For years, Sami Al-Arian was a professor at a university in Florida. But in 2003, the U.S. government put him on trial for financing terrorist attacks. Although the Justice Department had thousands of hours of wiretapped phone calls connecting Mr. Arian to the Palestinian Islamic Jihad, which the U.S. government has designated as terrorist organization, the case did not turn out like the government expected.

This is a briefing on a recently decided case that the United States government brought against Sami Al-Arian, a former engineering professor at the University of South Florida and outspoken supporter of Palestinian independence.

The News
The U.S. government said that Mr. Arian had helped finance and direct terrorist attacks in Israel, the West Bank and the Gaza Strip. Last December, a Florida jury put an end to a five-month trial by returning not guilty verdicts for Sami al-Arian and three co-defendants on 51 criminal counts related to terrorist support. Mr. Arian, specifically, had faced 17 counts, some of which were related to perjury and immigrant violations as well. He was found not guilty for eight of those counts, and a judge declared a mistrial for other nine.

The Backstory
Officials became suspicious about Mr. Arian’s connection to terrorist activity in 1994 after his appearance in a PBS documentary called Jihad in America, which identified him as a fundraiser for the Palestinian Islamic Jihad. That organization, known for suicide bombings, supports the destruction of Israel. The government accused Mr. Arian, who opposed Israeli occupation of the West Bank and Gaza Strip, of helping to fund and direct terrorist attacks in those areas by using organizations he founded in Tampa, Florida as fundraising vehicles. Mr. Arian was indicted in 2003, after the U.S. Justice Department had spent 10 years building its case against him. Officials had collected 20,000 hours of wiretapped phone calls, dating back to the 1990s, which indicated that Mr. Arian was fundraising for Palestinian causes. The wiretaps also indicated that Mr. Arian applauded attacks against Israel and that he called suicide bombers “martyrs” and referred to Jews as “monkeys and swine.” During the trial, prosecutors presented jurors with transcripts from some of the calls along with 80 witnesses. They also had evidence that Mr. Arian had sent money to the families of some suicide bombers in the early 1990s.

Why the government lost

Legal commentators who followed the case have given several explanations for why the government lost its case against Mr. Arian:

• One of the primary observations is that the prosecution’s approach to the case, spending days in court reading transcripts from phone calls, was redundant and exhausting for jurors.
• Also, the age of the evidence could have been a factor. A significant portion of the evidence was years old, and some of it reached as far back as 10 years. Some commentators say that the government spent too much time building the case and waited too long to prosecute.
• Additionally, the United States did not designate the Palestinian Islamic Jihad as a terrorist organization, which outlaws Americans from supporting it, until 1995. Many of the conversations and activity between Mr. Arian and the Palestinian Islamic Jihad presented in court happened before that designation.
• Despite the extensive evidence, the prosecution was not able to link Mr. Arian to illegal acts directly.
• Mr. Arian’s defense attorneys portrayed him as a scholarly supporter of foreign groups. They painted a picture of him as an activist who had spoken out strongly against Israel but who had not committed any crimes.
• Jurors were relatively unmoved by the possibility that Mr. Arian had helped to execute terrorist attacks because those attacks were against foreigners, not against Americans.

Free Speech and Political Activity vs. Terrorism
Ahmed Bedier, director of the Tampa chapter of the Council on American-Islamic relations, was quoted in The New York Times: “This was a very important case for us in that it tested both the Patriot Act and the right to political activity….The jury is sending a statement that even in a post-9/11 America, the justice system still works, the burden of proof is on the prosecution, and political association—while it may be unpopular to associate oneself with controversial views—is not illegal in this country.” Arguably, the biggest question was whether Mr. Arian’s work in Florida supporting Palestine fell under the umbrella of free speech and political activity or illegal support for terrorists. For one or a combination of the reasons outlined above, jurors chose the former.

Lessons and Implications for Future Trials
The jurors’ verdict suggests that Americans are uncomfortable convicting defendants only indirectly involved with violence. Also, Andrew McCarthy, a former federal prosecutor who has represented the government in terrorism cases in New York, was quoted: “What this case shows is, when you cannot connect the dots until the dots are stale, people are not that interested in the dots.” Because jurors did not respond positively to the dated evidence presented them in this case, the outlook could be gloomy for government prosecutors in other “cold cases” the government is pursuing. One example is the case against enemy combatant Jose Padilla, who is accused of participating in a 1993-conspiracy to support radical Islamic figures. Much of the evidence in that case reaches back into the 1990s as well. Lastly, according to David Cole, a Georgetown University law professor, this case has shown jurors rejection of the government’s “sweeping guilt by association theory.” To return a guilty verdict, jurors need evidence that the defendant is, in fact, guilty of some crime, and, perhaps, association with a party seen as guilty of criminal or terrorist activity is not enough.

Sources

Lichtblau, Eric. “Setback for U.S. in Terror Trial.” New York Times. Dec. 7, 2005.

Schmitt, Richard B. The Patriot Act Can’t Make Up for a Weak Case.” Los Angeles Times. December 8, 2005.