A MATTER OF JUSTICE

by Jane Guskin, The Huffington Post

Two Muslim men that our federal government has unfairly accused of supporting Palestinian terrorist groups celebrated victories last week. Both men are Palestinian immigrants who have been living legally in the US for many years and have been active in bringing together diverse communities, opposing religious extremism and working for social justice. Both have children who were born in the US, and both are devoted to their families.

In Paterson, New Jersey, an immigration judge ruled on September 4 that the federal government was wrong to try to deport local imam Mohammad Qatanani. The ruling upholds Qatanani's petition for permanent legal residency, which the Department of Homeland Security (DHS) had sought to deny by claiming he lied on his application about an arrest in Israel. (Like thousands of other Palestinian men, he was detained administratively there.) Immigration Judge Alberto Riefkohl was unconvinced by the government's evidence: "FBI Agent Angel Alicea's testimony has been found not credible...and will be disregarded as unreliable," the judge wrote. "The court also finds DHS's other evidence is insufficient," he added. One of the government documents in the case is so sloppy that it repeatedly misspells the name of the group Hamas as "Ramas."

Qatanani and his family were not detained while they fought their deportation, and his win in immigration court was touted by his many supporters—including rabbis, priests, FBI agents and elected officials—as a sign that the US justice system works.

In the case of Sami Al-Arian, the same US justice system showed how unjust it can be. Al-Arian, a former Florida professor and civil rights activist, was released on bail on September 2 after spending more than five and a half years in jail fighting a vindictive prosecution. Here's a condensed timeline:

* February 20, 2003: Al‑Arian is arrested and charged with supporting the Palestinian Islamic Jihad. He is denied bail and placed in solitary confinement for two and a half years while awaiting trial. Amnesty International decries Al-Arian's treatment as "gratuitously punitive."

* December 6, 2005: The jury acquits Al-Arian on eight charges while deadlocking 10 to 2 in favor of acquittal on nine others. The government keeps Al-Arian jailed and threatens a retrial on the deadlocked charges.

* February 28, 2006: Al‑Arian doesn't want to spend another three years in prison awaiting a retrial, so he pleads guilty to one conspiracy count, acknowledging that he helped people who the government claims were associated with Palestinian Islamic Jihad, and that he lied to a reporter about his knowledge of associations with the group. In exchange, he is offered "time served" followed by a speedy deportation. The government acknowledges that Al‑Arian's activities were nonviolent and that his actions created no victims.

* May 1, 2006: Judge James S. Moody Jr. in Tampa ignores the plea agreement and gives Al‑Arian the maximum sentence: an additional 19 months in prison. Projected release date: April 11, 2007.

* October 2006: Although the plea agreement released Al-Arian from cooperating with government investigations, Gordon Kromberg, Assistant US Attorney for the Eastern District of Virginia, summons Al-Arian to testify before a grand jury looking into an unrelated case of alleged terror funding.

* November 16, 2006: Because he refuses to testify, Al-Arian is placed under civil contempt until December 21, 2006. The time spent under civil contempt doesn't count toward fulfilling the remainder of his sentence.

* January 22, 2007: Al-Arian is again summoned to testify before a second grand jury. After refusing to testify, he is again placed under civil contempt—postponing his release for another 11 months.

* December 13, 2007: Judge Gerald Lee of the Eastern District of Virginia lifts the civil contempt order. New projected release date for Al-Arian: April 11, 2008.

* March 2008: Kromberg subpoenas Al-Arian to testify before a third grand jury. Al-Arian again refuses to testify.

* April 11, 2008: Al‑Arian is transferred into the custody of Immigration and Customs Enforcement (ICE) after finally completing his sentence. Instead of deporting him as originally agreed, ICE keeps him detained.

* June 26, 2008: Kromberg indicts Al-Arian on two charges of criminal contempt for refusing to testify in March and October, even though Al-Arian provided two detailed affidavits [stating he had no knowledge of criminal activity], and repeatedly offered to undergo a polygraph examination. A few days later, Al-Arian is transferred to the custody of the US Marshals to await trial on the criminal contempt charges.

* July 10, 2008: Judge Leonie Brinkema orders Al-Arian released on bail. The government blocks his release on bail, claiming that ICE must detain him while preparing to deport him.

* August 8, 2008: Brinkema postpones the criminal contempt trial pending a Supreme Court ruling on Al-Arian's appeal challenging the government's right to compel him to testify.

* August 25, 2008: Al-Arian's attorneys file a habeas petition demanding his release on bail. Brinkema gives the government until September 2 to explain why it should keep him jailed.

* September 2, 2008: ICE responds to Brinkema's deadline by requesting that Al‑Arian be released from its custody. At last, Al-Arian walks out of jail.

Al-Arian is still not free—he is under house arrest awaiting trial. But he is finally reunited with his family, thanks to the intervention of one rational judge, thousands of people who sent messages protesting his detention, and a Norwegian filmmaker who has helped spread the word about his case with an award-winning documentary, USA vs. Al-Arian.

But does it redeem our system?

If the government can find a way, through abuse of power and by stretching the limits of the law, to detain you for five years—in solitary confinement for most of that time—without even enough evidence to convince a jury, is that justice?

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Jane Guskin is co-author of The Politics of Immigration: Questions and Answers [1] (Monthly Review Press [2], 2007). Guskin also edits Immigration News Briefs [3], a weekly newsletter covering immigration issues. She lives in New York City.

This story first appeared Sept. 11 in The Huffington Post [4].