The case against Clevinger was open and shut. The only thing missing was something to charge him with.
- Joseph Heller, Catch-22
After a failed trial whose verdict was declared by Time Magazine to be "one of the Justice Department's most embarrassing legal setbacks since 9/11," the American government has been resorting to legal ruses and an outright manipulation of the judicial system to keep the high-profile Palestinian-American professor Sami Al-Arian imprisoned indefinitely. Now, after five years of imprisonment under conditions condemned by Amnesty International as "gratuitously punitive," Dr. Al-Arian could be sentenced any day to at least five more years. His case has been powerfully presented in this gripping YouTube video.
Dr. Al-Arian’s case captures all of the absurd, Catch-22esque qualities of the Bush administration’s putative "war on terror." Much like Yossarian, the protagonist of Joseph Heller’s telling anti-war novel Catch-22, Dr. Al-Arian has been caught at the mercy of powerful individuals whose farcical logic and self-defeating strategies would be highly comical as the substance of a novel, but which are only that much more terrifying in the real world.
Take, for example, the fact that, while Mohamed Atta – the ringleader of the 9/11 hijackers – was taking flight lessons in the same state where Dr. Al-Arian lived, the FBI ignored him and spent their energies on wiretapping Dr. Al-Arian and his whole family, even though they knew he was not connected to any terrorist activities. The fact that the FBI was following Dr. Al-Arian for political and not security reasons has been confirmed by former FBI counterterrorism chief Bob Blitzer, who told reporter John Sugg unambiguously that Dr. Al-Arian had broken "no federal laws."* Similarly, an anonymous FBI source in December 2005 told Time Magazine that when Attorney General John Ashcroft ordered Dr. Al-Arian’s arrest in early 2003, federal professionals assigned to the case were utterly perplexed. "We were in shock, but those were our marching orders," one FBI supervisor who was involved in the case noted.
Or take, for instance, the fact that while the Justice Department was trying to have the book thrown at Dr. Al-Arian for his alleged support of terrorism, Bob O’Neill, one of the lead prosecutors, was co-owner of an Irish pub in Tampa that publicly raised money for the political wing of the terrorist Irish Republican Army.
Or consider that, while Ashcroft declared Dr. Al-Arian to be "the most dangerous financier of Palestinian Islamic Jihad in the Western Hemisphere," the chief prosecutor in Dr. Al-Arian’s trial, US Attorney Paul I. Perez, freely admitted that "Mr. al-Arian was not directly linked to any of the violent acts that we showed during the trial."**
The government’s attorneys weren’t the only ones employing questionable logic: after the jury acquitted Dr. Al-Arian of the eight most serious charges and hung 10 to 2 in favor of acquittal for the rest, one of the two jurors who voted for conviction explained her reasoning: "For me, the absence of evidence didn't mean there was no evidence. For me, it suggested a cover-up." So if there’s evidence, he’s guilty as charged; if there isn’t any evidence, he’s still guilty. Catch-22 indeed.
Did I also mention the fact that the government tried to hold Dr. Al-Arian accountable for a terrorist website he never visited, but whose link was posted on another website visited by one of his co-defendants? (I suggest going back and reading that sentence two more times) Or the fact that the prosecution entered into evidence a conversation one of Dr. Al-Arian’s co-defendants had had with him in a dream?
If all this were just literary fiction assigned to first-year English majors, it would be an entertaining satire of contemporary American society. But it’s not; this is the grotesque nightmare Sami Al-Arian and his family have had to live through for the past five years. Just as Joseph Heller tried to convey, the logic of power can be farcical, short-sighted, and self-defeating, but it is also uncompromisingly ruthless and senseless in the way that it destroys men’s lives.
Unfortunately, unlike Heller’s protagonist who, after years of dreadful military service, eventually flees toward the horizon to escape his dismal lot, our Palestinian Yossarian’s plight did not end here. After the verdicts were pronounced, the government publicly threatened to retry the case – perfectly legal, but highly irregular given the overwhelming support of the jurors for acquittal. By contrast, around the time of Dr. Al-Arian’s trial, a jury hung 6 to 6 in a case where the founder of Hooters restaurant was charged with tax evasion; the government realized that it could not realistically convict him in a retrial, and let the case go.
Privately, however, the government wanted to minimize the embarrassment of losing the suit it had hyped up as the domestic terror case of the century, so they made Dr. Al-Arian an offer he couldn’t refuse. The government would release him as soon as possible and have him deported; all he had to do was confess to three minor acts: (1) hiring an attorney for his brother-in-law, Mazen Al-Najjar, during the latter’s deportation hearings in the late 1990s (2) filling out immigration forms for a resident Palestinian scholar from Britain, and (3) not disclosing details of his colleague’s political associations to a local reporter. Since the government claims the three people in question were associated with the Palestinian Islamic Jihad, it could twist the language and say that Dr. Al-Arian was pleading guilty to "Conspiracy to make or receive contributions of funds, goods or services to or for the benefit of the Palestinian Islamic Jihad."
After the plea agreement was signed, the prosecution recommended to the judge that Dr. Al-Arian be given the minimum sentence possible. The judge, however, had different ideas. He proceeded to give Dr. Al-Arian the maximum sentence allowed, absurdly claiming that Dr. Al-Arian’s "only connection to widows and orphans is that [he] create[s] them," despite the jury’s overwhelming conclusion to the contrary.
Sadly, even this was not the end. Going back to the plea agreement: the government initially wanted to include a cooperation-clause in the agreement, which is standard practice in the Middle District of Florida, and which would have required Dr. Al-Arian to testify at any other trial he might be subpoenaed to. His lawyers were adamant that this clause be removed and that their client not be required to cooperate with the government. Prosecutors backed down, and removed the clause.
Dr. Al-Arian was scheduled to be released on April 7th, but one month ago, a federal judge blatantly ignored the plea bargain and summoned Dr. Al-Arian to testify before another grand jury for an unrelated case. The government has never denied the understanding of the plea bargain (indeed, some government attorneys unusually offered to testify about the negotiations in front of a judge in Florida, but the judge was not interested), arguing only that the absence of an explicit clause exempting Dr. Al-Arian from testifying means that he can be forced to testify. Dr. Al-Arian’s lawyers maintain that this argument is bogus because plea bargains operate under the same rules as any other type of contract.
Why would Dr. Al-Arian be afraid to testify? If he’s innocent, what’s there to hide?
This brings us to the last and most cruel Catch-22 of all. As Jonathan Turley, one of Dr. Al-Arian’s lawyers points out, "If the government wants to charge your client with perjury, it is almost certain to be able to do so by asking enough questions over the course of the proceeding." Bennett Gershman – one of America’s leading legal scholars on prosecutorial misconduct – has written at length about how the perjury trap is a very common technique used by desperate prosecutors who are unable to convict a defendant on substantive criminal charges. He has a very apropos quote which, although describing the Communist witch-hunt of the 1950’s, could very well apply to the witch-hunt of alleged Muslim terrorists in the Bush Administration’s war on terror:
Little has been written, however, about the aggressive use of the grand jury to indict for perjury individuals who presumably could not otherwise be charged with criminal offenses. It may be no coincidence that in a climate of political crisis, when the public craves victims, zealous and ambitious prosecutors frequently seek to satisfy that appetite by resorting to perjury charges against persons vulnerable because of associations held or utterances made many years ago.
The "zealous and ambitious prosecutor" in this case is US Attorney Gordon Kromberg, a man whose past statements and actions can leave no doubt as to his true intentions.
Gordon Kromberg: the same Gordon Kromberg who has made several outrageously bigoted statements against Muslims. The same Gordon Kromberg who was accused in a case against another Muslim American of engaging in "unlawful coercion, threats and intimidation." The same Gordon Kromberg who, when asked to support the extradition of a third Muslim American being held and tortured in Saudi Arabia, remarked "He’s no good for us here, he has no fingernails left." The same Gordon Kromberg who has "bluntly declared that people like him ought to be able to punish individuals they believe are guilty, even if they can’t prove that guilt in a court of law." The same Gordon Kromberg who called upon another Muslim American (Sabri Benkahla), who had been previously acquitted of terrorism charges, to testify and then subsequently charged him with perjury based on the same statements he had already been cleared of in a blatant example of double jeopardy (Benkahla is currently serving a ten-year sentence for perjury). The same Gordon Kromberg who has been trying to force Dr. Al-Arian to testify for over a year.
Furthermore, the government has indeed already attempted to distort Dr. Al-Arian’s word to try to convict him: in 2000, while testifying at an immigration hearing for his brother-in-law, a prosecutor asked Dr. Al-Arian if he "believed in the use of violence to free Islam." Dr. Al-Arian answered "No" to this absurd question. Three years later, one of the charges against Dr. Al-Arian in the 53-count indictment was an obstruction of justice count based on his response to that question (Dr. Al-Arian was subsequently acquitted of that charge). Additionally, given that Dr. Al-Arian was under 24-hour surveillance by the government for at least a decade prior to his arrest, it is entirely implausible that the government cannot produce whatever information they want from him by other means.
In other words, Dr. Al-Arian has two choices: either testify, face perjury charges, and spend perhaps ten years in jail, or: refuse to testify, be found in criminal contempt, and spend at least five years in prison. Not even the deranged military brass of Joseph Heller’s bizarre dystopia could have come up with such a cruel catch.
Dr. Al-Arian, who is diabetic, began a hunger strike on March 3rd, his third since his arrest five years ago, to protest this continued government harassment. Despite the fact that this strike has made him lose more than 30 pounds and has very noticeably weakened him (click here for pictures of Dr. Al-Arian during his second hunger strike), this is the only recourse he has to protest this malicious trap.
On March 20th, Dr. Al-Arian was brought before the court and, on the counsel of his attorneys, refused to testify. Any day now, he could be brought before the judge and found in criminal contempt.
The trial of Sami Amin Al-Arian made it clear that the government was really punishing him for his political support for the Palestinian cause. As reporter John Sugg has written:
The onslaught against [Sami Al-Arian] was merely an attempt to silence an emerging voice that differed with the only politically correct narrative on the Middle East. It has been an organized, concerted effort.
More than a decade ago, when Israel’s [right-wing] Likudniks in the United States, such as [Steve] Emerson, were working feverishly to undermine the Oslo peace process [between the Israelis and Palestinians], no Arab voice could be tolerated, and Al-Arian (unlike any terrorist I’ve heard about) was vigorously trying to communicate with our government and its leaders. He was being successful, making speeches to intelligence and military commanders at MacDill AFB’s Central Command [Air Force Base in Tampa], inviting the FBI and other officials to attend meetings of his groups. People were beginning to listen and to wonder why only one side of the Middle East debate was heard here.
While the judge allowed the prosecution to put 21 Israeli witnesses on the stand to testify to the horrors of Palestinian suicide bombings (even though the chief prosecutor freely admitted that Dr. Al-Arian was not directly linked to these acts of violence, as quoted above), he would not allow the defense to talk about the plight of the Palestinians in any way, shape, or form, going so far as to prevent them from discussing United Nations Security Council Resolution 242 which addresses the Arab-Israeli conflict. The fact is that Dr. Al-Arian’s activism for Palestinian issues, which he promoted through peaceful, democratic means, was far more of a threat to hardliner pro-Israel zealots than any suicide-bomber ever could be. His real crime was his commitment to the American ideal of free speech.
Alas for Sami, he lives at a time when this sort of twisted logic reigns over our justice system. Alas for Sami - alas for us all.
To sign the petition to free Dr. Al-Arian, please visit petition.freesaminow.com
For more information, please visit www.freesaminow.com
* Sugg notes in the same article that "I was able to find out, without much difficulty, that at least twice federal prosecutors had concluded there was no case against Al-Arian."
**Frames 42:53-43:02 on the international version of the documentary USA vs Al-Arian. Also frames 3:49-3:59 in the YouTube video http://www.youtube.com/...