In dropping their criminal contempt case last week against Sami Al-Arian, a member of the Palestinian Islamic Jihad's board of directors during the 1990s, prosecutors said they will seek to deport him under terms of a related 2006 plea agreement.
That may not happen anytime soon. Similar deportation cases have ended successfully, but took several years to complete.
In the interim, Al-Arian is free to resume a normal life, and return to political activity, something he already started to do at pro-Muslim Brotherhood events even under terms of pre-trial release.
Nothing was happening in the contempt case, which had been frozen by U.S. District Judge Leonie Brinkema for five years as she found herself unable to grant a defense motion to dismiss and unwilling to let it proceed to trial. She offered no signs that would change. Twice, she promised a written order on the pending motions keeping the case from going to trial. It never materialized.
The contempt case grew out of Al-Arian's refusal to testify before a federal grand jury in Northern Virginia that was investigating possible terror financing by a group that helped fund Al-Arian's operations. He was given immunity for his truthful testimony, but still refused, claiming that his 2006 plea agreement to conspiring to provide services to the PIJ included a government promise that his "cooperation" with it was over.
There was no such language in his plea agreement, but he argued that the absence of a cooperation clause proved his claim. A grand jury subpoena is compelled testimony, not voluntary. And, as U.S. District Judge James Moody noted in a hearing on the matter, before his plea "Dr. Al-Arian could have been subpoenaed to testify as a witness just like anybody else in this country; right?"
The defense argument amounted to giving Al-Arian a unique exemption because he became a convicted felon. Appellate courts in the 4th and 11th circuits rejected Al-Arian's claims. He prevailed in the end by refusing to budge, an awful precedent for prosecutors trying to compel testimony from hostile witnesses.
That example grows worse if Al-Arian skirts his plea's specific language calling for his eventual deportation.
Removing stateless Palestinians is difficult, however, especially in a case involving a man who served on a terrorist group's Shura council. It requires travel documents and a country willing to accept him.
But it has been done. In 2012, Bayan and Basman Elashi were deported three years after a final order was issued against them. Both were part of Infocom, a webhosting company in Richardson Texas, connected to Hamas political leader Mousa Abu Marzook. Both were convicted of doing business with a terrorist and conspiring to violate export regulations.
The Elashi brothers made their way to Gaza by way of Egypt.
And two of Al-Arian's associates were deported to the West Bank. Sameeh Hammoudeh, a co-defendant in Al-Arian's terror support trial, was deported in 2006 under terms in a separate tax case. And Fawaz Damra, a fiery imam who raised money for the PIJ, urging that checks be written to Al-Arian's charity, was deported in 2007 after being convicted three years earlier of immigration fraud. Damra introduced Al-Arian as head of "the active arm of the Islamic Jihad Movement in Palestine" during one of their fundraisers.
The Cleveland Plain Dealer later found him selling drapes and doing some teaching in Ramallah.
Hammoudeh's was an exceptionally fast removal. The other cases took years to complete. For Al-Arian, that could mean years to take advantage of his status as a hero to American Islamists and their allies. The contempt case's dismissal was a cause for celebration among those supporters. The Muslim Public Affairs Council (MPAC), which casts itself as a moderate political organization and enjoys close ties to the White House called it "a joyous day." The Council on American-Islamic Relations (CAIR), which was created by a Muslim Brotherhood support network for Hamas in America, first offered praise to God for the case's demise. Then, Executive Director Nihad Awad followed up with a statement noting CAIR's longtime support for "Dr. Al-Arian and his family through this harrowing trial ... This is a victory for the entire community, but of course most of all the Al-Arian family."
Journalist Glenn Greenwald, recipient of tens of thousands of secret NSA files stolen by Edward Snowden, called the case "One of the worst post-9/11 persecutions."
None of these happy supporters acknowledged Al-Arian's documented role on the PIJ board. Wiretaps showed that he spent the bulk of 1994 arguing with handlers in Iran to keep the PIJ from imploding. Al-Arian's commitment to violent jihad extended beyond running "the active arm of the Islamic Jihad Movement in Palestine." He used the occasion of a double-suicide bombing to write a solicitation for donations for "the jihad effort in Palestine so that operations such as these can continue."
To supporters, however, he remains an activist and civil rights advocate. If he is deported – something he promised to help facilitate in his 2006 guilty plea and where willful obstruction could now be a separate criminal offense – those same advocates likely will decry it as an injustice.
Al-Arian was born in Kuwait and raised in Egypt. Neither is likely to want him back, especially Egypt, which waged a violent crackdown on the Muslim Brotherhood and staged mass arrests.
The United States may have options, however. Start with the Palestinian Authority, currently functioning as a unified partnership between Fatah, which dominates the West Bank, and Hamas in Gaza. The U.S. did not break relations with the PA or cut its funding when Hamas, a designated terrorist group, joined the government.
Task the PA with taking Al-Arian in, either in the West Bank or Gaza. The trick would be in getting him past entry points in Egypt or Israel, but the Damra and Elashi cases are examples of previous successes. Another U.S. "ally," the Gulf emirate of Qatar, provided refuge for Hamas political leader Khaled Meshaal.
Al-Arian flouted the system by concocting an imaginary benefit allowing him to rebuff a grand jury subpoena and insisting it was real even if no one could see it. He must not be further rewarded with the comforts and privileges of life here.
As Judge Moody said in sentencing Al-Arian in 2006, "The evidence was clear in this case that you were a leader of the Palestinian Islamic Jihad. You were on the board of directors and an officer, the secretary. Directors control the actions of an organization, even the PIJ; and you were an active leader."
Right now, he's free in America. The Department of Homeland Security needs to do everything it can to send him packing.