Washington Report on Middle East Affairs, April 2007
By Peter Erlinder
The Ordeal of Dr. Sami Al-Arian
Despite Acquittal on Terrorism Charges, No Prospect of Release for Dr. Al-Arian
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In happier days, the Al-Arian family celebrates Abdullah’s 2002 graduation from Duke University in North Carolina. From left: Laila, Ali, Abdullah, Lama, Nahla, Leena and Dr. Sami Al-Arian (Photo Courtesy Al-Arian Family). |
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IN DECEMBER 2005, Time Magazine reported that the Bush administration suffered its most embarrassing defeat when a Tampa jury found Palestinian activist Dr. Sami Al-Arian “not guilty” of most of the serious “terrorism” charges against him. In early 2003, then-Attorney General John Ashcroft had announced Dr. Al-Arian’s arrest in a Moscow press conference and publicly defamed him as the “major financier of terrorism in the Western Hemisphere.”
More than a year after his acquittal, however, and an agreement approved at the highest levels of the Justice Department to release him almost immediately and to assist his voluntary departure from the U.S., Dr. al-Arian remains incarcerated in a medical prison facility in North Carolina, hundreds of miles from his wife and family.
To protest the Bush administration’s failure to live up to a written agreement to release him in May 2006, Dr. Al-Arian embarked on a hunger strike on Jan. 22, 2007.
Who Is Dr. Sami Al-Arian?
Many Washington Report readers have known Dr. Al-Arian as an outspoken advocate for the rights of the Palestinian people who also encouraged increased political activism by Muslim-Americans. He earned his Ph.D. in the U.S. and has legally resided in this country for more than 30 years with his wife and five children (all U.S. citizens).
Dr. Al-Arian has no previous arrests or criminal convictions, but he is an extremely effective political activist. This was demonstrated, ironically, during the 2000 presidential election, in which Dr. Al-Arian was largely responsible for securing the support of Florida Muslims for then-candidate George W. Bush, based on Bush’s promised support for ending the use of “secret evidence” in deportation hearings.
If the Jury Acquitted Him, Why Is Dr. Al-Arian Still in Prison?
After a six-month trial, the Tampa jury acquitted Dr. Al-Arian of the most serious charges and voted 10-2 to acquit him on all charges. The case against him was so weak that he did not testify; his lawyers presented no evidence or witnesses. His only defense was the Constitution’s First Amendment rights of free speech and freedom of association was his only defense.
After holding Dr. Al-Arian in solitary confinement for nearly three years awaiting the first trial, the Justice Department tried to “save face” by threatening to keep him in solitary for another two to three years, pending a second trial. Early last year, however, the Bush Justice Department agreed to Dr. Al-Arian’s release and voluntary deportation in exchange for a guilty plea to a single count of “conspiracy.” It was an “offense” in name only, but allowed the Justice Department to proclaim a “victory” even though the jury verdict spoke a different truth.
In the written agreement made public on May 1, 2006, the Justice Department stipulated that Dr. Al-Arian:
- had not engaged in any violent acts and had no previous knowledge of violent acts committed in the United States or the Middle East;
- would not be required to “cooperate” by providing information to prosecutors;
- would be released for time served, and that the Justice Department would assist in his immediate voluntary deportation.
At a May 1, 2006 sentencing hearing, the Justice Department kept its bargain by dropping all remaining charges and publicly acknowledging that Dr. Al-Arian had not been involved in any violence, and that he should be released almost immediately.
Contrary to a series of recent Supreme Court cases that have reinforced the importance of juries, however, Federal District Judge James S. Moody rejected the Justice Department agreement and extended Dr. al Arian’s imprisonment by nearly one more year. The judge justified his action by publicly declaring that Dr. Al-Arian was guilty of the same offenses of which the jury had acquitted him.
The judge’s misuse of “acquitted conduct” undermines all Americans’ right to a jury trial for everyone and is being appealed to the Supreme Court. His nearly one-year extension of Dr. Al-Arian’s sentence was not the fault of the Bush-Gonzales Justice Department, but what happened after the judge’s unconstitutional rejection of the jury verdict certainly was.
The Gonzalez Justice Department “Plea” Agreement: Just Another Lie
In November 2006, and again in January 2007, an assistant U.S. attorney in the Eastern District of Virginia named Gordon Kromberg (see p. 30) called Dr. Al-Arian to testify before a grand jury—despite the explicit terms of the agreement with the Bush-Gonzales Justice Department that Dr. Al-Arian need not “cooperate” as part of his plea agreement. The law of the 4th Circuit which governs cases in Virginia is clear: a non-cooperation agreement means no testimony before a grand jury—period. And had Dr. Al-Arian been released as agreed in May 2006, a grand jury subpoena would never even have been possible.
This was not the first time that Muslim or Arab defendants who had been acquitted of “terrorism” charges were subpoenaed by Mr. Kromberg, however. Other acquitted defendants who agreed to speak with him, or who testified before a grand jury, were re-indicted for lying when he disagreed with what they said. Sworn affidavits filed by Dr. Al-Arian’s Tampa lawyers detail scurrilous anti-Muslim diatribes by Kromberg in which he states he is using his prosecutorial power to prevent the “Islamization” of America.
In light of this pattern of bias and abuse of power by Assistant U.S. Attorney Kromberg, Dr. Al-Arian’s lawyers have instructed him not to answer any questions before the Kromberg-controlled grand jury and to insist that the “Justice” Department respect its May 2006 agreement.
Dr. Al-Arian embarked on his hunger strike the moment that Alexandria, VA Federal District Judge Gerald Lee endorsed Kromberg’s actions by holding Dr. Al-Arian in “contempt of court” for insisting that the Justice Department respect the agreement that made it possible to “resolve” the case last May. The judicial rulings are being challenged on appeal, and will eventually succeed.
The problem is, however, that while Dr. Al-Arian is being held on “contempt,” the original criminal sentence is not running. Moreover, after the first contempt finding he might still continue to be held for 18 or 36 months under “civil contempt”—and for much longer if Kromberg chooses to charge him with “criminal contempt.” Despite the “promise” that he would be released in May 2006, Dr. Al-Arian could well be held in prison for years!
Any way you look at it, Mr. Kromberg’s bosses, Alberto Gonzales and George W. Bush, are either permitting a “rogue prosecutor” to violate the law with impunity, or they have a prosecutor who is carrying out their policies. In either case, the “promise” to release Dr. Al-Arian in May 2006 has turned out to be a lie….but, after the lies used to justify the invasion of Iraq, perhaps this should not be surprising.
Peter Erlinder is appeals counsel for Dr. Sami Al-Arian and a professor of law at the William Mitchell College of Law in St. Paul, MN.
SIDEBAR
An Open Letter to Attorney General Alberto Gonzales
Feb. 21, 2007
Dear Mr. Gonzales:
After 10 years of federal investigation and a six-month trial, a Tampa, Florida jury found Dr. Sami Al-Arian NOT GUILTY of violent “terrorism” charges, but “hung” 10-2 for acquittal on remaining nonviolent charges in December 2005.
- Rather than dropping all charges, the Justice Department threatened to continue Dr. Al-Arian’s solitary confinement, pending re-trial.
- On May 1, 2006, the Justice Department agreed, on the public record, to release Dr. Al-Arian immediately, and to assist his voluntary departure from the U.S. without other conditions, in exchange for a guilty plea to a nonviolent offense.
- Despite specific assurances to the contrary by the magistrate judge, the Tampa trial judge prevented Dr. Al-Arian’s immediate release and deportation by the same charges rejected by the jury acquittal. [This rejection of the jury system is being appealed to the Supreme Court.]
- In November 2006 and January 2007, the Justice Department took advantage of the judge’s ruling and changed its position by attempting to force Dr. Al-Arian to testify before a grand jury.
- On Jan. 22, 2007, Dr. Al-Arian began a hunger strike to protest the failure of the Justice Department to keep its May 1, 2006 promise, which induced the guilty plea in the first place.
- The assistant U.S. attorney in the Eastern District of Virginia responsible for violating the Justice Department promise is on record as stating that he is using his position to prevent the “Islamization of America.”
- Even under the “acquitted conduct” sentence imposed by the Tampa judge, Dr. Al-Arian should be released in April 2007, at the latest!
Mr. Gonzales, you have the power to live up to your Department’s promise and to release Dr. Al-Arian for voluntary departure from the U.S. with the stroke of your pen.
KEEP YOUR PROMISE—RELEASE DR. AL-ARIAN NOW!
Respectfully,
Prof. Peter Erlinder
Counsel on Appeal for Dr. Al-Arian
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