Tampa PIJ (Mis)Trial

By Bill West

As virtually all readers of this Blog know by now, the federal trial jury in Tampa, Florida last week stunningly returned not guilty verdicts on nearly half the counts against Sami Al-Arian, fully acquitted two of his co-defendants and acquitted another of his co-defendants, Hatem Fariz, on most of the counts against him. The remaining counts were deadlocked. In post-trial jury interviews, it appears most jurors wanted to acquit on all but one count, with only two or three jurors holding out for conviction and that resulted in the deadlock and mistrial.

The one count where there was a near-conviction, according to at least one juror interview, was the naturalization fraud charge wherein Al-Arian was accused of lying on his naturalization petition about his affiliation with his alleged Palestinian Islamic Jihad (PIJ) front �think-tank� the World Islam Studies Enterprise (WISE) and other organizations. On that count, it seems there was a ten to two juror split to convict. Ironically, that charge was the original violation that spawned the initial criminal investigation against Al-Arian more than a decade ago.

The Department of Justice (DOJ) continues to review the status of the case and what its next course of action should be. Legally, DOJ can retry Al-Arian and/or Fariz on the unresolved counts. An official statement from DOJ says the Department is considering that. Another possibility is to initiate removal (deportation) proceedings against Al-Arian. Fariz is a US citizen. Al-Arian is a lawful permanent resident alien. Without going into details here, at least until the Government decides what to do in the case, there are at least several viable removal charges the Government could pursue against Al-Arian. A statement from Immigration and Customs Enforcement (ICE) says that agency is working in conjunction with the Department of Justice and the Department of Homeland Security (DHS) and will initiate removal proceedings against Al-Arian upon completion of the criminal proceedings against him.

There are many things concerning this case about which I could comment. I initiated the criminal investigation against Al-Arian in late 1994 after viewing Steve Emerson�s PBS documentary Jihad in America and maintained some operational involvement in the case until circa 2001. That initial investigation focused on immigration fraud violations but quickly expanded into a counter-terrorism criminal case working with the FBI, US Customs and other agencies.

Those post-trial juror interviews have unanimously indicated there were no issues concerning undue political, media or religious influence in their deliberations�all pre-trial concerns by the defense. All the jurors interviewed have indicated, simply, the prosecution failed to present evidence sufficient to convince them beyond a reasonable doubt that Al-Arian and the others committed the crimes charged. That is why the outcome of the trial has been such a stunning defeat for the Government.

The evidence, from the Government�s perspective, was solid. While much of it may have been circumstantial, it should have been overwhelming and notably convincing. The case prosecution will, no doubt, be reviewed and analyzed for some time to come.

The 51-count indictment was by its very nature a long, complex and difficult case to prosecute. Add to that the fact that most of the alleged violations occurred a long time ago and much of the evidence would be viewed as �stale.� The evidence, viewed by professional law enforcement and intelligence practitioners, would be viewed in a certain perspective. Presenting and translating that same evidence in a court of law to average citizens sitting on a jury, especially when there is a very large amount of evidence presented over a long period of time, can be challenging.

Certainly other long, complex and difficult trials have resulted in convictions; however, keeping a jury focused on the evidence in such cases is not an easy task. In this case, it does appear from the length of deliberations the jury made a notable effort to focus on the evidence as best they could. That said, from what I know of the prosecution team, they are solid professionals who worked long and hard to present the best case they could.

Would a more narrow indictment presented years earlier have had a better chance of success for conviction? Perhaps we�ll never know. However, at some point, that may be a question to be asked and answered as to why such an indictment was not brought. I will refrain further from any substantial commentary until after the Government decides its further action in the case.

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