There have been several important developments in the Al-Arian case since my last blog six weeks ago. Last Friday witnessed an intense courtroom sparring match with its fair share of ad hominem attacks, sexist remarks, melodramatic rants, and last-minute revelations of underhanded legal maneuverings, culminating with the completely unexpected ruling that the trial – originally scheduled for last Wednesday August 13th – would be postponed indefinitely.
(For those of you just now tuning in to the civil rights case of the 21st century, you can read my original blog entry on this case for more info.)
The hearing focused on two substantial issues and one sensationalist issue:
The first issue was whether the Court should wait for the Supreme Court to address Dr. Al-Arian’s appeal before going ahead with the trial. Despite the government’s best efforts to have the trial go forward as planned, the judge unexpectedly ruled that the Court should in fact wait, stating that "Al-Arian had an absolute right to litigate that contention [i.e., to argue that his plea agreement exempts him from having to testify before any grand jury which, if true, would invalidate the charges against him]." It may be months before the Supreme Court responds.
The second issue was much more interesting: Assistant US Attorney Gordon Kromberg (the same Gordon Kromberg who believes that the law is simply a club he can use to knock people's heads with) had, in a very unusual move, modified the language of the immunity order (to force Dr. Al-Arian to testify before the federal jury) to state that, in addition to perjury, Dr. Al-Arian could be held liable for obstruction of justice. Keep in mind that the standard language of immunity orders was carefully crafted by Congress to make sure that our Fifth Amendment rights are protected. Only a day before the hearing, however, did Dr. Al-Arian’s defense discover that – contrary to what Kromberg had told them before – Kromberg had in fact used such a modification in the past and that it had been struck down by a federal judge in the same exact courthouse. Although the Court did not directly address the fact that a government prosecutor outright lied about an essential fact in the case, Judge Leonie Brinkema did note in a subsequent memorandum that "[a]s stated during that hearing, the Court has significant concerns about this conduct" since "[a]ny deviation from the statutory language risks impinging on the witness's Fifth Amendment rights, thereby frustrating the operation of the statute and a court's contempt powers."
In order to avert a complete defeat, Kromberg tried to portray himself as the victim and focus attention away from the real issues at hand. Only a week before, former Senator Mike Gravel gave Kromberg the excuse he needed when he stated at a screening of the documentary USA vs Al-Arian (which was attended by members of the Al-Arian family):
Find out where [Gordon Kromberg] lives. Find out where his office is. If you've got some chutzpah - which is a word that you don't hear often - if you've really got it, find out where he lives, find out where his kids go to school, find out where his office is; picket him all the time. Call him a racist in signs if you see him. Call him an injustice. Call him whatever you want to call him, but in his face all the time. They can't take the heat; deliver it to them. We have to stop laying down to these injustices.
Granted, this was a completely inappropriate – not to mention ineffective – course of action to advocate. (Note that, so far, there have been no reports that anyone has wasted their time trying to picket Kromberg) However, Dr. Al-Arian’s lead attorney Jonathan Turley promptly posted a blog entry on his website repudiating the comments while no member of Dr. Al-Arian’s family ever at any point expressed any support for what Mr. Gravel said. Furthermore, he pointed out that the defense has never held the government responsible for the far more disturbing vitriol found on many right-wing websites. Although Mr. Turley made it clear to the Court that he had repudiated these comments on his client’s behalf, the prosecutors kept going on and on about how Al-Arian supporters want to "stalk" him, even at one point emotionally yelling that Turley’s blog is "anti-semitic" (a commentator named zakimar did post comments attacking Zionist Jews, saying that Jews should not serve on juries dealing with Muslim cases, but Turley himself never endorsed such remarks nor did he ever express any anti-Jewish sentiment). The judge eventually felt compelled to tell both sides to "cool down", threatening to have any of the attorneys replaced if she felt that they were becoming too "personally invested" in the case. (Turley has since removed all posts on this case in order to avoid any more of these distracting confrontations).
Just when it seemed like everything was about to cool down and end anti-climatically, Kromberg made one of his classic non-PC statements. When Judge Brinkema reaffirmed that Dr. Al-Arian should be granted bail and put under the custodianship of his oldest daughter Laila. Kromberg abruptly objected, claiming that, as an Arab woman, Dr. Al-Arian's daughter would be too weak and submissive to oppose any potential attempt by Dr. Al-Arian to flee, arguing that "in this particular [Arab-Islamic] culture, she would not be able to stop him from leaving..." As someone who has known Laila for some years, I especially savored the irony of it all, as Laila is one of the last women – Arab or non-Arab – I would describe as "meek". Jonathan Turley stood up and said "Your Honor, the defense objects..." but the judge cut him off, saying it was not necessary, since Kromberg’s statement was clearly "insulting". That a federal judge had just given the Assistant US Attorney a firm and unambiguous smack-down was certainly not lost on this onlooker.
Overall, the hearing was a positive development, but as with all positive developments in the never-ending saga of Sami Al-Arian, behind every victory lurks a Catch-22 waiting to cancel it out. Thus, while Dr. Al-Arian has been granted bail, the Immigration and Customs Enforcement (ICE) will probably continue to hold him under the pretext that they are completing procedures to deport him – as they have been doing since Dr. Al-Arian was first granted bail last month. Similarly, although the trial has been postponed, the Supreme Court may not take the case and everything may revert to the same track it was on a few weeks ago. Nevertheless, one thing is certain: at no other time in the past five years have the sinister machinations of the government been so plainly laid bare before the world as now. If nothing else, Sami Al-Arian may finally be acquitted in the Court of Public Opinion.
To receive important action alerts on the Sami Al-Arian case, simply send an email to firstname.lastname@example.org