Headlines, Human Rights, North America

RIGHTS-US: Jailed Professor on Hunger Strike

Ali Gharib

WASHINGTON, Mar 27 2008 (IPS) - Webster’s New Dictionary defines “justice” with words that represent lofty ideals; “integrity”, “impartiality”, and “the awarding of what is due”. But in the case of Palestinian activist and former University of South Florida professor Sami Al-Arian, critics say, the U.S. Department of Justice under President George W. Bush has failed miserably to meet any of those standards.

Early this month, just after the five-year anniversary of his detention, Al-Arian began a hunger strike to protest the repeated attempts of a U.S. attorney in Virginia to roll back his plea agreement and call him before a grand jury in a case unrelated to his own.

Since then, Al-Arian has not eaten or taken medicine for his medical conditions. He has lost 30 pounds – growing gaunt in appearance and worrying his family and attorneys, though they did manage to convince him to take water last week after he appeared to be in the advanced stages of dehydration.

On Wednesday, Al-Arian was transferred to a hospital within the Bureau of Prisons system, where his lead attorney said there was a “draconian protocol for hunger strikes”.

Though his lawyers contend that he is under no obligation to testify, Al-Arian’s refusal to talk might cause prosecutors to charge him with criminal contempt of court and cost him the ability to leave prison on Apr. 11 having completed his 57- month sentence – realising what critics of the case have called a de facto policy of indefinite detention.

After Al-Arian had spent two and a half years in custody, the administration was embarrassed when it couldn’t secure a single conviction in one of its highest-profile terrorism cases against the man who then attorney general John Ashcroft accused of being the head of a Palestinian terrorist organisation.


Facing retrial on the deadlocked charges, Al-Arian decided to spare his family the agony of another long trial ordeal by pleading to a lesser charge of aiding associates of Palestinian Islamic Jihad and directly aiding the group before its designation as a terrorist organisation by the U.S. in 1997.

But Al-Arian set conditions for his agreement. Because of the strains that his imprisonment and trial had put on his own family, he refused to work with the government on other cases.

“He took the position that he did not want to cooperate with any effort to destroy other individuals the way that his own family was destroyed by the government,” Al-Arian’s lead counsel, George Washington University law professor Jonathon Turley, told IPS.

Al-Arian, who has lived in the U.S. for over 30 years but is not a citizen, also demanded that the government expedite his deportation after his release to avert the potential for long immigration proceedings.

The U.S. attorney’s office for the Middle District of Florida where the case was prosecuted obliged, but attached conditions of their own – Al-Arian would agree to serve a longer sentence for his crimes.

“There was negotiations back and forth that the plea agreement would end all business with the federal government and that he would be deported,” said Linda Moreno, Al-Arian’s trial lawyer who participated in the negotiations.

Then came the legal wrangling that has clouded what Al-Arian thought would be a clear path to the end of his persecution.

Plea agreements in Florida and many other states contain boilerplate language that compels defendants to aid the government in other investigations that can be negotiated away. Rarely is it replaced with explicit language of a non-cooperation clause.

Jack Fernandez, another member of Al-Arian’s team, told IPS that has never seen a plea agreement in Middle District of Florida where he practices which states that the defendant cannot be forced to cooperate with the government.

The understanding between the U.S. attorney’s office in Florida and Al-Arian’s team was that by removing the language, non-cooperation was implied.

“Many courts have recognised that there are cases in a plea agreement – like any contract – where the intent of the parties is not entirely reflected in the language. Those courts have said that you can present evidence showing the true intent or understanding of the parties,” Turley said.

After the plea was agreed upon, Al-Arian’s lawyers asked for an evidentiary hearing to clarify its intent. A Florida judge rebuffed the request.

Al-Arian challenged the refusal for a hearing in the 11th circuit court of appeals on the grounds that it “violates the standard not just of Florida but of other states”, as Turley put it – noting that Al-Arian was only asking for the due process right of presenting evidence on his own behalf. But the ruling was upheld, forcing the appeal to the full 11th circuit. If that appeal fails, the case could go to the Supreme Court.

“It is very rare to see a case where the attorneys are prepared to make statements under oath and supply evidence that expressed promises were made, but the court will not allow it to be put in the record through an evidentiary hearing,” said Turley.

“What the former lawyers are arguing here is that not only was Dr. Al-Arian misled, but they were misled. That would be a very important issue for the court to address,” he said.

The Middle District of Florida U.S. attorney’s office refused to comment for this story.

Not long after the agreement, Gordon Kromberg, the assistant U.S. attorney in Virginia, called Al-Arian to testify before the grand jury to help build a case against two Islamic charities in Northern Virginia he suspected of ties to terrorism.

The Justice Department now cites the absence of expressed non-cooperation language to justify the subpoena.

“The plea agreement is clear, unambiguous and does not grant Al-Arian immunity from future grand jury subpoena,” said Justice Department spokesman Dean Boyd as reported by the Washington Post. “Therefore, we hold that the government did not break the plea agreement by issuing a subpoena commanding Al-Arian to testify before a grand jury.”

But both Fernandez and Turley pointed out that the government, to their knowledge, has never denied the intent of the plea agreement.

“What is interesting is that the Justice Department has not argued that there was no understanding or discussion of non-cooperation. They have based their entire argument on the technical point that there is no expressed language in the agreement,” said Turley.

That reversal from the intent of the agreement made by the Florida prosecutors is highly unusual, leading some critics of Al-Arian’s treatment at hands of the government to cry of foul play in an attempt to artificially prolong his detention.

Asked by IPS if she had ever seen this absence of coordination between the two U.S. attorneys’ offices that would lead to one essentially ignoring the agreement made by another, Moreno said, “I personally know of no other case like this, in this regard.”

 
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