The New York Sun

August 28, 2008

Al-Arian Files Habeas for Release

By JOSH GERSTEIN, Staff Reporter of the Sun

A Palestinian Arab activist and former college professor who has been in federal custody since 2003, Sami Al-Arian, is pressing a new habeas corpus petition arguing that he is being illegally detained by immigration officials.

Lawyers for Al-Arian filed the petition for a habeas writ in federal court in Alexandria, Va. on Monday, according to records reviewed by The New York Sun. The pleading represents the newest chapter in a Byzantine series of legal proceedings involving the Kuwaiti-born Al-Arian, who was a leading political organizer for the Palestinian community in America before he was indicted in 2003 on charges that he served as a top official of Palestinian Islamic Jihad. "The respondents have no interest that justify an indefinite detention of Dr. Al-Arian," Al-Arian's lawyers, Jonathan Turley, P.J. Meitl, and William Olson, wrote. "Continued detention serves no governmental purpose other than those of a punitive nature."

The habeas petition argues that the Department of Homeland Security's Immigration and Customs Enforcement bureau is not moving expeditiously to deport Al-Arian, who agreed to leave America in connection with his guilty plea in 2006 to one felony count of providing assistance to the Islamic Jihad group. The plea followed a six-month long trial which ended in disappointment for the government when Al-Arian was acquitted on some charges while jurors could not agree on others.

Al-Arian was sentenced to 57 months in prison for aiding PIJ. Taking account of time served, he was expected to be released and deported last year. However, his sentence was put on hold for about a year after the former University of South Florida computer engineering professor was held in contempt of court for refusing to testify before federal grand juries investigating a Virginia-based think tank, the International Institute for Islamic Thought. Al-Arian argued that his plea deal absolved him from having to testify, but a series of courts rejected that argument.

The contempt citation expired in December and Al-Arian returned to serving his criminal sentence, which ran out in April. After that, Al-Arian was transferred to immigration officials' custody to await deportation. However, in June, Al-Arian was indicted on two counts of criminal contempt stemming from his refusal to testify before grand juries investigating IIIT.

The government's present predicament arose last month, when Judge Leonie Brinkema ruled that Al-Arian was entitled to be released on bond in the criminal contempt case, on the condition that he be under house arrest, GPS monitoring, and in the care of one of his children. He was quickly placed in immigration custody, but the legal authority for protracted detention of an immigrant the government is not seeking to deport is murky, unless the immigrant is a threat to the community.

Al-Arian's petition argues that under federal law and a 2001 Supreme Court decision, Zavydas v. Davis, he cannot be held for more than 90 days when his deportation is not reasonably foreseeable. The petition includes a copy of an Egyptian travel document for Palestinian refugees that would allow Al-Arian to travel to Egypt to join his wife and some of his children who moved there after his guilty plea. However, Al-Arian's lawyers says it is evident the government is not really seeking to deport him since it is seeking his trial, conviction and imprisonment for criminal contempt.

The habeas petition names Attorney General Mukasey, the secretary of homeland security, Michael Chertoff, and a local immigration official, Deborah Achim, as those responsible for Al-Arian's illegal incarceration. The case was assigned to Judge Liam O'Grady. As of this writing, no hearing had been scheduled.

A spokeswoman for Immigration and Customs Enforcement, Ernestine Fobbs, had no immediate comment on the new legal action.

Al-Arian was set to go to trial this month on the criminal contempt case, but Judge Brinkema put that off until the Supreme Court acts on a petition Al-Arian has filed challenging the court rulings interpreting his plea agreement. It will likely be October or later before the justices take action on Al-Arian's request.

Posted August 29, 2008 at 5:30 PM PDT

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