Washington Report on Middle East Affairs, January/February 2006, pages 14-15, 29
After 10-Year Investigation, U.S. Government Fails to Convict Dr. Sami Al-Arian
A Fair Trial?
By Melva Underbakke
IN A COUNTRY that holds up the ideals of equality and justice for all, the case against Sami Al-Arian has been strange from the outset, beginning at the bond hearing. Dr. Al-Arian’s defense lawyers presented a strong case, with many witnesses attesting to his good character. They also showed that he was not a flight risk, since he has no passport or travel documents of any kind, and he was certainly not dangerous to the community where he has lived for almost 20 years.
The government, on the other hand, based its arguments on the assumption that accusations are the same thing as evidence. In response to the claim that there was no evidence against Dr. Al-Arian, prosecutor Cherie Krigsman proclaimed, “You want evidence? Here’s the evidence!” as she held up the indictment (read “accusation”). Although most Americans probably would agree that an accusation is not the same thing as evidence, the judge sided with the government, and Dr. Al-Arian remained in jail. Even though errors in the indictment were soon discovered, including the misidentification of one of the key people, Dr. Al-Arian remained in jail. And this was just the beginning.
Traditionally, in the United States, the accused are given a speedy trial—as is guaranteed by the U.S. Constitution. Dr. Al-Arian did not waive this right; however, the government stated that it would need at least two years to prepare its case (despite the 10 years it had already spent investigating Dr. Al-Arian). Again, the judge took the side of the government, and so Dr. Al-Arian went to jail for over two years as he waited for his trial to begin.
And this was no ordinary jail. Dr. Al-Arian was soon moved to the maximum-security section of the Federal Penitentiary in Coleman, Florida, where he and co-defendant Sameeh Hammoudeh were the only pre-trial detainees. Although they had not been tried, they were kept under extremely harsh conditions where access to lawyers, telephones, and even pencils was severely limited.
Traditionally, lawyers have unlimited access to their clients. Dr. Al-Arian’s lawyers protested the conditions under which he was imprisoned, saying that preparing a defense was impossible, and asked that he be moved closer to Tampa and put in a less restrictive environment. Hearings were held, but Dr. Al-Arian was not allowed to attend, and no changes were made. He remained at Coleman most of the time, until shortly before the trial began.
Also traditionally, the accused and their lawyers have access to all the evidence being used against them—but not in this case. In particular, attorney William Moffitt questioned why the prosecution had not released evidence that they had in their possession since 1995. Much of the evidence was not given to the defense until shortly before the trial.
As the trial date neared, jury selection commenced, with questionnaires mailed to prospective jurors. It soon became apparent that there was a high degree of bias in the Tampa area (see May/June 2005 Washington Report on Middle East Affairs, p. 23), and yet the trial was not moved to a more neutral location. And as the trial was underway, bias again was evident when two jurors reported to the judge that one of their peers was making frequent prejudicial comments to other jurors. Yet this juror was left to continue making comments until the end, when he finally was moved to the alternate list. And most recently, an unscientific poll about the case (conducted by the Tampa Tribune) found its way into the jury room.
Another aspect of the unfairness of this trial related to the type of evidence that was admitted. The government was allowed to bring Israeli witnesses to testify about bombings in Israel and show videotapes of exploded buses, even though prosecutors agreed that the defendants had nothing to do with the events, nor did they have any foreknowledge of the events. One therefore would expect that evidence about the situation in Palestine surrounding these events would also be allowed, but no, it was not.
Accusations or Evidence?
During the trial, the government continued its attempts to pass off accusations as evidence—even though their own witnesses refuted these accusations. Some things the government’s own witness proved to this writer include:
- Dr. Al-Arian is a highly respected scholar who strives to educate people.
He is concerned about the plight of his people in Palestine and has not abandoned them.
The defendants all were active in providing for needy people in Palestine, both Muslims and Jews.
The Palestinian Islamic Jihad (PIJ) had a militant branch that was completely separate from the charitable branch.
Dr. Al-Arian separated himself from the PIJ when decisions were made to become violent.
- Dr. Al-Arian was a very public person, concerned with educating people.
- None of the defendants had foreknowledge of any terrorist acts.
- None of the defendants have been connected to any crimes.
Closing Arguments—“Trust Me”
The prosecutor’s case was extremely confusing—not to mention mind-numbing—and both sides agreed that there is no direct evidence linking the defendants to any crimes, that all the evidence is circumstantial. To alleviate the confusion, prosecutor Terry Zitek advised the jury to start with the assumption that there was a secret PIJ cell in Tampa and everything would fall into place. (“Trust me, he’s guilty”?) Since there is no evidence, this must be taken as a matter of faith. Once jurors made the assumption of guilt, they could follow Krigsman’s directions to “use their common sense” and “connect the dots.”
The trial ended on Dec. 6—exactly six months after it began. The verdicts were read and the jury found Sami Al-Arian innocent. On all of the many charges against the four defendants, not a single guilty verdict was handed down. On the eight most serious charges, jurors unanimously acquitted Dr. Al-Arian, and deadlocked on nine charges. Ten of the twelve jurors wanted to acquit the defendants on all charges.
These jurors were very courageous in the face of government pressure and extreme media-created bias in the community. Nevertheless, they were not confused by the government, and were not willing to make an assumption of guilt. Instead, they insisted on evidence of guilt—and there was none.
There are many happy people in the Tampa Bay area, and around the nation. This case is a victory for the American system of justice, and a victory for all Americans. Yet although Sami Al-Arian is an innocent man, he has spent almost three years in solitary confinement under very harsh conditions. He lost his tenured position at the University of South Florida, and the lives of his family have been devastated. If he is deported, the community will lose a very fine man. Millions of dollars were spent prosecuting this case, money that could better have been spent on low-income housing, or feeding the more than 50,000 people that go hungry in the Tampa area every year. If the prosecutors decide to retry to case, millions more dollars will be wasted.
Sami Al-Arian was found not guilty of any crimes, and yet as I write he remains in jail. The government lost its case, but in the end does it still win?
Melva Underbakke is an educator, researcher and activist from Tampa, FL, and the founder of Friends of Human Rights, which opposes the denial of due process and human rights to Sami Al-Arian and many others.
Professor’s Future Uncertain After Trial
By Pedro Ruz Gutierrez
Despite a failure to convict in the terrorism-related trial of Sami Al-Arian, the fired University of South Florida professor still faces an uncertain future while incarcerated without bail.
The federal government has an immigration “detainer,” or hold, on Al-Arian—a measure in place since his 2003 arrest on criminal terrorism-support charges. The U.S. Immigration and Customs Enforcement agency on Wednesday said it could take him into custody any time after his criminal proceedings end.
“We feel we have clear and convincing evidence to put him into removal proceedings,” said Pam McCullough, an ICE spokeswoman. “As it stands right now, we intend to pursue this.”
Efforts to expel Al-Arian come on the heels of the government’s failure to obtain a single guilty verdict Tuesday against him and three co-defendants of Palestinian heritage who were accused of running a Palestinian Islamic Jihad terrorist cell.
Department of Justice officials in Washington, meanwhile, continue discussions on whether to retry Al-Arian on nine charges jurors deadlocked on. He was found not guilty on eight counts, including conspiracy to maim and kill civilians in Israel and the Palestinian territories.
“We’re hoping they think long and hard before they do that,” said Linda Moreno, one of two attorneys for Al-Arian. “I think they would be unsuccessful and embarrassed once again.”
There also are 10 outstanding counts against co-defendant Hatem Fariz, including charges of providing material support to terrorism. A Florida office worker, Fariz was acquitted of 23 counts, including conspiracy to maim or kill civilians abroad.
Sameeh Hammoudeh, who was picked up at a local jail by ICE agents Wednesday to be deported later this month, was acquitted of 10 charges, as was Chicago-area businessman Ghassan Ballut of 26 counts.
Steve Cole, a spokesman for the U.S. Attorney’s Office, said “there’s no timetable” for the refiling, if it is done. “It’ll be thoroughly discussed,” Cole said.
Legal experts said the government will have an uphill battle in a new trial, which is allowed under U.S. law in cases of hung juries.
Christopher Slobogin, who teaches criminal law at the University of Florida, said reconstructing a case that took five months to present, sitting a new jury and bringing in the same witnesses could be problematic.
“The news is out that he [Al-Arian] was acquitted on half the counts, and that’s going to taint a jury pool,” Slobogin said. “Prosecutors must go back to the drawing board, re-evaluate their case...and do a better job presenting the evidence.”
In siding with the defense, most jurors apparently heeded U.S. District Court Judge James Moody Jr.’s instructions during the trial that mere association or membership in an organization is not criminal.
The failure by prosecutors to obtain a conviction in what was billed as one of the more significant cases built on the controversial USA PATRIOT Act of 2001 is likely to weigh heavily at future terrorism trials.
Brian Hecht, a senior terrorism analyst at the Investigative Project on Terrorism in Washington, said the government “oversold” the importance of the case after the Sept. 11, 2001 attacks and overreached by prosecuting actions that occurred in the early 1990s.
“It’s definitely going to have a chilling effect on what the government decides to prosecute,” said Hecht, an attorney who attended parts of the trial. It was the Investigative Project’s founder, Steve Emerson, a former journalist, who first raised questions about Al-Arian in a 1994 TV documentary titled “Jihad in America.”
Hecht praised defense attorneys for outdoing prosecutors and seizing on weaknesses in the government case to plant reasonable doubt in jurors’ minds.
Al-Arian, who came to the United States as a student in the 1970s, founded the Islamic Concern Project charity and the World and Islam Studies Enterprise think tank in Tampa while teaching computer science at USF. Prosecutors say he used those and a school he founded in the Tampa area to fund and support the Islamic Jihad.
Prosecutors did not accuse the men of plotting terror but alleged that they financed it through several nonprofit groups and supported the Islamic Jihad’s “cycle of terror” by glorifying past attacks to help raise money for future bombings.
William Moffitt, another attorney for Al-Arian, conceded in court that his client once participated in the political wing of the Islamic Jihad. However, he said, all that happened before 1995, when the U.S. government made it illegal to interact with the group.
“We worked very hard—two lawyers against the federal government in what many people described as the biggest terrorism case in the country,” Moreno said. “Dr. Al-Arian’s positions on the struggle of his people in Palestine, while unpopular, are protected in this country.”
This article was first syndicated by Knight-Ridder Newspapers Dec. 8, 2005. Copyright ©2005 Knight Ridder Newspapers. Reprinted with permission.