Al-Arian Contempt Case Survives Challenges
January 16, 2009
ALEXANDRIA, VA - A federal judge on Friday cleared the way for Sami Al-Arian to stand trial for criminal contempt, ruling there is an "insufficient legal basis" for the Palestinian Islamic Jihad supporter's claim of selective government prosecution.
U.S. District Court Judge Leonie Brinkema set a March 9 jury trial date for Al-Arian. The former University of South Florida professor was indicted for criminal contempt last June for refusing to testify before a federal grand jury investigating terrorism financing in Virginia.
Al-Arian argues that a 2006 plea agreement he reached with prosecutors in Florida gives him the right to refuse to testify. But that argument was rejected by district court judges in Florida, where the plea was entered, and in Virginia. In addition, the 4th and 11th circuit courts of appeals denied his argument. The U.S. Supreme Court declined to consider the case in October.
"I don't read that plea agreement to have barred this prosecution," Brinkema said Friday.
Brinkema also rejected Al-Arian's argument that prosecutors acted with malice and from an anti-Muslim bias in pursuing the contempt charges.
However, in a set-back to the government, she said she would allow Al-Arian to argue to the jury that he was following his lawyers' advice in believing the plea deal absolved him of testifying despite the court orders.
Al-Arian was indicted in 2003 on charges he provided material support to the Palestinian Islamic Jihad (PIJ), a designated terrorist organization. In 2005, jurors acquitted him on eight counts and could not reach unanimous verdicts on nine others. In April 2006, Al-Arian agreed to plead guilty to conspiring to provide goods and services to the PIJ. He was sentenced to 57-months in prison, after which time he was to be deported.
He has said he vowed not to cooperate with any federal investigation. But the Virginia grand jury sought to compel his testimony as part of a probe into the International Institute of Islamic Thought (IIIT). IIIT is a think-tank which was among the largest patrons of Al-Arian's own think tank, the World and Islam Studies Enterprise (WISE) in Tampa. During the early 1990s, WISE was home to no less than four members of the PIJ's governing board, including Al-Arian. IIIT leaders long have been suspected of being leaders of the Muslim Brotherhood in America.
Al-Arian refused to testify despite a grant of immunity, and waged a highly publicized hunger strike while appealing a resulting civil contempt citation. For every day the contempt order existed, his prison sentence was frozen. The civil contempt was lifted in December 2007 and Al-Arian completed his sentence in April 2008.
He offered affidavits to federal prosecutors in lieu of testifying, but prosecutors indicated the statements failed to address their questions.
Al-Arian sought to quash the indictment on grounds it was selective and because an immunity order given to him had different language than standard orders. Brinkema said it was "unwise for the US Attorney's office to propose additional language to a tried-and-true order. However, I am satisfied that what was added to that order did not materially change the scope of protection" Al-Arian would receive had he complied with the subpoenas and testified.
Brinkema directed the defense and prosecution to work out an agreement on how much information to give the jury in March about Al-Arian's affiliations with the PIJ. "I am going to be somewhat liberal in allowing this jury to have some flesh on the bones of this case," she said, adding that some background information is "critical" to a jury's understanding of the criminal contempt charges. That includes information about the criminal trial's outcome. But she warned, "It is still only a criminal contempt case. It is not a terrorism case."
The judge directed the lawyers to come up with a "joint stipulation" for how to present information about Al-Arian's associations to the jury. She noted that much information already exists in the public domain. "If you can't work it out, I'm going to do it for you," she said. She gave the parties until Jan. 23 to produce a written agreement on how to present evidence of Al-Arian's past to the jury.
She denied government motions for an anonymous jury. "We are a country that believes in open trials," she said. Brinkema also cautioned the defense team against publicity stunts, such as the heavily promoted hunger strikes Al-Arian waged to protest his grand jury subpoenas. "I think issues such as hunger strikes are not appropriate. They don't help the case," she said.