Government Picks Up the Pace, But Still No Case

Aug. 19, 2005

TAMPA-- Week 10 in the trial of Dr. Sami Al-Arian and three others featured a number of moves by prosecutors that have now become standard fare--as well as new, more troubling actions that left many courtroom observers incredulous.

Five years of evidence were covered in five hours, and a dream was read to jurors.

On Monday, prosecutors for the second time interrupted the testimony of lead FBI agent Kerry Myers, which had entered its fourth week, in order to bring in additional witnesses from Israel to testify about their experiences. Defense attorneys raised several objections about this testimony, noting that after more than two months of trial, with nearly a month of testimony by the top agent in the case, the government had yet to show any evidence linking the accused men with any events in Israel and the Palestinian territories.

The government, while acknowledging on several occasions that none of the men had any foreknowledge of any attack, nor had any hand in funding, planning or carrying out any attack, nonetheless insisted that Israeli victims and law enforcement officials be allowed to recount their trauma to jurors.

Sameeh Hammoudeh’s attorney, Stephen Bernstein, emphasized that, even at their worst, the accusations in the case only allege a conspiracy to provide support to a particular organization, an accusation the government is required to prove without having to allude to specific attacks. The federal public defenders representing Hatim Fariz noted that the testimony of Israeli witnesses would be highly prejudicial, inflammatory, and meant only to sensationalize the case. They requested Judge Moody to limit the gruesome nature of the testimony, none of which has any bearing on the actual case.

Furthermore, the timing of these witnesses was particularly notable, since it further delayed the defense’s ability to cross-examine the government’s summary witness, who would continue testifying for a fifth week.

Also, the Israeli witnesses were brought only days after a key piece of government evidence fell flat. Last week, it was revealed that the government did not turn over evidence that a 1995 letter by Dr. Al-Arian to a Kuwaiti legislator was never received by him. In fact, prosecutors disclosed that they interviewed Isma’il Al-Shatti several months before the trial, and that he clearly stated that he never saw the letter. In spite of that information, prosecutors have repeatedly alluded to the letter as their most important piece of evidence, even citing it in their opening statement. Defense attorneys called for a mistrial following the new revelation that key information was kept hidden by the prosecution. read more

All of this led many observers to speculate that prosecutors were scrambling to gloss over their lack of evidence with the emotionally charged testimony.

Nonetheless, Judge Moody denied all defense motions and objections, allowing the testimony to proceed. A total of five Israeli witnesses, including a victim’s family member, bomb technician, chemist, and police officers recounted their experiences from a decade earlier. Prosecutors used a scale model of the area in question and implored the witnesses for particular graphic details. Defense attorneys declined to cross-examine them, deeming the testimony irrelevant to the case.

On Tuesday, prosecutors resumed their questioning of Agent Myers, alongside their reenactment of decade-old telephone calls. In each instance, Myers was asked to give his interpretation of the conversation and their context, identifying any references he believes are made by the speakers. In most cases, the agent’s spin appeared largely out of step with what was actually being said, and at times was even inconsistent with previous statements he made regarding other calls.

One phone call between Hatim Fariz and another man, for instance, was originally 65 pages long, of which nearly 40 pages were removed. Of the remaining 26 pages, only one line mentions Dr. Al-Arian by name. However, when asked about the purpose behind this telephone call, the agent responded that Fariz was “informing” the other person about Dr. Al-Arian’s activities. In reality, the only mention is that Dr. Al-Arian offered the previous Friday’s sermon.

As always, every phone call was heavily redacted and was further cut down to only a few selected portions that prosecutors read to the jury. As the St. Petersburg Times noted in its Aug. 17 article, this week’s telephone transcripts sharply contrasted with those of the first three weeks of Myers’ testimony. While those weeks focused in excruciating detail on telephone calls dating to 1994 and 1995, five years’ worth of conversations were covered in five hours on Tuesday.

Most of the telephone calls, from 1995 to 2000 covered a wide range of issues: the media onslaught against the Muslim community in Tampa, the arrest of Dr. Mazen Al-Najjar and his imprisonment on secret evidence, the maintenance of the local mosque and community school, current events generally, and the situation in the Occupied Territories specifically. Family members discussed sending gifts and charitable donations to needy relatives and poor families, especially during the Islamic holy month of Ramadan.

All of these different events, as experienced by over two-dozen people in the telephone calls, were depicted by the government agent as part of an ongoing conspiracy. In fact, Dr. Al-Arian’s years of civil rights work on behalf of all Americans to end the use of secret evidence was repeatedly mischaracterized. It appears the government has attempted to rewrite the recent past with its gross misrepresentation of this crucial era in the American Muslim community’s history. In fact, the portions of telephone calls that feature Dr. Al-Arian’s tireless efforts to lobby for a congressional bill among the nation’s lawmakers were not allowed to be read to jurors by Judge Moody.

Nonetheless, by week’s end, courtroom observers were left amazed by the types of conversations the government considered evidence. In one particularly stunning scene, prosecutors used a conversation by Hatim Fariz in which he conveys to a friend a dream he had the previous night. It was not immediately clear if the government intended to present the court with an interpreter of dreams or if prosecutors planned to hold Fariz or the other defendants responsible for any appearance they may have had in the dream.

Next week, the prosecution is expected to finish their five-week questioning of the agent, and the defense will begin cross-examination, which is expected to last several days.