Tampa Bay Coalition for Justice and Peace
November 20, 2006
Freedom Delayed for Dr. Sami Al-Arian

TAMPA-

There have been several important developments in the case of Dr. Sami Al-Arian,
which was thought to have been resolved last May. Last week, Dr. Al-Arian was
placed in civil contempt for refusing to testify before a grand jury in
Virginia, prolonging his imprisonment by up to 18 months.

Background

After nearly three years of solitary confinement, followed by a six-month trial,
Dr. Al-Arian was acquitted of most of the charges against him in a major victory
for constitutional rights last December. Though jurors were nearly unanimous in
their call for acquittal on all charges, the U.S. Attorney’s Office determined
that it would not drop the remaining counts and began moving toward a new trial.

Following months of heated negotiations, the two parties reached an agreement in
April that caused the government to drop all of its charges against Dr. Al-Arian
in exchange for his plea on a single count and agreement to leave the U.S. at
the earliest possible time. The plea agreement, among other things, reflected
Dr. Al-Arian’s long-standing positions against the use of violence. In reality,
the only facts noted in the statement include his assistance of academic
colleagues and family members on immigration matters. According to recently
released court documents, another central issue of the plea negotiations was Dr.
Al-Arian’s insistence that he would not be subject to any further prosecution or
called to cooperate with the government on any matter. This was also reflected
in numerous places within the plea agreement, including the government’s own
recommendation that he be sentenced to the lowest possible sentence, allowing
him to leave the United States within weeks of the agreement’s finalization.

Defying all reason, Judge James Moody ignored the recommendations of the parties
and proceeded to sentence Dr. Al-Arian to the maximum, relying mainly on his
prejudicial assessment of the Middle East conflict and a complete rejection of
the jury’s findings. This prolonged Dr. Al-Arian’s imprisonment by an estimated
11 months, projecting his release and deportation in April 2007.

Continued Harassment

Last month, a government prosecutor in Virginia, recently revealed to have made
numerous racist and anti-Muslim statements, called Dr. Al-Arian to testify
before a grand jury investigating an Islamic think tank. Dr. Al-Arian was then
moved to a facility in Warsaw, Virginia, over two hours away from the court
proceedings, where he has been confined in deplorable conditions. 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 and the court that oversaw the trial and
subsequent plea negotiations.

On October 26, 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 the
attorneys who 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 “made clear to the government that Dr. Al-Arian would never
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.”

– 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, 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 perjury trap notion is further supported by the revelations of a
conversation 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 a few days later. 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 was quoted to have made the following
outburst: “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.” If Kromberg had made
this statement about any other religious or ethnic minority, including Hispanic,
African American or Jewish, he would have provoked outrage.

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 outward biases. To this, Mr. Kromberg gave the following fiery response:
“You file whatever you want, it’s up to you. We can do this the hard way or the
easy way.”

– Defense attorneys cite 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.” Furthermore, a
case cited states that whether the government has violated a plea agreement “is
judged according to the defendant’s reasonable understanding at the time he
entered his plea.” Also, any oral promises made by the government during plea
negotiations must be kept. In the course of these promises, a government
attorney bound all prosecuting authorities, and not only the Middle District of
Florida, from pursuing Dr. Al-Arian any further. In fact, the Eastern District
of Virginia was particularly singled out on the list of parties bound by the
plea agreement.

– The government’s attempt to force Dr. Al-Arian to testify is a violation of
his due process rights. In a case cited by the defense, a defendant opted for a
plea agreement giving him a higher sentence than one giving him a lower sentence
if he were to cooperate. Even with the higher sentence, he was forced to
cooperate, to which the Fourth Circuit Court ruled that the defendant’s rights
were violated based on the government’s promises.

– Based on the government’s overreach, the attempt to force Dr. Al-Arian to
testify leaves him with three options, none of which are fair or appealing:

1) Refuse to testify and be held in contempt, thereby extending his prison term
and delaying his expedited deportation;
2) Testify truthfully and the government argues that his testimony is not
consistent with
its understanding of the facts, thereby subjecting Dr. Al-Arian to perjury
charges;
3) Testify truthfully, to which the government could issue a material witness
warrant to keep him in detention in the U.S. beyond his term of incarceration;

– The motion concludes by stating: “Under the circumstances of this case, and in
light of the comments made by AUSA Kromberg, it is apparent that the (subpoena)
issued to Dr. Al-Arian is designed to nullify the “bonanza” of a plea deal he
received in the Middle District of Florida, and punish him in other ways.
Accordingly, the parties’ plea agreement should be enforced and specific
performance warrants issued to Dr. Al-Arian should be quashed.”

Activist Judges

In its brief response to the defense motion, the government did not acknowledge
the bulk of the arguments, dismissing the issues raised by Dr. Al-Arian’s
attorneys as “tangential” and “irrelevant.” The government did not introduce a
single affidavit challenging the accounts provided by defense attorneys.

Nonetheless, despite the overwhelming arguments put forward by the defense, on
November 6 Judge Moody added to his dubious record by denying the defense motion
without any justification. During the brief hearing, attorneys for the
government and the defense agreed that Moody did not have the jurisdiction to
decide the issue, but he 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.

Dr. Al-Arian’s attorneys filed a notice of appeal with the Eleventh Circuit
Court in the hopes of overturning Moody’s decision within days of the hearing.

Last Thursday, November 16, Dr. Al-Arian was brought before the judge overseeing
the grand jury proceedings in Virginia. As reported in the St. Petersburg Times
the following day, Dr. Al-Arian was placed in civil contempt by the judge for
his refusal to testify. Defense attorneys argued for a stay while the appeal was
being pursued in the Fourth Circuit Court, but the judge denied that request,
effectively paving the way for the contempt ruling.

Guilty of Nothing

Contrary to the irresponsible reporting put forward by members of the press, Dr.
Al-Arian was not “found guilty” of anything, since he was never charged with a
crime. The “sentence” described by reports is legally not defined as a term of
punishment. Rather, it is an attempt to coerce Dr. Al-Arian into testifying.
According to the law, he must be removed from the status of contempt if the
grand jury is closed or if the judge is convinced that no amount of prison time
will coerce him into testifying. Dr. Al-Arian can be held up to 18 months more
on this basis, with reviews every 6 months. In addition, the remaining 147 days
he has left on his original sentence are to be suspended until after the end of
the contempt. Given this fact, the government has potentially delayed his
release from next April to October 2008.

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 acquittal, Dr. Al-Arian continues to be imprisoned
almost a year following the verdicts in his trial. In spite of an agreement
intended to resolve his case once and for all, ending the suffering of his
family and the atmosphere of fear and hysteria to which the Arab and Muslim
communities have been subjected for years, the government has continued to
harass Dr. Al-Arian and mire him further in a legal purgatory. Based on the
performance of the officials involved in the case, one is led to conclude that
the unending pursuit is politically motivated and often based purely on Dr.
Al-Arian’s race and religious beliefs.

All concerned citizens are called upon to take a stand against the violations of
Dr. Al- Arian’s civil and political rights. Please contact your member of
Congress, the leadership of the Judiciary Committee, and the Department of
Justice and request that the government end the suffering of Dr. Al-Arian and
his family by respecting the jury’s verdict and honoring the plea agreement.
All media are also called upon to accurately and responsibly report the events
taking place in this case. All concerned people should contact local and
national media with letters to improve the poor coverage of Dr. Al-Arian’s
situation.

END

* In 2000, while testifying at an immigration hearing for his brother-in-law,
Dr. Al-Arian was asked by a prosecutor 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.