Al-Arian's Third Strike
by Steven Emerson
January 28, 2008
In a ruling issued Friday, the 11th Circuit Court of Appeals found that Palestinian Islamic Jihad (PIJ) operative Sami Al-Arian can't duck a grand jury subpoena in Virginia based upon a phantom claim that his 2006 guilty plea ruled out any future cooperation with law enforcement.
Al-Arian was serving out the remainder of a 57-month sentence for conspiring to provide goods and services to the PIJ when a federal grand jury in Northern Virginia subpoenaed him to testify about the International Institute of Islamic Thought (IIIT). The IIIT is a think tank under investigation since at least 2002 for suspected terror financing. It was among the largest patrons of Al-Arian's own think tank, the World and Islam Studies Enterprise (WISE), which was based in Tampa during the early 1990s and housed no less than four members of the PIJ's governing board.
Al-Arian refused to testify despite a grant of immunity, and waged a highly publicized hunger strike while appealing a resulting contempt citation. For every day the contempt order existed, he gained no credit on completing his sentence. A judge lifted the contempt charge in December, when the grand jury's term neared expiration. It isn't known whether a new grand jury might now subpoena Al-Arian again.
If it doesn't, Al-Arian could be released this spring and deported. If it does, Al-Arian will have to find a new argument. The 11th Circuit decision noted there's no language in the plea deal covering a grand jury subpoena and Al-Arian had been asked point blank at sentencing whether any other promises were made to him. He said no. Further, the opinion states:
The exclusion of a standard plea agreement provision requiring a defendant to cooperate with the government, whether voluntarily or under subpoena, does not establish that the government immunized Al-Arian from future grand jury subpoenas. This contention is especially dubious where, as here, the plea agreement contains an integration clause stating that there are no other promises, agreements, or representations except those set forth in the agreement, and Al-Arian denied at his plea hearing that he pled guilty in reliance on any promises or inducements except for those found in the agreement.
In other words, Al-Arian may have lied, making up the promise that, for pleading guilty to a felony, he could escape the obligations facing anyone else subpoenaed for information. The entire opinion is here.
"This is politics, this is not law," his attorney, C. Peter Erlinder, told the Associated Press after the ruling. That's not very sporting; variations of Erlinder's argument are now at least 0-for-3 in federal courts. It was rejected by the sentencing court in Tampa and by the 4th Circuit in Virginia as reported in March 2007:
The federal appeals court said Friday that it found no merit in al-Arian's claim that he does not have to testify because "a cooperation clause was discussed during the plea negotiations, but was not agreed to and not included in the written plea agreement."
The plea agreement "contains no language which would bar the government from compelling appellant's testimony before a grand jury," the appeals court said.
Turley called the subpoena a "direct violation of the [plea] agreement."
That's Jonathan Turley, who represents Al-Arian in his Northern Virginia contempt fight. In November, Turley crowed on his blog, "[t]he use of civil contempt to prolong his punishment has been a shocking abuse of the system by the Justice Department. Unable to convict Dr. Al-Arian before a jury, prosecutors have sought to mete out their own brand of justice through the grand jury system."
He made the same claim about Abdelhaleem Ashqar, a Hamas operative sentenced to 11 years in prison in November after he refused to testify before a grand jury investigating Hamas activity. Turley twists the nature of the Chicago case in an effort to gain public sympathy for his client, writing:
Abdelhaleem Ashqar, 49, a former associate professor of business at Washington's [Howard University], was sentenced this week to more than 11 years in a very controversial sentencing after he refused to testify in a grand jury. It is a case that follows a new and disturbing trend by the Bush Administration in using grand juries against individuals who they fail to convict in criminal cases.
Individuals, like my client Dr. Sami Al-Arian, are given the choice of a perjury trap is (sic) they testify or a contempt citation if they do not testify.
In a major loss for the Justice Department, Ashqar and co-defendant Muhammad Salah were acquitted of taking part in a racketeering conspiracy aimed at bankrolling Hamas in its violent attacks on the government of Israel. The prosecutors then pulled him into a grand jury and granted him immunity so that he could not invoke the privilege against self-incrimination under the Fifth Amendment.
That, of course, is completely untrue. The same jury which acquitted Ashqar of racketeering in support of Hamas also convicted him of obstruction of justice and criminal contempt. Ashqar was not somehow dragged before a grand jury after his acquittal on bigger charges in some sort of exercise of "sour grapes" on the part of prosecutors.
Turley is not only Al-Arian's attorney, but also a law professor at George Washington University, a position where attention to detail might be considered important. So how to explain the fact that Turley got such a basic fact of the Ashqar case wrong? Had Turley read Ashqar's indictment, he would have seen that the first count against him was the racketeering charge and counts four and five were obstruction of justice and criminal contempt, related to Ashqar's refusal to testify in a separate grand jury investigation, occurring well before this trial which resulted in Ashqar's 11 year sentence.
Turley's fear of a "perjury trap" for a client like Al-Arian is a little more understandable. Both the 11th and 4th Circuit rulings express doubts about the existence of any promise not to be called to testify. And a look at the record shows he's been lying through his teeth for more than 15 years.
In January 1991, FBI agent Manny Perez interviewed Al-Arian at the request of FBI headquarters. Al-Arian assured the agent he had nothing to do with the PIJ and opposed terrorism. Three months later, Al-Arian was helping raise money at a Cleveland mosque, where he was introduced as the head of "the active arm of the Islamic Jihad movement in Palestine" that operated under a benign name "for security reasons."
In 1994, Al-Arian registered to vote, swearing he was a U.S. citizen when, in fact, his application for naturalization was under review. He was never granted citizenship, but he voted anyway. It was all a misunderstanding, he said.
That same year, he told me he had nothing to do with the PIJ and, at one point, even asked what the initials stand for. Wiretaps released at his trial show that earlier that year, Al-Arian spent days on the telephone arguing with PIJ leadership about the group's direction in the face of a money crisis. Trial evidence showed Al-Arian served as secretary of the PIJ governing board.
A year later, when PIJ founder and commander Fathi Shikaki was gunned down in Malta, Al-Arian told reporters there was no way a former associate from his think tank, Ramadan Shallah, had been appointed as new PIJ secretary general. His own attorneys had no choice but to acknowledge that was a lie. Ramadan Shallah still holds the job today.
Earlier in 1995, and after PIJ was designated as a terrorist group by an Executive Order from President Clinton, Al-Arian used the occasion of a brutal double suicide bombing to seek donations to the PIJ. In a letter to a Kuwaiti legislator, Al-Arian cited the attack, which killed 22 people, as an example of "what the believing few can do" adding:
I call upon you to try to extend true support effort to the jihad effort in Palestine so that operations such as these can continue.
Those are among the examples that prompted U.S. District Judge James Moody to call Al-Arian a "master manipulator" at sentencing.
Given all that, Turley may have a legitimate fear of perjury. While asking a question and expecting a truthful answer may prove personally challenging in Al-Arian's case, it is hardly a trap.
And in Ashqar's case, concern about a "perjury trap" didn't seem to be an issue after all. Press reports from the sentencing hearing indicate Ashqar clearly defined his refusal to testify as part of his loyalty to the jihadists he serves.
"He said he would rather go to prison than betray his people as they strived to free themselves from Israeli domination," the Associated Press reported. ‘"The only option was to become a traitor or a collaborator,"' Dr. Ashqar said, "'and this is something that I can't do and will never do as long as I live.'"
We'll see if Al-Arian has to make a similar choice.