So, how did we get to the point where a two-term senator who ran for the 2008 Democratic nomination (as an extreme long shot, but credibly enough to get a spot in the primary debates in 2007) can stand up at a public meeting and urge people to search out and harass the children of a federal prosecutor?
Well, it helps that we're talking about Mike Gravel, who is a little crazy. He's not take-orders-from-your-dog crazy like Son of Sam or anything. Gravel would never act on orders from his dog because he's convinced that his dog is a goddamn liar.
Also, it helps that the issue that inspired the rhetoric is the long, strange case of Sami Al-Arian.
Sami Al-Arian is a former computer engineering professor at the University of South Florida. The Bush Administration came after him guns blazing on a Patriot Act beef, trumpeting his indictment as a victory against terrorism. The feds claimed he helped run the terror group Islamic Jihad. The feds got their asses handed to them at trial — Al-Arian was acquitted of numerous counts and the jury hung 10-2 for acquittal on others. Eventually, Al-Arian resolved the mistrial counts through a guilty plea to reduced charges, agreeing that he could be deported after what amounted to time served.
So far so good for the justice system, right? Here's where it gets dicey. A different U.S. Attorney's office subpoenas Al-Arian to testify in another terrorism trial out of Virginia. He refuses, and is jailed for contempt. Here comes the incompetence, mendacity, and the crazy:
Incompetence: Al-Arian asserts that the subpoena is a violation of his plea agreement, because he always made it clear that a fundamental aspect of his deal was that he would never testify against anyone and was not required to cooperate. His attorneys actually file a motion to "enforce the plea agreement" on this theory.
That motion is utterly bogus.
See, Al-Arian signed a written plea agreement. That plea agreement contains no promise whatsoever that Al-Arian will not be subpoenaed or otherwise called to testify. Moreover, in paragraph 10 it's got a standard integration clause — that is, a statement saying that this written agreement contains all of the promises between the parties and that there are no outside promises or understandings or agreements. Moreover, it says that the agreement only binds the U.S. Attorney's office for the Middle District of Florida — not the office in Virginia that is subpoenaing Al-Arian.
So the judge correctly denies the motion – there's no way that Al-Arian can argue that he was promised he wouldn't be subpoenaed when his plea agreement explicitly disclaims any unwritten agreements and doesn't even bind the district issuing the subpoena. If, as Al-Arian now claims, non-cooperation and refusal to testify was a fundamental requirement of his plea, his attorneys were abjectly incompetent in either (1) not negotiating such a term, or (2) failing to tell him that he was shit out of luck on that term.
(The argument that the government is required to deport him expeditiously under the agreement is stronger.)
As a further item in the incompetence column, numerous journalists and commentators — Alexander Cockburn, for instance — are parroting the disingenuous argument that Al-Arian's plea agreement specified that he would not have to testify. Once again, no competent federal defense attorney would expect that an oral promise would be enforceable, or enforced, under these circumstances. No commentator with a reasonable familiarity with federal practice would refer to such an oral promise as a term of the plea agreement. Boo. Hiss.
Now, here comes the mendacity. The subpoena out of Virginia is almost certainly a perjury trap — that is, the prosecution is not seeking his testimony to prove their case, but is seeking his testimony knowing what his answers will probably be and planning on prosecuting him for perjury for those answers. It's a Catch-22 situation. He can plead the Fifth on the grounds that the substance of his answers will incriminate him because of the subject matter of the case, but the government can counter that by immunizing him. That immunity does not extend to perjury, and he can't plead the Fifth on the grounds that the government thinks that his answers are lies. So he answers and gets prosecuted, or he refuses and gets jailed for contempt. Nice trick.
While this gets straightened out, he's still in jail. A judge in Virginia granted bail on the contempt beef, but immigration is keeping him detained on the theory that he might not show up for the deportation that the feds are delaying while they try to spring the perjury trap.
Other possible mendacity: Al-Rian's witnesses claim that Assistant United States Attorney Gordon Kromberg of Virginia has made multiple racist and inflammatory comments about Muslims and Islam. In response to Al-Arian's attorney's request that Al-Arian not be compelled to testify during Ramadan, Kromberg is alleged to have said:
“If they can kill each other during Ramadan, they can appear before the grand jury—all they can’t do is eat before sunset. I believe Mr. Al-Arian’s request is part of the attempted Islamization of the American Justice System. I am not going to put off Dr. Al-Arian’s grand jury appearance just to assist in what is becoming the Islamization of America.”
Did he say it? It's his word against Al-Arian's lawyer (though I haven't encountered a denial by him in my research). I don't agree with Al-Arian's supporters that Kromberg's advocacy for Israel under other circumstances proves that he said it. If he said it, he's unsuited to be a prosecutor, let alone a prosecutor of terrorism cases with Muslim defendants.
By the way, with regard to the perjury trap issue, perhaps you are thinking that it is bogus, that Kromberg is wrongfully accused of attempting such a trap, and that he genuinely wants Al-Arian's testimony to make cases. If you think that, consider this sequence: accused terrorist Sabri Benkhala was acquitted of all charges in the "Virginia Jihad Network" case, Kromberg subsequently subpoenaed Benkhala before the grand jury to testify about the same general subject matter, and subsequently Kromberg prosecuted Benkhala for perjury in those grand jury appearances, convicted him, and won a ten-year sentence. That may help explain why Al-Arian is probably smarter just to shut up and do some short time rather than obey Kromberg's subpoena.
Finally, here comes the crazy. Former Senator and candidate for the Democratic nomination Mike Gravel, once beloved by a certain subset of the body politic who apparently found Ron Paul too stable, recently spoke at a fundraiser for Al-Arian. Regarding Gordon Kromberg, he said:
“Find out where he lives. Find out where his office is. If you’ve got some chutzpah – which is a word that you don’t hear often – if you’ve really got it, find out where he lives, find out where his kids go to school, find out where his office is; picket him all the time. Call him a racist in signs if you see him. Call him an injustice. Call him whatever you want to call him, but in his face all the time. They can’t take the heat; deliver it to them. We have to stop laying down to these injustices.
Even if Kromberg is springing a perjury trap, and even if he is a Muslim-hating bigot, for anyone to call for stalking his kids — let alone a goddamn former senator and presidential candidate — is freakish and unforgivable. Shame on you, Mike Gravel.
What to take from all of this? The criminal justice system is rarely black and white. Al-Arian and Benkhala may well be terrorists or terrorist supporters. Kromberg may actually be using the power of the state to crusade against Islam. The fact that one side of the case is wrong on some level doesn't mean that the other side is right. We would be wrong to accept abuse of government power just because there are supporters of terror in our midst, just as we would be wrong to assume that defendants are well-meaning or pure simply because they have been treated wrongfully. Also, Mike Gravel is a nutcase.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016