Al-Arian Released On Bail

By Bill West

Sami Al-Arian, convicted of supporting the terrorist organization Palestinian Islamic Jihad (PIJ), who has served a 57-month federal prison sentence for that offense is now under what is believed to be a final removal order (deportation order) requiring his departure from the United States. That removal order stems from his felony conviction relating to the support of a foreign terrorist organization. That support included assisting an alien relative who was a PIJ operative with immigration matters. Al-Arian continues to face federal criminal contempt charges in the Eastern District of Virginia due to his refusal to testify before a federal grand jury investigating northern Virginia Islamic organizations with whom he and his Tampa, Florida PIJ-affiliated front groups were associated and did business.

As reported by various media outlets, including the Investigative Project on Terrorism, Al-Arian was just released from the custody of immigration authorities to await further proceedings on the criminal contempt charges. His release by immigration authorities was likely because the Department of Homeland Security (DHS) was caught between a legal "rock and a hard place."

U.S. immigration law and court decisions, particularly the 2001 Supreme Court decision, Zadvydas v. Davis, allow the Immigration and Customs Enforcement (ICE), to detain aliens who are under final removal orders only as long as it takes to make reasonable arrangements to physically deport them but generally no more than 90 days. There are certain limited exceptions, including aliens who are involved in terrorism activities, who could be detained for longer periods including an indefinite time if actual removal is not possible. Arguably, Al-Arian could fall into that category.

However, if ICE is ready to physically deport Al-Arian, having finalized all the arrangements of that process, yet the Department of Justice wants to keep Al-Arian in the U.S. for the pending contempt prosecution, there may have been no legal recourse but to release him under the conditions imposed by U.S. District Court Judge Leonie Brinkema.

On the other hand, if there is still some genuine pending, time-consuming arrangements left in the deportation process for Al-Arian, ICE would have legitimate cause to further detain him as a terrorism-related convicted alien felon and could have so argued before the Court. So far, neither ICE nor DHS has publicly commented on the specifics of Al-Arian's release.

Ironically, in late 2000, Al-Arian's brother-in-law Mazen Al-Najjar (the PIJ operative Al-Arian assisted with his immigration case), had been similarly detained by then INS for several years pending deportation action while he appealed his deportation order, a deportation order that was issued by an Immigration Court after several weeks of public, open due process hearings wherein Al-Najjar was fully represented by legal counsel (hardly the "never charged" posture represented by most media and apologists at the time). INS, working with the FBI, attempted to keep Al-Najjar detained while he appealed that deportation order because the agencies knew he, like Al-Arian, was involved with the PIJ. Al-Najjar, however, had already been charged in U.S. Immigration Court and had a deportation order issued against him. The custody matter in his case was based, in part, on classified information. That, of course, stirred a hornet's nest with much of the media and Al-Najjar's supporters and apologists. The debate about using "secret" evidence in immigration proceedings became widespread and ultimately, because of the Al-Najjar case and the negative publicity, as misrepresented as it was, the utilization of classified information in immigration removal proceedings has been greatly curtailed, even after the 9/11 attacks and the so-called war on terror.

More ironically, during the Al-Najjar detention proceedings, then Attorney General Janet Reno ultimately authorized his release on a meager $8,000 bail after three and a half years of detention, knowing fully his terrorism support background, when she had the option of overriding an Immigration Judge's release order. That Reno release authorization was ordered, coincidentally, at the end of her tenure as the Attorney General and during a presidential election season. Al-Najjar ultimately lost his appeal, was re-arrested in November of 2001, detained and deported in 2002. Reportedly, he currently lives in Cairo.

We now have Sami Al-Arian similarly released from immigration custody. No doubt, due to the high profile nature of this case, DHS Secretary Michael Chertoff has been involved in the custody decision-making process. Notably, this occurs at the end of his tenure and during a presidential election season.

So, Al-Arian's release from custody really could be either a rock and a hard place decision or a cave-in as far as DHS is concerned.

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