Federal prosecutors used a relatively innocuous defense request last week to remind a federal judge that she has held up Sami Al-Arian’s criminal contempt case for more than three years.
Al-Arian has been on house arrest since 2008 after being indicted and charged with criminal contempt. He repeatedly refused to testify before a federal grand jury investigating terrorist financing despite court-approved immunity. He claims that his 2006 plea agreement in a related case involving his support for the Palestinian Islamic Jihad meant he’d never have to cooperate with the government again.
Nothing has happened in the case since 2010, when U.S. District Judge Leonie Brinkema canceled a hearing on pending motions, including a motion to dismiss the case. She had all the information she needs from briefs, she wrote, “and the Court is working on an opinion which addresses all relevant issues.”
That echoed a similar written promise Brinkema wrote in April 2009: “The Court will issue a written opinion on the motion in the near future.”
No opinion was issued, however, and Al-Arian remains on house arrest. In January, Brinkema dramatically reduced the restrictions on Al-Arian’s activities in an unsolicited order.
On Friday, Al-Arian’s attorneys petitioned the court for permission to move to a new home. Prosecutors filed no response, but told the defense that they would leave the decision up to the court, repeating their view that Al-Arian should be in custody until his trial.
“Further, it is the government’s position that this motion highlights the need for a prompt resolution of the outstanding substantive motions in this case,” the defense motion says.
Brinkema granted the motion on Monday allowing Al-Arian to move, court records show. She made no reference to the government’s “prompt resolution” request.
Brinkema has not explained why she has refused to either dismiss the case, as defense attorneys want, or let it proceed to trial. Under terms of his 2006 plea, Al-Arian would face deportation if the case were dismissed. That could prove particularlyproblematic to carry out because he is a stateless Palestinian convicted of a terrorism support felony.
His claim about his plea agreement protecting him from testifying before the grand jury previously was rejected by the 4th Circuit and 11th Circuit courts of appeal, but those decisions came before the issue was the subject of a criminal case.
In addition, prosecutors made it clear that Al-Arian has produced no evidence to support the claim. It is not mentioned anywhere in the plea agreement and neither Al-Arian nor his attorneys mentioned it when he admitted his guilt in a 2006 hearing.
Al-Arian, meanwhile, appears to be using his legal limbo to his advantage. As the Investigative Project on Terrorism exclusively reported earlier this month, he is actively involved in a group advocating for the restoration of Muslim Brotherhood power in Egypt. That effort included his presence on Capitol Hill for a one-sided discussion of the situation in Egypt since President Mohamed Morsi’s ouster in July.