To hear Sami Al-Arian and his defense attorneys tell it, his 2006 plea negotiations with federal prosecutors hinged on one overarching issue - his desire to "end all of the Department of Justice's dealings" with him. In their view, subpoenas compelling his testimony before a Virginia grand jury investigating terror financing after entering his plea violate that wish.
"Uncontroverted" seems to mean "because they say so." There is no reference to such a pledge in the plea agreement, during the April 2006 hearing in which the guilty plea was accepted, or during his sentencing. At both hearings, the presiding judges asked whether the government made any other inducements to secure the plea. Neither Al-Arian nor his attorneys mentioned the issue that now is described as the most vital element.
In the plea, Al-Arian admitted he conspired to provide goods and services to the Palestinian Islamic Jihad after the group was designated a foreign terrorist organization.
He has made the exact same argument on previous occasions; the argument was rejected by the presiding judge who sentenced Al-Arian, by the Virginia federal judge who signed the civil contempt orders, and by the respective appellate courts over Florida and Virginia.
Based on previous hearings, however, the claim has traction in U.S. District Judge Leonie Brinkema's Alexandria, VA courtroom. In Brinkema's through-the-looking-glass approach, prosecutors are being asked to disprove allegations that are unsupported by anything beyond defense repetition.
Prosecutors gave it their best shot with a 43-page response to the motion to dismiss. It emphasizes two principal arguments.
- Defense attorneys utterly failed to present evidence that any prosecutor ever discussed a plea agreement binding prosecutors in other districts, in other states, from compelling Al-Arian's truthful, immunized testimony as part of his 2006 guilty plea agreement. "Al-Arian fails even to specify the particular prosecutor who allegedly made the promise in question," the response said.
- Judge Brinkema would be contradicting herself if she accepted the defense argument about the plea agreement.
If the defense claim is true, then what the 2006 plea deal constitutes is extraordinary. U.S. District Judge James S. Moody, who sentenced Al-Arian to 57 months in prison, said he had "never heard" of the government making such a promise. During a November 2006 hearing on the matter, federal prosecutor Terry Zitek said the same thing, insisting it didn't happen and told Moody "You're just talking about stuff they're making up as they go along to suit their purpose. [Emphasis original]
It wouldn't be the first time. One thing the plea agreement is clear about is that Al-Arian lies when it is convenient for him. In it, he admits he and three colleagues were associated with the Palestinian Islamic Jihad and knew the organization used violence to achieve its goals. Until then, Al-Arian adamantly denied ever having anything to do with the PIJ.
After Ramadan Shallah, who Al-Arian brought into the U.S. to work at his Tampa-based think tank, emerged as the new head of the PIJ on Oct. 30, 1995, Al-Arian admits lying to a reporter who called for a reaction. "Al-Arian falsely stated that Shallah's name must have been mixed up with someone else and falsely stated that he only knew Ramadan Abdullah Shallah as Ramadan Abullah." In a later call, he expressed shock about the appointment, falsely saying he never knew Shallah to have a political affiliation.
The next day, Al-Arian helped write and distribute a statement from his think tank, the World and Islam Studies Enterprise (WISE), continuing the lie that no one at WISE knew of Shallah's ties to the PIJ.
During his trial, a retired FBI agent testified that Al-Arian lied to him during a 1991 meeting. In that meeting, Al-Arian told Agent Manny Perez that he had nothing to do with the PIJ. Three months later, Al-Arian traveled to Cleveland for a fundraiser and showed no reaction when he was introduced as the leader of the PIJ in North America.
It is no wonder, then, that Judge Moody blasted Al-Arian as a "master manipulator" at his sentencing. Anyone who takes Al-Arian at his word might consider investing their money with this guy.
The argument should be settled by standard contract law, which dictates the agreement is interpreted according to its stated language, prosecutors wrote. There is no reference to Al-Arian's testimony, be it voluntary or compelled by subpoena anywhere in the plea agreement.
The response notes that Al-Arian had as many as five different attorneys helping craft the plea agreement. With that many cooks in the kitchen, each communicating with an equal number of federal prosecutors, it's possible that defense attorneys misunderstood what they agreed to in the plea. That does not constitute a prosecution failure, or "winks and nods," about which Brinkema has said she has concerns. And it is not cause for dismissing the indictment. Such a move "is an appropriate sanction only where government misconduct is "so outrageous as to shock the conscience of the court."
Meanwhile, prosecutors argue that a dismissal of this case opens the door to convicted felons evading grand jury testimony if their plea agreements lack "clauses obligating them to cooperate with investigators."
Brinkema, however, seems to have done an about-face on the plea agreement debate. At a January 16 hearing, she said the 11th Circuit's decision "put to rest" the question of whether the grand jury subpoenas violated the plea agreement. She also denied a previous defense motion to quash the indictment, ruling that "there is nothing in this record that would indicate that the United States attorney for this district was barred or prohibited by the plea agreement in Florida from bringing this action."
And she denied a defense request for a hearing on the plea agreement itself, saying it "is in my view unnecessary and moot and will be denied. The plea agreement is what it is. It's been adequately litigated. It's gone all the way to the Supreme Court of the United States. We're not going to get into that. It was a different court, a different jurisdiction."
In spite of all of this, Brinkema has accepted defense arguments and rejected prosecution responses. The onus has been misplaced, prosecutors conclude:
"[E]nabling him now to avoid punishment for his criminal contempt would undermine the integrity of the Court, undercut the ability of grand juries to investigate terrorist financing, and vitiate the ability of judges to compel testimony in the future."
A hearing on the motion is scheduled for April 24.