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Al-Arian case isn't done yet

There is nothing in Sami Al-Arian's written plea agreement that explicitly shields him from being compelled to testify before a grand jury in another case. But a fair reading of the deal and circumstances surrounding it would be that Al-Arian agreed to plead guilty to aiding a terrorist group in exchange for limited prison time and a presumption that prosecutors' interest in him would end.

As it turns out, the federal government is not finished with Al-Arian. He now faces an additional 18 months in prison for contempt of court because he refuses to answer questions before a grand jury in Virginia, and Al-Arian's lawyers are crying foul.

The plea agreement was signed in February after a jury acquitted Al-Arian on eight charges and deadlocked on nine others. Al-Arian admitted to conspiring to provide assistance to Palestinian Islamic Jihad, a terrorist group. In exchange, the U.S. Attorney's Office for the Middle District of Florida and the Counterterrorism Section of the Justice Department agreed not to charge Al-Arian with additional offenses.

Cherie Krigsman, a Tampa-based assistant U.S. attorney, also made a representation when the plea agreement was presented to the magistrate that the Eastern District of Virginia agreed not to bring criminal charges against Al-Arian. This assertion suggests that Al-Arian's attorneys knew there was an investigation under way in that jurisdiction and sought to protect him from prosecutors there.

Linda Moreno, one of Al-Arian's attorneys, says that throughout negotiations their side made it clear that Al-Arian would not agree to cooperate with the government and that the plea bargain "terminated all business" between their client and the Justice Department. The government says that compelled testimony is not the same thing as cooperation and that the prosecutors in Virginia only agreed not to charge Al-Arian.

U.S. District Court Judge James Moody sided with the government and found that Al-Arian's plea bargain did not include protection from being subpoenaed.

Plea agreements routinely say a defendant will cooperate with the government, but Al-Arian's agreement did not because he refused to make that a condition of the bargain. The government understood that Al-Arian was not going to open up, and prosecutors didn't demand he do so.

In the plea agreement, it is pretty clear that everyone expected that Al-Arian would plead guilty to a charge that would get him out of prison relatively soon, since he had already served 39 months, and that he would be swiftly deported. In the end, he was given 11 months more than prosecutors had requested. That opened the door for this new demand that he give testimony.

Al-Arian has admitted to helping a group suspected of being responsible for mass killings of innocent civilians in Israel and its territories. He is a thoroughly unsympathetic figure whose deportation can't come too soon. But what the government has done by making a deal and then exploiting a technical loophole seems unfair, even if it is legal. It is a lesson to other defendants dealing with federal prosecutors: Get it in writing - something Al-Arian's lawyers failed to do.

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