U.S. District Judge Leonie Brinkema made a pledge a year ago today.
She would decide whether the criminal contempt case against Palestinian Islamic Jihad (PIJ) operative Sami Al-Arian would be dismissed or go to trial. Prosecutors charged Al-Arian in 2008 after he repeatedly refused to speak to a federal grand jury investigating terror financing in Northern Virginia despite a subpoena and judges' orders. Al-Arian says he was absolved of complying with any subpoena in his 2006 plea agreement for conspiracy to provide services to the PIJ.
There is nothing in Al-Arian's plea agreement alluding to anything close to his claim, prosecutors argue. And nothing was mentioned when he entered his plea before a federal magistrate in Tampa. The argument has been denied by appellate courts for the 4th and 11th circuits.
Brinkema canceled a hearing on the matter at the 11th hour last year. "The Court finds that a hearing on these issues is not necessary," she wrote. "The parties have fully briefed their positions and the Court is working on an opinion which addresses all relevant issues."
That's funny, because Brinkema said something very similar in cancelling a hearing 18 months earlier:
"Because the parties have fully briefed the facts and legal contentions raised in the defendant's Motion to Dismiss the Indictment and have previously argued similar issues before the Court, additional oral argument will not aid the decisional process … The Court will issue a written opinion on the motion in the near future."
That was 919 days ago. The court has been silent.
Al-Arian is confined to house arrest at the home of one of his children in Northern Virginia, either the victim of a misguided prosecution or as a man who got away with breaking the law.
Brinkema clearly doesn't like the case, but can't dismiss it based on the merits. She has written twice that an order is coming. Given the time that has passed, it's fair to ask whether she ever intended to act. Is that the proper behavior for a federal judge?