When Terror Charges Just Won't Stick

By Tim Padgett, Wendy Malloy / Tampa

The 1995 double suicide bombing at Beit Lid Junction, Israel, killed 21 Israelis and was one of the bloodiest attacks ever by Palestinian Islamic Jihad (P.I.J.)--which the U.S. soon after designated as a terrorist organization. A few weeks later, according to U.S. court documents, Sami al-Arian, a Palestinian computer-science professor at the University of South Florida (U.S.F.) in Tampa, wrote a letter to an associate in Kuwait bragging that the Beit Lid carnage was "an example of what P.I.J. could do" and soliciting funds for the bombers' families. A year earlier, the records show, al-Arian faxed to Islamic Jihad bosses in England and the Middle East a proposal that he run the group's finances. And in 1991, at Palestinian gatherings around the U.S., al-Arian exhorted audiences to "damn" the U.S. and Israel "until death" and said God considered Jews "monkeys and swine."

That evidence, presented in a 2003 federal indictment, may well be damning stuff in the U.S. court of public opinion. But a Tampa jury has made it joltingly clear to the Bush Administration that praising terrorist acts, raising money for terrorists' widows or making an unaccepted offer to manage a terrorist group's money does not make a man a terrorist in a U.S. court of law. Handing the Justice Department one of its most embarrassing post-9/11 defeats, the jurors last week acquitted al-Arian, 47, on eight counts--including charges that he was Islamic Jihad's North America boss and conspired in terrorist murders--and deadlocked on nine others. Three co-defendants were also acquitted of 64 counts after a six-month trial in which the defense called no witnesses. "We didn't have to," says al-Arian attorney William Moffitt, "because we were convinced this was a First Amendment case. This whole prosecution was simply an effort to silence Dr. al-Arian because his outspoken pro-Palestinian, anti-Israel views were a pain in the butt to the Bush Administration."

Prosecutors said they "stand by the evidence" they presented in court, which they insist showed that al-Arian gave illegal "material support" to a terrorist group. Despite his acquittal, al-Arian remained behind bars last week as prosecutors pondered whether to retry him on the charges the jurors deadlocked on. But even if he emerges from jail, the trial's revelations about his stealth involvement with Islamic Jihad--after he claimed for years that he rejected the group--have all but wrecked his standing as a spokesman for mainstream Palestinian causes.

The FBI began investigating al-Arian shortly after he came to U.S.F. in 1986 and started making speeches like one in 1988 calling for "death to Israel!" He fell under scrutiny in 1995, when Ramadan Abdullah Shallah, a Palestinian economist who had helped direct the World and Islam Studies Enterprise, a Muslim think tank co-founded by al-Arian at U.S.F., turned up in Syria as head of Palestinian Islamic Jihad. Al-Arian maintained that he hadn't known of Shallah's involvement in the terrorist group and kept building an image of himself as an "enlightened Islamist" who led interfaith projects in Florida, gave women leadership positions at his Tampa mosque--and in the 2000 presidential campaign, stumped for George W. Bush because he found Bush more attuned than Al Gore to Arab-American issues. By then the FBI had told U.S.F. administrators it had nothing to charge al-Arian with, and the next year he attended an Arab-American gathering at the White House.

Things changed after 9/11. When the Fox Network's Bill O'Reilly had al-Arian on his show and questioned him about the FBI probe, al-Arian condemned the 9/11 attacks but affirmed his support for the intifadeh, the Palestinian uprising against Israeli occupation--hardly a statement marking him as a terrorist. But U.S.F. president Judy Genshaft, buckling under pressure from conservative trustees, eventually fired al-Arian despite his being tenured. Congress had just passed the USA Patriot Act expanding federal powers to investigate terrorism suspects, which Attorney General John Ashcroft seized on as a tool to nail al-Arian. The act, which Congress is working to extend another four years, allowed FBI investigators access to FBI intelligence, which had been off-limits for building criminal cases. The intel files include wiretaps and other surveillance of al-Arian carried out abroad by Israeli agents, who had also taken an interest in the professor and had shared their findings with the FBI's intelligence branch.

The intelligence showed that al-Arian was funneling thousands of dollars to Islamic Jihad figures and advising Shallah on issues such as how to make Iran a "strategic partner" and how to handle the wills of two suicide bombers. Still, it offered no real links between al-Arian and terrorist acts. Nonetheless, says a former FBI supervisor involved in the case, in late 2002 word came down from Ashcroft to build an al-Arian indictment. "We were in shock, but those were our marching orders," says the supervisor, who felt that the Justice Department was rushing to indict before it had really appraised the evidence.

One big weakness in the case was adequate translation of the more than 20,000 hours of mostly Arabic conversation: "We asked for 13 translators, and Justice gave us one. We weren't ready" for a trial, says the supervisor. The federal judge in the case, James Moody, seemed to agree. Last year he ruled that prosecutors were using too broad an interpretation of a 1996 law that makes it illegal to provide "material support" to designated terrorist groups; they would have to prove that al-Arian knowingly funded Islamic Jihad terrorist activities. Jurors told reporters after last week's verdict that the feds simply didn't get that done. But the government was also hamstrung by the fact that most of its evidence focused on al-Arian's activities before the U.S. branded Islamic Jihad a terrorist group in 1995. Al-Arian's associates say the earlier time was a politically hot-headed period for al-Arian, which he disavows today.

Jurors indicated that most of them favored acquittal on the deadlocked counts against al-Arian. After the verdict, he told the St. Petersburg Times that he was "very confident the worst is over." But the government may simply deport him on pending immigration charges. For now, his wife Nahla says the verdict is vindication "not only for Sami but for our children, who are Americans. It matters to me that they have faith in this country."