For now, Sami Al-Arian may have lost his legal fight. But his loss is America’s, too.
The decision passed down Friday by the 4th U.S. Circuit Court of Appeals, which denied Al-Arian’s appeal and upheld a decision by a Virginia judge to hold him in contempt of court for refusing to testify, seemed to stand on solid legal ground.
“Everyone agrees that the written plea agreement in the Middle District of Florida contains no language which would bar the government from compelling the appellant’s testimony before a grand jury,” the court wrote. In fact, Al-Arian’s plea agreement mentioned nothing whatsoever about future testimony. The government is clearly correct in its interpretation of the letter of the law.
But the law is not a bludgeon – it’s a tool of argument. When the government initially prosecuted Al-Arian, it was intending to use the law to defend society from terrorism. With the judgment on Friday, it’s almost assured the government has failed in that mission.
Think about it: The government wanted to prove to a jury of 12 people that Al-Arian was guilty of providing support to a terrorist organization and failed. The government then wanted Al-Arian to testify in a case in Alexandria, Va. – going so far as to sentence him to 18 months in prison for contempt of court after he refused to do so. The decision by the 4th Circuit Court of Appeals Friday did nothing to prove Al-Arian guilty of any federal crime. More importantly, it will do nothing to motivate him to testify. It will merely allow him to serve the remainder of his sentence for contempt of court, followed by the remainder of his 57-month sentence.
Judging from Al-Arian’s public support, the government didn’t “expose” Al-Arian at all. The government failed to convince a jury of Al-Arian’s peers that he was guilty, instead resorting to a plea agreement. In fact, the government has failed in every aspect of Al-Arian’s prosecution. It presumably prosecuted Al-Arian to gain evidence against other suspected terrorists, imprison a man believed to be a terrorist and win the moral support of a nation in the throes of a war on terror. To date, only one of those – Al-Arian’s imprisonment – has occurred. Instead of placing Al-Arian in witness protection – thereby allaying his fears of retribution for testimony – the government remained set in its stance on the matter, and has come up empty-handed.
And the idea that Al-Arian might be – in the words of Paul Perez, the U.S. District Attorney who presided over the Middle District of Florida during Al-Arian’s original criminal trial – a “white-collar terrorist,” makes the government’s failures all the worse.