With all the battering prosecutors have taken recently from judges who worry they are too cavalier with the rights of defendants, it’s worth noting a disputed case where the prosecutors apparently got it right – but the judge won’t admit it.
In early 2009, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia appeared poised to dismiss a criminal contempt of court case against a confessed supporter of the Palestinian Islamic Jihad terrorist group.
In a Feb. 20, 2009, hearing, Brinkema harrumphed about the government’s contempt case against former University of South Florida professor Sami Al-Arian, saying there was a “significant cloud over this criminal prosecution” and making other remarks that made her skepticism clear.
But a year and a half later, she has never ruled. Why?
Some background first.
The defendant, Al-Arian, somehow managed to turn himself into a free-speech martyr, despite a mound of wiretap and other evidence showing he’d been part of the political brain trust behind Islamic Jihad, which 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 Bill Clinton issued an executive order banning assistance to the group, which the U.S. later formally designated a Foreign Terrorist Organization.
But prosecutors in a 2005 trial failed to convince a jury to convict Al-Arian. He was acquitted on eight of 17 counts, with the jury failing to reach agreement 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. His attorney, William Moffitt, who has since died, went to Washington to finalize the plea agreement, meeting with then-Criminal Division chief Alice Fisher, according to an affidavit Moffitt submitted.
Later, prosecutors in the Eastern District of Virginia tried to call Al-Arian before a grand jury to offer testimony in a related terrorism-financing case. Al-Arian refused, saying he’d struck an unwritten side deal with prosecutors in his 2006 plea agreement that ended his obligation to cooperate further with the government. The U.S. charged him with contempt and denied any side deal had been struck.
In a series of hearings in Alexandria, Va., in early 2009, Brinkema made a lot of unflattering noise about the prosecution’s contempt case. Although Al-Arian’s plea agreement was silent on the question of whether Al-Arian would have to provide further testimony in related cases, Brinkema wondered openly whether there had been any “winks and nods” by prosecutors leading Al-Arian to believe he indeed had no more obligation to assist investigators.
Further complicating matters was the prosecutor, Gordon Kromberg, who had made unflattering remarks in the past about Muslims. Brinkema’s distaste for Kromberg was palpable.
“I think the integrity of the Justice Department and the integrity of the criminal justice plea bargaining process is too significant to” let the matter drop, she said in the February 2009 hearing.
But in April 2009, Kromberg filed a response that demolished the defense argument. He cited the transcript of Al-Arian’s 2006 plea hearing before a federal Magistrate Judge in Tampa, Thomas B. McCoun III.
McCoun repeatedly questioned Al-Arian about any “inducements” he had with prosecutors outside the written agreement that convinced him to plead guilty, the transcript showed. Al-Arian raised only one: The government had agreed to expedite his deportation in exchange for the guilty plea.
Al-Arian said not a word, under repeated questioning, about any understanding of a side deal to exempt him from giving further testimony in other terrorism-related cases.
Fifteen months later, what do we have from Brinkema? No ruling. Just the sound of crickets.
Al-Arian today continues to live in the Washington, D.C., area, under court supervision. It’s unclear when, if ever, Brinkema intends to rule. The case in which the U.S. sought Al-Arian’s testimony, meanwhile, is long over.
The judge should just admit it: Prosecutors were right. Al-Arian wasn’t telling the truth about his plea agreement.
It’s been nearly eight years since federal agents raided a group of homes, Islamic organizations and businesses in a massive terrorist-financing investigation centered in Herndon, Va., that appears now to have largely sputtered out.
But the spin-off litigation — including challenges to grand jury subpoenas and contempt findings – continues to churn in the federal courts. Last week, we went to Richmond to hear arguments in the U.S. Court of Appeals for the 4th Circuit, but we were shooed away. Hearing sealed. Grand jury stuff, we were told.
But the Sept. 23 hearing was a “re-argument,” according to the docket, which is otherwise crowded with sealed motions we can’t see. Fortunately, a recording of the previous hearing, held in March, is available. The arguments at that March hearing haven’t previously been reported.
It’s unclear why the court ordered a mulligan. But we did make this discovery: Defense lawyers are challenging the legality of the Bush administration’s warrantless wiretapping program in the 4th Circuit — a rare thing indeed.
No federal appellate court in the country has ruled on the constitutionality of the NSA program, which critics say violates the First and Fourth Amendments.
An Islamic think tank that came under scrutiny in the terrorism-financing probe, the International Institute for Islamic Thought, is pressing the issue on appeal. At the March hearing, a lawyer for the institute, Steven Barentzen, wanted the 4th Circuit to pronounce the surveillance program illegal and withdraw the contempt finding.
Barentzen argued any information gleaned from the NSA program was “unlawfully obtained,” according to the recording. He asked the panel to order the government to say whether the organization had been targeted by the NSA surveillance program, as the organization contends it was. The government maintains it does not have to reveal its investigative methods. The think tank, known as IIIT, has denied any ties to terrorism.
It isn’t known why the think tank believes it was targeted by the warrantless surveillance program. Its offices, along with other homes and businesses, were raided in March 2002 by federal agents, in a terror-financing case that had its roots in Florida in the 1990s, before the Sept. 11, 2001 attacks and the NSA surveillance program.
The central figure in that Florida probe, former University of South Florida professor Sami Al-Arian, is fighting his own criminal contempt charges in the Eastern District of Virginia for refusing to testify before a grand jury about his knowledge of IIIT. Al-Arian pleaded guilty in the Middle District of Florida in 2006 to one count of assisting Palestinian Islamic Jihad, which conducted suicide-bombing attacks in Israel.
Barentzen told the 4th Circuit in March:
“Triple IT was held in contempt pursuant to 28 USC 1826a for failing to produce documents in response to a grand jury subpoena, despite having been ordered to do so. IIIT has contended from almost the beginning, after receiving the subpoena that it had just cause for refusing to reply to the subpoena pursuant to the Supreme Court’s decision in Gelbard versus the United States…”
‘[T]he subpoena was derived from information that the government had unlawfully obtained pursuant to electronic surveillance of IIIT under the NSA’s warrantless surveillance program, which was authorized by President Bush after the September 11 attacks…”
The lower court ”found the government was not required to admit or deny whether any surveillance under the NSA program had occurred. And it’s our contention the district court erred in that respect.”
In tempting the 4th Circuit to consider the Bush-era program, Barentzen is fighting an uphill battle. Beginning in 2006, shortly after The New York Times disclosed the existence of the NSA program, federal district judges across the country began telling litigants — mostly defendants in criminal cases — they were not entitled to learn whether they came under scrutiny through the NSA program. Still, litigation of any kind over the NSA program rarely rises to the appellate level.
The first time it did, in 2007, the U.S. Court of Appeals for the 6th Circuit ruled that the plaintiffs — a group of journalists and lawyers — lacked standing to sue, because they couldn’t prove the government had spied on them.
The 4th Circuit appears to want to follow the 6th Circuit’s lead. At the March hearing, the panel resisted Barentzen’s effort to make the NSA program the main topic. Two judges questioned whether the case was moot because the government had received the documents it was seeking from the institute.
“Why are we even discussing this argument then?” one judge asked, referring to Barentzen’s claim that the NSA program was illegal. The recording of the hearing does not identify the judges, but the docket shows the panel was comprised of Chief Judge William Traxler, Judge Diana Motz and Judge Dennis Shedd.
Barentzen said the institute had standing because it had been ordered to pay a contempt fine, a portion of which has so far gone unpaid.
The panel of judges avoided mention of the NSA program when questioning Assistant U.S. Attorney Gordon Kromberg, of Virginia’s Eastern District.
The constitutionality of the NSA program is also being litigated in another case across the country. In proceedings before a district judge in San Francisco, a defunct Islamic charity, Al-Haramain Islamic Foundation, said it received classified documents that proves it was wiretapped. Because of the documentary proof that Al-Haramain claimed to have seen, standing is less of an issue in that case.
Freelance journalist Joseph Goldstein and Main Justice’s Mary Jacoby contributed to this report. Goldstein covered this case for the New York Sun. He purchased a recording of the March hearing from the court.
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After the Ted Stevens debacle, the last thing the Department of Justice needs is another dismissal of a highly politicized indictment under allegations of prosecutorial misconduct.
And so the stakes have been raised in a little-noticed, but fiercely fought, battle in the Eastern District of Virginia over a criminal contempt of court indictment against Sami Al-Arian, a confessed supporter of a Palestinian terror group. Judge Leonie Brinkema has scheduled a hearing on April 24 in Alexandria where she’ll likely decide whether to throw the contempt case out or let it proceed to trial. Each side is accusing the other of undermining the “integrity” of the U.S. justice system.
For background, see my previous posts here and here. The issue is whether prosecutors in the Middle District of Florida and the Counter-Terrorism Section at Main Justice used “winks and nods,” as Brinkema put it, to persuade the former University of South Florida professor to plead guilty in 2006 to one count of assisting Palestinian Islamic Jihad, then violated a verbal promise that Al-Arian wouldn’t have to testify before a grand jury in Virginia investigating terrorism financing networks. Islamic Jihad is a smaller rival to Hamas that has conducted numerous suicide bombings in Israel.
Through his attorney, celebrity George Washington University law professor Jonathan Turley, Al-Arian claims the terms of his 2006 plea agreement allowed him to ignore two later grand jury subpoenas in Virginia. The government disputes this. The agreement itself is silent on the issue of cooperation – neither ruling it in or out. But two district judges and two panels of appellate judges have already ruled against Al-Arian, who was previously charged with civil contempt.
Brinkema, however, has appeared skeptical of the criminal case, in part because prosecutors did not comply with her request to submit sworn affidavits about their understanding of the disputed agreement.
But in a government motion filed April 6, Assistant U.S. Attorney Gordon Kromberg leans heavily on a key part of the public record he’d apparently overlooked in making his previous arguments: a transcript of Al-Arian’s 2006 plea hearing.
Under federal rules of criminal procedure, a judge must hold a hearing to examine whether a defendant is of sound mind and voluntarily pleading guilty. The judge must also explore thoroughly whether any “inducements” were offered to the defendant to plead guilty.
Federal Magistrate Judge Thomas McCoun III did so in Tampa. In the 2006 hearing, he repeatedly asked Al-Arian to state for the record if there were any side deals offered. Other than a promise from the government to deport him swiftly after time served, Al-Arian said: “I don’t recall anything else.” He made no mention of any deal to exempt him from testifying in other cases.
In its April 6 motion, the government argues courts must rely on the written terms of the plea agreement in such cases. The Al-Arian case was especially complicated, with “four defense attorneys engaged in negotiations with at least five government officials over a two month period in two different cities” (Tampa and Washington), the motion said.
Al-Arian’s lead defense attorney in Florida, William Moffitt, withdrew from the case before the plea agreement was finalized. But Al-Arian’s defense has based its defense on an affidavit Moffitt submitted saying he negotiated the deal in Florida and at Main Justice with then-Criminal Division chief Alice Fisher. Moffitt said it was his clear understanding that the agreement would “conclude all business” between Al-Arian and the government.
The government motion answers:
“It is unfortunate if a misunderstanding actually occurred in this case, and the defendant actually was advised by his attorneys that – in spite of the written terms of his agreement and the statements made to Judge McCoun in open court – his plea agreement barred this district from compelling his testimony.” It adds: “[E]nabling him now to avoid punishment for his criminal contempt would undermine the integrity of the Court.”
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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
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.
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.”