A former top official of a Palestinian terror group asked U.S. District Judge Leonie Brinkema on Monday to dismiss criminal contempt of court charges against him, arguing prosecutors have put the “integrity of the Court and legal process” at stake in trying to compel his testimony before a Virginia grand jury.
The defendant is Sami Al-Arian, a former University of South Florida professor who pleaded guilty to one count of assisting members of the Palestinian Islamic Jihad in 2006 after years of denying he had anything to do with the suicide-bombing group. Al-Arian claims the government violated his plea agreement in seeking his testimony about an Islamic think tank in Virginia under investigation for terrorism financing.
The contempt case pits celebrity George Washington University law professor Jonathan Turley, Al-Arian’s lawyer and an MSNBC legal commentator, against an aggressive Assistant U.S. Attorney in the Eastern District of Virginia, Gordon Kromberg, who has been criticized for making inflammatory statements about Muslims.
The now-disputed 2006 plea agreement was negotiated at the highest levels of Main Justice, roping in then-Criminal Division chief Alice Fisher. The chief negotiator was Cherie Krigsman, then a trial attorney with the Counter-Terrorism section in Washington and now an AUSA in Tampa.
Brinkema in recent court hearings in Alexandria has repeatedly questioned why prosecutors haven’t complied with her request to submit affidavits clarifying their understanding of the 2006 plea agreement. She has called the lack of affidavits a “hole in the case” and suggested prosecutors may have violated Al-Arian’s rights under Santobello v. New York, a 1971 Supreme Court decision that says the government is bound to honor even even unwritten promises made during plea negotiations.
As a journalist who covered the Al-Arian saga for the St. Petersburg Times in Florida, I will cut to the chase for you: No, prosecutors probably did not violate his 2006 plea agreement. But the government’s case is so muddled at this point it will still probably lose.
Al-Arian knows Americans well. He’s taken advantage of the fact we’re bred to recoil at abuse of power by government. And well we should. But Americans also have an obligation not to be dumb. Have Al-Arian’s defenders actually read the public record? If they have, are they saying it’s okay to raise money from Iran for a group that advanced its political goals by blowing people up at bus stops?
Jihad in America
In 1994, a controversial former CNN journalist named Steve Emerson produced a documentary for PBS called “Jihad in America.” (Full disclosure: I have written for Emerson’s Investigative Project on Terrorism Web site). Using public source material, the documentary linked Al-Arian to Islamic Jihad, a smaller rival to Hamas. Islamic Jihad waged a deadly campaign of suicide bombings in an attempt to derail the 1994 Oslo peace accords between Israel and the Palestinians. In 1995 President Clinton issued an executive order banning assistance to the group.
The documentary produced a bitter split in the Tampa Bay community. Emerson had a reputation as a pro-Israel advocate. His journalism was solid, but Al-Arian deftly denounced his documentary as “a deliberate attempt to defame and distort the cause of Muslim organizations in the United States.” Al-Arian’s supporters, including many faculty at the University of South Florida, saw the Palestinian as the victim of a McCarthyist witch hunt for his political and religious views.
Others couldn’t believe anyone was so naïve. The documentary and subsequent news reports showed that an Islamic think tank Al-Arian ran in Tampa had employed the founder of Islamic Jihad, Fathi Shikaki. Al-Arian had published a magazine for Islamic Jihad. He’d been host in Tampa in the early 1990s to Islamist icons like the “blind sheik” Omar Abdel Rahman, who at the time was running a pre-cursor organization to Al-Qaeda; and Hassan al-Turabi, the leader of Sudan who was then harboring Osama bin Laden.
In October 1995, Shikaki was assassinated in Malta. Another employee of Al-Arian’s think tank, Ramadan Shallah, suddenly turned up in Syria as the new leader of Islamic Jihad. Questioned by local reporters, Al-Arian said he’d had no idea that Shallah was connected to Islamic Jihad. In November 1995, the FBI raided Al-Arian’s home and think tank.
The criminal case bumbled along without charges for years. Al-Arian’s supporters said the lack of charges showed the case was weak. And the emotional debate over his guilt or innocence split along predictable liberal-conservative ideological lines, muddling the truth. But unknown to everyone — even the FBI’s own criminal investigators — the national security side of the Bureau had been secretly wiretapping Al-Arian’s phones for years, under FISA warrants.
The “wall” between intelligence gathering and criminal investigations, however, kept that key wiretap evidence out of the public debate and the courts.
A “Master Manipulator”
Then came 9/11. Congress quickly passed the Patriot Act, and the “wall” came down. The wiretaps were now admissible as evidence. In 2005 the government brought Al-Arian to trial on charges of material support for terrorism.
At trial, video tapes seized in the 1995 raid showed Al-Arian at Islamic conferences raising money for Islamic Jihad. “God damn America!” Al-Arian said in Arabic, at one of the conferences, and“Death to Israel!” He called Jews the “sons of monkeys and pigs.”
The previously secret national security wiretaps revealed that Al-Arian had been an intermediary between Palestinian Islamic Jihad and Iran, the group’s main funder. Evidence showed he’d been the secretary of Islamic Jihad and on its “shura” council of leaders.
But his Florida attorneys, William Moffitt and Linda Moreno, argued he was being targeted for his political views in violation of his constitutional free speech rights. In a major blow to the government, the jury acquitted him on eight of 17 counts and did not agree on the others.
In 2006, rather than face the possibility of a re-trial, Al-Arian agreed to plead guilty in the Middle District of Florida to one count of helping Islamic Jihad members secure U.S. visas. Moffitt went to Washington to finalize the plea agreement, meeting with Fisher in the Criminal Division, according to an affidavit Moffitt submitted.
Moffitt said he insisted that prosecutors not include any language in the plea agreement requiring Al-Arian’s cooperation with the government in the future. The final agreement ended up silent on the issue – ruling cooperation neither in or nor out. This created the ambiguity that is now at issue before Judge Brinkema.
Not in dispute is that the government promised to help expedite Al-Arian’s deportation to the Middle East in exchange for the guilty plea. Prosecutors expected the Florida trial judge, U.S. District Judge James S. Moody, to sentence the legal U.S. resident to essentially time served, allowing Al-Arian’s swift deportation.
But an angry Judge Moody upended those plans. The Clinton-appointed judge slammed Al-Arian as a “master manipulator” at his sentencing hearing, and unexpectedly gave him maximum prison time, delaying his deportation. “The evidence was clear in this case that you were a leader of the Palestinian Islamic Jihad,” Moody told him at sentencing. He called Al-Arian a liar, a hypocrite, immoral, callous to human suffering and basically an all around despicable character. I’m not exaggerating. Read the transcript yourself, starting at page 14.
While Al-Arian sat in prison, an acting deputy assistant attorney general at Main Justice, Barry Sabin, approved a subpoena from Kromberg in the Eastern District of Virginia seeking his testimony before a grand jury investigating terrorism financing. Al-Arian refused to testify, despite a grant of immunity from prosecution. He said the plea agreement exempted him from cooperation.
The government disagreed. U.S. District Judge Gerald Lee in the Eastern District of Virginia found Al-Arian in civil contempt in 2007. Then last year, Al-Arian was charged with criminal contempt.
They Can Kill Each Other During Ramadan
But there were credibility problems looming for the government. An Al-Arian defense attorney, Jack Fernandez of Zuckerman
Gordon Kromberg
Spaeder in Tampa, had filed a 2006 affidavit accusing Kromberg of bias against Muslims.
Fernandez said that in denying a request that Al-Arian’s transfer to custody in Virginia be delayed because of the Islamic holiday Ramadan, Kromberg told him: “They can kill each other during Ramadan, they can appear before the grand jury. All they can’t do is eat before sunset.” Fernandez said in the affidavit he took “they” to mean Muslims. (See paragraph 7).
Then, the criminal contempt case came before Judge Brinkema. In an August 2008 hearing, she admonished Kromberg for saying a court-ordered release of Al-Arian into the custody of his daughter was risky, because “in this particular culture” a woman could not prevent her father from fleeing. She also questioned whether Kromberg had violated Al-Arian’s constitutional rights by changing standard immunity order language.
But in January of this year, Brinkema ruled that the criminal contempt trial could proceed, dealing a blow to the defense. Click here to read our report about that decision.
The tide again turned against the government in a series of hearings in February and March. Turley said it was Al-Arian’s clear understanding in his plea negotiations that he would not be required to provide any further cooperation with the government. Even if that promise wasn’t written into the agreement, the government still had to honor it under the Santobello decision, Turley argued.
Jonathan Turley
Turley submitted affidavits from Al-Arian’s original defense attorneys, Moffitt and Moreno. Moffitt said non-cooperation had been “the most significant issue” for Al-Arian in the negotiations, and he agreed to plead guilty only because prosecutors agreed to remove standard cooperation language from the agreement.
Because this was now an essentially he-said/she-said argument, Brinkema asked Kromberg to provide affidavits from the Middle District of Florida prosecutors about their understanding of the deal. “I have evidence under the penalty of perjury from defense counsel, and I have no evidence, I have only representations from the United States,” Brinkema said in a Feb. 20 hearing.
She said there was a “significant cloud over this criminal prosecution” because the Counter-Terrorism section at Main Justice had been involved in both the plea negotiations and the approval of the immunity order to compel testimony in Virgnia.
“I think the integrity of the Justice Department and the integrity of the criminal justice plea bargaining process is too significant to just let it die on the vine, given the nature of the record before this Court,” Brinkema answered.
Kromberg argued in subsequent filings that prosecutor affidavits weren’t necessary because Assistant U.S. Attorney Terry Zitek in Tampa had already said in a previous court hearing the agreement didn’t exempt Al-Arian from compelled testimony. But Kromberg also revealed that the Middle District prosecutors had objected to his attempt to subpoena Al-Arian.
Kromberg explained the objections as stemming from the Middle District prosecutors’ desire that nothing interfere with their promise to deport Al-Arian swiftly. Once Judge Moody hit him with the longer-than-expected sentence, Kromberg said, the situation changed, because Al-Arian was suddenly stuck in prison – and thus available to testify.
But Turley pounced. He called the revelation “new evidence” that changed the game. The government’s conduct “doesn’t just shock the conscience. It makes it impossible for prosecutors and defense attorneys to work,” Turley said in a March 9 hearing.
The government now has until April 6 to answer Al-Arian’s motion to dismiss.
No Mention of Any Deal
So, why don’t I believe Al-Arian had an implied promise of exemption from any future grand jury testimony? The defendant’s long record of dissembling aside, I know that the prosecutors in 2006 were just anxious to get the plea deal done after their embarrassing failure to win a conviction at trial. I haven’t talked to any of them about it, but I suspect they saw removal of any cooperation clause as simply a way to get the deal signed. If they had truly intended to exempt Al-Arian from any future testimony, wouldn’t they have expressly written that into the deal?
And the other reason I tend to believe the government, despite all the problems with its case, is that Al-Arian himself, when he had a chance to put this alleged side deal on the public record, didn’t mention it at all.
In 2006, a federal Magistrate Judge in Tampa, Thomas B. McCoun III, repeatedly questioned Al-Arian about any “inducements” or side deals he had with prosecutors outside the written agreement that convinced him to plead guilty. Al-Arian raised only one: The government had agreed to expedite his deportation.
Here’s just one of several such exchanges from the transcript:
McCoun: “Beyond the discussions and the efforts that are apparently ongoing with regards to deportation, have there been any other promises made to you that are an inducement in your mind to entering a guilty plea? If so, we need to put them on the record.”
Al-Arian: “I don’t recall anything else.”
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The Department of Justice intervened in an ongoing copyright infringement case today on behalf of the recording industry, continuing the Bush Administration’s defense of harsh civil penalties for individuals involved in peer-to-peer internet sharing.
The administration, filing a motion to intervene in favor of the plaintiff in Massachusetts district court case Sony BMG Music Entertainment v. Tenenbaum, defended the ability of record companies to sue individuals who leak content online for statutory damages that can be more than a thousand times larger than the cost of the initial crime. The Bush administration had taken a similar stance in 2007, when it had intervened in Capitol v. Thomas, arguing that a $222,000 fine for illegally downloading 24 songs passed Constitutional muster.
The move comes as a surprise to supporters of Obama who thought the new administration would change the former president’s support of restrictive copyright infringement penalties. Proponents of more permissive copyright law, including Google CEO Eric Schmidt and noted Internet activist Lawrence Lessig, had praised Obama during the campaign for his support of less stringent regimes like Creative Commons.
As President, however, Obama has not garnered the same applause from opponents of the Recording Industry Association of America (RIAA), after appointing two former copyright lawyers to top positions in the Justice Department. Tom Perrelli, who represented the RIAA in private practice at Jenner & Block, was recently confirmed as associate attorney general, the number three position at DOJ. Another Jenner & Block partner, Donald Verrilli, who represented Viacom in their copyright infringement case against YouTube and the RIAA, was named associate deputy attorney general. Verrilli, for his part, withdrew from involvement in the case last week, citing a perceived conflict of interest. But critics see a connection between the appointments and the Obama administration’s decision to intervene.
The Department of Justice will declassify three potentially embarrassing memos written by the Bush Administration’s Office of Legal Counsel that detailed enhanced interrogation techniques used against “high-value” detainees, Newsweek is reporting.
The memos are believed to be a series of 2005 internal decrees issued by then OLC head Steven Bradbury, listing various techniques the Central Intelligence Agency was allowed to use in its interrogation of terrorism suspects, including water-boarding, head-slapping, and temperature manipulation. According to the American Civil Liberties Union, one memo, reportedly entitled “Authorized Interrogation Techniques,” allegedly argues that no interrogation technique used by the CIA, past or present, violates prohibitions against “cruel, inhuman and degrading treatment.”
The Administration has moved to declassify many of the controversial memos that formed the basis of the Bush Administration’s interrogation regime employed in the wake of the September 11th attacks, releasing nine memos earlier this month that provided legal support for extraordinary rendition and extrajudicial search and seizure. Speaking with Newsweek, Attorney General Eric Holder said he had concluded that there was no longer any reason to keep these memos classified in light of the January 22nd executive order banning the use of torture.
News of this recent round of declassifications comes on the heels of a classified 2007 Red Cross Report obtained by The New York Review of Books, which argues American treatment of suspected terrorists “constituted torture.” The memos may have been released to rebut allegations of mistreatment in the Red Cross report, in which prisoners describe being locked in confined spaces, physically abused, and deprived of solid food for days on end.
The memos are being released in accordance with a Freedom of Information Act request filed by the ACLU to obtain more than 50 controversial documents from the Bush Administration’s Department of Justice. It is as of now unclear as to when the three memos will be declassified and released in full to the public.
The Freedom of Information Act has come in from the cold.
Attorney General Eric Holder on Thursday issued new FOIA guidance to government agencies directing full compliance with requests for government documents. The guidance rescinds then-Attorney General John Ashcroft’s Oct. 12, 2001 memo essentially directing agencies to nit-pick FOIA requests to death by using legal technicalities to deny as many as possible.
The new FOIA guidance implements a policy articulated by President Obama on his second day in office: “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, oppenness prevails.” What that means in practice: ”An agency should not withhold information simply because it may do so legally… [or] demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption,” Holder’s memo says. The Holder memo returns to the standards set by President Clinton’s attorney general, Janet Reno, in 1993.
The memo continues:
FOIA professionals should be mindful of their obligation to work “in a spirit of cooperation” with FOIA requesters, as President Obama has directed. Unnecessary bureaucratic hurdles have no place in the “new era of open Government” that the President has proclaimed.
Agencies should work “pro-actively” to post information on-line before it’s requested, the memo says, and generally make better use of technology to speed up the notoriously long delays (ie: strategic foot-dragging) that have long plagued FOIA disclosure.
Holder also directed the DOJ to review pending FOIA litigation in light of the “substantial likelihood that application of the [new] guidance would result in a material disclosure of additional information.” Henceforth, the DOJ will defend government agencies only if it concludes their FOIA denials were truly (not just technically) prohibited by law. DOJ will also defend statuory exemptions protecting disclosures that would harm national security, law enforcement interests and personal privacy.
Open-government activists generally applauded. But David Sobel at the Electronic Frontier Foundation struck a cautionary note in this blog post:
[I]t remains to be seen if these proclamations from on high produce real results down in the bureaucratic trenches. We will soon learn in our pending lawsuits whether the new administration is truly prepared to reverse the pro-secrecy practices of the Bush administration.
The public interest group filed a lawsuit in 2006 seeking information from the Federal Bureau of Investigation about its Investigative Data Warehouse, a database used in counter-terrorism probes. On Jan. 23 — two days after Obama’s FOIA statement — the DOJ moved for summary judgment, asserting it had fully complied with EFF’s documents request. EFF asked the U.S. District Court for the District of Columbia to stay the proceedings. The FBI and DOJ should reconsider whether their previous disclosures during the Bush administration were adequate, given the new Obama policy of openness, EFF argued.
Image via CAP Action Fund
In what is shaping up to be a heated confirmation battle for a key Justice Department post, the Senate Judiciary Committee formally recommended former Clinton administration official Dawn Johnsen to head the Office of Legal Counsel, splitting 11-7 along party lines.
Johnsen, a noted American Constitution Society blogger and anti-torture activist who spent five years in Clinton’s OLC, has drawn fire from conservatives for her past work with the American Civil Liberties Union and the National Abortion and Reproductive Rights Action League (now NARAL Pro-Choice America). Sen. John Cornyn (R-Texas), joining a chorus of conservative voices that include Rep. Steve King (R-Iowa); and National Review’s Andy McCarthy, has voiced opposition to the nomination.
“As I see it, Dawn Johnsen has not demonstrated the seriousness and necessary resolve to address the national security challenges we face,” said Cornyn, telling the Legal Times that he would fight to prevent Johnsen’s confirmation in front of the full Senate. But in a sign the former National Republican Senatorial Committee Chairman may be more interested in scoring political points out of his opposition to the unabashedly liberal nominee than evaluating her fitness for office, he made only a brief appearance at her February 25th confirmation hearing before the Senate Judiciary Committee and posed no questions.
Sen. Arlen Specter (R-Penn.), the ranking Republican on Judiciary, abstained from voting, citing his desire to see Johnsen get a vote in front of the Senate. The 79-year-old Specter faces a potentially tough Republican primary fight in his re-election campaign next year. Many centrist Republicans are believed to have changed party registration to vote Democratic in last year’s presidential election, skewing the Pennsylvania GOP primary more conservative.
Specter now appears to be pivoting on some of his moderate positions. Although he supports abortion rights, Specter at Johnsen’s confirmation hearing questioned her about a footnote in a 1989 amicus brief she co-authored that drew parallels between unwanted pregnancies and slavery. Johnsen said she does not believe that abortion restrictions violate the Thirteenth amendment against involuntary servitude. Democrats need only the support of a handful of moderates like Specter for the nomination to succeed.
Johnsen’s fight to lead the Office of Legal Counsel is not without precedent – Steven Bradbury, whom former President Bush nominated in 2005 for the position, was never confirmed by the Democratic 110th Congress. The author of controversial secret legal memos that authorized harsh interrogation techniques against terrorism suspects, Bradbury served as acting head throughout his 4-year tenure. This politicization is not surprising, as some have called the office “more important to the war on terrorism than the attorney general.” The OLC gives the executive branch guidance for acting within legal and constitutional bounds.
No date has been set for Johnsen’s confirmation vote in front of the Senate.
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President Obama has nominted Maryland’s labor secretary, Tom Perez, to lead the Civil Rights Division. The move snubs Thomas Saenz, the former Mexican American Legal Defense and Education Fund lawyer and Yale law grad who was the original frontrunner. The BLT quotes a friend of Saenz who called the switcheroo ”a political decision from the White House, because of Tom’s work on immigration rights.” The friend said the administration thought his work on immigration issues might make his confirmation process difficult.
Tom Perez
Perez was a Deputy Assistant Attorney General for Civil Rights in the Clinton administration and a former special counsel to Sen. Edward Kennedy (D-Mass.). Here’s the White House announcement of his nomination.
The Obama administration has tossed the term “enemy combatant” into the dustbin alongside John Yoo’s Office of Legal Counsel memos.
The policy change emerged in a Department of Justice legal memorandum filed today before U.S. District Judge John Bates in Washington, who is overseeing challenges from Guantanamo prisoners to their detentions.
Del Quentin Wilber and Carrie Johnson write in the Washington Post:
Though dropping the term “enemy combatant” will have little practical effect, it is a symbolic move by the Obama administration to break with the past.
President Bush used the term “enemy combatant” to assert broad executive powers to keep “war-on-terror” prisoners out of reach of the civilian courts or Congress. In dropping the phrase, the Obama DOJ rejected Bush’s expansive view of executive power. The new administration said it would rely on international law and Congress’s 2001 Authorization for the Use of Military Force against the Taliban and al-Qaeda to detain prisoners.
Yes. That’s right. The Obama administration continues to assert authority to hold the prisoners. But it said it would only detain those who had offered “substantial” support to Al-Qaeda, not those who were swept up by circumstances. Still, the end result isn’t much different from the Bush administration’s policy.
Today’s memorandum was filed by Michael F. Hertz, acting assistant attorney general; Joseph H. Hunt, director of the Federal Programs Branch of the DOJ Civil Divison; Terry M. Henry, assistant branch director; David J. Anderson, counselor to the assistant attorney general; and Paul Ahern and Christopher Hardee, attorneys in the Federal Programs Branch.
In a declaration accompanying the memo, Attorney General Eric Holder said the government is working to carry out Obama’s Executive Order 13492 to close the Guantanamo camp by next year. An inter-agency task force led by Matthew Olsen, former Acting Assistant Attorney General for the National Security Divison, is reviewing the case files of each of the more than 200 detainees still at the U.S.-run military base in Cuba.
Last month, the Obama DOJ upset human rights activists by agreeing with the Bush administration that detainees held at Bagram don’t have a constitutional right to challenge their detentions. The Supreme Court had previously ruled in Boumediene v. Bush that detainees at U.S.-controlled Guantanamo have habeas rights. The challenge by the Bagram prisoners is also before Judge Bates.
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Attorney General Eric Holder announced his appointments of J. Douglas Wilson and Brad Wiegmann to lead two interagency task forces established by separate executive orders. Those orders, issued by President Obama on Jan. 22, called for a review of interrogation, transfer, and detention policies.
Wilson is chief of the National Security Unit in the U.S. Attorney’s Office in San Francisco. He is also a co-author with David Kris, Obama’s nominee to head the National Security Division at Main Justice, of a book on national security investigations and prosecutions. Wiegmann is the Principal Deputy and Chief of Staff in the National Security Division at Main Justice.
In statement from the Justice Department, Holder said:
“These appointments reflect our commitment to develop sound options for handling detainees in the future as well as policies on interrogation and transfer that uphold American values and national security interests…Having served in critical legal and national security positions over their careers, J. Douglas Wilson and Brad Wiegmann have the experience and judgment necessary to help us carry out these important tasks”
Holder appointed Wilson as the chief of the Special Task Force on Interrogation and Transfer Polices, charged with conducting a review to determine whether Army Field Manual interrogation guidelines, when used outside the military, provide appropriate guidance for broader intelligence gathering.
Wilson’s task force is also responsible for examining whether the transfer of detainees to other nations complies with domestic and international legal obligations.
Wiegmann is to lead the Special Task Force on Detention Policy, along with representatives of the Department of Defense. The executive order has charged this task force with conducting a review of the “lawful options available to the federal government for the apprehension, detention, trial, transfer, release or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.”
The statement says that both task forces are to provide a report to the president within 180 days of the Jan. 22 issuance of the orders, unless Wilson or Wiegmann determine that an extension of time is necessary.
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Senate Majority Leader Harry Reid (D-Nev.) has asked the White House to re-appoint Daniel Bogden as U.S. Attorney in Nevada, the Las Vegas Sun reports. Bogden, who’d been a career prosecutor before Bush appointed him to be U.S. Attorney in 2002, was fired in the 2006 White House purge. “I just think it’s so unfair what happened to him,” Reid told the Sun.
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The developer of the Department of Justice’s new office building in the NoMa neighborhood finally closed on financing, the Washington Business Journal reports. Much of the criminal division is slated to move to the new complex, Two Constitution Square, at 145 N St. NE by 2010.
