The ACLU and Al-Arian, Part II?

By Bill West

Yesterday, fellow CT Blog contributor Steve Emerson, who is also the Executive Director of the Investigative Project on Terrorism, wrote an outstanding article about how the American Civil Liberties Union (ACLU) is apparently incapable of finding a Palestinian terror suspect it does not love. I wanted to do a quick follow-up on one point Steve made in his piece.

The ACLU has written a letter to the Department of Justice urging the dismissal of the remaining criminal charges against Palestinian Islamic Jihad (PIJ) suspect Sami Al-Arian in Tampa. Those nine charges remain pending for possible retrial after a hung jury in the first trial last month.

Interestingly, the ACLU did not address Al-Arian�s potential deportation in their letter. No matter what happens relative to the remaining criminal charges, the Bureau of Immigration and Customs Enforcement (ICE) has already indicated it intends to initiate removal (deportation) proceedings against Al-Arian once the criminal case is completed.

Al-Arian is not a US citizen. He is a permanent resident alien�he has what is commonly called �green card� status. However, he is still subject to potential deportation based on some of the same evidence the Government has used in the criminal case. Since criminal proceedings and deportation proceedings are not the same (deportation proceedings are civil/administrative in nature), double jeopardy does not attach and the rules of evidence are different and the standard of proof is less strict (�clear and convincing� instead of �beyond a reasonable doubt�).

In a sense, there really are two justice systems for aliens in the United States � the criminal justice system they face like everyone else and the immigration removal system they face just for them. These two systems might be thought of as two parallel systems that have certain intersecting points. There really is nothing unfair about all this, it is simply that the immigration removal system is the mechanism America uses to process aliens in a judicial way who may not have a legal right to be or remain in the country.

There are at least several distinct deportation violations the Government could lodge against Al-Arian. I won�t go into details about those potential violations here, except to say some would relate to his alleged terrorism support activities and/or affiliation with the PIJ. At least one might not. Relative to the issue of �affiliation,� for deportation purposes such affiliation would not necessarily need to be directly linked to support of violent terrorist acts. And, as Steve noted in his article yesterday, Al-Arian�s defense counsel already conceded during the first criminal trial that Al-Arian was affiliated with the �cultural and charitable� arm of the PIJ.

The Government, assuming it chooses to pursue deportation action against Al-Arian as it has publicly said it will, would appear to have a notably viable case. That may be why the ACLU chose not to address the issue in their �free Sami� letter to DOJ.

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