ALEXANDRIA, Va. — For five years, a federal judge upset with the prosecution of a Florida professor once accused of being a leading terrorist has simply refused to rule on his case. It's left the government unable to deport him, unable to prosecute him, and flummoxed on how to move forward.
In April 2009, U.S. District Judge Leonie Brinkema told lawyers she would rule "soon" on whether to dismiss criminal contempt charges filed in Virginia against former University of South Florida professor Sami Al-Arian, a longtime prominent Palestinian activist, who refused to testify in a separate terror-related investigation.
The ruling hasn't come, and nothing has happened in the case. The delay is unusual for Alexandria's federal courthouse, known in legal circles as the Rocket Docket for its swift disposition of cases. Legal experts say they can't think of a similar case elsewhere that has languished for so long.
On the surface at least, Al-Arian — who has declined to invoke his speedy trial rights — benefits from his silence and the standoff. If the Virginia case were dropped, Al-Arian, 56, born in Kuwait to Palestinian refugees before coming to the U.S. in 1975, would be deported under the terms of a Florida plea.
Instead, while he is technically on house arrest, Brinkema liberalized the conditions of Al-Arian's confinement last year. She gave him freedom to leave the house as long as he doesn't miss an unspecified curfew. And instead of having to deal with unsettled conditions in Egypt where he might be deported, he lives with his wife, Nahla, and his oldest daughter, one of his five children who he is free to see. All of Al-Arian's children were born in the U.S. and are U.S. citizens though his citizenship application was denied in the 1990s.
Al-Arian and his attorney, Jonathan Turley, declined to comment. In 2008, Brinkema warned all sides to watch carefully what they said in public following several contentious hearings and a speech by then-presidential candidate Mike Gravel who, in defense of Al-Arian, urged people to pressure the prosecutor and "find out where his children go to school."
In the anxious months after the Sept. 11 attack, the Florida prosecution of Al-Arian exposed the polarized opinions that Americans held regarding the Bush administration's aggressive tactics in the Global War on Terror.
Al-Arian's critics said he was a leader of one of the most ruthless terrorist groups in the world — the Palestinian Islamic Jihad — and that he used his position as a computer science professor as a base to quietly raise money for attacks. His supporters saw a man who was trapped by anti-Muslim hysteria, unfairly snared in a vague, amorphous web of guilt-by-association when his real goal was to help his native people in the Palestinian territories.
In 2003, federal prosecutors in Florida filed an indictment alleging Al-Arian was a leader of the terrorist group and complicit in the murder of innocent civilians. A jury acquitted him on numerous counts, and was hung on others. A mistrial was declared.
Prosecutors and Al-Arian then cut a deal that they thought would be the end of it. He agreed to plead guilty to lesser charges, followed by a recommendation for time served and immediate deportation — possibly to Egypt, where he lived before he came to the U.S. Specifically, he admitted to lesser charges including conspiring to aid the PIJ by helping a relative with links to the group get immigration benefits.
At Al-Arian's insistence, the deal also eliminated a standard provision requiring defendants to cooperate with government investigations.
But then, federal prosecutors in Virginia sought his testimony in a long-running, terror-related grand jury investigation of their own, focused on a Herndon-based organization called the International Institute of Islamic Thought, which was raided by the FBI in 2002 and provided funding to a think tank founded by Al-Arian.
Al-Arian was granted immunity and subpoenaed. U.S. attorneys argued that his plea deal bound federal prosecutors in Florida, but not in Virginia — language that is typical in plea agreements. Al-Arian refused to testify and went on several hunger strikes.
Eventually, in 2008, the Virginia prosecutors charged him with criminal contempt. After some heated pretrial hearings in which the judge questioned whether the government was violating the spirit of the Florida plea deal, if not the letter of it, Brinkema canceled all further proceedings and essentially put the case on ice, where it remains.
Occasionally over the years, prosecutors have filed gentle reminders about the case's status that have been ignored. Brinkema declined to comment.
Pete White, a former prosecutor in the Eastern District of Virginia who is now a defense attorney, said it is rare for a criminal case to sit this long under these circumstances, especially in the Rocket Docket. There are no official statistics that document the rarity of a criminal case sitting in limbo for such a long time, but White and others said they could not think of a similar case, especially one that grew out of a terror-related investigation.
White said the only option prosecutors have to propel the case forward would be to file something called a writ of mandamus against Brinkema — basically asking another judge to order her to take action.
Taking such a drastic step would be tricky for a U.S. Attorney's Office that appears in front of the judge for hundreds of cases every year.
The acting U.S. Attorney in the Eastern District of Virginia, Dana Boente, declined to comment on the Al-Arian case.
Carl Tobias, a law professor at the University of Richmond who closely follows the federal courts in Virginia, said Brinkema has significant experience dealing with national security cases, and on several occasions has expressed frustration with the government's tactics in its pursuit of terror convictions.
When Brinkema presided over the trial of 9/11 conspirator Zacarias Moussaoui, she expressed chagrin when the government admitted after the trial that interrogations of certain al-Qaida detainees which were relevant had been videotaped, when the government represented at the time that no such tapes existed.
Brinkema suggested afterward that she can't trust what government agencies say about classified evidence in terror cases. She said she might order a new trial in another high-profile terror case — northern Virginia Islamic scholar Ali al-Timimi, convicted of soliciting treason for urging followers to join the Taliban after the Sept. 11 attacks. Unlike in the Al-Arian case, though, the judge has continued to hold hearings and issue rulings in that case.
"Maybe this is just her way of addressing ... her concerns about the government's case," Tobias said.
Indeed, in a March 2009 hearing, Brinkema expressed her opinion that Al-Arian may have been essentially hoodwinked.
"But I think there's something more important here, and that's the integrity of the Justice Department," she said.