March11, 2008
Jurist

JURIST Guest Columnist Peter Erlinder of William Mitchell College of Law, attorney on appeal for Dr. Sami Al Arian, says that the treatment accorded the acquitted but still detained academic Palestinian activist from Tampa – now on hunger strike and in danger of irreversible renal failure at a federal prison hospital – is abuse of power amounting to torture taking place in the United States itself under the aegis of the Bush Administration and its “war on terror”…
By Peter Erlinder
The storm of criticism that followed George Bush’s weekend veto of Congressional limits on the CIA’s use of torture might lead to the conclusion that, reprehensible as “torture” might be in remote, secret CIA locations, it could never happen here in the US. But the Bush administration’s abuse of power in its treatment of Dr. Sami al Arian and other acquitted Palestinian “terrorism-defendants” has already demonstrated that “torture” for this administration is commonplace – even here.

In December 2005, a Tampa jury acquitted Dr. Al Arian of “terrorism” charges. Two years later he is still in prison, and in the 6th day of a hunger-strike because the Bush administration refuses to honor a May 2006 promise to release and deport him. Unless he receives proper medical care within days, he risks irreversible renal failure and death – all under the watchful eyes of the Bush “Justice” Department.

Apparently, “legal black holes” like Guantanamo can be created without having to set-up a special overseas prison, if domestic law can be sufficiently manipulated. And the Bush administration is very, very good at manipulation, both legal and otherwise.

A Propagandized Arrest and Pre-Trial Torture

In a February 2003 Moscow press conference, then Attorney-General John Ashcroft breathlessly announced the FBI capture of “the major North American financier for terrorism in the middle-east”, in Tampa, Florida, of all places. Ashcroft pointed proudly to obviously, pre-arranged media coverage of a shackled Dr. Sami Al Arian being taken from his home by a SWAT team, with his children cowering in the background.

The images were a lot like those of US troops and cowering Iraqi women. But this was not Iraq, or Afghanistan. And Dr. Al Arian was never even suspected of any violence. He was a well-known and well-respected academic and Palestinian activist, and that, the jury concluded more that 2 years later, had been his only “crime.”

For more than a year before trial, Dr. Al Arian was in Super-Max isolation on 24/7 lockdown. He was denied family visits and was chained whenever he was out of his cell, even to talk to his lawyers. Super-Max prisoners are usually only convicts too violent to live in the general prison population, criminals among criminals. But the Bush administration put Dr. Al Arian in the Super-Max, hundreds of miles from his family, even before the final charges against him had been decided, and without even accusing him of being violent. It was…torture.

On top of Guantanamo-like conditions, Dr. Al Arian was denied warm clothing, writing materials and was subject to taunting guards, convinced by Bush administration propaganda that he was a second Osama bin Laden. Things got so bad that the Justice Department Inspector General is investigating abuse by guards. A UN body formally objected to his conditions of confinement before trial.

By the beginning of trial in July 2005, the original 200 charges against Dr. Al Arian and his 3 co-defendants were reduced to eliminate any mention of the accusations leveled by Ashcroft. But the remaining 94 “terrorism-related” counts could result in the death penalty or life in prison, including the 17 counts facing Dr. Al Arian, if he had been convicted. But he wasn’t convicted, and neither were any of his co-defendants.

Trial By Jury: Still a “Bulwark” Against Government Abuse

After hearing 6 months of evidence, including 80 witnesses; hundreds of hours of FISA wiretaps culled from 425,000 conversations recorded over 10 years; testimony of Israeli intelligence agents; heart-wrenching testimony of Israeli suicide bombing victims; graphic video of suffering bombing victims; and more than $50 million in taxpayer money being thrown at the case, the jury refused to find any of the defendants guilty of anything!

Dr. Al Arian’s lawyers, Linda Moreno and Bill Moffett, did not call one witness or put on one piece of evidence. The defense was the First Amendment right to free speech and the lack of any connection between Dr. Al Arian’s lawful support for the Palestinian struggle in the U.S. and the tragic violence connected to Israel’s illegal occupation of Palestine.

On December 2005 TIME Magazine called Dr. Al Arian’s acquittal “the biggest defeat for the Bush Administration to date” [1], and so it was. It was also a victory for the United States Constitution. The Tampa jury upheld the best traditions of our Sixth Amendment right to a jury trial, that is supposed to be a “bulwark” against misuse of governmental power.

For a while it seemed that the Constitution was actually working the way it was supposed to, but the Bush administration made sure that this illusion did not last for long. Within days, the administration said they were going to re-try Dr. Al Arian on the lesser charges on which the jury “hung” 10-2 for acquittal. Re-trial is not illegal, but highly unusual when the evidence was so clearly rejected by the jury.

But at the same time the Bush administration was telling the world they would try Dr. Al Arian again, they secretly approached Al Arian’s lawyers with “an offer he couldn’t refuse” in early 2006 to avoid government being embarrassed by another acquittal.

Setting the Trap: “An Offer He Couldn’t Refuse”

The Bush-administration promised to: (a) drop all charges; (b) release Dr. Al Arian in 30 days; and (c) assist in deporting him to country of his choice, immediately upon his release. Compared to the death penalty or life in prison that he had been facing weeks earlier, it was a difficult offer to turn down but he did precisely that, because there were a couple of “catches” he and his lawyers refused to accept.

First, he would have to plead guilty to a crime, and he had not committed any crimes. Second, the standard Tampa plea-agreement had a “grand jury co-operation” clause, and Dr. Al Arian would not agree to either. The Bush administration panicked and sweetened their offer.

If Dr. Al Arian would only admit having helped his brother-in-law with immigration matters, and not telling a reporter about a colleague’s political associations, both of which were true, and neither of which were crimes, the Bush-administration would agree call the legal, non-violent acts evidence of a “conspiracy,” and recommend his release by the end of May 2006.

But Dr. Al Arian and his lawyers still said “no-deal” because he absolutely refused to “co-operate” with a Bush Justice Department that had set him up and prosecuted him for political reasons. So the Bush-administration “blinked” again, because they needed to avoid another embarrassing defeat.

This time, they removed the “grand jury co-operation” requirement because, as they admitted in court, it was only way to get his name on the dotted line. They also admitted, in court on April 14, that the terms of their agreement with Al Arian had been approved in Washington, D.C. and specifically applied to Alexandria, Virginia, the federal district where most of the Pentagon’s employees live and a favorite place for grand-jury “terrorism” investigations.

The “Trap” Begins to Close

But when Dr. Al Arian appeared in court on May 1, 2006, expecting the agreement to become final, and to be released before the month was out, the game changed. Judge James Moody agreed to immediate deportation (which means neither the judge or the Bush-administration considered him dangerous) and all other charges were dropped. Instead of time-served release and deportation, the judge sentenced him to the constitutional maximum sentence, another year in prison, and read a prepared statement publicly declaring him guilty of “killing women and children in Israel.”

In essence, the judge convicted Dr. Al Arian of the same violent offenses that the jury had rejected. Several of the jurors went public after the sentencing hearing expressing outrage that the judge had ignored their verdict. So much for the Sixth Amendment.

Instead of beginning a new life in May 2006, as the Bush Administration led him to believe would happen, Dr. Al Arian would be in prison until April 2007. But there was no reason to think that the Bush administration was actually manipulating the legal system…yet.

The Bush Administration’s Post-Acquittal “Torture-Strategy”

On May 10, 2006 the “trap” snapped shut when the Assistant U.S. Attorney in Alexandria sought a secret order calling Dr. Al Arian before the very Alexandria grand jury that the Tampa prosecutor said had been covered by the “no grand jury cooperation” agreement. Neither Dr. Al Arian nor his lawyers knew about the secret order until October 2006, when AUSA Gordon Kromberg informed them Dr. Al Arian would be brought before the grand jury – during Ramadan.

When Dr. Al Arian appeared before the grand jury and relied on the “no-grand jury cooperation” promise, Judge Lee held him in contempt of court, and he was in contempt detention until December 2007, when the grand jury expires, which effectively extended original May 2006 release until April 7, 2008, two years after the Bush administration promised he would be released and deported.

Last Week: Another Turn of the Screw

On March 3, 2008 AUSA Kromberg turned the torture screw up another notch, when Dr. Al Arian was brought back to court and informed that he would be called before yet another grand jury on March 19, 2008, this time only 3 weeks before his latest release and deportation date. If he insists on the Bush administration respecting its “no-grand jury cooperation” promise again, he is likely to be held in contempt again, which will effectively cancel the April release date and extend his time in prison again…indefinitely. And, he has to insist on it because terms of the plea agreement “contract” are still on appeal, a Catch-22, if there ever was one.

But, there is a more sinister manipulation in the works. AUSA Kromberg has charged other acquitted Palestinian defendants with perjury, when they did testify before his grand jury. Other acquitted Palestinian defendants have been charged with “obstruction of justice,” when they declined. Dr. Al Arian’s lawyer, George Washington Univesity law professor Jon Turley has said that Kromberg is “setting up Al Arian for a perjury/obstruction trap.” The other acquitted Palestinian defendants facing the same “Hobson’s choice” have been given “terrorism-enhanced” sentences of 5 to 10 years whether they answered grand jury questions or not after American juries already acquitted them of the underlying charges. Imprisoned for a decade after being acquitted certainly could be called “torture”, or at least “Kafka-esque.”

Neither Alberto Gonzalez, nor “General Mukasey” (as he apparently referred to in White House circles) have done anything to rein in this misuse of prosecutorial power, but neither have the Courts nor the Democrat-controlled Senate and House Judiciary Committees even though both Chairmen, Sen. Leahy and Cong. Conyers, were made aware of this blatant manipulation of prosecutorial power, for apparently political purposes, more than a year ago.

Dr. Al Arian’s Last Protest Fast

But now, the Bush administration, the Courts and Congressional oversight committees have a chance to intervene. On March 4, 2008, the day after the “perjury/obstruction” trap was sent by Kromberg, Dr. Al Arian began a complete food and water fast to protest, in the only way he can, the perfidy of the Bush administration, and the “torture” caused by its rejection of the constitution and abuse of its power.

This is Dr. Al Arian’s third hunger-strike during his 5 years of imprisonment. The first was in 2005 and lasted 140 days on liquids only, before he was permitted the lawyers of his choice. In early 2006 he drank only water for 60 days, when the court refused to require the Bush-administration to honor their “no grand jury cooperation” promise, the first time. Now, he is refusing all food and liquids was transferred to the prison hospital on March 5. But he is not getting necessary medical treatment.

As of Monday, March 10, Dr. Al Arian has not received any intravenous liquids, and he is in danger of irreversible renal failure – yet another kind of torture, that could be ended with proper medical care. If Dr. Al Arian dies, AUSA Kromberg will have accomplished his stated “mission”, so the question is, will anybody else respond, before it is too late?

End the Torture of Dr. Al Arian Now!

Between now and his April 7, 2008 release/deportation date, Kromberg will have to bring Dr. Al-Arian before the grand jury on a stretcher, kept alive by IV’s, assuming he receives proper treatment in the next day or two. Unless, of course, the Congress, the Courts or Mukasey put an end to the torture he has so far been subjected to. While Mukasey or Bush could release Al Arian with the stroke of a pen. Bush’s veto of the torture limitation bill is an indication that Dr. Al Arian’s own torture will not be ended without the intervention of the Congress, the Courts, or the American people.

The torture of Dr. Al Arian is not “water-boarding,” nor the “enhanced interrogation techniques” that Bush says is now part of America’s regular way of doing business…but it is “torture” nonetheless. The Bush veto on Saturday demonstrates the Bush-Cheney “war on terror” is not really about terrorism at all, but is a politically-motivated assault directed against the constitution and the rule of law.

A government that is unwilling to publicly renounce torture committed in its name, and in the name of the American people, is capable of doing anything, to anybody, at any time, and the Al Arian case is a prime example of a lawless regime displaying itself to the world.[2] The Al Arian case is not law, it is politics…and torture. It is time for Congress, the Courts and the American people to put an end to the legal torture of Dr. Al Arian, now.

Release him!

(c) 2008 Peter Erlinder.

Notes

[1] TIME Magazine, December 19, 2005, “When Terrorism Charges Just Won’t Stick”

[2] The Al Arian case is the subject of USA v. Al Arian, awarded the prize for best documentary at the Nordic Film Festival in 2007, which is being shown in film festivals and other venues worldwide.

Peter Erlinder is a professor at William Mitchell College of Law, St. Paul, MN and attorney on appeal for Dr. Sami Al Arian in appeals to the US 4th Circuit, the 11th Circuit and the Supreme Court of the United States – all of which have declined to intervene in his case. E-mail peter.erlinder@wmitchell.edu