Acquitted but still in prison, Sami al-Arian on hunger strike

Acquitted but still in prison, Sami al-Arian on hunger strike
March 2007

In December 2005, University of South Florida professor Sami al Arian was acquitted of all substantial charges against him and his codefendants after a 6-month-long show trial in Tampa. Why is he still imprisoned? Dr. al-Arian went on hunger strike January 22 and in early March was hospitalized, with the jail threatening force-feeding. Amy Goodman of Democracy Now! interviewed him on February 7th, along with his lawyer, Peter Erlinder, and daughter, Laila al-Arian. Excerpts of the interview follow:

February 7--AMY GOODMAN: In this Democracy Now! exclusive, we speak with Sami al-Arian from prison. He called us yesterday from the Northern Neck Regional Jail in Warsaw, Virginia. He began by describing where he is being held.

SAMI AL-ARIAN: I am in, I think, somewhere in central Virginia in a jail called Northern Neck Regional Jail. I think it's somewhere in the country, and it's a very small jail. I hear it's privately owned and that they hold the federal prisoners on contract...

AMY GOODMAN: And why are you being held there right now?

SAMI AL-ARIAN: I'm being held on contempt charges. And, you know, that's why I'm on a hunger strike.

AMY GOODMAN: Can you tell us when you went on hunger strike?

SAMI AL-ARIAN: Yeah, I started on January 22nd, about sixteen days ago.

AMY GOODMAN: Why?

SAMI AL-ARIAN: Well, I believe that freedom and human dignity are more precious than life itself. In essence, I'm taking a principled stand, that I'm willing to endure whatever it takes to win my freedom. I'm also protesting the continuous harassment campaign by the government against me because of my political beliefs. This campaign was supposed to have ended when we concluded the plea deal last year, but unfortunately it hasn't. . . . After two-and-a-half years in pretrial detention with Guantanamo-like conditions, mostly under 23-hour lockdowns, followed by a six-month trial with eighty witnesses, including twenty-one from Israel, thousands of documents, phone interceptions, physical surveillance, websites, hearsay evidence, anything and everything they could think of, preceded by twelve years of investigations, tens of millions of dollars, some even say over $80 million spent on this investigation, with ninety-four charges against me and my co-defendants and with my defense only being four words-"I rest my case"-how did the jury see it? They gave them zero convictions.

Unfortunately, however, the judge stopped the deliberations, because of a distressed juror, and they ended up with some hung counts, although they were mostly ten-to-two in my favor. What happened was that the government had the power to retry me on these hung counts. My attorneys had prior commitments and would have left, which meant I probably would have to hire a new legal team and wait perhaps for another year or more for a new trial.

Meanwhile, in my attorneys' judgment, the government was desperate to settle after its total defeat. I was, at the time, perplexed, because I wasn't sure what offense I would plead to. But one of my attorneys said that even if there was none, we had to invent one to get you out. I authorized them to explore this option, and they concluded a deal with essentially time served and deportation, were I to plea to giving some services to people associated with an organization on their terrorist list. . . . that I sponsored a researcher in 1994 and '95 to come to the United States to conduct research and edit a magazine, which he certainly did. Two, that I wasn't candid or forthcoming when interviewed by a journalist in November '95--and don't ask me why this is an offense. And three, that I helped my brother-in-law [Mazen al-Najjar] to get out of prison when he was detained on secret evidence between '97 and 2000. . . . My main concern with this deal was that the judge got out of hand, because association is constitutionally protected. And everyone kept saying that this was just a face-saving way for the government to end this, and no one is going to object. And, indeed, you know, no one did.

Amy, during the plea negotiations, the government wanted a cooperation provision, which I totally ruled out. I told my lawyers that if they insisted, then to break off all these negotiations and proceed to a new trial. The government immediately took this off the table and never raised it again.

Now, they want me to testify before a grand jury in Virginia, which is contrary to our agreement of no cooperation. We also believe that this is either a perjury or contempt trap. See, back in August of 2000, I was also subpoenaed before an immigration court, and I was asked if I believe in the freedom of Islam through violence. My answer was one word: no. But this was nonetheless one of the counts against me, which the jury acquitted me of. Now, I have been held in contempt for the total of over a month last year, and then that grand jury expired. Then they reconvened another grand jury this year, and I have been held now in contempt since January 22nd. That's why I'm on a hunger strike.

AMY GOODMAN: Can you explain this case that they're asking you to testify before a grand jury about?

SAMI AL-ARIAN: Well, I'm not really sure. . . I think it's just a justification to ask me whatever they want. . . . But the context. . . there is an ongoing investigation of some of the think tanks and charities in Virginia, and they want me to--they want to ask me about them, which I really haven't had any relationship with any of these since '92 or '93. I mean, it's been a long time, and I think it's just a pretext to hold me either in contempt or charge me with perjury, because whatever I'm going to say, they're going to say, "You lied."

AMY GOODMAN: And so, how does it work? If you refuse to cooperate, how long is your jail sentence without the refusal, and what happens now?

SAMI AL-ARIAN: I'm told that on civil contempt charges, it is really in the hands of the judge. The judge has the power to lift this tomorrow, if he wants to. It is not supposed to be punishment. It's supposed to be coercion. It can go for six months, renewed two more times, which is up to eighteen months. And after that, the government can even charge you with criminal contempt, which really has no limit on how much, so this really could go on for years and years if they really want to do it. And I think it's politically motivated, so it might very well be the case.

AMY GOODMAN: I wanted to ask you about the judge's comments, US District Judge James Moody, who said, "You are a master manipulator. The evidence is clear in this case: you were a leader of the Palestinian Islamic Jihad."

SAMI AL-ARIAN: Well, I'm not really sure what motivated the judge to say what he said. He gave me the high end of the sentence [57 months], and he used language to justify that, which was basically acquitted conduct. . . . He was, in essence, rebuking the findings of the jury, which I believe is unconstitutional. I mean, the evidence was very clear. When one of the jurors was asked later, you know, "How did you--why did you fail to convict this guy?" And he looked him in the eye and said, "There was no evidence."

And then, he asked him back, "What would it have taken you to convict him?" He looked him back and said, "Evidence." I mean, what evidence was there? I mean, the freedom of association and freedom of beliefs, I think this is not a crime.. . .

AMY GOODMAN: So you face fifty-seven months prison, which was the sentence the judge gave you, despite a request of prosecutors and defense attorneys for a lower sentence. But it is extended because of your refusal to cooperate . . . ?

SAMI AL-ARIAN: Correct. I mean, even in the fifty-seven months, you don't serve fifty-seven months. You serve about 85% of them, which would have meant that I would be released in the middle of April of this year. Now. . . I would have to serve whatever the contempt sentence would be, which is up to the judge, and that, as I said, could be as long as eighteen months. And in the meanwhile, I'll be waiting to serve the rest of my sentence, when that sentence is up.

AMY GOODMAN: And then you'll be deported?

SAMI AL-ARIAN: Yes.

AMY GOODMAN: Where will you go?

SAMI AL-ARIAN: I don't know. I'm a Palestinian. I am homeless, and my family is still looking for a country. And that effort has stopped now, because we don't know when I'll be leaving. . . .

AMY GOODMAN: Sami Al-Arian, can you talk about your activism? I mean, it might surprise some to hear that in 2000 you campaigned not just for President Bush, but with President George W. Bush in Florida. The photographs are there, and he met your children.

SAMI AL-ARIAN: Yes. Well, a lot of people only get part of the story. You know, the story obviously started with the struggle for civil rights in this country for Arabs and Muslims after the use of--the intensive use of secret evidence in the late '90s. And I was part of a group that came together, a coalition that came together trying to fight this. And we were approaching Congress almost on a--you know, for me, sometimes on a weekly basis, traveling and trying to talk to them about this practice and the unconstitutionality of it. And we approached both campaigns, the Democrats and the Republicans, trying to do something about it. We had legislation in Congress trying to outlaw and ban the use of secret evidence.

AMY GOODMAN: What do you mean by "secret evidence"?

SAMI AL-ARIAN: Well, at that time, the government had the power--and obviously it had expanded tremendously after the PATRIOT Act--to introduce evidence that the defendant has absolutely no knowledge of. And they present it to the judge, and the judge will look at it from, you know, only one side and will make a determination. And we thought that was unconstitutional, that the person has--due process says that you have to look at the evidence and cross-examine the witnesses, and then the judge would make a determination based on both sides.

And we were pretty successful, you know. We got it passed through the Judiciary Committee, which was chaired by Henry Hyde at the time, and I had a good relationship with him. And, as I said, we approached both campaigns. And basically, my interest was basically a single issue at the time. You know, I wasn't interested in Middle East politics. . . . We were interested to see which campaign would support this legislation, so we can at least get that victory for civil rights in this country.

The Gore campaign was lukewarm, because they were part of the administration that was executing this policy. The Bush campaign embraced us. And he said--I mean, he talked in the second debate about how, you know, unjustly it is to use "racial profiling," he called it, in the name of secret evidence. And we endorsed him based on that promise. And indeed, he was going to keep his promise. A lot of people don't even know that on 9/11 itself, at 3:00 that afternoon, had [the events of] 9/11 not taken place, he would have announced something as far as banning the use of secret evidence, and the Republican congress was ready to pass that legislation if the President gave them that sign. But, you know, I am pretty critical of the policies of the Republican congress and the Bush administration, as far as many, many other issues, especially after 9/11.

AMY GOODMAN: You've said that the issue has moved from secret evidence to no evidence.

SAMI AL-ARIAN: That's right, exactly. I mean, you just mentioned about the judge, and what evidence did the government have in order to link us to any of these murders? I mean, that's why I'm totally perplexed by the judges. You know, and I think it has to do probably with the local coverage. You know, this case was covered immensely in the area. If you go to one of these local papers, you may find a thousand articles on me for the past, you know, dozen years or so. And there is linkage to the university that I was working in. That's why I said from the beginning that this is a politically motivated persecution.

AMY GOODMAN: What do you mean "linkage to the university"? You mean the University of Southern Florida?

SAMI AL-ARIAN: Yeah, yeah, the University of South Florida. Well, I can talk a little bit about it, which probably will be something that no one heard before. The university was very much involved in this plot against me. As you may already know, I had been a target for many years by some groups to get me fired from the university. This effort intensified after 9/11. They found a sympathetic ear in the current president of the university, who orchestrated a board vote to dismiss me.

AMY GOODMAN: And that president was?

SAMI AL-ARIAN: Her name is Judy Genshaft. Naturally, you know, I fought back and actually won both in state and federal courts. But as the university was on the verge of being censured by the American Association of University Professors, that the president offered a large settlement, almost $1 million for me in order to resign. That happened around the third week of August in 2002. But then, she said that she needed to clear that with the board's chairman, the board of trustees chairman, who also happened to be a fat cat Republican. The chairman of that board objected, because of the anticipated political fallout, and immediately contacted his friend, who appointed him to the position, the former governor of Florida. The governor indicated that he'd take care of the matter, but needed some time. So the university, within three days of offering me this large settlement, they came back and sued me in court in order to fire me. Meanwhile, the government contacted the White House and the former attorney general to take care of the matter. . . .

AMY GOODMAN: And the governor at the time of Florida was?

SAMI AL-ARIAN: The brother of the President, Jeb Bush. Oh, by the way, I mean, if you remember in the 2004 campaign, there was a very heated campaign between the current senator of Florida, Martinez, and the former education commissioner and the former USF president, Betty Castor, you know. [. . . ]

AMY GOODMAN: You were featured prominently in the campaigns.

SAMI AL-ARIAN:--I was somehow in the center of this campaign, you know, and we were exploited, basically. I mean, he wanted to trash her by using me in order to win that seat.

AMY GOODMAN: Peter Erlinder represents Sami Al-Arian in the latest contempt charges against him. He joins us from Minneapolis, where he's a professor at the William Mitchell School of Law. Welcome to Democracy Now! Can you start off just by explaining, in the jury verdict--seventeen charges against Sami Al-Arian--he was either acquitted or the jury deadlocked on every single one. Not found guilty in any of the charges against him?

PETER ERLINDER: That's correct. The jury found him not guilty of approximately half of the charges and the more serious charges, and then with the charges in which they weren't able to reach a verdict, they had voted ten-to-two in favor of acquittal, and they were still deliberating at a time that the judge ended the deliberations. So it's quite clear that the evidence against Dr. Al-Arian was extraordinarily weak.

And your listeners should know that his defense consisted entirely of the First Amendment. There were no witnesses, no evidence. Sami didn't testify and his lawyers, Linda Moreno and Bill Moffitt, stood before the jury and simply said that everything this man has done is protected by the Constitution of the United States. And the jury agreed.

AMY GOODMAN: So, the judge hands down a sentence of--what was it?--fifty-seven months.

PETER ERLINDER: Correct.

AMY GOODMAN: Above the request of the prosecutors?

PETER ERLINDER: The prosecution had agreed that Dr. Al-Arian essentially should have been released shortly after the plea agreement in May of 2006, and that he would voluntarily leave the country, and he would be assisted by the Justice Department in doing that. However, when we appeared at the sentencing hearing on May 1, 2006, the judge launched into what could only be called a diatribe, in which he accused Sami publicly of all of the offenses that the jury had acquitted him of. And then he used that as a justification to reject the prosecution recommendation on the sentence and to sentence Sami to the maximum allowable under the guidelines.

Had the sentence been two or three months longer, it clearly would have been an unconstitutional sentence based on recent Supreme Court cases. We are now in the process of filing a petition for certiorari with the Supreme Court, challenging the judge's use of acquitted conduct in this situation, too. And so, we'll be asking the Supreme Court to decide whether this expansion of the sentence was imposed constitutionally or whether a judge, rather than a jury, can make determinations like this.

AMY GOODMAN: Now, in the plea agreement that Dr. Al-Arian reached with the state, he talked about non-cooperation, part of it. . . . What does that mean? And how is it that he has now been called to testify before a grand jury?

PETER ERLINDER: Well, there's an assistant US attorney named Kromberg in the Eastern District of Virginia who actually has a pattern of calling before the grand jury or calling to his office Arab and Muslim defendants who have been acquitted. He then asks them questions and, based on what his interpretation of the truth is, then indicts them for lying either to the grand jury or lying to him as a federal official. And we understood that that was the tactic and the ploy.... So our advice was that Dr. Al-Arian should not testify. And beyond that, the law in the Fourth Circuit, which is where the Eastern District of Virginia is located, makes absolutely clear that a non-cooperation clause in a plea agreement means that a defendant should not be called before a grand jury, either, or be required to cooperate in any way. So the request itself, we believe, was against the law and is against the law, and we're going to be appealing that to the Fourth Circuit, as well.

AMY GOODMAN: Can you talk about this case in relation to the Chicago case, where both Salah and Ashqar were just acquitted. And the attorney for Ashqar was also the attorney for Al-Arian, William Moffitt, who told the New York Times the government wants to use these cases to turn the fight for Palestinian rights in the Middle East into a battle of criminal law in an American courtroom.

PETER ERLINDER: Well, Bill Moffitt, of course, is a well-known criminal defense lawyer for whom I have great respect, and he is correct about that observation. But what happened, both in Sami al-Arian's case and the case in Chicago, is that lawyers for the defendants told the jury the truth about the political motivations for these prosecutions. And when people in the United States, fair-minded folks who understand what the First amendment means and what freedom of speech mean and what freedom of association mean, hear the details of the government manipulation of these cases, they respond in extraordinary ways, as the jury did in Tampa, as did the jury in Chicago. And this is not a new phenomenon. Several of the other lawyers in the Chicago case are National Lawyers Guild members, as am I, as are a number of the other lawyers, including Lynne Stewart, who you know, who have been fighting this. And the successes have come when the lawyers have made clear to the juries the political underpinnings of these prosecutions, which of course is what's motivating them.

AMY GOODMAN: We only have a few more minutes. What about your family? You plea bargained, you say, to spare your family another trial?

SAMI AL-ARIAN: Not only that. You know, I've been away from my family for four years, and my two youngest children are in need of me. This is the most critical time of their life, and I need to be a part of their lives before they grow up. And that was the major consideration for me, to end this, is to be with them. And now the government wants even to delay it further. And, as I said earlier, to me, freedom is more precious than life itself, and if I have to sacrifice, I will sacrifice. But I will not give in.

AMY GOODMAN: Your final thoughts, as you speak to us from jail in Virginia, to share with this audience here in the United States, but also all over the world.

SAMI AL-ARIAN: Yes. I just want to say how grateful I am for really thousands of people who have looked at this case and have concluded that this was unjust and this is politically motivated. And I want to thank them from the bottom of my heart, because I receive letters almost on a daily basis, and notes and pictures and books and letters of support and prayers.

OPERATOR: You have one minute left to talk.

SAMI AL-ARIAN: . . . And I would like them to continue the struggle, because the struggle in America has not ended. It's been a continuous line for civil rights in this country from early on until now, and I think we are going to win. They just have to hold on, be patient and steadfast and, as the President says, stay the course.

AMY GOODMAN: Peter Erlinder, can Dr. Al-Arian just be held indefinitely? Could they convene one grand jury after another--he'll refuse to cooperate--and he just gets extended prison terms?

PETER ERLINDER: Well, the grand jury civil contempt process can't go on forever. His civil contempt is reviewed as a matter of course every six months. And then, I believe it's two terms of the grand jury, which would be thirty-six months that it would be possible to continue this. But as Dr. Al-Arian mentioned, then after that, criminal contempt charges could be brought. And I want to make it absolutely clear that tomorrow, Attorney General Gonzales could release him. There are no pending charges against him. The Justice Department already agreed that he should have been released last May, and with a single stroke of a pen, a single phone call, Attorney General Gonzales could live up to the bargain that the Justice Department made last spring and allow Sami to get on with his life. This is purely an act of executive branch hubris. This is not the law; this is politics. . . .

AMY GOODMAN: Laila al-Arian, your uncle was deported, Mazen al-Najjar. Your father, at the end of this, is going to be deported. What does this mean to you?

LAILA AL-ARIAN: Unfortunately, it's just the story of Palestinians now. I mean, no other people are stateless the way Palestinians are. And, you know, my father came to this country at the age of seventeen, an idealist. He really believed, and still does to a certain extent, in American democracy and the ideals of this country, and his children do, too. And this is the only country all five of his children have ever known. So it really is heartbreaking to see that the cycle of stateless Palestinian refugees keeps continuing, and it really needs to stop.

AMY GOODMAN: What kind of support have you gotten?

LAILA AL-ARIAN: We've gotten tremendous support, especially locally in Tampa from the progressive Christian community there, and we're really grateful for their efforts. They've spearheaded the rolling hunger strike in support of my father. And they've really been for us the past four years, writing letters, trying to meet with members of Congress and the Justice Department. So, as my father said, we're very grateful for their help. And, you know, we've also received national support from different organizations and from some members of the Muslim community. So it's been really tremendous. And internationally even, we receive a lot of emails and letters from people all over the world who are closely watching this case.

AMY GOODMAN: Peter Erlinder, in terms of the legal community and how these cases fit into the climate in this country, and the whole issue that Dr. Al-Arian brought up, a campaign that he was involved in when he was free, the issue of secret evidence.

PETER ERLINDER: Well, actually Dr. Al-Arian and I were two of the founding members of the National Coalition to Protect Political Freedom that the National Lawyers Guild initiated with the purpose of stopping the use of this secret evidence. And in litigation over a period of years, David Cole, who is a professor at Georgetown, and others were successful in having the secret evidence thrown out of twenty-two cases in a row, I believe, and we were just on the verge of having Congress repeal the secret evidence law when 9/11 happened, as Dr. Al-Arian mentioned.

For more information on the case, visit www.freesamialarian.com. For the complete interview (audio and transcript) visit Democracy Now! At www.democracynow.org. Democracy Now! is a daily news show available throughout the country on community radio and TV stations, satellite TV and via the web.