The “Trap” Begins to Close
But when Dr. Al Arian appeared in court on May 1, 2006, expecting the agreement to become final, and to be released before the month was out, the game changed. Judge James Moody agreed to immediate deportation (which means neither the judge or the Bush-administration considered him dangerous) and all other charges were dropped. Instead of time-served release and deportation, the judge sentenced him to the constitutional maximum sentence, another year in prison, and read a prepared statement publicly declaring him guilty of “killing women and children in Israel.”
In essence, the judge convicted Dr. Al Arian of the same violent offenses that the jury had rejected. Several of the jurors went public after the sentencing hearing expressing outrage that the judge had ignored their verdict. So much for the Sixth Amendment.
Instead of beginning a new life in May 2006, as the Bush Administration led him to believe would happen, Dr. Al Arian would be in prison until April 2007. But there was no reason to think that the Bush administration was actually manipulating the legal system...yet.
The Bush Administration’s Post-Acquittal “Torture-Strategy”
On May 10, 2006 the “trap” snapped shut when the Assistant U.S. Attorney in Alexandria sought a secret order calling Dr. Al Arian before the very Alexandria grand jury that the Tampa prosecutor said had been covered by the “no grand jury cooperation” agreement. Neither Dr. Al Arian nor his lawyers knew about the secret order until October 2006, when AUSA Gordon Kromberg informed them Dr. Al Arian would be brought before the grand jury - during Ramadan.
When Dr. Al Arian appeared before the grand jury and relied on the “no-grand jury cooperation” promise, Judge Lee held him in contempt of court, and he was in contempt detention until December 2007, when the grand jury expires, which effectively extended original May 2006 release until April 7, 2008, two years after the Bush administration promised he would be released and deported.
Last Week: Another Turn of the Screw
On March 3, 2008 AUSA Kromberg turned the torture screw up another notch, when Dr. Al Arian was brought back to court and informed that he would be called before yet another grand jury on March 19, 2008, this time only 3 weeks before his latest release and deportation date. If he insists on the Bush administration respecting its “no-grand jury cooperation” promise again, he is likely to be held in contempt again, which will effectively cancel the April release date and extend his time in prison again…indefinitely. And, he has to insist on it because terms of the plea agreement “contract” are still on appeal, a Catch-22, if there ever was one.
But, there is a more sinister manipulation in the works. AUSA Kromberg has charged other acquitted Palestinian defendants with perjury, when they did testify before his grand jury. Other acquitted Palestinian defendants have been charged with “obstruction of justice," when they declined. Dr. Al Arian’s lawyer, George Washington Univesity law professor Jon Turley has said that Kromberg is “setting up Al Arian for a perjury/obstruction trap.” The other acquitted Palestinian defendants facing the same “Hobson’s choice” have been given “terrorism-enhanced” sentences of 5 to 10 years whether they answered grand jury questions or not after American juries already acquitted them of the underlying charges. Imprisoned for a decade after being acquitted certainly could be called “torture”, or at least “Kafka-esque.”
Neither Alberto Gonzalez, nor "General Mukasey" (as he apparently referred to in White House circles) have done anything to rein in this misuse of prosecutorial power, but neither have the Courts nor the Democrat-controlled Senate and House Judiciary Committees even though both Chairmen, Sen. Leahy and Cong. Conyers, were made aware of this blatant manipulation of prosecutorial power, for apparently political purposes, more than a year ago.
Dr. Al Arian’s Last Protest Fast
But now, the Bush administration, the Courts and Congressional oversight committees have a chance to intervene. On March 4, 2008, the day after the “perjury/obstruction” trap was sent by Kromberg, Dr. Al Arian began a complete food and water fast to protest, in the only way he can, the perfidy of the Bush administration, and the “torture” caused by its rejection of the constitution and abuse of its power.
This is Dr. Al Arian’s third hunger-strike during his 5 years of imprisonment. The first was in 2005 and lasted 140 days on liquids only, before he was permitted the lawyers of his choice. In early 2006 he drank only water for 60 days, when the court refused to require the Bush-administration to honor their “no grand jury cooperation” promise, the first time. Now, he is refusing all food and liquids was transferred to the prison hospital on March 5. But he is not getting necessary medical treatment.
As of Monday, March 10, Dr. Al Arian has not received any intravenous liquids, and he is in danger of irreversible renal failure - yet another kind of torture, that could be ended with proper medical care. If Dr. Al Arian dies, AUSA Kromberg will have accomplished his stated “mission”, so the question is, will anybody else respond, before it is too late?
End the Torture of Dr. Al Arian Now!
Between now and his April 7, 2008 release/deportation date, Kromberg will have to bring Dr. Al-Arian before the grand jury on a stretcher, kept alive by IV’s, assuming he receives proper treatment in the next day or two. Unless, of course, the Congress, the Courts or Mukasey put an end to the torture he has so far been subjected to. While Mukasey or Bush could release Al Arian with the stroke of a pen. Bush's veto of the torture limitation bill is an indication that Dr. Al Arian’s own torture will not be ended without the intervention of the Congress, the Courts, or the American people.
The torture of Dr. Al Arian is not “water-boarding,” nor the “enhanced interrogation techniques” that Bush says is now part of America’s regular way of doing business…but it is “torture” nonetheless. The Bush veto on Saturday demonstrates the Bush-Cheney “war on terror” is not really about terrorism at all, but is a politically-motivated assault directed against the constitution and the rule of law.
A government that is unwilling to publicly renounce torture committed in its name, and in the name of the American people, is capable of doing anything, to anybody, at any time, and the Al Arian case is a prime example of a lawless regime displaying itself to the world.[2] The Al Arian case is not law, it is politics...and torture. It is time for Congress, the Courts and the American people to put an end to the legal torture of Dr. Al Arian, now.
Release him!
(c) 2008 Peter Erlinder.
Notes
[1] TIME Magazine, December 19, 2005, "When Terrorism Charges Just Won’t Stick"
[2] The Al Arian case is the subject of USA v. Al Arian, awarded the prize for best documentary at the Nordic Film Festival in 2007, which is being shown in film festivals and other venues worldwide.
Peter Erlinder is a professor at William Mitchell College of Law, St. Paul, MN and attorney on appeal for Dr. Sami Al Arian in appeals to the US 4th Circuit, the 11th Circuit and the Supreme Court of the United States - all of which have declined to intervene in his case. E-mail
peter.erlinder@wmitchell.edu
March 11, 2008
JURIST - Forum: The Torture of Sami Al Arian