The decision passed down Friday by the 4th U.S. Circuit Court of
Appeals, which denied Al-Arian’s appeal and upheld a decision by a
Virginia judge to hold him in contempt of court for refusing to
testify, seemed to stand on solid legal ground.

“Everyone agrees that the written plea agreement in the Middle
District of Florida contains no language which would bar the
government from compelling the appellant’s testimony before a grand
jury,” the court wrote. In fact, Al-Arian’s plea agreement mentioned
nothing whatsoever about future testimony. The government is clearly
correct in its interpretation of the letter of the law.

But the law is not a bludgeon – it’s a tool of argument. When the
government initially prosecuted Al-Arian, it was intending to use
the law to defend society from terrorism. With the judgment on
Friday, it’s almost assured the government has failed in that
mission.

Think about it: The government wanted to prove to a jury of 12
people that Al-Arian was guilty of providing support to a terrorist
organization and failed. The government then wanted Al-Arian to
testify in a case in Alexandria, Va. – going so far as to sentence
him to 18 months in prison for contempt of court after he refused to
do so. The decision by the 4th Circuit Court of Appeals Friday did
nothing to prove Al-Arian guilty of any federal crime. More
importantly, it will do nothing to motivate him to testify. It will
merely allow him to serve the remainder of his sentence for contempt
of court, followed by the remainder of his 57-month sentence.

Judging from Al-Arian’s public support, the government
didn’t “expose” Al-Arian at all. The government failed to convince a
jury of Al-Arian’s peers that he was guilty, instead resorting to a
plea agreement. In fact, the government has failed in every aspect
of Al-Arian’s prosecution. It presumably prosecuted Al-Arian to gain
evidence against other suspected terrorists, imprison a man believed
to be a terrorist and win the moral support of a nation in the
throes of a war on terror. To date, only one of those – Al-Arian’s
imprisonment – has occurred. Instead of placing Al-Arian in witness
protection – thereby allaying his fears of retribution for
testimony – the government remained set in its stance on the matter,
and has come up empty-handed.

And the idea that Al-Arian might be – in the words of Paul Perez,
the U.S. District Attorney who presided over the Middle District of
Florida during Al-Arian’s original criminal trial – a “white-collar
terrorist,” makes the government’s failures all the worse.