May 25, 2005
The Electronic Intifada
By Omar Yousef Shehabi

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In the aftermath of September 11, Sami al-Arian made the ill-fated choice to appear on US television and defend Muslim interests against the tidal wave of xenophobia. The presenter, Bill O’Reilly of the Fox News Channel, accentuated his usual demagoguery with a warning to the CIA to follow his guest closely. In fact, the government’s investigation of al-Arian had begun six years prior and culminated in his arrest in February 2003. A 50-count indictment alleges that al-Arian has been the US head of the Palestinian Islamic Jihad (PIJ) for nearly twenty years.

Two years ago a US magistrate judge pronounced al-Arian “a model of civic involvement” but denied him bail, substituting a nationalistic play for a real assessment of flight risk: “the aura of the PIJ’s vision of Palestine captivated al-Arian and [co-defendant] Hammoudeh more than the successful life each had made in the United States. In a very real sense, both see Palestine as their home.”[1] Four million Palestinian refugees in neighboring Arab states, and millions more in the worldwide Palestinian diaspora, see Palestine as their home. The problem, evidently lost on the judge, is that Palestine cannot offer al-Arian or any other of its refugees safe haven; the Israeli military has occupied the Palestinian areas for 38 years and prohibits their return. Under US Supreme Court precedent, this flight risk makes al-Arian’s two-year pretrial stay in a Florida maximum-security prison, with 23 hours a day in solitary confinement, a constitutional administrative measure, not punishment.

Al-Arian’s trial is scheduled to begin early next month in a Florida federal court. He has requested the trial be moved outside his home district of Tampa, where a local newspaper, the Tampa Tribune, and various radio personalities have led a decade-long character attack against him. The allegations, among them that he had assembled the world’s largest terrorist cell on the USF campus, resulted in death threats and calls on the University to fire the tenured and highly acclaimed professor. The University heeded these demands immediately after his arrest, against protest from the professors’ union; the former University president was chastised for not doing so sooner in her unsuccessful bid for the US Senate last year. Even the Israeli newspaper Haaretz concludes that subsequent to O’Reilly’s condemnation, “there was no one in the area who did not know who Sami al-Arian was and did not judge him negatively.”[2]

Even without the adverse media coverage, al-Arian has little chance at a fair hearing. Last year the trial judge ruled the 1996 terrorism law under which he is charged unconstitutionally vague unless the prosecution proves both that he knew of PIJ’s terrorist designation and that the organization might use his alleged contributions to fund its violent activities. However, the judge opined in a footnote, “such an intent can be easily inferred from circumstantial evidence,” and to do just that the government has secured the appearance of nearly 100 Israeli witnesses – survivors and bereaved families of terrorist attacks, police, and volunteers who collect body parts for burial – whose testimony promises to be genuine, stirring, and highly prejudicial.[3] Fairness dictates that the defendants get the chance to explain the Islamic movements’ central role in providing food, health care, and education in the midst of military occupation and the demise of the Palestinian Authority. But this week the trial judge declared mention of the Palestinian humanitarian crisis, or any aspect of the conflict, off-limits to the defense except to the extent the government invokes it in their case.

Doubtless many in the government consider the ongoing prosecution of Zacarias Moussaoui a failure and are seeking a high-profile triumph. Doubtless also the trial judge wants to deny the defendants the chance to put US foreign policy on trial. But as every judge who has touched his case concedes, al-Arian is no Moussaoui, and America’s role in financing the occupation of Palestine cannot be dodged at the expense of a fair defense. With the case already slanted in the government’s favor, the judge’s ruling on the change of venue motion is about more than al-Arian’s right to have his life entrusted to an impartial jury. On trial now is the ability of the US courts to protect the rule of law from an aggressive, partisan, and sometimes jingoistic “free media.”

Omar Yousef Shehabi is a 23-year old American-born Palestinian and a postgraduate law student at the University of Notre Dame. He worked last summer for the UN Development Programme in Ramallah as a law clerk for the Palestinian Authority Ministry of National Economy. He can be reached at oshehabi@nd.edu.

Footnotes
[1] United States v. al-Arian, 280 F.Supp.2d 1345, 1359 (M.D. Fla. 2003)
[2] Nathan Guttman and Yossi Melman, Jihad on Trial, Haaretz, May 18, 2005
[3] United States v. al-Arian, 329 F.Supp.2d 1294, 1305 (M.D. Fla. 2004)