Scattered throughout the ranks of U.S. federal prosecutors and judges there have always been men and women who are unwilling to make a distinction between their own biases and the rules of evidence that are designed to keep the system focused on the goal of justice. Such closed-minded individuals, embedded in the system, can find themselves set free to act out their prejudices by special circumstances. One might think back to the “hanging judges” who appeared here and there on the American frontier in the 19th century. Being among the few enforcers of law and order in an otherwise anarchic environment, they indulged their fantasies of playing the wrathful god.
The “War on Terror” has likewise created a special circumstance that has liberated Justice Department dogmatists: Islamophobes, Zionists, neoconservatives and others who fancy themselves on a special mission to protect the nation from evil and conspiratorial forces. And, as with the hanging judges before them, the result has been an enhanced possibility not of justice, but rather of the miscarriage of justice.
The Case of Sami Al-Arian
In the past twenty years one of the most notable victims of doctrinaire judges and prosecutors has been Sami Al-Arian. Al-Arian is the son of Palestinian-refugee parents. He came to the United States in 1975 to attend university and earned his degree in computer systems engineering. Eventually he earned a Ph.D. and obtained a tenure-track position at the University of South Florida.
Not only did Al-Arian become a prominent professor, winning several teaching awards, but he also became a community activist, defending the civil liberties of minority groups, particularly Muslim Americans. During the Clinton administration he was an active campaigner against the Justice Department’s pre-9/11 use of “secret evidence” to hold people in jail indefinitely. He also actively and publicly supported the right of Palestinians to resist Israeli oppression.
At some point in the mid-1990s what may have been a coordinated effort to ruin Dr. Al-Arian developed among neoconservative and Zionist elements. Steven Emerson, a man who has made his living as a faux expert on terrorism and a professional Islamophobe, accused one of Al-Arian’s organizations, the World and Islam Studies Enterprise, of being a “terrorist front.” This accusation proved to be baseless, but it nonetheless led other Islamophobe radicals to focus on Al-Arian. Some of these people resided within the Justice Department and the FBI, and they went on a fishing expedition looking for alleged connections between Al-Arian and a recently designated “terrorist organization” called the Palestine Islamic Jihad (PIJ).
During the 2000 presidential election Al-Arian became a prominent figure in national politics as it played out in Florida. His major concern was the government’s use of secret evidence, and it was George W. Bush who promised to rein in the practice. Therefore Al-Arian backed Bush in the election. His trust in this regard proved horribly misplaced.
On September 26, 2001, Bill O’Reilly invited Al-Arian onto his TV show ostensibly to discuss Arab-American reactions to the 9/11 attacks. It was a trap. O’Reilly immediately asked Al-Arian if he had said “Jihad is our path. Victory to Islam. Death to Israel” at a rally thirteen years before (in 1988). Though Al-Arian tried to explain that it was a reference to his support for Palestinian resistance against apartheid policies in Israel, O’Reilly proclaimed that the CIA should watch Al-Arian from now on. Almost at once Al -Arian started to receive death threats. At this point the University of South Florida placed him on administrative leave. He would eventually be fired by the University.
The O’Reilly interview may have been a public relations booster for the ongoing Justice Department investigation mentioned above.That lasted until September 2003, when Al-Arian and three others were indicted on 25 counts of “racketeering” for the PIJ. The Bush administration’s Attorney General John Ashcroft went on television to extol the indictment as a great blow against terrorism (thus confusing an indictment with a conviction) that was made possible by the extensive powers of the USA PATRIOT Act. Among these powers were those George W. Bush had promised Al-Arian he would rein in.
After a 5-month, 13-day trial Al-Arian was acquitted on 8 counts and the jury deadlocked on the remaining 17. When a juror was interviewed after the trial and asked what was lacking in the government’s case he replied, “evidence.” Nonetheless, the outcome allowed the government to hold Al-Arian pending retrial on those deadlocked counts. The case had a distinctly contrived and corrupt feel to it – the result of Islamophobes turned loose by the events of 9/11 to substitute their own biases for the rules of legal evidence.
In 2006 Dr. Al-Arian was still in prison. His health was deteriorating and the strain on his family (his wife and five children) was great. Given the situation he agreed to a plea bargain agreement whereby he would plead guilty to one count of acting in a fashion that benefited the PIJ. In exchange the other counts would be dismissed by the government. He would be incarcerated for a relatively short period on the guilty count with time already served counting toward this sentence. In order to secure the plea bargain, Al-Arian also had to agreed to be deported upon release.
Once more the government, in this case the judge and the federal prosecutor, proved untrustworthy. Despite the jury verdict, the judge had decided that Sami Al-Arian was a “master manipulator” and “a leader of Palestine Islamic Jihad.” This was exactly what the jury decided the evidence could not substantiate. However, the judge, moved by emotional convictions, had equated statements on the part of Al-Arian showing understanding of acts of Palestinian resistance with actual material support of those actions. In doing so the judge went beyond the rules of evidence and corrupted the system he was sworn to serve. The judge gave Dr. Al-Arian not the minimum recommended in the plea bargain but the maximum of 57 months for the one count to which he pled guilty.
Then began a series of additional prosecutorial steps involving the issuing of repeated subpoenas demanding that Al-Arian testify at grand jury investigations. This was also in defiance of his plea bargain and so he refused. He was held in civil and later criminal contempt which added substantially to his jail time.
So egregious was the behavior of the prosecutors seeking his testimony that another, more objective judge eventually stepped in and halted the government’s efforts to force Sami Al-Arian’s to appear before grand juries. Dr. Al-Arian was also let out of prison and allowed to live under a liberal form of house arrest at his daughter’s home in Virginia. His case was held in a kind of legal limbo until just recently, when on 27 June 2014, prosecutors decided to drop all charges against Al-Arian. One should not think of this as a total victory, for the government still intends to deport Sami Al-Arian.
Sami Al-Arian and his family had to endure eleven years of persecution on the basis of assumptions that were substituted for evidence. In the process the life of an upright man, devoted to teaching, charitable works and the cause of a persecuted people, was ruined. The people who did this to him simultaneously corrupted the justice system the integrity of which they were sworn to uphold.
While Sami Al-Arian was perhaps the most high-profile of these cases, his was not the only one. Four members of the Holy Land Foundationcharity were charged with materially aiding Hamas when, in fact, all the foundation did was supply money to charitable Palestinian organizations which had been accredited by Israel. It took two trials, one in 2007 and another 2008, for the U.S. government to eke out a conviction on weak evidence that included the testimony of anonymous Israeli witnesses.The Supreme Court refused to interfere with this prima facie unconstitutional procedure.
At present a Palestinian civil rights activist in Chicago, Rasmea Odeh, is being prosecuted for an alleged immigration fraud for failing to report on her immigration application that forty-five years ago, when she was a child, she was arrested by the Israeli military and briefly held without charge. The same prosecutor who went after the Holy Land Foundation is involved in the prosecution of Odeh.
Times of high tension often result in the lowering of important standards in the application of law. They do so by heightening the fears of the general public, which in turn gives license to bigots embedded in the justice system such as judges and prosecutors who have Islamophobic prejudices, Zionist biases, or neoconservative delusions. All of these motives may come into play in cases such as those mentioned above.
Normally the appeals process should catch and reverse such problematic behavior. However, if the period of public fear is prolonged, the appeals process might also become corrupted by public hysteria and political pressures. It took Sami Al-Arian eleven years to overcome his prosecutorial ordeal and those of the Holy Foundation members and Rasmea Odeh are ongoing.
The last word on this dilemma should go to Sami Al-Arian’s son, Abdullah, who in a recent statement observed,“It’s a sad day when you have to leave America to be free.” Indeed, when dogmatists are in control none of us are really free.
Lawrence Davidson is professor of history at West Chester University in West Chester PA.