Twelve-year-old Lama Al-Arian looked up into a camera with a broad smile two years ago and called her father a "political prisoner.” But her eyes betray her playfully shy exuberance they are wracked by uncertainty about the future of a man who has been in a United States prison for five years this February.
South Florida University professor and pro-Palestinian activist Sami Al-Arian’s highly publicized arrest on terror-related charges during the winter of 2003 was hailed as a major step forward in defending the US against terrorism by then Attorney General John Ashcroft. On Feb. 20, 2003, the FBI arrested Al-Arian after indicting him and seven others on 50 charges including some related to terrorism and funding of terrorism. At the time Ashcroft alleged that Al-Arian was the North American head of the Palestinian Islamic Jihad (PIJ), and the secretary of the PIJ’s international organization. One of the few public trials of a terrorism suspect in open US courts has called into question whether or not the Justice Department is a misnomer leaving a man not convicted by any jury in US prisons indefinitely.
"There is a pattern in the United States of taking out this type of extrajudicial punishment against people who refuse to be convicted," said Jonathan Turley, a member of Al-Arian’s legal team who teaches law at George Washington University and specializes in national security and constitutional issues.
"A jury was not going to give them what they wanted, and they would have to take it some other way. And that’s what they’re doing right now. They’re giving out punishment to a man they couldn’t convict," he said.
The documentary film by Line Halvorsen, USA vs. Al-Arian, tells the story of the trial through the strains it has put on Al-Arian’s family.
The painful images of a mother crying, children too young to cope sent to live with relatives, and the befuddlement of Al-Arian’s older children as they contend with surprise after surprise, reveal a sinister dark side of the US government’s "war on terror.”
The astonishing legal drama started when Al-Arian was arrested and charged with terror-related crimes. After two and a half years in jail often in solitary confinement Al-Arian stood trial and was eventually found not guilty on some counts, with the jury returning no verdict on the others.
The film crew caught one of the jurors emerging from the courthouse being asked a question by the press about what it would have taken to return a guilty verdict. "Evidence," said the juror dryly.
After Al-Arian’s overwhelming victory, the Justice Department decided to pursue the undecided charges again in what could have been another long ordeal before Al-Arian even appeared in front of another jury. Faced with the prospect of putting his family through the process again, Al-Arian pled guilty to lesser charges of aiding people associated with terror.
In addition to another long trial, had Al-Arian fought the charges in court and won, he still would have likely faced deportation from the US.
"That entire time he would’ve been locked up. He would have had to fight deportation. That process could take five to 10 years. But at the end of the day he would have been deported," said Georgetown University law professor David Cole in the film. "What does that do to the family when your father or your husband is locked up for 10 years fighting to make a point?"
The resulting agreement the end of the case covered by the documentary gave Al-Arian credit for time served and left him with 11 months of his sentence to serve out in federal prison. But the Justice Department saw to it that the high hopes of the family for an imminent reunion would not pan out in just a year.
"Unfortunately, much of what you saw was prelude to even worse acts by the US government. At this moment, Dr. Al-Arian is sitting in Northern Neck prison with an uncertain future," said Turley, who was part of a panel discussion after a screening of the film.
Despite the absence of a clause in the plea requiring cooperation with the government, which was negotiated away by Al-Arian’s defense team, he was called to testify before a federal grand jury in Virginia and upon refusal was held for civil contempt.
"Tonight two years have gone by since the events that we’ve seen in that film, and the story is not yet over. In fact, it’s gotten quite more complicated," said Al-Arian’s eldest son and family spokesperson Abdullah during the panel. "It was a difficult journey and it was something we had hoped would already have come to an end. And it seems that it was headed in that direction, but that’s not what ended up happening."
What did end up happening is the indefinite detention of Al-Arian.
An overzealous prosecutor from the US attorney’s office in Virginia subpoenaed Al-Arian in the unrelated case of a northern Virginia Islamic charity and think tank accused of financing terror. The prosecutor, Gordon Kromberg, has been accused of an anti-Muslim bias revealed in a rant he made about "the Islamization of America" as part of a discussion about whether it was appropriate to move Al-Arian during the Muslim holy month of Ramadan.
In a court motion, one of Al-Arian’s legal team quoted Kromberg as saying, "If they [Muslims] can kill each other during Ramadan, they can appear before the grand jury."
By law, when a subpoenaed witness is held in civil contempt, it freezes any other sentences that are being served. Al-Arian’s detention for contempt started with just five months left on his plea agreement sentence.
When the term of the Virginia grand jury expired last week, the contempt charges were dismissed. But Al-Arian potentially faces their reinstatement when the grand jury reconvenes in January. In the unlikely scenario that the government does end its campaign against Al-Arian this way, he could be deported by April.
Because civil contempt charges are designed to be used as coercive measures to compel uncooperative witnesses to testify, the Justice Department will eventually need to face the reality that Al-Arian will not testify. But even when that occurs, criminal contempt charges could be brought. These charges have no upper limit on sentence, though Cole told IPS that it likely wouldn’t be more than a few years.
The real cost, however, of indefinite detentions and abuses by the Justice Department may take a larger toll than just the strains put on the Al-Arian family these cases, argue Cole, actually have a negative impact on the war on terror as a broader effort.
"This has backfired and has, in fact, caused this whole preventive paradigm in which we take harsh coercive measures particularly against Arabs and Muslims that are seen broadly as illegitimate and unjust," Cole told IPS after the recent screening of Halvorsen’s film in Washington. "It plays into al-Qaeda’s hands. It gives them the very propaganda they want. And so I think that’s very costly."