter “Legat”) office prepared a list of questions they wanted the Mabahith interrogators to ask Mr. Abu Ah. See Gov’t Exs. 7S-8S. Agent Joycs did not witness the interrogation on June 15, 2003. She stated that the FBI agents who drafted the questions did not consider using the Mabahith to avoid the requirements of Miranda. There was no discussion of Miranda in their preparation of questions for Mr. Abu Ali. She viewed the interview as an intelligence gathering interview, rather than a criminal investigation, meant to determine if there were any imminent threats of terrorism that could be prevented. At that time, Agent Joycs was unaware of any plan to prosecute Mr. Abu Ali in the United States, and Mr. Abu Ali was in Saudi custody in connection with a Saudi investigation of the Riyadh bombings. On cross examination, defense counsel challenged Agent Joycs about the extent of the FBI’s cooperation with the Saudi officials. Agent Joycs stated that the FBI worked independently, but that the Saudi officials arranged Mr. Abu Ali’s interrogation. Defense counsel also challenged whether Agent Joycs knew about Mr. Abu Ali’s detention on June 8, 2003, because the Legat’s office received notice of his arrest from the Saudis on June 8, 2003, and Agent Joycs admitted that she got her information from the Legat’s office on June 9, 2003. Her e-mail to headquarters on the morning of June 10, 2003 corroborates when she learned of Mr. Abu Ali’s arrest. See Gov’t Ex. 4S. In addition, Agent Joycs admitted that she did not observe the June 15, 2003, interrogation. Also, when pressed about whether she gave Miranda warnings to Mr. Abu Ali, she distinguished between an intelligence interview and a criminal investigation interview. Agent Joycs reported that when the FBI met with the Saudi Brigadier General prior to the June 15, 2003, interrogation, the Brigadier General assured the FBI that Mr. Abu Ali would not walk free and that Mr. Abu Ali would be charged with various terrorism related offenses. Agent Joycs testified that the Brigadier General was “adamant that this is not the time to introduce American interviewers to Abu Ali. It is his belief that Abu Ali’s cooperation would dry up. We stressed the need to have access to the interrogator to discuss information/questions-the Brig[adier] General will make this happen as soon as they possibly can.” See Gov’t Ex. 10S. Agent Joycs acknowledged that, in connection with an application for a search warrant for Mr. Abu Ali’s home in Falls Church, Virginia, Agent Sanchez stated in an e-mail that “the Saudis will do what we ask, but prefer not to give information that will become public.” See Def.’s Ex. 1 (AA426). Special Agent Glenn Posto: Agent Posto is a special agent with the FBI assigned to the Counterterrorism Unit. He was deployed to Riyadh, Saudi Arabia, in May 2003 to investigate the bombings that occurred on May 12, 2003, in which nine (9) American citizens were killed. He stated that he learned about Mr. Abu Ali’s detention on June 14, 2003, and was assigned to observe the Mabah-ith’s interrogation of Mr. Abu Ali on June 15, 2003. To prepare for this interrogation, he prepared (along with Agent Joycs and the staff of the Legat’s office) a thirteen (13) question memo (with approximately fifty-six (56) parts and subparts) for the Mabahith to ask Mr. Abu Ali during the interrogation. The Mabahith informed him, through an interpreter, that there were too many questions and they cut the thirteen (13) questions down to six (6), all of which the Mabahith asked Mr. Abu Ali during the interrogation. Agent Posto, Agent Fritz Donner, Language Specialist Elias Machanaly, and two Mabahith officers were in one room behind a one-way mirror observing the interrogation. The language specialist could hear the interrogation over a cell phone and the language specialist translated for the group. During the interrogation, Agent Posto observed Mr. Abu Ali’s demeanor. Agent Posto observed Mr. Abu Ali enter the interrogation room. He testified that Mr. Abu Ali walked without a noticeable limp or discomfort. Agent Posto further testified that Mr. Abu Ali did not appear to be favoring any parts of his body or have any visible injuries. Agent Posto recounted that Mr. Abu Ali seemed relaxed, smug, and laughed with the Mabahith interrogator. Mr. Abu Ali sat in the chair with his back against the chair. At times, he slid down in the chair, he leaned forward, and he sat forward in the chair. Mr. Abu Ali did not appear to be in any discomfort. Agent Posto did not observe a blindfold, handcuffs, or shackles on Mr. Abu Ali when Mr. Abu Ali entered the interrogation room. Mr. Abu Ali did not make any complaints about his confinement that Agent Posto could discern. Agent Posto stated that the FBI agents did not have any discussions about how to circumvent Mr. Abu Ali’s Miranda rights. He stated that this was an intelligence interview rather than a criminal interview. He also stated that it was the State Department’s job to assist with consular visits, not the FBI’s responsibility. Agent Posto reported that the interrogation went on for about two hours with one ten to fifteen minute break. Mr. Abu Ali was given water. The Brigadier General left the interrogation room once to come over to consult with the FBI and Secret Service at the end of the interview. No FBI or Secret Service agent questioned Mr. Abu Ali or was presented to Mr. Abu Ali on June 15, 2003. Agent Posto denied posing any questions through the Brigadier General about the so-called “Paintball Case” defendants, including Benkala and others. Elias Machalany: Mr. Elias Machalany, a language specialist for the FBI, testified about his observation of Mr. Abu Ali’s interrogation on June 14 or 15, 2003. Mr. Machalany testified that on either June 14 or 15, he learned from two special agents in the Legat’s office that an American, Mr. Abu Ali, had been arrested by the Saudis. Other agents prepared a list of approximately thirteen (13) questions (with approximately fifty-six (56) parts and sub-parts) that they wanted the Saudis to ask Mr. Abu Ali. Mr. Machalany then translated those questions into Arabic. The Saudis responded that the list of questions was too long, and asked the FBI to submit fewer questions. The FBI then cut the list of questions to six (6), which they gave to the Saudis. On the night of June 15, 2003, Mr. Ma-chalany was one of three (3) American FBI employees who traveled to a Riyadh prison and observed an interrogation of Mr. Abu Ali by two officers of the Saudi Mabahith. Mr. Machalany and two FBI special agents, Posto and Donner, watched the entire interrogation from behind one-way glass. The interrogation was conducted by one Saudi, who was dressed similarly to Mr. Abu Ali, and another Saudi was present in the room. Mr. Machalany testified that neither appeared to be armed. Around or after midnight, the Saudis brought Mr. Abu Ali into the interview room and began the interrogation. Mr. Machalany testified that from his vantage point behind the glass, he could see Mr. Abu Ali when the door to the interview room opened. At that point, Mr. Abu Ali was handcuffed. He saw the Saudis remove the handcuffs, and Mr. Abu Ali then entered the room under his own power, without assistance. Mr. Abu Ali wore a thobe — a long robe-like garment, a cap, and he appeared to have a smirk on his face. Mr. Machalany testified that Mr. Abu Ali exhibited no pain or discomfort when he entered the room, or at any point during the interrogation. At no point in the interrogation did Mr. Abu Ali complain about his treatment while in Saudi custody, either in Riyadh or Medina. The interrogator’s tone of voice was normal, conversational, and the interrogator did not threaten Mr. Abu Ali. When the interrogator asked Mr. Abu Ali to stop fidgeting, he did so. Mr. Machalany did not observe any cuts or bruises on Mr. Abu Ali, although he noted in response to a question on cross-examination that he did not see Mr. Abu Ali shirtless, and he did not see Mr. Abu Ali’s back. Mr. Machalany also testified that Mr. Abu Ali frequently fidgeted in his seat throughout the interrogation, sometimes sitting on his feet, until the interrogator asked him to stop. Although on direct examination Mr. Machalany had testified that Mr. Abu Ali was relaxed and comfortable throughout the interrogation, on cross examination he conceded that one possible explanation for his fidgeting was that Mr. Abu Ali was in pain. However, Mr. Machalany also testified that Mr. Abu Ali did not grimace or make any facial expression as he moved around in the chair. Mr. Machalany testified that before the interview began, Mr. Abu Ali asked the interrogator whether the U.S. government knew he was in Saudi custody. The interrogator responded by saying something to the effect of, “Like I told you before, I will not let the Americans know you are here.” Mr. Machalany testified that he interpreted this comment to mean that Mr. Abu Ali did not want the United States to know he was in custody. Mr. Machalany testified that the Saudi Mabahith interrogator asked many questions about locations in Saudi Arabia unrelated to those provided by the FBI during the course of the interview, which lasted about an hour. The interrogator asked the six questions provided by the FBI, but Mr. Machalany testified that he did not ask any follow-up questions. Although Mr. Machalany testified that in January 2005 he told someone from the U.S. Attorney’s Office that the interrogator had asked follow-up questions, he testified that he is now “100 percent certain” that he was mistaken when he said that. Mr. Machalany noted that although he did not participate in any other interviews during his 52-day stay in Saudi Arabia, he subsequently took part in “hundreds” of interviews in Iraq, and that after making that representation to the U.S. Attorney’s Office, he realized that his statement about the follow up questions was incorrect. Alex Daghestani: Mr. Alex Daghestani, a language analyst for the FBI, testified about various documents that he helped prepare for the government by translating them from Arabic into English. He testified that before the government uses a translated document in court, the person who first translated it discusses his or her work with an “editor.” A third person then also reviews the original document and the translated document. If there is a disagreement about an aspect of the translation, Mr. Daghestani testified that the opinion of the person who will testify about the document in court will usually be followed. Mr. Daghestani testified that he did not translate Mr. Abu Ali’s videotape confession, but that he certified it. Mr. Daghes-tani also testified that some items that appear in brackets in the transcript are descriptions of Mr. Abu Ali’s demeanor, which were made by the person who translated the video and with which Mr. Da-ghestani concurs. Defense counsel also asked Mr. Daghestani why the transcript did not include a voice saying, “read,” in Arabic at the 1 minute and 20 second mark of the video. Mr. Daghestani testified that he did not recall whether or not he heard a voice saying “read” at that point in the video. Charles Glatz: Mr. Charles Glatz, a consular officer for the U.S. Department of State, testified about a series of meetings he had with Mr. Abu Ali while he was in Saudi custody. As a consular officer in Saudi Arabia, Mr. Glatz frequently met with Americans who had been arrested by Saudi authorities. On June 11, 2003, he learned from the FBI’s Legat office that Mr. Abu Ali, an American citizen, had been arrested by the Saudi Mabahith. Following his normal practice in such situations, Mr. Glatz prepared a request to Saudi officials to meet with the detained American. Mr. Glatz testified that typically it would take three to four weeks for the Saudis to allow him to visit Americans who had been detained by the Mabahith. On July 8, 2003, he was allowed the first consular access to Mr. Abu Ali. Mr. Glatz testified that one of his priorities in a visit with detained Americans is to gauge the citizen’s well-being, and determine if the citizen is being mistreated. Mr. Glatz had previously visited two (2) Americans arrested by the Mabahith (both were arrested before September 11, 2001) while they were in custody, and neither had complained of mistreatment. However, on cross-examination, Mr. Glatz testified that he was aware that Canadian and British citizens arrested at the same time as one of the Americans had later claimed they were tortured by Saudi officials while they were in custody. Mr. Glatz testified that during their first meeting on July 8, 2003, he found no indication that Mr. Abu Ali was being mistreated. Mr. Glatz brought Mr. Abu Ali a letter from his mother that Mr. Glatz read to him, as the Mabahith official watching the meeting would not let Mr. Glatz give the letter to Mr. Abu Ali. Likewise, the Mabahith official would not allow Mr. Glatz to give Mr. Abu Ali a list of local attorneys. Mr. Glatz did not observe any signs that Mr. Abu Ali had been physically harmed. Although Mr. Abu Ali was wearing a thobe, no cuts or bruises were visible on his hands, face, neck, or feet. He appeared physically fit and had no problem standing up, taking several steps toward Mr. Glatz, shaking hands, or sitting down. Mr. Glatz said he questioned Mr. Abu Ali about his treatment in custody. Mr. Abu Ali said that the lights were kept on 24 hours a day, but in response to a question from Mr. Glatz, Mr. Abu Ali did not say that this practice had caused him any sleep deprivation. Mr. Glatz also testified that Mr. Abu Ali told him that his treatment had been “excellent,” “kind,” and “humane” — words that Mr. Abu Ali himself used. Mr. Glatz testified that the meeting took place in a reception type area where there were sofas and chairs. Mr. Abu Ali was seated on a sofa, and a Saudi Government official was in the room watching and taking notes. Prior to the meeting, Saudi Mabahith officials advised Mr. Glatz not to discuss the case with Mr. Abu Ali. Mr. Glatz tried to have Mr. Abu Ali review and sign a Privacy Act waiver of information so the State Department Consul could contact Mr. Abu Ali’s family and let them know of the visit, but the Mabahith officer present would not allow Mr. Abu Ali to sign it. Mr. Abu Ali was instructed prior to the Consul meeting not to discuss his treatment and not to sign anything concerning his rights. Mr Glatz wrote reports of his consular visits with Mr. Abu Ali. Mr. Glatz testified that in his subsequent visits with Mr. Abu Ali on August 11, September 6, October 5, November 4, and February 17, he asked similar questions about the Saudis’ treatment of Mr. Abu Ali. During each of those visits, he heard no complaints of mistreatment from Mr. Abu Ali and did not observe any physical indications that Mr. Abu Ali might have been mistreated. On cross-examination, Mr. Glatz testified that he has never met an American citizen who has been tortured by the Saudis. On cross-examination, Mr. Glatz testified that during their first visit, Mr. Abu Ali told him that he wanted to be treated as an American citizen. Mr. Glatz noted that the biggest problem was that Mr. Abu Ali was being “held incommunicado.” Thus, even if he had a lawyer, under the Saudi system an attorney could not have visited him during the investigation. Mr. Glatz testified that if Mr. Abu Ali had been charged by the Saudis following their investigation, the United States Department of State would have helped him obtain a lawyer. Mr. Glatz stated that, in the September 2003 visit, Mr. Abu Ali selected a lawyer but was not allowed to contact the lawyer and had no funds to hire a lawyer. The State Department does not pay for lawyers for United States citizens detained abroad. Despite Mr. Abu Ali’s statement about wanting to be treated as an American citizen, Mr. Glatz testified that during his visit in either September or October, Mr. Abu Ali also asked the consular officer, “Why are you asking me all these questions [about the conditions of my confinement]? I don’t have a problem with Saudi Arabia; I have a problem with the U.S. government.” On May 10, 2004, Mr. Glatz went to the Saudi prison facility to meet with Mr. Abu Ali, but the prison director told Mr. Glatz that Mr. Abu Ali did not want to see him. Mr. Glatz testified that he responded that he wanted to hear that from Mr. Abu Ali himself, but the prison director responded that he could not use physical force to bring Mr. Abu Ali from the cell block to see Mr. Glatz. The prison director also told Mr. Glatz that Mr. Abu Ali was considering “going to Sweden” if he was allowed to leave Saudi Arabia. On cross-examination, Mr. Glatz testified that he had exchanged e-mails with Mr. Abu Ali’s parents while he was detained in Saudi Arabia. Because the defense had not previously been told of the existence of such potential Jencks material, both parties attempted to locate copies of the e-mails. Several e-mails were produced that afternoon, both by Mr. Abu Ali’s parents and the government. In one e-mail, the parents told Mr. Glatz that they were concerned because their son had told them that he had been abused to the point that his hands hurt so much he could not pick up a pen. In a reply e-mail, Mr. Glatz told the parents that, during his visits with Mr. Abu Ali, he had neither seen physical evidence of abuse on their son nor been told by Mr. Abu Ali of such abuse in response to questions about his treatment. During Mr. Glatz’s September 6, 2003, and October 6, 2003, consular visits, Mr. Glatz said there were a couple of five-second intervals when he and Mr. Abu Ali were alone and out of earshot of the Ma-bahith official observing the meetings. Mr. Abu Ali did not make any private complaint to him at these times. Mr. Abu Ali testified he recalled at least one of these occasions of privacy. Mr. Abu Ali testified that while he considered making a complaint, he decided not to complain because he was afraid and it did not appear that the United States consul could do anything to help him. Mr. Abu Ali recalled that the consul could not secure a pen and piece of paper for him, could not arrange a phone call, or get him a lawyer, .and so he saw no point in complaining to the consul about physical abuse. Mr. Glatz noted that Mr. Abu Ali reported that he was returned to general population in the prison by August 11, 2003, and that he was enjoying interacting with others. During the October 6, 2003, consular visit, Mr. Glatz said that Mr. Abu Ali informed him that he had been questioned and threatened by the FBI and Secret Service. After the FBI and Secret Service questioning, he was held in solitary confinement. Mr. Abu Ali told Mr. Glatz that the FBI and Secret Service had presented him with three options: (1) cooperate and he would be prosecuted in Saudi Arabia and serve a life sentence; (2) cooperate and he would be prosecuted in Saudi Arabia and after that prosecution, he would be prosecuted in the United States; and (3) he could be returned to the United States and declared an “enemy combatant” and he would be held in prison indefinitely. Mr. Abu Ali asked Mr. Glatz if he could be tried in Saudi Arabia. Mr. Abu Ali also gave Mr. Glatz an oral Privacy Act waiver so that his family could receive information about the United States Consul’s visits. See Gov’t Ex. 15S. During the November 4, 2003, consular visit, Mr. Abu Ali asked Mr. Glatz how he could go about renouncing his United States citizenship. Mr. Abu Ali wanted information about the process. Mr. Abu Ali remained in solitary confinement from September, 2003, until January, 2004. Mr. Abu Ali reported he was allowed to call his parents every fifteen days after August 2003. Gilbert Sperling: Gilbert Sperling, a retired foreign service officer, testified about a roughly one-hour meeting hé had with Mr. Abu Ali on August 31, 2004. Although Mr. Sperling is retired, he is on a list of retired officers who are called upon by the Department of State for temporary duty when there is a staffing gap. From late May, 2004, to early September, 2004, Mr. Sperling was serving in such a capacity at the United States Embassy in Saudi Arabia. While he was there, Mr. Sperling conducted one of the routine monthly consular visits with Mr. Abu Ali during his detention. Before his visit to the prison, Mr. Sper-ling read the Embassy’s file on Mr. Abu Ali, which said that the Saudi Foreign Ministry had described Mr. Abu Ali as having become “somewhat belligerent towards the guards,” and stated that “his living conditions were more like an apartment ... than a cell,” and that he had not signed a Privacy Act waiver. During his visit, Mr. Sperling found Mr. Abu Ali to be relaxed, and did not find him fearful, tired, or disoriented. He did not see any indications of physical mistreatment or abuse. Mr. Sperling testified that when he asked about his treatment, Mr. Abu Ali said his only complaint was that he was not a free person. He also testified that there “seemed to be a friendliness” between Mr. Abu Ali and the prison officials. Although Mr." Abu Ali’s first question of Mr. Sperling was whether he knew of any developments in his case, he testified that before the visit began, he had been asked by a Saudi prison official not to discuss details of the case with Mr. Abu Ali. On cross-examination, Mr. Sperling said he complied with that request, and that it was easy to do so because he did not have any new information to provide, anyway. Instead, they discussed Mr. Sperling’s work in Mexico and the country of Georgia. Mr. Sperling was impressed by Mr. Abu Ali’s knowledge of world politics and geography. Mr. Sperling testified that other than their visit, which lasted about one hour, he has had no contact with Mr. Abu Ali. Luke Kuligoski: FBI Special Supervisory Agent Luke Kuligoski testified about his participation in the interrogation of Mr. Abu Ali by members of American law enforcement while he was in Saudi custody. Agent Kuligoski traveled to Saudi Arabia in September 2003 to interrogate Mr. Abu Ali. Agent Kuligoski testified that it was the first time members of American law enforcement had met with Mr. Abu Ali. During their meetings, Agent Kuligoski observed no noticeable marks on Mr. Abu Ali. He testified that Mr. Abu Ali looked healthy and physically fit, did not appear to favor any parts of his body, and seemed relaxed and comfortable. Agent Kuligoski also testified that Mr. Abu Ali seemed very interested in what might happen to him and stated that he would prefer to stay in Saudi Arabia. He testified that Mr. Abu Ali said he was afraid of being tried in the United States because he did not want to be the first U.S. citizen arrested after the attacks of September 11, 2001. Mr. Abu Ali never expressed any interest in returning to the United States, Agent Kuligoski testified. On cross-examination, Agent Kuligoski testified that Agent Barry Cole told him that at his first solo meeting with Mr. Abu Ali in Saudi Arabia, Mr. Abu Ali had said he did not want to talk without a lawyer present. Mr. Kuligoski also said that he was aware that Mr. Abu Ali had previously requested a lawyer. Before he traveled to Saudi Arabia, Agent Kuligoski visited Mr. Abu Ali’s parents and told them that he was going to Saudi Arabia to “speak with their son.” He asked the parents if they wanted him to take anything to their son, and they gave him a letter and a picture of Mr. Abu Ali’s younger brother. Agent Kuligoski testified he participated in the questioning of Mr. Abu Ali. Mr. Abu Ali did not appear to be in any discomfort and there were numerous occasions when no Mabahith officer was present in the interview. Agent Cole delivered the letter from Mr. Abu Ali’s parents and the photograph. Agent Kuligoski then wrote down Mr. Abu Ali’s claim that he had given the Saudis false information because he was tortured. See Gov’t Ex. 23S. The statement in Agent Kuligoski’s notes reads, “He said he wrote a lot of things that weren’t true, because he said the Saudis used torture techniques.” Agent Kuligo-ski said that Mr. Abu Ali called it “torture techniques” and that it was a Muslim matter and the agent would not understand. Agent Kuligoski also says that Mr. Abu Ali also told him that he “enjoyed” his time in the Saudi prison interacting with other inmates and playing soccer. In response to a question from the Court, Agent Kuli-goski defined “torture” as any duress— including deprivation of food or sleep and beatings — that is used “to get someone finally to break down and talk.” Agent Kuligoski testified that he does not recall the context of Mr. Abu Ali’s assertion that the Saudis used “torture techniques” upon him, but says that when Agent Cole asked Mr. Abu Ali to expand on that claim, he did not. Mr. Abu Ali did not complain about beatings, being punched or kicked, having his hair or beard pulled, being deprived of sleep, or being hung from the ceiling in his cell with his hands above his head. Agent Kuligoski testified that, as he was gathering his materials up to leave at the end of the FBI interview on September 18, 2003, and only he and Mr. Abu Ali were in the room, Mr. Abu Ali asked for a pen and a piece of paper to write a note to his family. Agent Kuligoski gave Mr. Abu Ali paper a pen to write a letter to his parents, and Agent Kuligoski said he would deliver it to his father as Mr. Abu Ali requested. Mr. Abu Ali wrote a letter to his family without any prompting or orders from him or Agent Cole. See Gov’t Ex. 22. Mr. Abu Ali acknowledged that, in the letter, he referred to Agent Kuligoski as “a great man” and that “ he was not under any pressure” to write the letter to his family. It was Mr. Abu Ali’s own decision to include the reference to Mr. Kuligoski and to the lack of pressure. Agent Kuligoski was also responsible for helping to prepare the affidavit for the search warrant concerning Mr. Abu Ali’s Falls Church, Virginia, home and for executing that search. Agent Kuligoski acknowledged that Mr. Abu Ali was a suspect in the so-called “Virginia Paintball Case” in Alexandria, Virginia. Agent Ku-ligoski testified that Mr. Abu Ali’s brother was present in the apartment at the time of the search and that he pointed out items that belonged to Mr. Abu Ali. The results of the search, including the inventory and copies of documents, were sent to the Ma-bahith. On cross-examination, Agent Kuligoski said that Mr. Abu Ali was questioned for four nights, on September 14, 16, 17, and 18, 2003. Mr. Abu Ali was not questioned on September 15, 2003. Agent Kuligoski did not participate in the interrogations on September 14. The interrogations were conducted in a conference room, and Mr. Abu Ali was given breaks, food, and water. Agent Kuligoski admits that, during these interviews with Mr. Abu Ali, the agents did discuss the so-called “three options” about cooperation with Mr. Abu Ali. Specifically, they discussed • the prospect of Mr. Abu Ali’s being prosecuted in Saudi Arabia, being prosecuted in Saudi Arabia and the U.S., being declared an “enemy combatant,” and being incarcerated indefinitely, perhaps for life without a trial, in the United States. Barry Cole: Special Agent Barry Cole of the FBI testified that he first saw Mr. Abu Ali on September 14, 2003, and that he spent between thirty (30) to thirty-five (35) hours with him over the course of four meetings. For about twelve (12) to sixteen (16) hours of their interviews, no members of the Mabahith were present. During their four meetings, Agent Cole testified that he was seated about three feet from Mr. Abu Ali, and that Mr. Abu Ali appeared to be relaxed and in good health. He said that Mr. Abu Ali’s only complaint came on the third or fourth meeting, when he claimed that the Saudis had subjected him to mental torture. When Agent Cole asked him to explain, Mr. Abu Ali said Agent Cole would not understand because it was a “Muslim thing.” On cross-examination, Agent Cole testified that Mr. Abu Ali did ask for an attorney in their first meeting, but Agent Cole told him that he was not entitled to an attorney in Saudi Arabia. Agent Cole testified that he asked the Saudis to put Mr. Abu Ali in isolation during the time frame of the September FBI interrogations, and that the Saudis “granted my request.” Agent Cole testified that the purpose of his interviews was to “gather intelligence.” He said that he approached his interrogation of Mr. Abu Ali as though Mr. Abu Ali was a terrorist. Agent Cole denied that he left the room after Mr. Abu Ali said that the Saudis had tortured him, and said that he did not tell the Saudi Brigadier General at the prison about the allegation. He testified that, when he returned to the United States, he had a conversation with his supervisor in the Washington Field Office about Mr. Abu Ali’s claim that he had been tortured. He did not follow up on the claim with the Department of State. Dr. Richard Schwartz: Dr. Richard Schwartz, the Chairman of Emergency Medicine at the Medical College of Georgia and a contractor for the FBI, testified about conducting a medical exam of Mr. Abu Ali when he boarded a United States government plane in Saudi Arabia for a flight to the U.S. on February 21, 2005. Dr. Schwartz testified that he performed a general medical exam on Mr. Abu Ah for three reasons: (1) to ensure that he was in adequate health for the long flight; (2) to see if he had a history of infectious diseases; and (3) to look for signs of abuse. On cross-examination, Dr. Schwartz said that, prior to the trip, he had not been informed of any allegations by Mr. Abu Ali that he had been tortured, and that he had only inquired into his medical condition. Dr. Schwartz testified that Mr. Abu Ali was awake, alert, well-rested, and well-nourished, but that he seemed somewhat anxious. He testified that he asked Mr. Abu Ali if he had been mistreated and Mr. Abu Ali said nothing about any type of mistreatment, and that the only aspect of his confinement that he described that could be considered psychological mistreatment was his having been placed in solitary confinement. The only physical ailment Mr. Abu Ali mentioned was some pain in his right shoulder, which Dr. Schwartz thoroughly examined and found to be “essentially normal.” Mr. Abu Ali also said that he thought his vision was not as acute as it had been before he entered solitary confinement, and mentioned that he had previously had Lasik eye surgery. During the physical exam, Dr. Schwartz looked at and touched Mr. Abu Ali’s back and abdomen. Dr. Schwartz also did a full skin examination. Mr. Abu Ali had no reaction to being touched in either area. Dr. Schwartz testified that he observed three or four small circular and linear areas of increased pigmentation on his back. The marks were flat, not depressed or raised. There were no linear marks on his neck. He said that the circular marks were probably acne scarring, and that the linear marks could be from “almost any number of things,” but that they “appeared inconsequential.” Dr. Schwartz testified that he has treated many patients who have been beaten or whipped, and that there is no “usual” pattern of marks from such abuse, and that it is also possible for such abuse to leave no marks at all. While there is no typical case for beating victims, it is not uncommon for marks to appear on the whole back. Dr. Schwartz’s opinion was that the marks he observed were not evidence that Mr. Abu Ali had been subjected to non-accidental trauma. Dr. Schwartz admitted that this opinion was not in his medical report because he did not think it was significant, and no one had alerted him that Mr. Abu Ali had claimed he was a victim of torture. On cross-examination, Dr. Schwartz testified that he did not mention the marks on Mr. Abu Ali’s back in his report because he thought they were inconsequential. He also said that he sees “these kinds of marks on people all the time.” He did not ask Mr. Abu Ali about the marks and did not ask the photographer to take pictures of them. He also testified that he has not examined other people who have been tortured in Saudi Arabia. Dr. Schwartz testified that, during the flight back, he gave Mr. Abu Ali some Tylenol when he complained of a headache and some anti-nausea medication when the plane encountered some turbulence. Dr. Schwartz also testified that Mr. Abu Ali was blindfolded when he boarded the aircraft, and that two FBI Hostage Rescue Team members were present during his exam. Dennis Hankins