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May Day for Al-Arian By: R.K. Joyad
FrontPageMagazine.com | Tuesday, May 09, 2006

The truth sometimes hurts.  Just ask the remaining supporters of Professor Sami Al-Arian.  On May 1, 2006, their hero received the maximum sentence available under the plea agreement, in which he acknowledged what he had denied to everyone for over a decade: that he was indeed a secret U.S.-based operative for the Palestinian Islamic Jihad (PIJ).

The culmination of the Al-Arian case once again illustrates an underrated function of the American criminal justice system: convincing a stubborn, well-heeled defendant of his own guilt. Sometimes prosecutors have to suffer setbacks like a hung jury to make the criminal realize that the jig is up and it is time come to the table.  For my friends on the left who think this reflects prosecutors running amok, they should realize that these are the same hard-nosed tactics used against toxic polluters and Watergate conspirators.  Highly educated people sometimes need to see the evidence presented to a jury to make them see the light.  Those who prematurely celebrated Al-Arian's "acquittal" last fall should have held their applause, and considered how he might view the prospects of a sharply-presented prosecution focusing on the surviving counts, and his demonstrable association with PIJ.


At the sentencing hearing in Tampa, Judge James Moody unleashed a remarkable tongue-lashing on the former University of South Florida professor and ACLU poster child.  Referring to him as a "master manipulator," the judge noted how Al-Arian privately referred to the United States - the county whose fairness, just a few minutes before, Al-Arian had touted - as the "Great Satan."  He described how, faced with fiscal concerns of Iranian government with PIJ's discipline, the professor immediately jumped into action and proposed creating a financial committee to cure the mullah's concerns and assure their continuing support for PIJ.  As he discussed news of another PIJ terrorist attack, he had been heard laughing, and he immediately began to use the operation to raise more funds.  Scoffing at Al-Arian's characterization of himself as a philanthropist, Judge Moody noted that his only connection to widows and orphans were the ones he created.  Al-Arian promoted PIJ’s sending husbands and fathers and other people's children on suicide operations while Al-Arian's kids enjoyed the benefits of the most elite American universities.  The judge knew Al-Arian well.  After all, he had heard Al-Arian's voice on hundreds of hours of  taped telephone conversations, and had read his correspondence intercepted from the fax machines at Al-Arian's offices.


If the facts were so obvious to the judge who heard the evidence over the five-month trial, why did it take so long to get to this point?  The answer is different from what the media has suggested. It was not naked politics, nor the fault of the prosecutors.  It had more to do the nature of our national security apparatus, and the rules that govern those who operate within it.  These rules may be changing, but the dynamic is one that has existed over the last half century, when national security threats come into court.  It is amazing that the public commentators did not realize this in their regular dispatches from Tampa.

The criminal investigation of Al-Arian went public in November 1995, when an FBI task force executed search warrants at his home and offices.  The search warrant was based on an affidavit signed by Bill West, an INS agent who is now retired.  West, who is an occasionally contributor to Frontpage Magazine, recently described how the criminal case started, and the complicating factors he and his law enforcement colleagues suffered because Al-Arian was of interest to the intelligence community.


As the government made public with the indictment and prosecution, the FBI had an intelligence investigation going against Al-Arian from the 1990s before any criminal investigation was launched.  The search warrants were approved shortly after Al-Arian's protégé, Ramadan Shallah, left Tampa and suddenly resurfaced in Syria as the worldwide leader of PIJ.  A few months earlier, Al-Arian had come under public scrutiny as the result of his PIJ connections and violent rhetoric, through revelation of terrorism expert Steve Emerson and Tampa Tribune reporter Michael Fichter.  After West’s initial immigration checks determined that Al-Arian had applied for U.S. citizenship, he launched a criminal probe focusing on potential felony immigration violations.  This decision was undoubtedly based on the realization that the threat of Al-Arian becoming naturalized was going to force some high-level interest and the need for an articulable end-game strategy.  A felony conviction, no matter how minor, would prevent Al-Arian from obtaining American citizenship.


Up until that point, the scrutiny of Al-Arian's activities was limited to an FBI-led foreign intelligence investigation.  As West describes it:


The INS investigators teamed up with the FBI in Tampa. However, the FBI maintained its intelligence inquiry separate from our criminal investigation, and assigned specific criminal case agents to work with INS and later US Customs personnel. The case quickly evolved into a substantial multi-agency counter-terrorism investigation with many facets.


What did this mean?  For this, we have to read between the lines.  As we now know, Al-Arian's telephone conversations were being intercepted by the FBI, under the authority of the Foreign Intelligence Surveillance Act (FISA).  Under the rules that existed at the time, FBI personnel assigned to the intelligence investigation of the Tampa PIJ cell could not discuss their evolving understanding of what Al-Arian and his colleagues were up to with West and his fellow cops involved in the criminal inquiry.  To do so would have jeopardized the FBI's ability to obtain future FISA authority.  Had this occurred, the United States might have been left completely empty-handed: no criminal charges, and no window into the American beachhead of a lethal Palestinian terrorist organization. It is fair to say that careers would have been ruined.


At some point, the intelligence that made Judge Moody so angry may have made the FBI intelligence agents realize they had a prosecutable crime on their hands, prompting them to cease the surveillance in favor of approaching the prosecutors, and go for broke.  However, how could that decision have been made?  Any responsible decision to cease a productive FISA surveillance in favor of a criminal prosecution required a professional assessment of the costs and the likely benefits.  The intelligence agents would need answers to a series of specific questions. How much disclosure would be required in court if we charge Al-Arian with what he appears to be doing?  In criminal discovery, to what extent can we protect certain sensitive sources and methods that were employed in this case?  What are our chances of a conviction?  The decision to prosecute the Tampa PIJ cell would have required a sense for how good the case was against Al-Arian, and the likelihood of a successful prosecution.  An acquittal, following a decision to stop the intelligence investigation, confirm the existence of the FISA methods, and forever burn certain sources would not be good.  It would be the worst of all worlds. 


No, the only people who could have given the intelligence community the assessment it needed were experienced criminal prosecutors who - like Bill West - were barred from knowing about the full extent the investigation, and the entire yield of  the FISA intercepts.  This would explain West's observation that the  Al-Arian case shows "how complex and difficult pursuing and prosecuting such a case can be, particularly when those violations occur over a very long period of time and in conjunction with other complex activities such as multiple and confusing business and financial transactions." It was not just a complicated white-collar case.  Because it was being pursued as a foreign intelligence matter, the FBI was barred from consulting with the very people they needed to get a sense whether a criminal case would fly.


Of course, these information-sharing rules were changed after 9/11, as a result of the USA PATRIOT Act.  How important were these changes to the Al-Arian case?  Attorney General John Ashcroft touted the Tampa prosecution as one which could not have been initiated without the two PATRIOT Act provisions that finally tore down this criminal-intelligence wall.  That's a not-so-subtle hint about the problems that existed in the Al-Arian investigation prior to 9/11.


Taking this theory forward, here is what likely happened: with the PATRIOT Act, prosecutors and criminal agents could finally review the full extent of the FBI's intelligence investigation of the Tampa PIJ cell.  They ripped into it.  They soon reached the same conclusion that Judge Moody articulated in court: Al-Arian was a liar, a manipulator, and a vicious supporter of indiscriminate political violence.  He needed to be prosecuted.  Armed with the FISA information, they convinced the FBI to declassify it and the Attorney General to approve the prosecution, they were off to the races. 


This would answer a question frequently asked by the government's critics over the past several years: if Al-Arian is so bad, why did it take nearly a decade for the Department of Justice to indict him?  The answer is that, under the rules that existed at the time, the people who needed to make that decision were deprived of knowledge about the full extent of Al-Arian's activities.  Those with the information were stuck in a system that made any decision to initiate the criminal case, without the necessary assessments that were impossible for them to obtain, irrationally risky, both to their careers and to the nation's security.


This conforms with Bill West's recollections.  It illustrates, if there is still any doubt, the importance of the information-sharing changes of the USA PATRIOT Act.


Perhaps the most remarkable thing about the Al-Arian case is the reactions of the government's critics as the case went forward, since the dynamics of the case are so well-established in American history, going back at least  50 years, in cases where intelligence investigations give rise to criminal prosecutions. 


It works like this: we want a robust and effective intelligence system, because we yearn to be safe from external threats.  We establish an intelligence apparatus that answers this call.  To do what is expected of them, intelligence agents necessarily rely on sensitive sources and methods.  This means that the government, faced with the prospect of prosecuting a national security threat, often knows more about a defendant than it chooses to prove.  The rational response is to unveil only a portion of its intelligence - the minimum amount necessary to meet the burden it has intentionally limited by virtue of it criminal charging decisions.  Inevitably, officials involved in the process suffer in silence as outside critics claim that the government is wrongly charging an individual.  They hold their tongues, and hope that justice will ultimately be served.


This is what happened in the case of  Judith Coplon, and employee of the Department of Justice Foreign Agent Registration Office.  In 1948, through the super-secret breaking of the Venona code, the U.S. intelligence community learned that, between at least 1944 and 1945, Coplon had worked as a Soviet spy.  They tapped her phones, an intelligence tool that was reserved for vital national security cases since it was then so controversial.  From these intercepts, the FBI learned that Coplon had an upcoming appointment in New York with a Soviet official named Valentin Gubitchev, and that she was expected to deliver some classified documents pilfered from her office.  Rather than prosecute her based on the wiretaps, the FBI decided to set a trap that would make the wiretap information irrelevant to her prosecution.  As a hedge against the risk that she may evade their surveillance and successfully deliver the sensitive information to Gubitchev, they replaced the documents available to her with less sensitive records, and waited for her to go to the meeting.  They arrested in en route, seized the documents she was carrying, and charged her with attempted espionage. 

Following her indictment, over the government's objection, Coplon's lawyer succeeded in convincing the court that he was entitled to see the documents she was carrying to her meeting, arguing that she could not be guilty of espionage if the documents she was delivering were not sensitive.  These documents, though not as sensitive that what Coplon otherwise would have taken from her workplace, contained information on some sensitive FBI techniques, including wiretapping.  The court scheduled a hearing and ordered the government to disclose whether Coplon's conversations had been intercepted.   This led to a battle within the government.  FBI Director J. Edgar Hoover, afraid that the disclosure of the wiretaps would jeopardize sources and methods, wanted to walk away from the case.  Attorney General Tom Clark disagreed, believing that Coplon need to be prosecuted and that the disclosure was worth the costs.  They worked a compromise: they would present the wiretap information to the court, ex parte, and argue that the intelligence did not lead to the evidence to be introduced against Coplon at trial.  This tactic worked.  The trial judge agreed, and Coplon and her lawyers did not get the wiretap information. Unfortunately, Coplon's conviction was ultimately reversed on appeal, in part because of the trial court error in not sharing the wiretap information with Coplon.[1]  Though her guilt was clear (and would become obvious years later, especially after the release of the Venona files and the opening of the Soviet archives), the government ultimately abandoned the case against Coplon, a decision made in 1964 by Attorney General Ramsey Clark (Tom Clark's son).[2]


The disparity between what the government knows and what it is prepared to prove - present in virtually every national security-related criminal prosecution - is a sufficiently frequent phenomenon in history that commentators might think twice before falling into the trap of buying into the defendant's protests and accusing the government of misconduct and over-aggressiveness.  Al-Arian cloaked himself in the mantle of civil liberties, and claimed to be an aggrieved victim.  When he was arrested in February 2003, he was quoted as saying his prosecution was all about politics. Al-Arian had ingratiated himself with a number of political figures of both parties, and had even visited the White House on a couple of occasions. All this played out in the media, usually in Al-Arian's favor. The notion that Al-Arian was a victim was laughable to those people who had heard his phone conversations.


Strengthened by the political will the government had after 9/11, the government decided to go for broke against Al-Arian and declassify the FISA information, something that was not done with Judith Coplon.  The earlier stages of the Al-Arian investigation saw a calculus very similar to what the FBI and the Department of Justice went through with Coplon in 1950.  Bill West saw the potential immigration violations against Al-Arian and his borther-in-law, Mazzen Al-Najjar.  He had recommended, from at least late 1995 onward, that Al-Arian could and should be prosecuted for "stand alone" immigration violations that would be "sterile of any terrorism support charges that might be pursued later." The idea in that was rooted in the counter-terrorism concept of disruption, but also practical considerations.  A smaller case meant less disclosure, because what would be viewed as relevant would be more narrow.  It meant less bleeding of national security secrets, much like Hoover realized was the key in prosecuting with the female Soviet spy.  In Al-Arian, the higher levels of the Department of Justice said no. West was told to continue the investigation to "gather additional evidence" and any immigration charges would be "wrapped into" a larger indictment later.  It finally happened in February 2003.


By the time the government decided to charge the professor, officials in the intelligence community were willing to throw it all on the table.  The challenge for the prosecutors was to shoe-horn what the intelligence says about Al-Arian’s conduct into a cognizable crime.  His role as a secret PIJ operative was obvious from the intercepts.  He was clearly up to no good, but what was the crime? The government chose to redress this conduct through racketeering charges and the fairly new offense of  providing material support to terrorist organization.  The jury acquitted Al-Arian of the crime of conspiracy to commit murder, which was probably a stretch from the beginning.  They failed to reach agreement on the racketeering and material support offenses.  Al-Arian ultimately pleaded guilty to the crime of engaging in prohibited financial transactions with PIJ.  In the meantime, there was no shortage of expert commentators who claimed that the government was picking on an innocent person.


As West notes, Al-Arian prosecution team that finally indicted and tried Al-Arian took a lot of criticism.   They faced a long, complex, difficult and messy case. They hung tough like the warriors they are. They should be rewarded.


Historians are left with a series of ironies.  Al-Arian received his just deserts on May 1, a date that was so important to Judith Coplon, her Soviet handlers, and others who wrongfully believe Bolshevism was the wave of the future.  There will likely never be something like the Venona files to convince everyone that Al-Arian was guilty.  Then again, we already have Al-Arian's voice on tape, making statements that outraged Judge Moody.  More importantly, we have Al-Arian's acknowledgment that, despite what he had claimed over the years, he was indeed a secret PIJ operative. What we do not have, and we never will, is a window into his heart, and certainty about what makes him pick.  For that, we have to speculate, it is something that will likely be discussed for years, much like Judith Coplon's motives have been fodder for analysis.


No one in America, no matter how prominent, is spared that type of treatment.  In the weekend prior to Al-Arian's sentencing hearing, President Bush made a hilarious appearance at the National Press Club.  He engaged in a skit in which he delivered a speech, while an impersonator standing next to him interjected what the President was really thinking.  What if Sami Al-Arian had a look-alike standing next to him when he delivered his sentencing statement in Judge Moody's courtroom?  It might have gone something like this:

I thank my outstanding lawyer, Ms. Moreno, for eloquently expressing my sentiments to the court this morning. (Boy, is she a good lawyer, or what? Thank heavens good American lawyers don't get to pick their clients).


I also would like to thank her and my former attorney, Mr. Bill Moffitt, for their exceptional representation and their tireless efforts on my behalf for the past three years. (Well, Bill did get a little tired.  He probably should not have physically assaulted that female prosecutor in the courtroom.)


I'd like as well to thank Mr. Lee Fugate, Mr. Jack Fernandez and Mr. Simon Gaugush for their excellent efforts on my behalf for the past few months (Imagine, these gullible people actually believed in my innocence, all the way up to my confession.)


This process, your Honor, affirmed my belief in the true meaning of a democratic society, in which the independence of the judiciary, the integrity of the jury system, and the system of checks and balances are upheld, despite intense political and public pressures. (Of course, the political pressure was always my strategy, and that of my supporters.)


Hence, I'd like to express my deep appreciation to the jury for their remarkable courage and efforts in the service of justice in this case. (I never imagined they'd do what they did, especially after all that inconvenient terrorism evidence came in and they heard from people who lost family members in PIJ attacks.  Praise Allah for the Florida heat and its physiological impact on human attention spans).


It's also my belief that an impartial and conscientious jury, as well as principled judicial rulings that uphold the values of the Constitution, are the real vehicles that win the hearts and minds of people across the globe, especially in the Arab and Muslim world. (Of course, bombs and bullets are so much more expedient.  I hope this judge is "principled" enough not to throw the book at me.  If he does, that will be the last compliment I ever pay him.)


Your Honor: This May 21 will mark my 31st anniversary in the United States. The American chapter of my life has surely been the longest. But it's about to end, as I will soon leave and start a new chapter. (It's certainly been a good run.  Who would have though it would take this long for the infidels to get smart?)


As I leave, I harbor no bitterness or resentment. (Who would? America is a land of opportunity - suckers born there every minute.  Today, I consider myself the luckiest man on the face of the earth.)


Looking back at my three decades in America, I'm indeed grateful for the opportunities afforded to the son of stateless Palestinian refugees in a foreign country, while denied such opportunity in his country of origin and the countries where he was born or raised. (Of course, there is no Palestinian state.  For that, we would need renounce terrorism and fix corruption. And Elephants may learn to fly.)


I'm grateful that my five wonderful children were born and raised in a society that provided them with freedom and equal opportunities in order to reach their potential. (Tampa sure beats Gaza for after-school activities)  Had they been born anywhere else (like anywhere in the Muslim world), they'd still be classified and treated as stateless Palestinian refugees. (The same freedom and opportunity that will be a thing of the past once my colleagues and I succeed in imposing Sharia law on the unwilling.)


During my many years in America, I have tried to uphold the great values of my faith and culture and the honored ideals and principles of this society. (If you overlook the blowing-people-up part.  Clearly, mistakes were made.  Let’s not harp on the past)


I'm very proud of my contributions to this society. And I'm very grateful to have been able to contribute positively in many endeavors.  (Think of it this way: I can't even vote, yet I - a stateless Palestinian and admitted PIJ operative - managed to turn an American Presidential election!)


I'd also like to thank my loving family, my beloved wife and children, whom I'm looking forward to join with soon. (Daddy's coming home! If only Judge Moody goes along with this gibberish.  Please, please, please...)


Their continuous love and unwavering support during this ordeal have been ceaseless and inspiring. During this entire time, my family never lost faith in the ideals of truth and justice that our society holds in esteem. (Though you wouldn't know it from all of the public complaints voiced about American law enforcement, for having the audacity to treat me like a criminal.)


Finally, and most importantly, I want to thank the Almighty for bestowing on me deep faith and calming peace that have sustained me during these past few years (Without Him, there would be no jihad, and then what would life be?).


 Thank you, your Honor (Let's hope you can't read my mind.  Next year, Jerusalem!).



[1]United States v. Coplon, 185 F.2d 629 (2d Cir.1950).

[2]Paul Hollander, AClinging to Faith: Public Intellectuals and the God that Failed,@ National Interest, April 1, 2006.

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R.K. Joyad is the pen name for a national security lawyer in Washington DC.

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