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Obstruction of Justice

U.S. District Judge Leonie M. Brinkema is scheduled to issue a ruling in the Eastern District of Virginia at the end of April in a case that will send a signal to the Muslim world and beyond whether the American judicial system has regained its independence after eight years of flagrant manipulation and intimidation by the Bush administration. Brinkema will decide whether the Palestinian activist Dr. Sami Amin Al-Arian, held for over six years in prison and under house arrest in Virginia since Sept 2, is guilty or innocent of two counts of criminal contempt.

Brinkema's ruling will have ramifications that will extend far beyond Virginia and the United States. The trial of Al-Arian is a cause célèbre in the Muslim world. A documentary film was made about the case in Europe. He has become the poster child for judicial abuse and persecution of Muslims in the United States by the Bush administration. The facts surrounding the trial and imprisonment of the former university professor have severely tarnished the integrity of the American judicial system and made the government's vaunted campaign against terrorism look capricious, inept and overtly racist.

Government lawyers made wild assertions that showed a profound ignorance of the Middle East and exposed a gross stereotyping of the Muslim world. It called on the FBI case agent, for example, who testified as an expert witness that Islamic terrorists were routinely smuggled over the border from Iran into Syria, apparently unaware that Syria is separated from Iran by a large land mass called Iraq. The transcripts of the case against Al-Arian-which read like a bad Gilbert and Sullivan opera-are stupefying in their idiocy. The government wiretaps picked up nothing of substance; taxpayer dollars were used to record and transcribe 21,000 hours of banal chatter, including members of the Al-Arian household ordering pizza delivery. During the trial the government called 80 witnesses and subjected the jury to inane phone transcriptions and recordings, made over a 10-year period, which the jury curtly dismissed as "gossip." It would be comical if the consequences were not so dire for the defendant. 

A jury, on Dec. 6, 2005, acquitted Dr. Al-Arian on eight of the counts in the superseding indictment after a six-month trial in the U.S. District Court for the Middle District of Florida. On the 94 charges made against the four defendants, there were no convictions. Of the 17 charges against Al-Arian-including "conspiracy to murder and maim persons abroad"-the jury acquitted him of eight and was hung on the rest. The jurors, who voted 10 to 2 to acquit on the remaining charges, could not reach a unanimous decision calling for his full acquittal. Two others in the case, Ghassan Ballut and Sameeh Hammoudeh, were acquitted of all charges.

The trial result was a public relations disaster for the Bush White House and especially then-Attorney General John Ashcroft, who had personally announced the indictment and reportedly spent more than $50 million on the case. The government prosecutors threatened to retry Al-Arian. The Palestinian professor accepted a plea bargain that would spare him a second trial, agreeing that he had helped people associated with Palestinian Islamic Jihad with immigration matters. It was a very minor charge given the high profile of the case. The U.S. Attorney's Office for the Middle District of Florida and the counterterrorism section of the Justice Department agreed to recommend to the judge the minimum sentence of 46 months. But U.S. District Judge James S. Moody Jr., who made a series of comments during the trial that seemed to condemn all Muslims, sentenced Al-Arian to the maximum 57 months. In referring to Al-Arian's contention, for example, that he had only raised money for Palestinian Islamic Jihad's charity for widows and orphans, the judge told the professor that "your only connection to orphans and widows is that you create them."

I spent an afternoon with Dr. Al-Arian in his small apartment in Arlington, Va., on Friday. His lawyers have asked that he make no public statements about his case. But we talked widely about the Middle East, the new Israeli government, the siege of Gaza, our families and the changes he hopes will come with an Obama administration. He sat on a couch wearing an electronic monitoring bracelet on his ankle, thankful to be with his wife and children after being shuttled between jails across the South and kept for 45 months in solitary confinement during his five-and-a-half-year ordeal. But he remains perplexed, as are many, by the gross miscarriage of justice and the ferocity of the government's campaign to smear him with terrorism charges.

The government originally sought a standard cooperation provision as part of the final plea agreement. Al-Arian objected. He refused to plead guilty if he had to cooperate with the Justice Department. The Justice Department-including lawyers from the counterterrorism section of Main Justice-then negotiated to take out the cooperation provision in return for a longer sentence on the one count. That was the deal. He was to have been held in jail until April 2007 and then deported. But that never happened.

Right-wing ideologues, led by Assistant United States Attorney Gordon Kromberg, had no intention of letting him leave the country. Kromberg, a staunch supporter of Israel, arranged to keep Dr. Al-Arian behind bars even after he had finished serving his sentence. He blocked the deportation and subpoenaed Al-Arian to appear in Virginia to testify in an unrelated investigation of a Muslim think tank. This subpoena was a clear violation of the original plea bargain, and Al-Arian, heeding the advice of his lawyers, refused to give in to Kromberg's demands. This led Kromberg to set in motion the newest charges of criminal contempt. Criminal contempt, bolstered by something called terrorism enhancement under Patriot Act II, is the only charge in U.S. statutes that does not carry a maximum penalty. The enhanced criminal contempt charge increases Al-Arian's sentence from the usual 14 to 21 months for criminal contempt to a staggering 17 to 24 years for obstructing a state terrorism investigation. A handful of members of the House, including Jim Moran and Dennis Kucinich, have denounced Kromberg's newest attempt to orchestrate a judicial lynching.

Kromberg, like many involved in the case, has also repeatedly made derogatory and insulting comments about Muslims. When Al-Arian's lawyers asked Kromberg to delay the transfer of the professor to Virginia, for example, because of the Muslim holy month of Ramadan, they were told "if they can kill each other during Ramadan they can appear before the grand jury." Kromberg, according to an affidavit signed by Al-Arian's attorney, Jack Fernandez, also said: "I am not going to put off Dr. Al-Arian's grand jury appearance just to assist in what is becoming the Islamization of America."

Judge Brinkema, in one of the rare examples of judicial courage during this saga, defied the government to allow Al-Arian out on bail. 

The case against Al-Arian, in the eyes of the grand inquisitors like Kromberg, is a battle against a culture and a religion that they openly denigrate and despise. This racism, the driving engine behind the campaign against Al-Arian, mocks the integrity of the American judicial system. Let us hope that in a few weeks we will witness a new era. Justice delayed is better than justice denied. We owe Dr. Al-Arian, and ourselves, a return to the rule of law.

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