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.”
