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Summary: The Case of Sami Al-Arian
Background
Dr. Sami Al-Arian, whose Palestinian
parents were forcibly exiled from their homeland in 1948, immigrated to
the United States at the age of 17 to pursue higher education.
Al-Arian, 50, was a tenured professor of computer science at the
University of South Florida until after 9/11, when the school's
administration, at the behest of then-Governor Jeb Bush, attempted to
fire him for his outspoken views, work for Palestine, and activism for
civil liberties. (For more information on Dr. Al-Arian’s life
before his arrest and imprisonment, please click here)
On February 20, 2003, Dr. Al-Arian was
arrested with much fanfare and charged in a bloated terrorism
conspiracy case. Attorney General John Ashcroft personally announced
the arrest on live television, claiming that Dr. Al-Arian was a leader
of the Palestinian Islamic Jihad. The arrest was hailed as one of the
greatest victories to date in the domestic “war on terror.”
Despite these grandiose charges, Dr. Al-Arian and the institutions he
founded, had been previously cleared of any links to terrorism by a
federal judge. Indeed, former FBI counterterrorism chief Bob Blitzer
had told reporter John Sugg unambiguously that Dr. Al-Arian and his
co-defendants had broken “no federal laws.” A December 2005
Time magazine article later revealed, based on an anonymous FBI source,
that former Attorney General John Ashcroft had personally ordered the
indictment, much to the bewilderment of several federal officials
assigned to the case.
After his arrest, Dr. Al-Arian spent
two-and-a-half years in prison in solitary confinement under conditions
condemned by Amnesty International as “gratuitously
punitive” before he was given his day in court.
Finally, on June 6, 2005, the trial of
Dr. Al-Arian and his three co-defendants began. During the six-month
trial prosecutors presented more than 70 witnesses, including 21 from
Israel, and 400 intercepted phone calls (the results of a decade of
surveillance and half-a-million recorded phone calls). The total cost
of the investigation and trial of Al-Arian has been estimated at $50
million. The political motives of the trial were readily evident:
although the judge allowed the prosecution to present Israeli witnesses
who testified about gruesome acts committed by Palestinians against
Israelis that the prosecution grudgingly admitted were not linked to
Dr. Al-Arian, the judge prohibited the defense from discussing the
plight of the Palestinians living under Israeli occupation, going so
far as to even bar a defense attorney from discussing United Nations
Security Resolution 242 which addresses the Arab-Israeli conflict.
In an astounding display of
double-think, the prosecution admitted that there was no concrete
evidence against Al-Arian while still trying to argue for his guilt. As
the lead prosecutor, US Attorney Paul I. Perez later stated, “Mr.
al-Arian was not directly linked to any of the violent acts that we
showed during the trial. ” In a further instance of bizarre
Orwellian tactics, the prosecution entered into evidence a conversation
a co-defendant had with Dr. Al-Arian in his dream.
While the prosecution overwhelmed the
jury with piles of evidence, including magazines Dr. Al-Arian published
and speeches he gave, the defense did not feel the need to call one
witness or produce any evidence since the government attacked Dr.
Al-Arian purely for activities protected by the First Amendment.
Finally, on December 6, 2005, the jury acquitted Dr. Al-Arian of most
of the serious charges against him, while two of Dr. Al-Arian’s
three co-defendants were completely acquitted. On the remaining
charges, jurors voted 10 to 2 in favor of acquittal. The two jurors who
wanted to convicted Dr. Al-Arian refused to state any reasons or
provide evidence, telling their fellow jurors they were relying on
their “feelings.” They were both also the only jurors who
were regular readers of the Tampa Tribune, a right-wing daily that had
slandered Dr. Al-Arian for nearly a decade. (In one instance the paper
even tried to link him to the 1995 Oklahoma City bombing).
Time Magazine pronounced the verdict as
“one of the Justice Department's most embarrassing legal setbacks
since 9/11.” This was the first big test-case of the PATRIOT Act;
the government had gambled the success of its domestic “war on
terror” on this case and lost considerably.
Though there was not a single guilty
verdict out of 200 charges against the four defendants, Dr. Al-Arian
has remained in prison. Following the trial, the government indicated
its intention to retry him on the remaining charges, which is
unprecedented given the jury's overwhelming rejection of the case.
In contrast, that very month, the
government refused to retry the founder of the Hooters restaurant
chain, a wealthy businessman in Tampa, on tax evasion charges because
the jury in his trial was hung 6 to 6, claiming that the proportion was
too high to realistically expect a conviction during a retrial.
Plea Agreement
On February 28, 2006, following pressure
from the government and on the advice of his attorneys, Dr. Al-Arian
signed a plea agreement to finally put his ordeal behind him and end
his family’s suffering.
The terms of the plea agreement were in line with Dr.
Al-Arian’s long-standing contention, contrary to what the
government had claimed, that he has never contributed to the violent
actions of any organization. The government was forced to abandon its
accusations and settle for a watered-down version of one charge of
providing services to people associated with the Palestinian Islamic
Jihad. The Statement of Facts in the agreement includes only these
innocuous activities: (1) hiring an attorney for his brother-in-law,
Mazen Al-Najjar, during the latter’s deportation hearings in the
late 1990s (2) filling out immigration forms for a resident Palestinian
scholar from Britain, and (3) not disclosing details of his
colleague’s political associations to a local reporter.
Another issue central to the plea
negotiations was Dr. Al-Arian's insistence that he not be subject to
any further prosecution or called to cooperate with the government on
any other matter. This was reflected in numerous places within the plea
agreement, including the government's own recommendation that he be
given the lowest possible sentence, allowing him to leave the United
States within weeks of the agreement's finalization.
Nevertheless, in defiance of all reason,
Judge James Moody ignored the government's own recommendation and, in
May 2006, proceeded to hand Dr. Al-Arian the maximum sentence possible,
relying mainly on his prejudicial assessment of the Middle East
conflict while completely ignoring the jury's findings. Furthermore,
the judge’s comments directly contradicted the plea agreement
which included a statement by the Department of Justice that Dr.
Al-Arian's actions involved NO violence, NO victims, and NO support for
a forbidden, "terrorist" organization. It should be borne in mind that
providing support for a terrorist organization is substantially
different from support for people "associated" with such a group; it
should be further borne in mind that the right to association is still
constitutionally-protected in America). As David Cole, a law professor
at Georgetown University, noted, “The judge's words - that
Al-Arian supported violence - contradict the very basis of the jury's
acquittal and the plea agreement, and raise questions about [the]
fundamental fairness [of the trial].” Moody's decision prolonged
Dr. Al-Arian's imprisonment by an estimated eleven months, extending
his release and deportation to April 2007.
Continued Harassment
In October 2006, a government prosecutor
from Virginia named Gordon Kromberg, who has made numerous racist and
anti-Muslim statements, called on Dr. Al-Arian to testify before a
grand jury investigating an Islamic think-tank in Virginia.
Following an initial hearing in which Dr. Al-Arian refused to
testify, defense lawyers argued that the grand jury subpoena was a
violation of the plea agreement. The issue was then referred back to
Florida to the court that originally oversaw Dr. Al-Arian’s trial
and plea negotiations.
On October 26, 2006, attorneys for Dr.
Al-Arian filed a motion calling on Judge Moody to enforce the plea
agreement by quashing the subpoena. The motion provided both factual
and legal reasons to the court and even included affidavits by
government attorneys who had participated in the negotiations. Among
the reasons provided in the motion: "The overarching purpose of the
parties' plea agreement was to conclude, once and for all, all business
between the government and Dr. Al-Arian."
In fact, defense attorneys had "made
[it] clear to the government that Dr. Al-Arian would never [emphasis
added] enter into a plea agreement requiring his cooperation. [They]
were adamant on this point and the government did not take a contrary
position. Because the parties understood at the outset of plea
negotiations that Dr. Al-Arian would not cooperate with the government,
the issue of cooperation was immediately taken off the table and never
raised again."
Furthermore, defense attorneys cited
numerous legal opinions stating that upholding plea agreements are a
crucial part of maintaining "honor of the government, public confidence
in the fair administration of justice and the effective administration
of justice in a federal scheme of government." Any oral promises made
by the government during plea negotiations must be kept. In the
Al-Arian negotiations, a government attorney bound the Eastern District
of Virginia, where Dr. Al-Arian was summoned to testify, in particular
to the plea agreement. As Jonathan Turley, a law professor at George
Washington University and one of Dr. Al-Arian’s attorneys, noted
“What is interesting is that the Justice Department has not
argued that there was no understanding or discussion of
non-cooperation. They have based their entire argument on the technical
point that there is no expressed language in the agreement.”
Lastly, as Peter Erlinder, a former
president of the National Lawyers’ Guild and currently one of Dr.
Al-Arian’s former lawyers, has pointed out, “The duplicity
of the Justice Department and the failure of the courts to recognize
basic contract-law principles in this case is an example of how
politically-motivated ‘war on terror’ prosecutions are
distorting the American legal system.”
The defense expressed concern that the
subpoena was essentially a perjury trap. Based on past experiences, as
well as the private comments by the prosecutor in Virginia, Gordon
Kromberg, there was little reason to believe the government was
genuinely interested in Dr. Al-Arian's testimony, as much as it was
interested in continuing to punish him following his vindication.*
The notion that the summons to testify
is a perjury trap is further supported by revelations of a conversation
in the fall of 2006 between Assistant U.S. Attorney Gordon Kromberg and
Dr. Al-Arian's attorney, Jack Fernandez. During the conversation, Mr.
Kromberg referred to the plea agreement as “a bonanza,” and
proceeded to make racist statements. Because Dr. Al-Arian would not be
called before the grand jury until six weeks later, Mr. Fernandez
requested to delay his transfer to Virginia until after the Islamic
holy month of Ramadan, which was to begin in a few days. Dr. Al-Arian
sought to stay near his family during this special time and to avoid
the grueling ten-day journey it would take the U.S. Marshals Service to
transport him to Virginia.
In response to the request, Mr. Kromberg
said, referring to Muslims: "If they can kill each other during
Ramadan, they can appear before the grand jury; all they can't do is
eat before sunset. I believe Mr. Al-Arian's request is part of the
attempted Islamization of the American justice system. I am not going
to put off Dr. Al- Arian's grand jury appearance just to assist in what
is becoming the Islamization of America." Defense attorneys called the
prosecutor's objectivity into question, even going so far as to
recommend that he recuse himself from the investigation based on his
blatant biases.
Besides these and other bigoted
anti-Muslim statements, there are two other key facts which dispel any
doubt about Kromberg’s true intentions. The first is that
Kromberg has publicly and unabashedly stated his belief in his right to
punish those he finds guilty but who are not found guilty in a court of
law. As Melva Underbakke has written:
In May 1999, Kromberg spoke to the Cato Institute about asset
forfeiture in a lecture which was called “shocking” by
Michael Lynch. In an article in Reason Magazine, Lynch wrote that
Kromberg “admitted that he currently had 10 money laundering
cases in which he couldn’t figure out how the people were washing
the dough. But still, he knew these people were guilty and was certain
they needed to be punished. ‘Should we let these people get
away?’ he asked, before answering in an illuminating way:
‘Not if we can punish them through other
means.’…[Kromberg] bluntly declared that people like him
ought to be able to punish individuals they believe are guilty, even if
they can’t prove that guilt in a court of law.”
Secondly, Kromberg has already
successful engineered the perjury conviction of another American Muslim
acquitted of terrorism charges. In March 2004, Sabri Benkahla was
acquitted of all charges of promoting terrorism in the Virginia 11
case. Given that the government was unable to “get him”
through the usual means, Kromberg summoned him to testify in another
court and proceeded to ask him the same exact questions which he had
already been acquitted of in a blatant example of double jeopardy.
Kromberg then charged Benkahla with perjury, claiming that he had lied
in an FBI investigation years ago. Even though the normal sentence
would have been three years in prison under such circumstances, in July
2007 Benkahla was sentenced to ten years. As Mahdi Bray, the executive
director of MAS Freedom stated, “This is just another example of
how the criminal justice system is being used to transmogrify a legal
jury acquittal into a double-jeopardy, back door conviction.”
Regardless of what Dr. Al-Arian says in
his testimony, it will be in this rogue prosecutor's discretion to
charge him with perjury if he does not like what he says, as he did to
Sabri Benkahla. At that point, Dr. Al-Arian will face a perjury
indictment which will only serve to prolong an already drawn-out and
unjust period of incarceration.
Activist Judges
Despite the overwhelming arguments put
forward in Dr. Al-Arian's motion regarding the lack of a cooperation
clause in his plea agreement, Judge Moody added to his already
questionable record on November 6, 2006 by denying the defense motion
without any justification. During the brief hearing, while attorneys
for the government and the defense all agreed that Moody did not have
the jurisdiction to decide the issue, he ignored them and asserted his
right to do so anyway. Defense attorneys then called for an evidentiary
hearing to discuss the issues raised before the court, in addition to
the testimony of witnesses involved in negotiating and executing the
plea agreement. Moody denied that request and issued his inexplicable
ruling shortly thereafter.
On Nov. 16, Dr. Al-Arian was brought
before the judge overseeing the grand jury proceedings in Virginia and
placed in civil contempt for his refusal to testify. On December 17,
2007, Judge Gerald Lee lifted the contempt status and allowed Dr.
Al-Arian to complete his term until his scheduled release date of April
7.
On March 3, 2008, however, Judge Lee
announced that Dr. Al-Arian would be required to testify before a third
grand jury. Dr. Al-Arian then began a hunger strike to protest
continued government harassment and attempts to increase his prison
term indefinitely. For the first 17 days of the hunger strike, he did
not consume any food or water, which led to him losing 30 pounds.
Despite suffering from chest pains, severe dehydration, headaches and
other symptoms, Dr. Al-Arian was never offered an IV or treated for any
of the symptoms. Dr. Al-Arian began drinking water again on March 20th,
but his hunger strike continues. That same day, he was brought before
the third grand jury where he refused to testify..
Hunger Strike
On March 3, 2008, Dr. Al-Arian, who is diabetic, began a hunger
strike, the third during his five-year incarceration. After his arrest
on February 20, 2003, he carried out a 140-day liquid-only hunger
strike to protest the government's political persecution. During that
time, he was hospitalized and lost 45 pounds. On January 22, 2007, Dr.
Al-Arian was held in civil contempt for not testifying before a grand
jury. He carried out a 60-day water-only hunger strike in which he lost
55 pounds, was hospitalized and confined to a wheelchair.
National and International Support
Ever since the Tampa jury refused to
find Dr. Al-Arian guilty in December 2005, support for his case has
steadily spread across the country and around the world. In early
February 2007, Amnesty International sent a letter to Attorney General
Gonzales to express "concern about the treatment while in federal
custody of Dr. Sami Al-Arian." The letter cited the horrendous,
inhumane treatment that Dr. Al-Arian had faced in recent months,
including being moved in a trip that took him through five states
"during which he had none of his personal possessions and was again
held in 23-hour lockdown, and his exposure to unsanitary conditions and
rats in Atlanta Federal Correctional Institute.”
On March 26, 2008, the Muslim Public
Affairs Council (MPAC) ,met with Department of Justice officials and
called on federal prosecutors to honor their plea agreement with Dr.
Al-Arian that he not be required to testify and that he be released on
April 7th as scheduled.
In early March, when Dr. Al-Arian was
being held at the federal medical facility in Butner, North Carolina to
be monitored for his hunger strike, thousands of supporters called the
facility within the span of a few short days to show their support and
to demand that Dr. Al-Arian be given proper medical treatment.
The critically-acclaimed, award-winning
documentary on Dr. Al-Arian's case, USA vs. Al-Arian, which premiered
in Norway in February 2007, is helping to raise the profile of the case
internationally. Dr. Al-Arian’s family attended the premiere,
after which they were received at the Norwegian Parliament in addition
to the Nobel Peace Center which would later host an exhibition entitled
“Freedom of Expression – How Free is Free?” with a
section on Dr. Al-Arian’s case in October of that same year. This
documentary has been screened in more than 75 cities around the world.
(For information on screenings of the documentary, click on the
calendar of events).
Conclusion
These latest developments are a
troubling confirmation of Dr. Al-Arian's words that his case is
inherently political. Despite a legal process that took its course,
ending with his near-acquittal, Dr. Al-Arian continues to be imprisoned
two-and-a-half years following the verdicts of his trial. In spite of
an agreement intended to resolve his case once and for all, the
government has continued to harass Dr. Al-Arian and mire him further in
a legal purgatory.
Given the biased statements of certain
officials involved in the case, the history of some prosecutors of
manipulating the judicial system to punish innocent Muslims, and the
politically-charged manner in which the trial was conducted, one can
only conclude that Dr. Al-Arian is being persecuted for his ethnic
background and religious beliefs.
In accordance with the plea agreement,
Dr. Al-Arian has already agreed to leave the country upon conclusion of
his sentence, though he has lived here as a Palestinian refugee since
1975. During his stay here, his life has to a large extent embodied the
“American Dream,” successfully advancing from a humble
background to become a university professor, using this country’s
protection of freedom of speech to promote peaceful dialogue, and
helping to build American communities through his educational
initiatives and community activism. Now, sadly, his case has come to
embody the injustice and political witch-hunts which have plagued the
Justice Department under the Bush administration.
* In 2000, while testifying at an immigration hearing for his
brother-in-law, a prosecutor asked Dr. Al-Arian if he "believed in the
use of violence to free Islam." Dr. Al-Arian answered "No" to this
absurd question. Three years later, one of the charges against Dr.
Al-Arian in the 53-count indictment was an obstruction of justice count
based on his response to that question. The jury acquitted Dr. Al-Arian
of this charge.
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