St. Petersburg Times
August 6, 2004
By Graham Brink

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TAMPA – The case against accused terrorist Sami Al-Arian just became harder to prove, though how much harder is under debate.

Prosecutors must do more than prove that the former University of South Florida professor and his three co-defendants sent money or other support to the Palestinian Islamic Jihad, U.S. District Judge James Moody said in an order released this week.

They have to show that the defendants knew the money or support would further the PIJ’s future terrorist acts.

Moody said he didn’t think his ruling made it that much more difficult for prosecutors in a “typical case.” A jury could convict someone who simply sends money to an organization that he or she knows keeps commiting illegal acts, the judge wrote.

Al-Arian’s attorneys, though, heralded the ruling as a significant victory. They said it thwarts the prosecutors’ attempt to convict Al-Arian and the others through “guilt by association.”

“They will have to show that the support they allege Dr. Al-Arian provided was directly connected to the violence the group carried out,” said Al-Arian attorney Bill Moffitt. “It significantly raises the burden of proof, and rightly so.”

The U.S Attorney’s Office would not comment. The prosecutors could appeal Moody’s ruling, which might delay the trial now set for January.

The judge first addressed the issue in March, when he ruled prosecutors would have to show that the defendants intended their support to be used for a “bad purpose.”

Knowledge of prior terrorist activity was not enough, he ruled. The defendants had to intend for their support to foster new illegal activities.

At the time, Moody said he was responding to rulings in other courts which found parts of the antiterrorism laws used to indict Al-Arian so vague as to be unconstitutional. The laws were so broad that they could snare a taxi driver who picks up a member of a terrorist organization or a hotel clerk who provides that person with a room, Moody said.

Those constitutional worries could be avoided by requiring the prosecutors to prove the defendants provided money or support for the Palestinian Islamic Jihad to carry out terrorist activities, he said.

The prosecutors asked Moody to reconsider. They argued that they only needed to prove that the defendants knew they were giving support to a designated terrorist organization, like the Palestinian Islamic Jihad.

They said they should not have to prove that the defendants knew the money or other support would be used for new terror attacks.

In Wednesday’s order, Moody did not relent, calling one of the prosecutors’ arguments “disingenuous” and another claim “disingenuous at best.” He again added that his ruling does not prevent the government from targeting the flow of support to terrorist organizations.

The order “does not, will not, and should not hamper the government’s antiterrorism efforts,” Moody wrote.

Federal agents arrested Al-Arian and three other men in February 2003 on charges that they supported, promoted and raised funds for the Palestinian Islamic Jihad, a terrorist group considered responsible for more than 100 deaths.

Over the past decade, agents have taped thousands of telephone conversations – most of them in Arabic – while they had the former University of South Florida professor and the other men under surveillance.

Moody’s ruling could have little impact on the case if those tapes contain conversations that explicitly show that Al-Arian and the others were raising money for the PIJ to carry out terrorist acts, said former federal prosecutor John Fitzgibbons – or if a believable informant makes similar claims.

But if the evidence isn’t so tidy, Moody’s ruling puts a lot of pressure on the prosecutors, Fitzgibbons said. “This is trickly stuff but very critical,” he said. “The government clearly has to be unhappy with this ruling.”

Moffitt and his co-counsel, Linda Moreno, have repeatedly denied that Al-Arian raised money for the PIJ, let alone that he knew the money would be used for future terrorist acts.

They both referred Thursday to a previous hearing at which prosecutors conceded that none of the defendants planned or participated in any of the terrorist activities listed in the indictment.

Graham Brink can be reached at 813 226-3365 or brink@sptimes.com