The Torture of Sami Al Arian
Date Posted: Tuesday, March 11, 2008
PITTSBURG (JURIST) March 11, 2008 - Guest Columnist Peter Erlinder of William Mitchell College of Law, attorney on appeal for Dr. Sami Al Arian, says that the treatment accorded the acquitted but still detained academic Palestinian activist from Tampa - now on hunger strike and in danger of irreversible renal failure at a federal prison hospital - is abuse of power amounting to torture taking place in the United States itself under the aegis of the Bush Administration and its "war on terror"...
The storm of criticism that followed George Bush’s weekend veto of Congressional limits on the CIA’s use of torture might lead to the conclusion that, reprehensible as "torture" might be in remote, secret CIA locations, it could never happen here in the US. But the Bush administration’s abuse of power in its treatment of Dr. Sami al Arian and other acquitted Palestinian "terrorism-defendants" has already demonstrated that "torture" for this administration is commonplace - even here.
In December 2005, a
Apparently, "legal black holes" like
A Propagandized Arrest and Pre-Trial Torture
In a February 2003
The images were a lot like those of US troops and cowering Iraqi women. But this was not
For more than a year before trial, Dr. Al Arian was in Super-Max isolation on 24/7 lockdown. He was denied family visits and was chained whenever he was out of his cell, even to talk to his lawyers. Super-Max prisoners are usually only convicts too violent to live in the general prison population, criminals among criminals. But the Bush administration put Dr. Al Arian in the Super-Max, hundreds of miles from his family, even before the final charges against him had been decided, and without even accusing him of being violent. It was...torture.
On top of Guantanamo-like conditions, Dr. Al Arian was denied warm clothing, writing materials and was subject to taunting guards, convinced by Bush administration propaganda that he was a second Osama bin Laden. Things got so bad that the Justice Department Inspector General is investigating abuse by guards. A UN body formally objected to his conditions of confinement before trial.
By the beginning of trial in July 2005, the original 200 charges against Dr. Al Arian and his 3 co-defendants were reduced to eliminate any mention of the accusations leveled by Ashcroft. But the remaining 94 "terrorism-related" counts could result in the death penalty or life in prison, including the 17 counts facing Dr. Al Arian, if he had been convicted. But he wasn’t convicted, and neither were any of his co-defendants.
Trial By Jury: Still a "Bulwark" Against Government Abuse
After hearing 6 months of evidence, including 80 witnesses; hundreds of hours of FISA wiretaps culled from 425,000 conversations recorded over 10 years; testimony of Israeli intelligence agents; heart-wrenching testimony of Israeli suicide bombing victims; graphic video of suffering bombing victims; and more than $50 million in taxpayer money being thrown at the case, the jury refused to find any of the defendants guilty of anything!
Dr. Al Arian’s lawyers, Linda Moreno and Bill Moffett, did not call one witness or put on one piece of evidence. The defense was the First Amendment right to free speech and the lack of any connection between Dr. Al Arian’s lawful support for the Palestinian struggle in the
On December 2005 TIME Magazine called Dr. Al Arian’s acquittal "the biggest defeat for the Bush Administration to date" , and so it was. It was also a victory for the United States Constitution. The
For a while it seemed that the Constitution was actually working the way it was supposed to, but the Bush administration made sure that this illusion did not last for long. Within days, the administration said they were going to re-try Dr. Al Arian on the lesser charges on which the jury "hung" 10-2 for acquittal. Re-trial is not illegal, but highly unusual when the evidence was so clearly rejected by the jury.
But at the same time the Bush administration was telling the world they would try Dr. Al Arian again, they secretly approached Al Arian’s lawyers with "an offer he couldn’t refuse" in early 2006 to avoid government being embarrassed by another acquittal.
Setting the Trap: "An Offer He Couldn’t Refuse"
The Bush-administration promised to: (a) drop all charges; (b) release Dr. Al Arian in 30 days; and (c) assist in deporting him to country of his choice, immediately upon his release. Compared to the death penalty or life in prison that he had been facing weeks earlier, it was a difficult offer to turn down but he did precisely that, because there were a couple of "catches" he and his lawyers refused to accept.
First, he would have to plead guilty to a crime, and he had not committed any crimes. Second, the standard
If Dr. Al Arian would only admit having helped his brother-in-law with immigration matters, and not telling a reporter about a colleague’s political associations, both of which were true, and neither of which were crimes, the Bush-administration would agree call the legal, non-violent acts evidence of a "conspiracy," and recommend his release by the end of May 2006.
But Dr. Al Arian and his lawyers still said "no-deal" because he absolutely refused to "co-operate" with a Bush Justice Department that had set him up and prosecuted him for political reasons. So the Bush-administration "blinked" again, because they needed to avoid another embarrassing defeat.
This time, they removed the "grand jury co-operation" requirement because, as they admitted in court, it was only way to get his name on the dotted line. They also admitted, in court on April 14, that the terms of their agreement with Al Arian had been approved in
The "Trap" Begins to Close
But when Dr. Al Arian appeared in court on
In essence, the judge convicted Dr. Al Arian of the same violent offenses that the jury had rejected. Several of the jurors went public after the sentencing hearing expressing outrage that the judge had ignored their verdict. So much for the Sixth Amendment.
Instead of beginning a new life in May 2006, as the Bush Administration led him to believe would happen, Dr. Al Arian would be in prison until April 2007. But there was no reason to think that the Bush administration was actually manipulating the legal system...yet.
The Bush Administration’s Post-Acquittal "Torture-Strategy"
When Dr. Al Arian appeared before the grand jury and relied on the "no-grand jury cooperation" promise, Judge Lee held him in contempt of court, and he was in contempt detention until December 2007, when the grand jury expires, which effectively extended original May 2006 release until April 7, 2008, two years after the Bush administration promised he would be released and deported.
Last Week: Another Turn of the Screw
But, there is a more sinister manipulation in the works. AUSA Kromberg has charged other acquitted Palestinian defendants with perjury, when they did testify before his grand jury. Other acquitted Palestinian defendants have been charged with "obstruction of justice," when they declined. Dr. Al Arian’s lawyer, George Washington Univesity law professor Jon Turley has said that Kromberg is "setting up Al Arian for a perjury/obstruction trap." The other acquitted Palestinian defendants facing the same "Hobson’s choice" have been given "terrorism-enhanced" sentences of 5 to 10 years whether they answered grand jury questions or not after American juries already acquitted them of the underlying charges. Imprisoned for a decade after being acquitted certainly could be called "torture", or at least "Kafka-esque."
Neither Alberto Gonzalez, nor "General Mukasey" (as he apparently referred to in White House circles) have done anything to rein in this misuse of prosecutorial power, but neither have the Courts nor the Democrat-controlled Senate and House Judiciary Committees even though both Chairmen, Sen. Leahy and Cong. Conyers, were made aware of this blatant manipulation of prosecutorial power, for apparently political purposes, more than a year ago.
Dr. Al Arian’s Last Protest Fast
But now, the Bush administration, the Courts and Congressional oversight committees have a chance to intervene. On
This is Dr. Al Arian’s third hunger-strike during his 5 years of imprisonment. The first was in 2005 and lasted 140 days on liquids only, before he was permitted the lawyers of his choice. In early 2006 he drank only water for 60 days, when the court refused to require the Bush-administration to honor their "no grand jury cooperation" promise, the first time. Now, he is refusing all food and liquids was transferred to the prison hospital on March 5. But he is not getting necessary medical treatment.
As of Monday, March 10, Dr. Al Arian has not received any intravenous liquids, and he is in danger of irreversible renal failure - yet another kind of torture, that could be ended with proper medical care. If Dr. Al Arian dies, AUSA Kromberg will have accomplished his stated "mission", so the question is, will anybody else respond, before it is too late?
End the Torture of Dr. Al Arian Now!
Between now and his April 7, 2008 release/deportation date, Kromberg will have to bring Dr. Al-Arian before the grand jury on a stretcher, kept alive by IV’s, assuming he receives proper treatment in the next day or two. Unless, of course, the Congress, the Courts or Mukasey put an end to the torture he has so far been subjected to. While Mukasey or Bush could release Al Arian with the stroke of a pen. Bush's veto of the torture limitation bill is an indication that Dr. Al Arian’s own torture will not be ended without the intervention of the Congress, the Courts, or the American people.
The torture of Dr. Al Arian is not "water-boarding," nor the "enhanced interrogation techniques" that Bush says is now part of
A government that is unwilling to publicly renounce torture committed in its name, and in the name of the American people, is capable of doing anything, to anybody, at any time, and the Al Arian case is a prime example of a lawless regime displaying itself to the world. The Al Arian case is not law, it is politics...and torture. It is time for Congress, the Courts and the American people to put an end to the legal torture of Dr. Al Arian, now.
(c) 2008 Peter Erlinder.
 TIME Magazine,
 The Al Arian case is the subject of USA v. Al Arian, awarded the prize for best documentary at the Nordic Film Festival in 2007, which is being shown in film festivals and other venues worldwide.
Peter Erlinder is a professor at William Mitchell College of Law,