After denying the motion, Judge Brinkema gave prosecutors one week to comply with her order. She noted that, while the government was not required to produce their own declarations, failure to do so would result in the court having a “one-sided set of facts.” She added that many people would assume, “If someone is unwilling to divulge something, then there is something they are trying to hide.”

Judge Brinkema has repeatedly stated the importance of reviewing this information, especially in light of the fact that none of the previous courts which have addressed the matter ever held an evidentiary hearing to examine what was discussed during the plea negotiations. In a new response by the government, prosecutor Gordon Kromberg claims that in 2007, the defense rejected the government’s request for a limited evidentiary hearing before the 11th Circuit Court of Appeals and that, therefore, the judge should not grant such a hearing now. Professor Jonathan Turley, attorney for Dr. Al-Arian, responded that the statement is “completely untrue” and that it “demonstrates why the court needs to get government declarations under oath.” He added that the defense has always asked for “a full evidentiary hearing and only objected to a limited one.”

Government prosecutors have tried to argue that the issue of cooperation in the plea agreement is irrelevant, while the defense contends that it is at the very heart of the case. Judge Brinkema said as much during the last hearing, ordering prosecutors to turn over their own evidence. Otherwise, she said, there remains “a hole in the case.”
Kromberg further tried to argue that it does not matter what took place during the negotiations because Dr. Al-Arian “was never going to testify no matter what.” Defense lawyers noted in return that it is uncontested that Dr. Al-Arian would never have entered into a plea bargain in the first place if cooperation were a condition, either explicitly or implicitly. As both of Dr. Al-Arian’s previous attorneys Moffitt and Moreno made clear in their declarations, not only did the government agree to the removal of the cooperation clause, but defense attorneys specifically brought up both the Eastern District of Virginia and Kromberg’s investigation in particular, during the plea negotiations.

The facts regarding the 2006 plea deal negotiations are central for the defense’s arguments at the upcoming trial. In their pre-trial motions, the defense counsel contends that Dr. Al-Arian did not testify because he was assured by his attorneys that he would not have to cooperate or testify on the basis of the negotiations. Judge Brinkema said she would not rule on what evidence would be allowed at trial until she knows all the facts. She said that another hearing would be set to decide the remaining pre-trial motions, although Dr. Al-Arian’s trial on criminal contempt charges is still scheduled for March 9th.