Terror prosecutions: Sami Al-Arian’s Catch-22 by John Halliwell

The case against Clevinger was open and shut. The only thing missing was something to charge him with.
- Joseph Heller, Catch-22

Having lived as an American expatriate in Cairo for almost five years, I am often asked the question, “How are Muslims treated in America?” My response is invariably, “The vast majority of Muslims in America are left in peace; however, there are a few individuals the American government ruthlessly persecutes.” When I say “a few individuals,” I have at the forefront of my mind a certain Palestinian-American Muslim intellectual by the name of Sami Al-Arian.

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 Al-Arian imprisoned indefinitely. Now, after five years of imprisonment under conditions condemned by Amnesty International as “gratuitously punitive”, Al-Arian could be sentenced any day to at least five more years, and very possibly much more than that.

Al-Arian’s case captures all of the absurd 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, 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 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 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 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 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 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 Al-Arian to be “the most dangerous financier of Palestinian Islamic Jihad in the Western Hemisphere,” the chief prosecutor in Al-Arian’s trial, US attorney Paul 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 Al-Arian of the eight most serious charges and hung 10 to two in favour 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.

The fact is 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 (try going back and reading that sentence at least two more times). The prosecution also entered into evidence a conversation one of 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 Al-Arian’s trial, a jury hung six to six in a case where the founder of Hooters restaurant was charged with tax evasion; the government realised that it could not realistically convict him in a retrial and let the case go.

Privately, however, the government wanted to minimise the embarrassment of losing the suit it had hyped up as the domestic terror case of the century, so they made 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: first, hiring an attorney for his brother-in-law, Mazen Al-Najjar, during the latter’s deportation hearings in the late 1990s; second, filling out immigration forms for a resident Palestinian scholar from Britain; and third, 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 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 Al-Arian be given the minimum sentence possible. The judge, however, had different ideas. He proceeded to give Al-Arian the maximum sentence allowed, absurdly claiming that 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 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.

Al-Arian was scheduled to be released 7 April, but a federal judge blatantly ignored the plea bargain and summoned Al-Arian to testify before another grand jury in an unrelated case. The government has never denied the understanding of the plea bargain (indeed, some government attorneys unusually offered to testify about its negotiation in front of a judge in Florida, but the judge was not interested), arguing only that the absence of an explicit clause exempting Al-Arian from testifying means that he can be forced to testify. Dr Al-Arian’s lawyers point out that this is bogus since the government’s oral promises are just as binding as their written ones.

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 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.”

And indeed, the government has already attempted to distort Al-Arian’s words to try to convict him of just that. In 2000, while testifying at an immigration hearing for his brother-in-law, a prosecutor asked 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 Al-Arian in the 53-count indictment was an obstruction of justice count based on his response to that question (Al-Arian was subsequently acquitted of the charge). Additionally, given that 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 10 years in jail, or refuse to testify, be found in criminal contempt, and spend at least five years in jail. 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 3 March. For the first 17 days he refrained from both food and water; he continued the hunger strike for 57 consecutive days, losing more than 18 kilograms of weight. Despite requests from thousands of supporters to ensure that Dr Al-Arian be given adequate medical attention, the US government never provided it and indeed at times displayed criminal negligence.

On 20 March, 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 Al-Arian made it clear that the government was really punishing him for supporting the Palestinian cause. As reporter John Sugg wrote, the “onslaught” against Al-Arian “has been an organised, concerted effort” stretching back more than 10 years to when Israel’s right wing was seeking to undermine the Oslo peace process. Al-Arian spoke out as “an emerging voice that differed with the only politically correct narrative on the Middle East”. In the name of peace and justice, Al-Arian “was vigorously trying to communicate with our government and its leaders,” and was successful, “making speeches to intelligence and military commanders” and “inviting the FBI and other officials to attend meetings of his groups. People were beginning to listen...” As Al-Arian soon found out, “No Arab voice could be tolerated.”

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 Al-Arian was not directly linked to these acts of violence, as cited above), he would not allow the defence to talk about the plight of the Palestinians in any way, shape or form, going so far as to prevent them from discussing UN Security Council Resolution 242 which addresses the Arab-Israeli conflict. The fact is that 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.