Aug. 24, 2005
St. Petersburg Times
The cross-examination of an FBI agent could be a preview of Sami Al-Arian’s defense strategy.
By Meg Laughlin
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TAMPA- William Moffitt looked from side to side, as if casing the joint, and set himself firmly before the FBI agent in the witness box.

This was the moment he had been waiting for, for a month. At last, the chance to cross-examine Kerry Myers, the FBI agent who has spent weeks laying out the prosecution’s case against Moffitt’s client, Sami Al-Arian, and three other men accused of abetting terrorism in Israel and the occupied territories.

“Can you see the Syrian border from Iran, as you said in your grand jury testimony?” boomed Moffitt, looming over the FBI agent, glaring at him.

“No, sir, I made a mistake,” said Myers, explaining that Syria doesn’t border Iran.

Moffitt sounded like an irate headmaster berating a misbehaving student. The courtroom was packed with spectators – many of them supporters of Al-Arian – who had come to see how the widely known Washington, D.C., lawyer would deliver a comeuppance to the FBI and prosecution.

The former president of the National Association of Criminal Defense Lawyers then ordered Myers to count and write.

“Yes sir,” said a dutiful Myers, taking the marker Moffitt handed him.

The assignment: to write numbers on a large display pad.

472,239 FBI-monitored phone calls over nine years, 323 overt acts linking defendants to alleged criminal action in the final indictment, Myers wrote.

Then Moffitt asked him to write time spans to show how Al-Arian’s alleged associations with Palestinian Islamic Jihad leaders compared to the 1995 U.S. designation of the PIJ as a terrorist organization.

Remaining calm and respectful, Myers wrote down a column of dates, then agreed with Moffitt that there were “zero” overt acts connecting Al-Arian directly to Palestinian Islamic Jihad after the Jan. 25, 1995, terrorist designation of the group by the U.S. Treasury Department.

Moffitt asked Myers if he’d ever heard any plans for terrorist acts mentioned in nine years of FBI-monitored calls.

“I did not see anything about planning future acts, sir,” Myers replied.

The direction of Moffitt’s questions signaled two key points in the upcoming defense: Nothing shows that Al-Arian plotted terrorist acts, and the vast majority of the wiretaps focus on the years before the U.S. government declared the Palestinian Islamic Jihad a terrorist organization.

As questioning continued, both men appeared to relax. Moffitt ditched the irate tone, calling Myers “sir.” And Myers’ voice grew louder. But the columns of numbers on the display pad got longer.

“When was Dr. Al-Arian’s last conversation with Ramadan Shallah?” Moffitt asked Myers.

“April 28, 1994 – 11 years ago,” said Myers, writing down the date, which was six months before Shallah became head of the PIJ.

Then, the veteran criminal defense attorney asked the FBI agent if the PIJ had ever been involved in violent acts outside Israel. Myers’ response – that he had once seen a classified intelligence report about a PIJ plot to take violent action in the United States – appeared to surprise Moffitt, who asked the agent if he could get the report in the next few days.

Yes, Myers said, offering no information about its accuracy.

Earlier in the day, before the jury entered the courtroom, Moffitt and prosecutor Terry Furr argued over an obstruction of justice charge. The issue: whether Al-Arian’s solicitation of an affidavit was designed to deceive the court. Moffitt and Furr debated for more than an hour about Al-Arian’s solicitation of an affidavit in 2000 from Palestinian legislator Ziad Abu-Amr. Al-Arian sought the sworn statement to help his brother-in-law in a deportation case involving secret evidence and allegations of ties to terrorists.

Prosecutors have charged Al-Arian with obstruction of justice because, they say, he was probably aware that the affidavit included wrong information about the connection of several friends to the PIJ.

“A defendant is allowed to take advantage of … evidence (that helps him),” Moffitt said. “If that’s obstruction of justice, then it interferes with the fundamentals of justice in this country.”

“A defendant can’t commit fraud on the court,” Furr said. “What he knew is the issue.”

U.S. District Judge James S. Moody Jr. called the charge “a slippery slope” for the prosecution because it “had no evidence that Dr. Al-Arian solicited the particular words.”

Moody didn’t rule on whether he would throw out the obstruction of justice charge, giving Furr until Tuesday to research it.

But Moody’s final comments on the subject suggested his leanings.

“I don’t think it’s obstruction of justice,” the judge said. “Active encouragement is not supplying false information.”

In the late afternoon, Moffitt gave FBI agent Myers homework: “Look tonight to see how many overt acts occurred before Oct. 8, 1997.”

“Yes sir,” said Myers, who wrote down his assignment.