Washington Report on Middle East Affairs, April 2007
By Melva Underbakke

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ON JAN. 22, Dr. Sami Al-Arian was called to testify before a grand jury in Virginia for the second time in as many months. Though he had been acquitted of all major charges and reached an agreement with the government last year that was to end his imprisonment within a few months, the latest round of subpoenas threatens to extend Dr. Al-Arian’s incarceration by up to 18 months. While most observers are wondering what is behind the continued pursuit of a case that was all but concluded, recent revelations have pointed in the direction of one particular individual: a federal prosecutor who has made no secret of his anti-Muslim and anti-Arab beliefs. Assistant U.S. Attorney Gordon Kromberg’s past actions and statements reveal a disturbing trend that supports the view that Dr. Al-Arian is being punished for his political activism on behalf of the Palestinian people.

This widespread suspicion was confirmed to everyone who late last year read Kromberg’s words when he opposed delaying Dr. Al-Arian’s transfer to a prison in Virginia until after the Islamic holy month of Ramadan.

According to a court motion filed on Oct. 26, 2006 by Al-Arian’s attorney, Jack Fernandez, Kromberg’s outburst included the following remarks regarding Muslims: “If they can kill each other during Ramadan, they can appear before the grand jury—all they can’t do is eat before sunset. I believe Mr. Al-Arian’s request is part of the attempted Islamization of the American Justice System. I am not going to put off Dr. Al-Arian’s grand jury appearance just to assist in what is becoming the Islamization of America.”

Following this undignified tirade, Fernandez asked Kromberg to recuse himself because of the apparent bias he holds toward Dr. Al-Arian as a Muslim activist. Needless to say, Kromberg promptly rejected this request.

In a Feb. 8, 2007 letter to U.S. Attorney General Alberto Gonzalez, the respected human rights organization Amnesty International called into question Kromberg’s motives. “We are disturbed, too, by reports that the prosecutor leading the grand jury case in Virginia expressed anti-Islamic sentiments when discussing a request with Dr. Al-Arian’s lawyer to postpone his transfer to Virginia during Ramadan, a matter which we understand is currently the subject of a complaint before the court. This raises further concern as to whether these proceedings are being taken to punish [Dr. Al-Arian] for his political profile rather than for legitimate purposes.”

Violating an Agreement

Kromberg first called Dr. Al-Arian to testify before a grand jury investigating the International Institute of Islamic Thought, a think tank in Herndon, Virginia, last November—despite a plea agreement five months earlier that did not contain a cooperation clause because both parties agreed that Dr. Al-Arian would not be required to cooperate with prosecutors, and that the plea agreement concluded his entire business with the United States government. On the advice of his attorneys, Dr. Al-Arian refused to testify because the situation had all the markings of a perjury trap. As a result of his refusal, Dr. Al-Arian was placed in civil contempt, extending his prison sentence indefinitely, until the term of the grand jury expired in late December without having returned a single indictment.

Within days, Dr. Al-Arian was transferred temporarily to a prison in Atlanta until a new grand jury was impaneled in Virginia to look into the same case. Once again, Kromberg called Dr. Al-Arian as a witness and, upon advice from his lawyers, Dr. Al-Arian again refused to answer any questions. He was held in contempt of court for a second time, for which he must serve an indeterminate prison sentence.

Forcing Dr. Al-Arian to cooperate with the government is a clear violation of the plea agreement between prosecutors and defense attorneys. According to court documents, any information Dr. Al-Arian might be able to provide the grand jury is likely unnecessary or irrelevant because the information the U.S. Attorney’s Office is interested in is very old. Moreover, Dr. Al-Arian had been under 24-hour surveillance for at least a decade before his incarceration in February 2003. Any information the U.S. attorneys might be seeking surely has been obtained by other means. This leads to the conclusion that forcing Dr. Al-Arian to testify is solely for punitive purposes, namely to keep him in prison beyond the April 2007 date that was determined following a jury trial and plea agreement.

Why does Kromberg continue to call Dr. Al-Arian as a witness? Besides the anti-Muslim bias evident in Kromberg’s statements to Fernandez, one need look no further than the racist comments and vindictive behavior exhibited in previous cases he prosecuted.

In May 1999, Kromberg spoke to the Cato Institute about asset forfeiture in a lecture which was called “shocking” by Michael Lynch. In an article in Reason Magazine, Lynch wrote that Kromberg “admitted that he currently had 10 money laundering cases in which he couldn’t figure out how the people were washing the dough. But still, he knew these people were guilty and was certain they needed to be punished. ‘Should we let these people get away?’ he asked, before answering in an illuminating way: ‘Not if we can punish them through other means.’…[Kromberg] bluntly declared that people like him ought to be able to punish individuals they believe are guilty, even if they can’t prove that guilt in a court of law.”

Rather than advance the cause of justice, this case served as nothing more than an example of the abuses of power by a renegade official. As a result, Dr. Al-Arian’s decision not to testify was lauded by legal experts as the best possible response.

Abuse of Power

Indeed, as did Dr. Al-Arian’s attorneys, lawyers for defendants in other cases have also requested that Kromberg recuse himself, arguing that “Prosecutor Kromberg has abused his position as an officer of this Court and engaged in unlawful coercion, threats and intimidation.” These serious allegations were made by attorneys in a November 2003 motion for Abdulkadir Ali, a naturalized U.S. citizen from Somalia indicted on charges of operating a money transfer business without a proper license.

In another case, defense attorney Salim Ali filed a motion suggesting that Kromberg acknowledged the torture of Falls Church, VA resident Ahmed Abu Ali by Saudi Arabia. Kromberg’s statement even expressed disappointment that Abu Ali could not have been tortured further in the U.S. According to the affidavit, the attorney asked Kromberg if Abu Ali should be brought to the United States in order “to avoid the torture that goes on in Saudi Arabia.” Kromberg “smirked and stated: ‘He’s no good for us here, he has no fingernails left.’”

In a July 2005 article in the Legal Times titled “Putting Islam on the Stand: How far can prosecutors go in using religion to make their case?” Vanessa Blum suggests that Kromberg has exploited a culture of bias against Islam to obtain guilty verdicts from juries. Blum cites the case of Ali Al-Timimi, in which Kromberg “secured the guilty verdict by appealing to religious bigotry against Muslims.” For example, she writes, he told jurors: “If you’re a kafir [non-Muslim], Timimi believes in time of war he’s supposed to lie to you. Don’t fall for it. Find him—find Sheik Ali Timimi—guilty as charged.”

In a letter published in the June 29, 2004 Washington Post, E.A. Khan, the mother of Virginia 11 defendant Masaud Khan, took issue with Kromberg’s use in closing arguments of inflammatory subject matter against her son, especially when such remarks reflected none of the evidence presented in the trial. The Post quoted Kromberg as saying, “While the Pentagon was still smoking, Mr. Khan decided now is the appropriate time to go fight the Americans.”

In fact, as Khan pointed out, her son “was cleared of any implication relating to al-Qaeda, and the judge reaffirmed that fact.” She continued, “Mr. Kromberg’s parting thrust was to link the Sept. 11 attack on the Pentagon with Masaud’s trip to Pakistan more than a week later, knowing that my son had planned his trip since July 2001 and that nothing linked him to that tragedy. That statement was the lowest blow of all, but the court did not chastise him for it.”

The Roots of Bigotry

Kromberg’s bias against Muslims and Arabs may stem from his ideological support of Israel. Following his participation in a 2002 United Jewish Communities mission to Israel, he published a journal of his trip on the UJC Web site. In it, Kromberg makes several generalizations that indicate his distrust of Arabs as an entire ethnic group. “When we left the bus, I for one was nervous, looking around to see if anyone was lurking around with what could be a suicide bomber belt,” Kromberg wrote. On the rights of women, he opined: “Of course, the contrast between the freedom of women in Israel and that of women in the Arab world couldn’t be more stark.”

Mentioning a briefing by Gideon Meir, Israel’s deputy director general for public affairs, Kromberg made wild claims about a Palestinian media conspiracy, including: “Reporters and stringers in areas under control of the Palestinians know that they will be killed (at worst) or ejected (at best) if they don’t report the stories with the spin the Palestinians want.” He bemoaned a “lack of resources on the Israeli side to provide information to the innumerable members of the press who are fed lies by the Palestinians.”

Furthermore, Kromberg displayed complete disregard for international law and the American-led peace process, by referring to the Israeli-occupied lands of the West Bank and Gaza in the language of Jewish extremists who advocate their ethnic cleansing. Judea and Samaria are terms intended to dispossess the Palestinians from their homeland and repopulate the occupied territories with colonial settlers.

Finally, Kromberg described visiting Jerusalem’s King David Hotel in Jerusalem, best known as the site of a 1946 act of Jewish terrorism by the militant Zionist organization Irgun which killed 91 people and injured 45. Kromberg expressed disappointment that there were not more tourists there. In July 2006 a celebration of the 60th anniversary of this terrorist act was attended by former Israeli Prime Minister Binyamin Netanyahu.

It seems that the Al-Arian case provides Kromberg a perfect opportunity to punish Dr. Sami Al-Arian—even though, when all the evidence was heard in a court of law, a jury found him not guilty. Instead, Kromberg should recuse himself and Dr. Al-Arian should be released from prison when his sentence ends in April.

Melva Underbakke is an educator, researcher and activist from Tampa, FL and the founder of Friends of Human Rights, which opposes the denial of due process and human rights to Dr. Sami Al-Arian and many others.