How the US falsely accused a Palestinian teacher of aiding terror

On 27 June, the US Department of Justice finally dropped all charges against Dr. Sami Al-Arian.

The government’s motion to dismiss the six-year-old indictment minces few words: “In light of the passage of time without resolution, the United States has decided that the best available course of action is to move to dismiss the indictment so that action can be taken to remove the defendant from the United States.”

For Al-Arian, the Palestinian activist and former University of South Florida professor, the date marked a bittersweet end to a protracted legal battle lasting more than eleven years. Caught in a vengeful, criminal justice system that has gone awry since the 11 September 2001 attacks, he spent more than five years in prison, much of that in solitary confinement, and four and a half years under house arrest.

“This case remains one of the most troubling chapters in this nation’s crackdown after 9/11,” wrote Jonathan Turley, Al-Arian’s lawyer for the past eight years. Unfortunately, Al-Arian’s case offers only one example of how government policies, under both the George W. Bush and Barack Obama administrations, have fundamentally altered the judicial system and our understanding of due process.

Declared innocent

A son of Palestinian refugees, Sami Al-Arian grew up in the Middle East and immigrated to the United States in 1975 to earn his doctorate in computer engineering. He settled with his wife Nahla in southern Florida where he raised five children and became a tenure-track professor at the University of South Florida (USF).

He excelled in his new American homeland, winning outstanding teaching awards and traveling the country to speak about the Middle East, interfaith dialogue and civil rights. He was especially vocal against the use of secret evidence — a cause for which Newsweek magazine would name him a premier civil rights activist in 2001. Ironically, that same limelight would make him a target of the very civil liberties abuses he sought to combat.

In 1994, Steve Emerson, founder of The Investigative Project on Terrorism, produced “Terrorists Among Us: Jihad in America,” a documentary warning of imminent Muslim violence in America. It specifically attacked Al-Arian, accusing him of setting up the World and Islam Studies Enterprise as a front for terrorism.

A few months later, Michael Fechter of The Tampa Tribune followed with an equally disparaging piece, framing Al-Arian as a terrorist mastermind. The smear campaign spiraled out of control. The FBI raided Al-Arian’s home and offices to search for potentially incriminating evidence — it found nothing.

During this time, USF placed Al-Arian on administrative leave for two years. He returned innocent, but with a publicly damaged reputation.

Fearful climate

On 11 September 2001, America and the world grieved for the nearly 3,000 lives lost on that tragic day. As evidence emerged that the perpetrators were of Arab origin, Muslim-Americans, along with other minority groups, came under public attack.

FOX News pundit Bill O’Reilly invited Al-Arian, as a community leader, to discuss the reactions of Muslim-Americans on his FOX News show. Within the first few minutes, it became clear that O’Reilly had other intentions.

O’Reilly barraged Al-Arian with questions about his personal associations. O’Reilly closed the interview by telling Al-Arian: “If I was the CIA, I’d follow you wherever you went. I’d follow you 24-hours.”

O’Reilly was picking up where Fechter had left off, and, in America’s fearful climate, his insinuations took on an authoritative conviction.

Less than a month later, USF President Judy Genshaft placed Al-Arian on administrative leave, citing concern for “campus security” — ostensibly because of the death threats the professor had received following the O’Reilly fiasco. Soon after, Genshaft announced her intent to fire Al-Arian.

The United Faculty of Florida, a union representing many USF professors, lambasted the university for its decision and decried the violation of academic freedom. The case garnered national attention and impelled the American Association of University Professors to threaten to censure the university.

US Attorney General John Ashcroft interrupted the sixteen-month controversy on 21 February 2003. He announced a US Department of Justice terrorism investigation implicating eight men in conspiring to aid the Palestinian group Islamic Jihad, which the US had designated a “foreign terrorist organization.”

In a chilling nationally televised news conference, Ashcroft hailed the Patriot Act as pivotal in gathering evidence to indict Al-Arian as the North American leader of Islamic Jihad.

“The individuals named in this indictment play a substantial role in international terrorism,” Ashcroft charged (in a statement now removed from the Justice Department’s website). “They are ‘material supporters’ of foreign terrorist organizations. They finance, extol and assist acts of terror,” he stated.

Ashcroft’s iron conviction was no surprise: a recent study, conducted by the National Coalition to Protect Civil Freedoms and Project Salam found that nearly 95 percent of individuals on a Department of Justice list of “terrorism and terrorism-related convictions” between 2001 and 2010 were preemptive prosecutions.

This means the defendants were pursued because of their beliefs, ideology, or religious affiliation. In a frenzy-fraught landscape, a fundamental US legal principle was flipped on its head: “Guilty, until proven innocent.” A week later, USF fired Al-Arian.

Cruel conditions

As the government built its case, Al-Arian and his co-defendants languished in prison for 37 months. Attorneys and human rights activists (including Amnesty International) raised concern over cruel prison conditions and violations of the Sixth Amendment, which guarantees defendants the right to a fair and speedy trial.

Finally, on 6 June 2005, the US Department of Justice presented more than 80 witnesses, including more than two dozen flown over from Israel, 400 transcripts of intercepted communications, and 472,239 telephone calls on eighteen tapped lines.

Much of the prosecution’s case rested on depicting violent acts perpetrated by the Islamic Jihad movement — acts which the government conceded had no direct involvement from the defendants.

The government’s expanded powers under the Patriot Act had lowered the bar for what was considered legitimate evidence of “material support for a foreign terrorist organization” and given the court access to an unprecedented wealth of surveillance data, including phone recordings of pizza deliveries from as far back as 1994.

On the other hand, Al-Arian’s defense did not call a single witness; instead, they rested their case on the First Amendment, the right to free speech. Despite the mountain of information presented, the jury acquitted Al-Arian on eight of seventeen counts, and remained deadlocked on the remaining nine, splitting ten-to-two in favor of acquittal.

Testimony from one of the jurors (seen in this video) attested to the irrelevance of much of the evidence: “That was when I first started to realize that I don’t think the government has the case that they were trying to give us,” the juror said. “They were going to a very extreme area to try to convince us of their [the defendants’] guilt. That was when I saw a side to the … prosecution that I just thought was less than fair, less than honest.”

According to Laila Al-Arian (an Al-Jazeera journalist who is also Sami’s daughter), when asked why he voted to acquit on all charges, another juror simply answered, “I didn’t see the evidence.”

The case cost the government an estimated $50 million. Although no charges stuck, the deadlocked indictments made retrial a possibility.

The prosecution threatened a lengthy retrial, during which Al-Arian would have to stay in prison. In the hopes of escaping an indefinite legal battle that would keep him in jail, Al-Arian opted to plead guilty for one of the less serious charges, which accused him of sending money to a Palestinian charity before the US government made it illegal to do so.

The judge gave him a 57-month sentence, most of which he had already served, with the promise of deportation by April 2007.

Catch-22

A few weeks later, federal prosecutor Gordon Kromberg, of the Eastern District of Virginia, issued a subpoena to require Al-Arian to testify in a case investigating a Muslim think tank.

Al-Arian was caught in a Catch-22 — if he testified, he would likely have argued that the Muslim think tank was not guilty of the charges made against it. Should the think tank have been found guilty, Al-Arian could then be charged with perjury.

If he refused to testify, Al-Arian was in danger of criminal contempt.

Kromberg was no amateur to this double jeopardy tactic.

In another 2004 terrorism case, George Mason University graduate Sabri Benkahla was acquitted on all counts. Kromberg, unsatisfied with the decision, summoned Benkahla to testify to a grand jury; soon after, Kromberg charged him with perjury.

Benkahla is still serving a ten-year sentence in an isolation unit, despite being classified a minimum-security prisoner.

Al-Arian’s attorneys argued that his plea deal protected him from having to testify in response to Kromberg’s subpoena. Meanwhile, the Fourth Circuit and the Eleventh Circuit Court of Appeals sided with the government, paving the way for a criminal contempt indictment in March 2008 in the Eastern District of Virginia.

The courts found that, although Al-Arian had been verbally promised exemption from cooperation in future government cases, the agreement was not explicitly worded in his plea deal. Federal District Judge Leonie Brinkema was openly skeptical of the US Department of Justice’s tactics. “I think there’s something more important here, and that’s the integrity of the Justice Department,” she said.

Hunger strike

Following the contempt indictment, Al-Arian undertook a second hunger strike to protest the charges and his dismal prison conditions, losing more than fifty pounds. Over the next year, he was issued with two more subpoenas.

In a statement released through his family, he said, “When the system is manipulated by the powerful, and tolerates abuses against the minorities or the weak members of society, the government not only loses its moral authority and betrays future generations, but will also be condemned by history.”

On 24 March 2009, Al-Arian’s attorneys filed the first of many motions to dismiss the contempt indictment in federal court in the Eastern District of Virginia. The government responded on 7 April 2009 and a hearing was scheduled for 23 April 2009, only to be canceled the night before.

“It is hereby ordered,” reads Judge Loenie Brinkema’s note, “that the hearing on the defendant’s motion to dismiss the indictment be and is canceled. The court will issue a written opinion on the motion in the near future.”

More than eighteen months transpired before a subsequent hearing was scheduled for 29 October 2010, only to be canceled again the day before. Much of the same perplexing back-and-forth continued over the next four years.

Numerous procedural motions appeared on Judge Brinkema’s docket (seeking to alleviate the terms of Al-Arian’s house arrest to allow him to attend two of his daughters’ weddings, his son’s college graduation, and even the funeral of one of his lawyers) but no written opinion followed and his case remained in limbo, until the government finally moved to dismiss on 27 June 2014.

Reading the case files is an exercise in bewildering consternation. How did a man who was never convicted by a jury of his peers end up serving five years in prison and four and a half years under house arrest? Several lawyers we consulted point to the unique nature of the case, perhaps unprecedented even in the annals of bizarre government judicial practices since 11 September 2001.

Even those who would otherwise be cheerleaders for the government in such cases questioned the Justice Department’s conduct in the case.

Daniel Ruth of the Tampa Bay Times was hardly alone when he wrote in May: “The United States prosecutes and imprisons all manner of dreadful people, who serve their sentences and are eventually released. That’s the way the system is supposed to work — for everybody. But in this case, the government has opted to ham-handedly turn an aider and abettor of terrorism into a cause célèbre for jurisprudential martyrdom.”

Lone bulwark

One peculiar nuance of Al-Arian’s case might be the role of a federal district judge as a lone bulwark against a Justice Department gone wild. While it was her gavel that repeatedly extended Al-Arian’s pre-trial period, it may also have been Judge Leonie Brinkema’s activism that kept Al-Arian away from a guilty verdict for criminal contempt — a charge which has no definitive stipulated punishment and may have condemned him to many years in jail.

By stalling the criminal proceedings, she may have out-waited the government and forced them to move to dismiss the case. Now Al-Arian awaits deportation, but with the rapidly changing political situation of many Middle Eastern countries, even that may face sustained delays.

While Al-Arian’s tale is a grim one, it still ends with the possibility of a future for its victim. The same is not true for many other targets of the US Department of Justice, who will spend many years, and some a lifetime, in prison on questionable charges.

Ahmed Omar Abu Ali, a 32-year-old Egyptian-American, is serving a life sentence for charges relying on statements he made while tortured, whipped and repeatedly beaten by Saudi authorities. Yassin Aref, a Kurdish immigrant with limited English fluency, was targeted and entrapped in an FBI sting operation because the name “Yassin Aref” appeared in a notebook found by US forces invading Iraq in 2003.

“National paranoia”

Times Union columnist Fred LeBrun, who followed Aref’s trial closely, wrote, “Someday we’ll look back on the present national paranoia over terrorism and the excesses done in its name with the same national embarrassment that Americans feel for Senator Joe McCarthy’s communist witch hunts of the 1950s and our appalling treatment of Japanese-Americans during World War II.”

The ongoing manufactured national hysteria over terrorism has profound implications. Not only does it perpetuate the national security state with its attendant symptoms of targeted spying, suspension of habeas corpus, FBI entrapment and assassinations, it allows for the US to overlook atrocities committed by Israel and funded by our tax dollars, with many Americans content to believe that anything goes in the “war on terror.”

How do we protect our communities from politically charged civil rights abuses? This question strikes at the heart of our precarious situation as Muslim-Americans — caught between the desire for what sociologist Sohail Daulatzai calls “honorary whiteness” and the promptings of the activist elements of the Islamic tradition.

Even when we do find our voice, it seems, it remains a localized call for justice on issues that affect “our” communities.

Thus, while many Muslims speak out about Palestine or Kashmir or the drone wars, few are those who stand for broader immigrant rights or speak about the plight of the working class or the pernicious effects of corporatization and monoculture. Until we move beyond tired tropes such as the White House iftar and the Mipsterz video and seriously, critically, engage the society around us, we will likely continue to get the justice we deserve.

An earlier version of this article was published in the September - October 2014 issue of Islamic Horizons. Reprinted with permission.

Khadijah Qamar is a recent graduate of Georgetown University’s School of Foreign Service.

Hamdan Azhar, a data scientist in New York, writes about culture, politics and technology.

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United States has been morally bankrupt country always when it comes to their "justice" system. Public prosecutors using court cases as springboards to political careers is just one the reasons why "justice" so rarely happens in cases like this. To be an Arab or Muslim and to be accused of terrorism in the USA means that you are certain to be convicted one way or another, but this doesn't trouble 99 % of "Americans", who just sing their old song how they have the "Best Justice System in the World" - like they did during the Jim Crow era lynchings. It's a rotten country and it's justice system, like every other part of it's system of governance, seems to successfully oppose all attempts at reform.