Prior Rulings Could Crimp Al-Arian Defense
June 27, 2008
Unlike his first indictment in 2003, Sami Al-Arian won't be waiting years for his day in court. Charged with criminal contempt in a two-count indictment issued Thursday, Al-Arian will stand trial in the Eastern District of Virginia, famous for a "rocket docket" that could have him standing trial as early as late summer.
He refused to testify when called before a federal grand jury Oct. 16, 2007 and March 20, 2008 despite a grant of immunity from prosecution, the indictment charges. The grand jury is believed to be investigating terror financing by the International Institute of Islamic Thought (IIIT), a Herndon, Va.-based think tank.
The IIIT provided at least $50,000 to Al-Arian's own think-tank, the World and Islam Studies Enterprise (WISE) during the early 1990s. Al-Arian was a University of South Florida professor of computer science and created the WISE think tank, which he helped establish a working relationship with USF faculty.
The question now is what his defense will be. It would appear unwise to continue his past argument that a grand jury subpoena is a form of "cooperation" and not compulsory testimony, and that the 2006 plea agreement Al-Arian signed ruled out any cooperation with the government. The 4th District Court of Appeals already rejected that argument when Al-Arian was found in civil contempt. The 11th Circuit issued a similar opinion in January.
In the 11th Circuit ruling, the judges considered the cooperation argument "especially dubious" because "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."
The U.S. Supreme Court refused to hear an appeal on the same argument brought forth a year ago.
According to a Department of Justice Criminal Resource Manual, civil contempt is meant to be coercive, an attempt to force compliance with the court's order. Contempt is criminal "when punishment by way of fine or imprisonment is deemed imperative to vindicate the authority of the court. In contrast, civil contempt is remedial rather than punitive, serves only the purpose of the party litigant."
To prove the charge "requires proof of a volitional act done by one who knows or should reasonably be aware the conduct was wrongful," the manual said.
Al-Arian was charged in 2003 with conspiring to provide material support to the Palestinian Islamic Jihad (PIJ) a designated terrorist group. It took two years to bring the case before a jury, and Al-Arian was held without bond during that time. Evidence presented at the trial showed Al-Arian served on the PIJ governing board and lobbied the group's leadership on a reform package in 1994 after its Iranian patrons cut off funding in a dispute over accountability.
Jurors acquitted Al-Arian on eight of the 17 counts against him and could not reach unanimous verdicts on the others, including racketeering conspiracy. In April 2006, Al-Arian agreed to plead guilty to one of those hung counts – conspiracy to provide goods and services to a terrorist group. U.S. District Judge James Moody sentenced Al-Arian to 57 months in prison - the maximum allowed under the plea deal – railing against Al-Arian as "master manipulator," adding "[y]ou looked your neighbors in the eyes and said you had nothing to do with the Palestinian Islamic Jihad. This trial exposed that as a lie."
Now, Al-Arian's attorney seems to be laying the groundwork to argue Al-Arian is a bit player with little information to provide the grand jury. In a blog posting Thursday, George Washington University law professor Jonathan Turley said "prosecutors admitted that he [Al-Arian] is a minor witness in the IIIT investigation."
It is unclear where or when that statement would have been made. Turley did not make the claim during a March post on Al-Arian's third grand jury subpoena.
In Thursday's post, Turley argued Al-Arian is being unfairly targeted because he won acquittals at his trial.
"Dr. Al-Arian has addressed every document cited by the government as the reason for his being called before the grand jury. He has shown that he has no incriminating information to offer against either IIIT or its officers. This indictment proves that the government was never interested in any information that Dr. Al-Arian has on the IIIT matter. This was a classic perjury trap used repeatedly by the government to punish those individuals who could not be convicted before an American jury.
This is only the latest case where the government has manufactured a charge against someone who was acquitted before a jury. We have seen the same tactics used in the cases of Abdelhaleem Ashqar, Dr. Sami Al-Arian, and Sabri Benkahla."
Ashqar had been accused of racketeering for his alleged support for Hamas. As we reported previously, Ashqar's contempt charge was part of his original indictment. He was acquitted of racketeering in support of Hamas in February 2007, but it was the same jury which found him not guilty that convicted him of obstruction of justice and criminal contempt. Unlike Al-Arian and Benkahla, Ashqar was not brought before a grand jury after his acquittal.
At his sentencing, Ashqar gave a statement in which he made it clear his defiance was designed to protect the targets of the grand jury probe:
"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."
Sabri Benkahla was among 11 people accused of participating in a Virginia-based jihad network that plotted to fight with the Taliban against the United States. He was acquitted of supplying services to the Taliban but later convicted on the perjury and obstruction charges and sentenced to 10 years in prison. That sentence included a "terrorism enhancement" after the trial court found his false statements impeded a terrorism investigation.
The 4th Circuit, in upholding the Benkahla conviction and sentence on June 23, rejected the argument that the grand jury subpoena was somehow of questionable value:
"[I]t is worth observing that the investigations in which Benkahla was interviewed and the questions he was asked show no sign of having been manufactured for the sake of a second prosecution. Given the character of the first court's acquittal, the government had every right to think Benkahla had attended a jihadist training camp somewhere.
It was legitimate to ask Benkahla, even post-acquittal, about his jihadist training in Pakistan or Afghanistan, and it was legitimate to prosecute him when he spoke falsely about it."
In addition, the judges rejected Benkahla's argument that the terrorism enhancement should not have applied after he was acquitted on the terror-related counts:
"All the evidence indicates that Benkahla attended a jihadist training camp abroad, was acquainted with a network of people involved in violent jihad and terrorism, and lied about both."
And that could be relevant should Al-Arian be convicted of contempt in the same circuit. A terrorism enhancement would add years to any potential sentence.
For Al-Arian, it is clear from the evidence that he supported the PIJ. He was shown on video tape accepting an introduction as the head of the Islamic Jihad movement in 1991. His own counsel acknowledged that he was a PIJ member and that Al-Arian lied about his knowledge of former WISE director Ramadan Shallah's PIJ membership when, in 1995, Shallah assumed command of the group. Earlier that year, Al-Arian wrote to a Kuwaiti legislator praising a PIJ double suicide bombing and requesting "true support of the jihad effort in Palestine so that operations such as these can continue…"
On page 10 of the agreement, under the heading "Facts," Al-Arian admits being associated with the PIJ and that he "performed services for the PIJ in 1995 and thereafter." That includes "hiding the identities of individuals associated with the PIJ." In addition, "Defendant Al-Arian was aware that the PIJ achieved its objectives by, among other means, acts of violence."
And the IIIT deemed Al-Arian's think tank "an extension" of itself in a 1992 letter from IIIT President Taha Jaber Al-Awani. "When we make a commitment to you or try to offer," Al-Awani wrote, "we do it for you as a group, regardless of the party or the façade you use the donation for."
Despite these documented connections between Al-Arian, PIJ, and IIIT, his defense counsel still maintains both his overall innocence and irrelevance to the investigation into IIIT, just as his counsel's arguments continue to contradict the rulings handed down both in the 4th and 11th Circuits. Unless he testifies or cuts another deal with the government, Al-Arian will seemingly have one more opportunity to make those failed arguments.
Al-Arian is scheduled to be arraigned in federal court in Alexandria, Va. Monday morning.