– On Monday, Dr. Sami Al-Arian’s attorneys filed in federal court a motion replying to the government’s brief which opposes Dr. Al-Arian’s original motion (filed three weeks ago) to have the criminal contempt charges against him dismissed.

Prosecutors seem to hope that sheer repetition will be the key to prevailing in this legal dispute. In their opposition motion, they had nothing new to say that had not already been stated in their last four filings and three hearings.

Judge Leonie Brinkema has already rejected at least four requests asking her to reverse her decision compelling the government to present evidence related to the 2006 plea negotiations. Despite this, the government has repeatedly refused to submit a single sworn statement or declaration.

Instead, even in the face of a motion to dismiss, the government has refused to address the facts of the plea negotiations, a deliberate exclusion which, according to the judge, leaves a “very significant cloud over this criminal prosecution.”

In their motion, prosecutors essentially told the judge that they would rather face a dismissal than address the facts surrounding the plea negotiations. Should the charges be dismissed, the government will be required to finally fulfill its promise to end Dr. Al-Arian’s case – albeit after extending his confinement by almost three years beyond the agreed sentence.

In response, the defense has filed a motion arguing that the un-rebutted declarations of Dr. Al-Arian and his trial attorneys, Bill Moffitt and Linda Moreno, constitute conclusive evidence of government overreach. The Supreme Court has determined that when the government breaks its promise in plea deal negotiations, such violation requires an appropriate response, such as dismissal of the case or withdrawal of the plea.

The defense motion also states that even if the case goes to trial, the government must still prove Dr. Al-Arian had acted willfully. But “because Dr. Al-Arian believed his plea agreement relieved him from testifying before the grand jury, his conduct before the grand jury did not constitute a willful violation” of the judge’s orders.

The motion further states that the law on this matter is clear: “To support a conviction of criminal contempt for violation of a court order, the government must prove beyond a reasonable doubt that a person willfully, contumaciously, intentionally, with a wrongful state of mind, violated a decree which was definite, clear, specific, and left no doubt or uncertainty in the minds of those to whom it was addressed.” Given the fact that the government has completely failed to provide the court with any evidence that refutes the affidavits provided by the defense, the motion has called for a dismissal of the charges.

Finally, the motion concludes that if the government can simply refuse to supply the information requested by the judge and still prosecute an individual, then the criminal justice system as a whole offers little constitutional protection. In so arguing, the government has left the court with the prospect of creating a precedent to fulfill the very dangers that the judge has warned of in prior hearings. Judge Brinkema had previously stated that: “I think the integrity of the Justice Department and the integrity of the criminal justice plea bargaining process is too significant to just let it die on the vine given the nature of the record before this Court.”

Let us hope that justice will soon be served.

Dr. Al-Arian is being represented by a distinguished legal team led by George Washington Law professor Jonathan Turley, and including Will Olson and P.J. Meitl of Bryan Cave.

Friday Hearing!