Sami al-Arian is no hero. Evidence introduced at his 2005 federal terrorism
trial contradicted his claims that he was just a peace-loving academic targeted
by U.S. prosecutors solely for his outspoken advocacy of Palestinian rights.
In reality, according to wiretaps and letters, al-Arian had praised suicide
bombings conducted by the terrorist group known as Palestinian Islamic
Jihad ; he’d raised money for the bombers’ families, offered to manage PIJ’s
finances and exhorted its supporters to “damn” the
U.S. and Israel “until death.”
Unfortunately for U.S. prosecutors, none of that actually made al-Arian a
terrorist — PIJ’s North American leader, they insisted — which is why in 2005 a jury
in Tampa, Fla., acquitted the former computer engineering professor on eight
charges and deadlocked on nine others. It was one of the Bush
Administration’s sharpest humiliations and a glaring example of its chronic
overreach in post-9/11 terrorism cases. And critics say what happened next in the al-Arian
case was just as bad, a classic illustration of how the Bush government’s ethical
breaches, disdain for due process and perhaps anti-Muslim bias often turned
unsavory terrorism cheerleaders into international martyrs.
More than three years after the conclusion of al-Arian’s trial, his legal
saga drags on. After spending most of that time behind bars, he is now
under house arrest at his daughter’s home in Virginia. But a U.S. district judge in Alexandria, Va., Leonie
Brinkema, may be putting the brakes on al-Arian’s ordeal, and is questioning
the Justice Department’s tactics in prolonging it. “I think there’s
something more important here,” Brinkema said during a hearing last week,
“and that’s the integrity of the Justice Department.”
Brinkema’s focus is the plea deal al-Arian signed in 2006 to avoid a retrial on the deadlocked
terrorism charges. Under its terms, al-Arian, 51, a Kuwait-born Palestinian
who since 1986 had been an instructor at the University of South Florida in
Tampa, pleaded guilty to one count of conspiracy and was, after taking time already served into account, to be deported nearly immediately. But a federal prosecutor in Virginia evidently had no
intention of allowing al-Arian to leave the country. Unbeknownst to defense
lawyers at the time, Assistant U.S. Attorney Gordon Kromberg was preparing
to subpoena al-Arian in a separate case.
Instead of being sent back to the Middle East, al-Arian was called by
Kromberg to testify before a grand jury looking into a Virginia-based
Islamic think tank, the International Institute for Islamic Thought .
But because he believed Kromberg’s subpoena violated his plea agreement,
al-Arian refused to cooperate. Last year, as a result, he was indicted for
criminal contempt. All the while, despite his controversial history, his case
has become a cause celebre among civil rights activists and he has staged at
least two hunger strikes.
What defense lawyers say is particularly shocking is the revelation —contained in a court document filed by the government last week in response to the court’s request for evidence regarding plea negotiations — that the Tampa-based federal prosecutors who had negotiated the plea agreement were aware of Kromberg’s plans but never disclosed them. “Lawyers have the obligation to
each other to reveal [that kind of information] before someone signs away
his liberty,” al-Arian defense attorney Jonathan Turley said in last week’s
hearing, “particularly after he was just acquitted on a number of counts
before a jury.”
Kromberg also revealed last week for the first time that the prosecutors who
had tried al-Arian in Florida did not want their Virginia colleagues to
proceed with the subpoena, but kept quiet about it anyway. One possible
reason, say defense lawyers: had the defense team known their client would
be compelled to testify in a separate case, the plea deal might have crumbled, denying the
Tampa prosecutors even that one conviction. The U.S. Attorney’s offices in
Florida and Virginia would not comment when contacted by TIME, and the
reasons for their actions in the case may never be officially disclosed:
federal prosecutors refuse to hand over to the court internal communications regarding
the 2006 plea-deal negotiations and the Virginia subpoena.
Turley charged last week that prosecutors had “negotiated in bad faith. It’s
the type of behavior that doesn’t just shock the conscience of a court. It
makes it impossible for defense attorneys and prosecutors to work.” Kromberg
insisted there were no ethical lapses and said Florida prosecutors didn’t
care “a whit” about what was going on in Virginia, appearing to contradict his earlier statement that the Florida prosecutors didn’t want their Virginia colleagues to subpoena al-Arian. “There was no
collaboration between Florida and Virginia,” he said. Besides, Kromberg
noted that when the federal judge in the 2005 trial sentenced al-Arian on the
one count to the maximum 57 months instead of the expected 46 , it
kept al-Arian in the U.S. for another year and allowed the Virginia office
to move ahead with its subpoena.
But Kromberg himself is also at issue in the case. A 16-year Justice
Department veteran known for taking on high-profile terrorism cases, he’s
been accused of making anti-Muslim slurs. A 2006 affidavit filed by Tampa
attorney Jack Fernandez, who served on al-Arian’s defense team, alleges that Kromberg
refused to delay a hearing scheduled to take place during the Muslim holiday
of Ramadan. “If they can kill each other during Ramadan, they can appear
before the grand jury,” Kromberg said, according to the affidavit. “All they
can’t do is eat before sunset. I am not going to put off Dr. al-Arian’s
grand jury appearance just to assist in what is becoming the Islamization of
America.”
Kromberg has not commented publicly on the affidavit, and his office told TIME that neither he nor anyone else there would have anything to say on the matter; prosecutors have not yet
said whether they’ll press ahead now on the criminal contempt charges
against al-Arian. Last week, Judge Brinkema gave the defense the go-ahead to
file a motion to dismiss those charges. “I think there are significant
questions about what actually happened,” she said. “The Justice Department
is not a fishmonger.”
Brinkema presided over the 2006 trial and conviction of 9/11 conspirator Zacarias Moussaoui. When the jury in that case sentenced Moussaoui to life in prison instead of death, Brinkema told
him he would “die with a whimper” behind bars. U.S. prosecutors could have
sent Sami al-Arian out of the country in disgrace three years ago. Instead,
they seem to have turned a man who has rooted for suicide bombers into a man many
justice advocates are rooting for.
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