Source: The Nation Magazine
TIM ROBINSON
For a while, the phone stopped ringing. Not completely—reporters called, but many old friends did not.
That’s how my mother remembers the days following my father’s arrest on terrorism charges in February 2003. At dawn, a team of FBI agents and police, clad in black uniforms, descended on my family’s three-bedroom apartment in Tampa, Florida. They arrested my father and carted away dozens of boxes filled with our personal possessions, from school report cards to laptop computers and journals.
My father, Sami Al-Arian, a professor at the University of South Florida, was indicted on fifty-three counts of supporting the Palestinian Islamic Jihad, which had been designated by the government as a terrorist group. The conspiracy case, which involved three other Palestinian men, was based largely on my father’s charitable contributions, associations, speeches and other First Amendment–protected activities. Prosecutors would introduce as evidence books my father owned, magazines he edited, conferences he organized and, particularly bizarre, a dream one of his co-defendants had about him. My father faced multiple life sentences plus 225 years if convicted. The charges against him included conspiracy to kill and maim persons abroad, yet prosecutors freely admitted that my father had no connection to any violence.
As the government built its case against my father, FBI agents interrogated one Muslim family after another. Overwhelming fear pervaded the community. My father, a pillar of that community, had founded and run an Islamic school near the mosque where he also led prayers. After the arrest, my mother, Nahla, was asked to withdraw my younger siblings from the school that she and my father had worked so hard to build. Returning for a visit, my mother was asked what she was doing there. Shopping for groceries, she saw a longtime friend turn her back to avoid talking to her. “It was shocking and depressing,” my mother recalls.
One day my mother read a letter to a local newspaper that condemned my father’s harsh prison conditions and the one-sided media coverage of his case. The author said my father had the right to a presumption of innocence, adding, “History will teach us that what can happen to one man can happen to any of us. Are we going to sit back and watch, or are we going to speak up?” The letter was signed by Melva Underbakke, a peace activist and English language instructor who also worked at the University of South Florida. My mother called to thank her. They became friends, and Mel, as she became known to us, formed a group called Friends of Human Rights to support my father.
Mel introduced his case to her fellow congregants at the progressive First United Church of Christ. Many joined the cause, including the church’s minister, the Rev. Warren Clark, who began visiting my father weekly in a ritual he dubbed “Tuesdays with Sami.” The two men exchanged jokes, as well as stories from the Koran and Bible about perseverance in adversity.
My father’s trial lasted six months. Prosecutors presented seventy-five witnesses, including nearly two dozen from Israel. Their testimony centered on attacks that even the US government acknowledged my father had nothing to do with. The prosecutors also introduced 400 phone calls out of nearly half a million that the FBI had recorded over a decade of relentless, indiscriminate surveillance of my family. My father’s attorneys did not call a single witness: their defense was the First Amendment.
“This was a political case, discriminatory both in its selection of Dr. Al-Arian as a Palestinian Muslim and of his critical speech against Israel,” said Linda Moreno, one of my father’s trial attorneys. “The case was about speech, popular to some and unpopular to others.”
Outside the courthouse, Friends of Human Rights held weekly protests under the scorching Florida sun, carrying banners that read “Everyone Deserves a Fair Trial” and “Charity to Orphans and Widows Is Not a Crime.” Inside the courthouse, my siblings and I studied the jurors, looking for signs of how they would decide. We dreaded the day they would return a verdict, but Mel was optimistic. Taking walks on the boardwalk and along the nature trails of a neighborhood park, she would reassure my mother that the jury would find my father innocent.
On December 6, 2005, they did just that, acquitting my father on eight of seventeen counts and voting ten to two to acquit him on the rest. The judge, who did not disguise his bias in favor of the prosecution, initially instructed the jurors to keep deliberating, but on realizing that they were leaning toward acquittal, he reversed course and told them to stop. When one juror was asked why he didn’t vote to convict, he stated simply, “I didn’t see the evidence.”
It’s been nearly a decade since my father’s case began, yet he has been under house arrest since 2008. A Virginia prosecutor, Gordon Kromberg, created a pretext to bring new charges against him by calling him to testify before a grand jury investigating a Muslim think tank. It’s the same strategy Kromberg used in the case of Sabri Benkahla, a Virginia man who was acquitted in a 2004 terrorism case: unhappy with the result, Kromberg summoned Benkahla to testify before a grand jury and then charged him with making false statements. Benkahla was sentenced to ten years in prison.
This potential perjury trap put my father in a Catch-22 that violates the plea agreement he made in Florida: testify and possibly be charged with perjury; refuse and be charged with criminal contempt. My father insisted on upholding his plea deal, filing to dismiss the case based on the fact that the government had reneged on its promise to end all dealings with him, including forcing him to cooperate in other cases. My father is now waiting for a judge to rule on whether the case will proceed.
In the meantime, Mel has continued to advocate on behalf of those she believes were wrongly accused of terrorist activities in the wake of 9/11. She has traveled across the country to screen the award-winning documentary, USA vs. Al-Arian, about my father’s case, as well as to speak, often before church groups, about other cases. Mel says she does not think unfair prosecutions, such as those based on speech and association, will be confined to Muslims.
“I think everybody is at risk at this point,” she said. “If we all speak up together, then we’re all safer.”
* * *
My father was not the only Palestinian activist targeted after 9/11. Three months after the attacks, the Bush administration shut down the largest Muslim charity in the United States. The Holy Land Foundation for Relief and Development focused much of its efforts on giving aid to Palestinians living under occupation in the West Bank and Gaza (though the group was also active in the United States as well as in many other countries, including Bosnia and Turkey). But in 2004 the group and its officials were charged with forty-two counts, including providing material support to a foreign terrorist organization (Hamas), tax evasion and money laundering.
The trial against the Holy Land Foundation (HLF) was considered the largest terrorism financing case in US history. Yet prosecutors did not argue that the charity or any of its officials were involved in violence, either through funding or direct participation. Instead, they told jurors that the charity sent money to schools, hospitals and social welfare programs controlled by Hamas, which has been listed as a terrorist organization by the State Department since 1997. The prosecutors argued that since money is “fungible,” those donations freed up other funds for Hamas to use in violent attacks.
The problem with this argument is that these same Palestinian charities also received donations from organizations like the US Agency for International Development and the International Red Cross. Hadi Jawad, a member of Hungry for Justice, an umbrella group of HLF supporters, said the government has taken sides in the Palestinian-Israeli conflict through its prosecution of the HLF. “It’s about demonizing an entire people,” Jawad told me. “They’re saying that [Palestinians] are not worthy of aid and help, even when they’re destitute, hungry and need medical attention.”
Noor Elashi is the daughter of one of the HLF defendants, Ghassan Elashi. She was 18 when her father was arrested. “I saw my father being pushed into the police car,” she recently recalled. “He told me, Keep your head up high, because your father did nothing wrong.”
Noor says the Muslim community was largely supportive, organizing a dinner in honor of the men a few months before trial. “It was a little surreal,” she said. “People stood in a long line to hug each member of the ‘Holy Land Five’ and just said their goodbyes.” People believed in the men’s innocence but were skeptical that they would be given a fair trial.
Despite the show of support, Noor, too, experienced isolation after her father’s arrest. “Someone is not going to have a conversation with you about why they’re not contacting you anymore,” she said. “A lot of it is silence. That’s how people deal with it: they say nothing. And sometimes saying nothing is the worse thing they can do.”
The first attempt to try HLF officials, in 2007, ended in a mistrial after jurors could not reach a consensus. (According to interviews, most wanted to acquit.) But after a retrial a year later, five HLF officials were convicted on more than 100 charges and sentenced to up to sixty-five years in prison.
Since then, attorneys have appealed the case based on a number of questionable occurrences during the trial, including the judge’s decision to allow testimony from an anonymous Israeli intelligence agent, introduced to jurors simply as Avi, who claimed that he could “smell” Hamas. It marked the first time in US legal history that an expert witness was allowed to testify under a concealed identity. In another highly unusual move, prosecutors unveiled a list of more than 300 unindicted co-conspirators involved in the case. Such identities are normally kept secret under the Justice Department’s guidelines. Many Muslim community leaders and the majority of American Muslim institutions were on the list, including the Council on American-Islamic Relations (CAIR), a civil liberties advocacy group. Soon after, the FBI cut off its outreach dialogue with the group, hampering its own investigations.
“The problem with being put on a list like that is you have absolutely no legal recourse to clear your name,” CAIR spokesman Ibrahim Hooper told me. “With a stroke of a pen, you’re put on a list, and there’s nothing you can do about it. Our detractors have seized on it and repeated it ad nauseam.”
One legacy of the Holy Land trial is the Muslim Legal Fund of America, founded by Texas Muslims in the Dallas suburb of Richardson. Khalil Meek, the co-founder and executive director, compares the group’s mission to that of the NAACP’s legal defense fund. “We take cases that we think have the most impact on the Muslim community and support litigation that’s greater than the individual,” he said. The fund raised $2 million last year; in May it opened chapters in Chicago, Newark, Los Angeles and Washington, with plans to start eight more by early next year. It is also underwriting the National Security Defense Project, based in Texas, which Meek hopes will be a resource center for defense attorneys working on terrorism cases around the country. Meek says that while other American Muslim groups focus on advocacy and education, tackling issues like workplace discrimination, the founders of MLFA realized that no institution was handling criminal cases. As the government pursues more cases targeting Muslims, the need for legal advocacy has increased, inspiring the formation of similar groups across the country. These include the National Coalition to Protect Civil Freedoms, Project Salam and the Muslim Justice Initiative.
* * *
This legal advocacy infrastructure is an important outgrowth of the post-9/11 era. In November 2001, Vice President Dick Cheney created the “1 percent doctrine,” which held that if there is even “a 1 percent chance” that a threat is real, “we have to treat it as a certainty in terms of our response.” As policy, this has led to innocent Muslims being framed or entrapped in plots wholly manufactured by the FBI.
One of the most egregious cases took place in Albany, where a local imam—a Kurdish immigrant named Yassin Aref—found himself in the wrong place at the wrong time. The case began with a notebook, discovered in 2003 in the wreckage of a bombed-out encampment in Iraq. Aref’s name was on one of the pages, alongside the Kurdish word kak, which US authorities translated as “commander.” (It actually means “brother.”) With that, Aref was suddenly a government target. The FBI enlisted the help of Shahed Hussain, an informant facing deportation for fraud who has since been involved in several other sting operations throughout the Northeast. Hussain approached a friend of Aref’s, Mohammed Mosharref Hossain, and offered him a loan of $50,000. After giving him the money, Hussain told him it had come from the sale of a missile to be used in an attack against the Pakistani ambassador to the United Nations. That, too, was part of the FBI sting.
Aref, knowing nothing about the supposed missile sale, was asked to witness the loan payment. The informant spoke in code, using the word chaudry—a common South Asian surname—to refer to the missile. Aref was arrested and, in March 2007, sentenced to fifteen years in prison on terror charges, including support for a foreign terrorist organization and money laundering.
“It’s fabricated police work,” says Andrew Shryock, a University of Michigan professor, regarding these types of prosecutions using government informants. “And the disturbing thing is not that it produces arrests but that the public tolerates it.”
Aref’s case galvanized peace activists in Albany, who held vigils and wrote letters to the judge calling for Aref’s release. Among them was Steve Downs, a former attorney for New York state, who volunteered in his defense. The day after Aref’s conviction, he visited his client in prison. “He looked at me and said, ‘I want to fire you as my lawyer,’” Downs told me, smiling. “But he said, ‘I want to hire you as my brother.’ He said, ‘I don’t have any family in this country, and I need family more than I need lawyers.’”
Downs and the Muslim Solidarity Committee, as the mostly non-Muslim Albany activists called themselves, raised thousands of dollars to help cover the rent for Aref’s wife and four children. Downs and others also drove Aref’s children to visit their father in prison, fourteen hours away in Indiana.
“I’m not sure I would’ve had the guts to do any of this by myself,” Downs says of the activism around Aref’s case, which drew strength from the number of people involved. Now 70 and retired, Downs says his profession long discouraged him from involvement in political causes, so that for twenty-eight years, he was in a “cocoon.” Today, he is glad to have broken free of it.
“When I was 3 years old, my father died in World War II,” he recalls. “He was a Navy doctor. Later, I asked my mom, ‘Why did he die?’ She would say, ‘Well, there was this war—the Nazis came to power in Germany.’ I would ask, ‘How did Hitler come to power if he was so bad?’ And she would say, ‘Because good people who could have stopped him didn’t do anything.’
“A lot of time growing up, I was angry at good people who didn’t do anything,” Downs says. “Until one day, I realized I was one of those people.”
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