In a set back for the government, Dr. Sami Al-Arian was granted bail by Judge Leonie M. Brinkema today. Over the objections of the government and the pre-trial services, Judge Brinkema agreed that Dr. Al-Arian was not a flight risk and no danger to the community. The government has suggested that it may now block release by having Immigration officials hold Dr. Al-Arian for deportation — despite the fact that it is trying to hold him for years under a criminal sentence rather than deport him.
At the hearing, I was joined by my colleague P.J. Meitl from the law firm of Bryan Cave. The government was represented by Gordon Kromberg, who was joined at counsel table by Steve Ward of the Joint Terrorism Task Force. Judge Brinkema specifically asked him to identify Ward and immediately noted that his office is part of the plea agreement with Dr. Al-Arian. Kromberg admitted that he was. This would be important later during sharp exchanges with Kromberg over Dr. Al-Arian’s cooperation. Kromberg admitted that the alleged contempt by Dr. Al-Arian was his refusal to answer questions from the Florida trial, which was closed with the plea agreement. In this admission, Kromberg established that Dr. Al-Arian is not being charged with failing to answer questions about the IIIT investigation — which were addressed fully in his affidavits. Rather, the government is trying to revisit the Florida trial that it lost when a jury acquitted Dr. Al-Arian of various counts (and came within two votes of acquitting him on all counts).
Judge Brinkema made a number of significant statements in the hearing.
First, she warned the government that she was getting “strange signals” for this case and that the government should not be found to have harassed efforts for another governments to accept Dr. Al-Arian under the plea agreement.
Second, she stated that the plea agreement continued to apply to the case and that the government is required to deport him with expedition.
Third, she said that any resumption of custody by ICE would trigger the deportation provision.
Fourth, Judge Brinkema specifically asked for confirmation that Dr. Al-Arian had already made detailed statements to the government and repeatedly offered to take a polygraph examination to prove that he was not withholding information.
On the question of the government’s failure to deport Dr. Al-Arian, we were astonished by Mr. Kromberg’s insistence that the government did not know of any travel document issued by the Egyptian government. I objected that multiple copies were submitted to the government weeks ago and that Mr. Kromberg was personally informed of the travel documents before the indictment. Despite this record, Mr. Kromberg suggested that Dr. Al-Arian was “a man without a country” and thus could not be deported at this time.
In one of the most curious moments, the government insisted that Dr. Al-Arian had waived any claim under the statute for deportation within the 90 day period. I immediately objected and said that no such agreement was made. We agreed not to invoke the plea agreement for part of the period of negotiation. We never agreed to waive all statutory arguments of removal. The government, however, is arguing that (unlike the plea agreement) the court should just read such an understanding into prior emails between counsel. We will be submitting these emails to the court to clearly show that no such waiver occurred and the time for deportation has expired.
The government also said that Dr. Al-Arian had refused to meet face-to-face with investigators. We will be submitting material today to the court to show that Dr. Al-Arian repeatedly agreed to meet face-to-face with investigators and only refused to revisit the Florida trial. On the questions related to IIIT, Dr. Al-Arian not only submitted detailed answers but agreed to both meet with investigators and to take a polygraph examination to prove that he was not withholding information.
Next week, we will be submitted pre-trial motions as well as seeking Dr. Al-Arian’s release from ICE custody.
We are deeply grateful to Judge Brinkema for her ruling today as well as her words of concern over the “strange signals” in the case. Indeed, there is much strange about this case such as the government claiming to be deporting someone who it is trying to hold for years in a criminal indictment. Things are likely to become stranger still as the government continues its long campaign to hold Dr. Al-Arian by any means or method. We remain hopeful, however, that Dr. Al-Arian will be vindicated and that the government will be forced to comply with its commitment to allow him to leave the country.
Lead Counsel to Dr. Sami Al-Arian
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