IPSnews.net
March 27, 2008
By Ali Gharib
Link: Click here

WASHINGTON, Mar 27 (IPS) – Webster’s New Dictionary
defines “justice” with words that represent lofty
ideals; “integrity”, “impartiality”, and “the awarding of what is
due”. But in the case of Palestinian activist and former University
of South Florida professor Sami Al-Arian, critics say, the U.S.
Department of Justice under President George W. Bush has failed
miserably to meet any of those standards.

Early this month, just after the five-year anniversary of his
detention, Al-Arian began a hunger strike to protest the repeated
attempts of a U.S. attorney in Virginia to roll back his plea
agreement and call him before a grand jury in a case unrelated to
his own.

Since then, Al-Arian has not eaten or taken medicine for his medical
conditions. He has lost 30 pounds — growing gaunt in appearance and
worrying his family and attorneys, though they did manage to
convince him to take water last week after he appeared to be in the
advanced stages of dehydration.

On Wednesday, Al-Arian was transferred to a hospital within the
Bureau of Prisons system, where his lead attorney said there was
a “draconian protocol for hunger strikes”.

Though his lawyers contend that he is under no obligation to
testify, Al-Arian’s refusal to talk might cause prosecutors to
charge him with criminal contempt of court and cost him the ability
to leave prison on Apr. 11 having completed his 57- month sentence —
realising what critics of the case have called a de facto policy of
indefinite detention.

After Al-Arian had spent two and a half years in custody, the
administration was embarrassed when it couldn’t secure a single
conviction in one of its highest-profile terrorism cases against the
man who then attorney general John Ashcroft accused of being the
head of a Palestinian terrorist organisation.

Facing retrial on the deadlocked charges, Al-Arian decided to spare
his family the agony of another long trial ordeal by pleading to a
lesser charge of aiding associates of Palestinian Islamic Jihad and
directly aiding the group before its designation as a terrorist
organisation by the U.S. in 1997.

But Al-Arian set conditions for his agreement. Because of the
strains that his imprisonment and trial had put on his own family,
he refused to work with the government on other cases.

“He took the position that he did not want to cooperate with any
effort to destroy other individuals the way that his own family was
destroyed by the government,” Al-Arian’s lead counsel, George
Washington University law professor Jonathon Turley, told IPS.

Al-Arian, who has lived in the U.S. for over 30 years but is not a
citizen, also demanded that the government expedite his deportation
after his release to avert the potential for long immigration
proceedings.

The U.S. attorney’s office for the Middle District of Florida where
the case was prosecuted obliged, but attached conditions of their
own — Al-Arian would agree to serve a longer sentence for his
crimes.

“There was negotiations back and forth that the plea agreement would
end all business with the federal government and that he would be
deported,” said Linda Moreno, Al-Arian’s trial lawyer who
participated in the negotiations.

Then came the legal wrangling that has clouded what Al-Arian thought
would be a clear path to the end of his persecution.

Plea agreements in Florida and many other states contain boilerplate
language that compels defendants to aid the government in other
investigations that can be negotiated away. Rarely is it replaced
with explicit language of a non-cooperation clause.

Jack Fernandez, another member of Al-Arian’s team, told IPS that has
never seen a plea agreement in Middle District of Florida where he
practices which states that the defendant cannot be forced to
cooperate with the government.

The understanding between the U.S. attorney’s office in Florida and
Al-Arian’s team was that by removing the language, non-cooperation
was implied.

“Many courts have recognised that there are cases in a plea
agreement — like any contract — where the intent of the parties is
not entirely reflected in the language. Those courts have said that
you can present evidence showing the true intent or understanding of
the parties,” Turley said.

After the plea was agreed upon, Al-Arian’s lawyers asked for an
evidentiary hearing to clarify its intent. A Florida judge rebuffed
the request.

Al-Arian challenged the refusal for a hearing in the 11th circuit
court of appeals on the grounds that it “violates the standard not
just of Florida but of other states”, as Turley put it — noting
that Al-Arian was only asking for the due process right of
presenting evidence on his own behalf. But the ruling was upheld,
forcing the appeal to the full 11th circuit. If that appeal fails,
the case could go to the Supreme Court.

“It is very rare to see a case where the attorneys are prepared to
make statements under oath and supply evidence that expressed
promises were made, but the court will not allow it to be put in the
record through an evidentiary hearing,” said Turley.

“What the former lawyers are arguing here is that not only was Dr.
Al-Arian misled, but they were misled. That would be a very
important issue for the court to address,” he said.

The Middle District of Florida U.S. attorney’s office refused to
comment for this story.

Not long after the agreement, Gordon Kromberg, the assistant U.S.
attorney in Virginia, called Al-Arian to testify before the grand
jury to help build a case against two Islamic charities in Northern
Virginia he suspected of ties to terrorism.

The Justice Department now cites the absence of expressed non-
cooperation language to justify the subpoena.

“The plea agreement is clear, unambiguous and does not grant Al-
Arian immunity from future grand jury subpoena,” said Justice
Department spokesman Dean Boyd as reported by the Washington
Post. “Therefore, we hold that the government did not break the plea
agreement by issuing a subpoena commanding Al-Arian to testify
before a grand jury.”

But both Fernandez and Turley pointed out that the government, to
their knowledge, has never denied the intent of the plea agreement.

“What is interesting is that the Justice Department has not argued
that there was no understanding or discussion of non-cooperation.
They have based their entire argument on the technical point that
there is no expressed language in the agreement,” said Turley.

That reversal from the intent of the agreement made by the Florida
prosecutors is highly unusual, leading some critics of Al-Arian’s
treatment at hands of the government to cry of foul play in an
attempt to artificially prolong his detention.

Asked by IPS if she had ever seen this absence of coordination
between the two U.S. attorneys’ offices that would lead to one
essentially ignoring the agreement made by another, Moreno said, “I
personally know of no other case like this, in this regard.”