March 5, 2009

By MATTHEW BARAKAT

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McLEAN, Va. (AP) — Federal prosecutors have defied a judge's order to turn over evidence of their internal deliberations in coming to a plea agreement with a former professor once accused of being a top Palestinian terrorist.
The government's decision raises the possibility that U.S. District Judge Leonie Brinkema will toss out a criminal contempt case against Sami al-Arian, who has already served nearly five years in prison.
The court papers, filed late Wednesday night, also reveal a rift between prosecutors in Virginia and Florida about how to proceed against Al-Arian, with the Justice Department ultimately adopting the more aggressive stance sought by the U.S. Attorney's Office in Virginia.

Brinkema has raised concerns the government's plea deal with Al-Arian amounted to a "bait-and-switch" in which Al-Arian was misled into thinking the Florida plea bargain would end his legal problems and result in his swift deportation after serving his sentence.
Instead he faces another trial in Virginia on charges that he refused court orders to testify to a federal grand jury that is investigating a cluster of northern Virginia Muslim organizations and charities.
Brinkema ordered the government to produce evidence about its internal deliberations in reaching the plea agreement with Al-Arian, to see if there was any evidence that the government had hoodwinked Al-Arian's attorneys.

But prosecutors refused, saying in Wednesday's court papers that the internal deliberations are irrelevant.
"By definition the understandings of government officials that were never disclosed to the defendant could not have affected the defendant's reasons for willfully violating the court's orders," the prosecutors wrote. "As a result, such understandings are irrelevant."
Al-Arian's lawyers say they never would have agreed to the plea bargain had they known he would have to give grand jury testimony. They had the standard plea agreement revised to eliminate the paragraph that requires a defendant to cooperate with prosecutors.
But prosecutors say the cooperation provision only exempts Al-Arian from voluntary cooperation. They say it was never meant to extend to compulsory testimony like a grand jury subpoena.

Al-Arian's lawyer, Jonathan Turley, declined comment on the government's most recent court filing. In previous hearings, he has said that he believes the government has evidence that will show the government promised one thing and did the opposite.
"Dr. Al-Arian has consistently asserted that he was expressly assured that, if he accepted the plea agreement, he would not have to cooperate in any way with the government and would be deported promptly upon serving the specific jail time," Turley wrote in a previous motion.
While prosecutors refused to provide the evidence sought by Brinkema, they did acknowledge for the first time that federal prosecutors in Florida objected to their Virginia counterparts' efforts to subpoena Al-Arian.
The Justice Department at first deferred Virginia's request to subpoena. Al-Arian. At that point prosecutors in both states assumed the issue would be moot because the government was only seeking a 46-month sentence for Al-Arian, which would amount to time served. He was then expected to be immediately deported before a subpoena could be served.
But the judge in Florida surprised everyone by imposing a tougher sentence than prosecutors had sought — 57 months. Since that meant Al-Arian would remain in the U.S. for nearly a year, the Justice Department allowed Virginia prosecutors to go forward with the subpoena.

Al-Arian was first arrested in 2003 and charged with being one of the North American leaders of Islamic Jihad, which is designated as a terrorist group by the U.S. and at various times has been allied with a larger militant group, Hamas.
At his Florida trial, the jury acquitted Al-Arian of the most serious charges and deadlocked on others, with 10 of 12 favoring acquittal.
When prosecutors decided to retry Al-Arian on the remaining charges, Al-Arian opted instead for the plea bargain.
A hearing in the Virginia case is scheduled for Monday.