"Our defense is not in our armaments, nor in science, nor in going underground. Our defense is in our law and order." - Albert Einstein
In November 2007, the world was up in arms at the disintegration of the fundamental rule of law in Pakistan – resulting from the dismissal of Supreme Court justices, the arbitrary detention and abuse of human rights activists and political dissenters and the claim that "judicial interference" was an underlying premise of the declaration of the state of emergency. The American Bar Association, local Bar associations, human rights activists and even to some extent, Congress, loudly and strongly criticized the Musharraf government, and condemned its actions. It is incomprehensible - then - that the very same advocates are not up in arms in the face of the disintegration of the fundamental rule of law in the United States.
Dr. Al Arian was publicly indicted in 2003, endured an agonizing five month trial (costing over $50M), and in light of every obstacle - was acquitted (i.e. 12 jurors voted not guilty) on 8 of the 17 charges. The jury was 10-2 in favor of acquittal on the remaining nine charges, which is an overwhelming number - usually adequate for the government to abandon further prosecution. This however, was no ordinary case. The orders for Dr. Al Arian's 2003 arrest came from high up in the Department of Justice, and he was going to be held up as the poster child for prosecution under the Patriot Act. The fact that the government's defeat was considered "one of the Justice Department's most embarrassing legal setbacks since 9/11," did not deter.
In the shadow of another trial (the nine charges could have been retried), Dr. Al Arian - who had by this time spent over 34 months in prison, away from his wife and five children (two of whom were barely into their teens), under harsh and demeaning conditions, and was knee deep in legal fees, all for no wrong doing on his part - agreed to cut a deal with the government. One guilty plea, in exchange for a ticket out of the country once he had served his sentence, and no obligation to cooperate with the government in any following legal proceedings.
Not even close. Almost immediately after the deal was set, Dr. Al Arian faced continued harassment. First, at the hands of a bigoted federal judge Dr. Al Arian was accused of actions that he had been acquitted of only months before, and was sentenced to the highest possible term - 57 months. It's a miracle that the time he had already served was honored, leaving only about 20 months to serve. Second, no sooner had he begun to serve his sentence did the Department of Justice start their next onslaught - subpoenaing Dr. Al Arian to appear as a witness before a grand jury (for an unrelated matter). Since then, he has been called before two additional grand juries (for a total of three) - each of which he has refused to appear before for two reasons. One, a matter of principle, and two, a matter of self defense. Dr. Al Arian's plea agreement had been negotiated in a way such that he would not be required to cooperate, and the government should be required to honor its agreement. Dr. Al Arian had also been advised by his attorneys that his testimony may lead to a perjury trap.
The perjury trap is a (very common) technique used by desperate prosecutors that are unable to convict a defendant on substantive criminal charges. The nature of the grand jury proceedings is self serving in of itself - the proceedings are held with only the prosecutor and the grand jury in the room, and inevitably end up in an indictment for the government to enforce; it is completely antithetical to the adversarial nature, and hence relative transparency, of our justice system. To illustrate the absurdity of the grand jury, Judge Sol Wachtler, the former Chief Judge of New York State, stated that a prosecutor could persuade a grand jury to "indict a ham sandwich" - a prosecutor has free reign, and is barely restrained through the usual protections in a normal courtroom. In a grand jury proceeding, according to Jon Turley, 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." (Free Sami Al-Arian) The government has already attempted to distort Dr. Al Arian's words and bring more charges against him, indicating its intent to go after him in any way they can. Hence the added absurdity - if Dr. Al Arian testifies before the grand jury - he is undoubtedly going to be charged with perjury, in a continuation of the harsh prosecutorial tactics by the DOJ and its Asst. US Attorneys (AUSAs) - particularly AUSA Gorden Kromberg.
So - basically - Dr. Al Arian is now caught between the fat and the fire.
On the one hand, if he agrees to testify - Dr. Al Arian will no doubt be cornered, his words distorted and in some way accused of perjury - the only weapon left in the government's arsenal.
On the other hand, if he continues to refuse to testify - as he has for the past three grand juries - the DOJ is likely going to bring criminal contempt charges against him, which hold a sentence of upto 5 years.
The final layer, in this extremely complicated legal battle, is time and the running clock. As of April 11, 2008, Dr. Al Arian has completed his sentence which included an additional 11 months for which he was held in civil contempt for failure to testify before the second grand jury in 2007. The government has since transferred Dr. Al Arian to immigration custody - presumably for deportation. He has continued to suffer at the hands of insensitive and irrational jail personnel who continually offend his dignity and his fundamental human rights. In another twist of logic, it appears that Dr. Al Arian will not be deported any time soon. Whether he will remain at his current facility - Hampton Roads in Virginia - or if he will continue to be shuttled around from facility to facility while the DOJ plans its next move is yet to be seen.
So - what is a man to do in the face of gross misuse of power, injustice and ultimately, no political support? Dr. Al Arian - a strong believer in activism - has begun a non-violent protest, in the only form he has left. He is on a hunger strike (think Gandhi), now past 46 days without food. Here again, time is the enemy - each day that Dr. Al Arian continues his protest, he grows weaker and more vulnerable to his medical conditions (diabetes, for one thing) that are going un-attended.
At this point - if you've chosen to read this far - your question is probably: why should we care?
The answer is simple, and almost deafening. We should care because the prosecution and continued persecution of Dr. Al Arian has cost American tax payers over $50M. We should care because a man's life is at stake, and our efforts from the outside can save him - the saving of one life, is like saving all of humanity and we have that opportunity. We should care because we live in a civilized society with a fundamental rule of law that our country was founded upon, and our freedoms depend on - the continued imprisonment of Dr. Al Arian is not in accordance with the rule of law. We should care because no matter what - when a debt (reasonable or not) is paid, the bondage should not continue. We should care because our ancestors either founded this country or came to it with a common goal - the ability to be free, and live fully in a just and fair society without persecution for thoughts, beliefs or practices.
Dr. Al Arian stands for everything we hold dear - free speech, free expression, political participation, and most importantly - justice. If we don't speak up, our silence will muffle the voices of those that speak truth to power.
Contribute to Dr. Al Arian's legal fund at: Free Sami Now
Also check out the 53 minute version of the documentary USA v. Al Arian at Link TV.
(These videos are accurate upto March 2008; Dr. Al Arian has since been transferred to immigration custody and awaits deportation - which is not forthcoming. Immigration authorities are holding Dr. Al Arian indefinitely, and he is being subject to grave mistreatment. Please see Free Sami Now for how to help, and to learn more about this case.)