The judge, Leonie M. Brinkema, still has not issued a ruling.
Al-Arian is a former computer science professor at the University of South Florida widely known in the Tampa area for his 2005 arrest on terrorism-related charges.
He remains under court supervision under the terms of his pretrial release for the Virginia case, which was originally brought in 2008.
He has to get permission to change residences and must follow court restrictions on his activities.
But it’s not clear when or if the case will be resolved. The government’s plans to deport him are on hold.
When Al-Arian was arraigned on the Virginia case, his attorney, Jonathan Turley, wrote on his blog that the court there “is called the ‘Rocket Docket’ because it prides itself on moving these cases at a breakneck pace.”
Al-Arian was indicted 69 months ago; it’s been 59 months since April 22, 2009, when the judge said she would rule soon on the defense motion to dismiss.
In August 2010, the U.S. Attorney’s Office filed a notice scheduling a hearing and urging the judge to rule on pending motions “so that the prosecution can proceed.”
Two months later, the judge issued an order saying a hearing wouldn’t be necessary and that she was “working on an opinion which addresses all relevant issues.”
That opinion was never issued.
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No one directly involved in the case will say what’s going on.
The judge’s assistant wouldn’t take a message, saying the judge would not talk to reporters and her staff also was not permitted to answer questions.
A spokesman for the U.S. Attorney’s Office in the Eastern District of Virginia said the office does not comment on pending litigation.
Turley wrote in an email that he has “been complying with the court’s stated preference to refrain from public comments on the case.’’
Among those not directly involved, theories abound.
Perhaps, some say, after promising never to cooperate with the federal government, Al-Arian — who has ties to Egypt — is working with investigators on some level, possibly with information on developments in that country.
Lawyer Kevin Beck, who represented an Al-Arian codefendant during the Tampa trial, was flabbergasted by how long it’s taken Brinkema to rule on the motion to dismiss. But Beck said he couldn’t see in his “wildest imagination” a scenario in which Al-Arian would agree to cooperate with the government.
On the other hand, “if he was anxious to resolve this, he would be asking the court to rule,” Beck said. “The fact that that’s not going on may be the strongest indication that’s something else is going on.”
Al-Arian later struck a deal with prosecutors, pleading guilty to one count of providing assistance to the Palestinian Islamic Jihad.
Al-Arian insisted, as part of his plea deal, that prosecutors not include a provision requiring his cooperation with authorities.
But a federal prosecutor in Virginia sought to compel Al-Arian to testify at a grand jury there.
He has served his 57-month sentence in the Tampa case but then was held on successive civil contempt charges for refusing to testify before the Virginia grand jury investigating alleged terrorist financing by charities there.
The institute’s offices were raided in 2002 as part of the investigation into World and Islam Studies Enterprise.
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Turley wrote on his blog that in 2008 Al-Arian had been indicted for failing to provide information about the institute, even though he didn’t have information.
Al-Arian has argued that the lack of a cooperation provision in his Tampa plea agreement meant he couldn’t be forced to testify in Virginia, but the Tampa trial judge and the 11th Circuit Court of Appeals disagreed.
The pending motion to dismiss the indictment cites three grounds: that the compulsion to testify violated Al-Arian’s 2006 plea agreement, that the government has provided the court with insufficient evidence for the case to proceed to the jury, and that the indictment would “undermine the integrity of the court and the legal process.”
The judge also has not ruled on a prosecution motion that Al-Arian be barred from arguing at trial that his 2006 plea agreement exempted him from having to testify in Virginia. The prosecution wants the judge additionally to rule that the defense cannot argue that the order that Al-Arian testify was invalid.
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In March 2009, Brinkema questioned the tactics of the Justice Department, suggesting the integrity of the department may have been compromised because of its handling of the contempt case.
Attorney Steven Crawford, who represented another Tampa codefendant, suspects the parties are just waiting for enough time to pass to allow the case to go away quietly.
“Sometimes the courts just kind of run out the clock,” he said. “There just may be a tacit agreement. It may just kind of, OK, just let this sit and everybody agrees to let it sit.”
Another lawyer not involved with the case, former federal prosecutor John Fitzgibbons, was astounded by the time lapse without a decision by the judge.
“That’s an incredibly long period of time to wait for a judge’s ruling,” he said. “I’ve never heard of such a long delay. And it suggests that there might well be some things going on behind the scenes if neither the government or the defense are filing pleadings asking for a ruling from the judge. ... Does it have something to do with cooperation or what is taking place in Egypt or something else? This is quite a mystery.”
Retired FBI Agent Kerry Myers, who was the lead agent in the Tampa investigation, said he has no inside information about what is happening in Virginia.
But he noted that figuratively, defendants charged with contempt hold the keys to their cells.
In other words, they can free themselves by doing what the court has ordered.
“All he has to say is, ‘OK, your honor, I’ll comply with your court order and I will do what you told me to,’ ” Myers said.
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Although she has not decided the motion to dismiss the case, Brinkema has ruled on various motions to change the conditions of Al-Arian’s pretrial court supervision, allowing him to move when his son changed his address.
In January, the judge lifted the requirements that he be confined at home with GPS monitoring.
Under that former requirement, he was allowed to leave the home only to attend court proceedings or for medical care.
Now, Al-Arian is in a location-monitoring program with GPS monitoring and a curfew, but no requirement that he stay in the home outside the curfew hours.
The defense has raised questions about the actions of the federal prosecutor in Virginia, who made changes to an immunity order submitted to the judge who was presiding over the grand jury where Al-Arian refused to testify.
Such immunity orders are routinely issued to compel grand jury testimony from witnesses who would otherwise have a constitutional right not to testify.
When such orders are given, witnesses who still refuse to testify can face prosecution for contempt.
That’s what happened to Al-Arian, who was jailed on civil contempt charges and later indicted on federal criminal contempt charges, which are pending.
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But the immunity order issued in the Al-Arian case was different from other cases.
Assistant U.S. Attorney Gordon Kromberg altered the language in the order, departing from language dictated by law, according to court documents.
Kromberg made the same changes to an immunity order issued for another witness called to testify before the same grand jury as Al-Arian.
Such orders usually provide that no testimony given under the grant of immunity can be used against the witness in any criminal case, “except a prosecution for perjury, giving a false statement, or for otherwise failing to comply” with the order.
Kromberg added more exceptions, providing that the witness’ testimony could also be used in a prosecution for obstruction of justice or for criminal conduct after the testimony was completed.
Kromberg failed to notify the judge who signed the orders that he had made the additions.
He later was chastised by the judge, according to a transcript of the hearing filed in federal court.
The defense maintains the government was trying to trick Al-Arian.
Al-Arian’s daughter, Laila, wrote in The Nation in 2012, “This potential perjury trap put my father in a Catch-22 that violates the plea agreement he made in Florida: testify and possibly be charged with perjury; refuse and be charged with criminal contempt. My father insisted on upholding his plea deal, filing to dismiss the case based on the fact that the government had reneged on its promise to end all dealings with him, including forcing him to cooperate in other cases.
“My father is now waiting for a judge to rule on whether the case will proceed.”