Several interesting developments in the federal contempt case against Sami Al-Arian. The judge postponed the case until the Supreme Court hears his appeal of a ruling compelling him to testify in a federal grand jury proceeding. Al-Arian complains the testimony demanded of him exceeds the terms of the plea bargain he reached with the government in a previous case. The judge was troubled by an overzealous prosecution which she claims should be willing to wait for the Supreme Court verdict before filing new charges against the defendant.
One of my readers, Miriam, sent me an e-mail from Al Arian’s lawyer, Georgetown professor Jonathan Turley, which notes that the latter felt compelled to remove all material in his blog referencing the case due to a complaint by the prosecutor:
We have just returned from court…During the hearing, the prosecution objected to this blog and specifically the comments left by visitors to the site…While attorney blogs are allowed under local and federal rules to give updates on filings, we have decided to remove the Al-Arian entries to avoid this issue from being cited in the future as a distraction from the important issues in the case.
While I certainly understand Turley’s reason for removing material from his blog that might prejudice his client’s attempts to defend himself, I am deeply troubled that a federal prosecutor would raise the issue in court without considering the free speech issues that are involved. This is what I’d call a priori self-censorship–an attempt to wipe the slate clean of speech that might conceivably damage a client’s right to a fair trial. The fact that an attorney would feel he needed to do such a thing offends my sense of free speech.
Apparently, Turley’s blog attracted anti-Semitic commenters who left disparaging comments about Jews (the prosecutor appears to be Jewish though I haven’t confirmed this). Miriam tells me that Steve Emerson, the intrepid jihad hunter and the Simon Wiesenthal of the anti-jihadi set, may’ve brought the comments to the prosecutor’s attention. Needless to say, there is ample case law declaring a blogger is not legally responsible for comments made by others at their blog. The idea that the prosecutor would blame Turley for comments, no matter how reprehensible and disgusting, offends me. If it were me, I would turn comments off on my blog since that is what offending the prosecutor, but continue to post about the trial. Al-Arian’s attorney erred on the side of caution which is understandable, though depressing for anyone advocating for the First Amendment.
My interest in this issue is more than just academic. In the libel case Rachel Neuwirth is pursuing against me (we’re waiting for the Court of Appeals to schedule a hearing date), we are striving to carve out a free speech privilege for blogs under California state law. Though you might think such an issue would have been clearly decided by now in favor of the proposition, that’s not necessarily so. The fact that Turley feels he must censor his blog to protect his client is yet another indication that free speech and blogs do not yet go hand in hand.
Also troubling, is an objection voiced by the prosecutor to Al-Arian being released on bond to his daughter:
…Jonathan Turley has accused Kromberg of bias against Muslims. On Friday, Kromberg objected to a court order that would release Al-Arian to his daughter’s custody to await trial, arguing that she would be unable to exert any authority over Al-Arian “in this particular culture,” an apparent reference to the family’s religion.
It’s one thing for a prosecutor to be zealous in their case. Making life hard for a defendant is part of their job, I guess. But to make such a prejudicial statement in open court seems far from the normal order of business for a prosecutor. This is zealousness raised to an almost pathological level. I know this kind of behavior will shock some of you who believe the Justice Department to be a paragon of rectitude when it comes to issues like this. After all, who can imagine a Department run by the likes of Gonzales or Ashcroft to be Islamophobic? I don’t know if Kromberg’s ludicrous comments would provide grounds for appeal if such an action is ever necessary, but I’d hope so.
Some speculate that the judge may be postponing the trial in the hopes that immigration authorities, who have the right to hold Al-Arian up to 90 days, will be forced to deport him at the end of that period and in accord with the previously mentioned plea deal. Judge Brinkema may think that with Al-Arian deported the new contempt charge will be moot. In bringing that charge, the Justice Department seems to be trying to void the deporation provision of the plea deal in order to punish him for not testifying. They’ve kept him in jail for 1,900 days despite failing to convict him of a single criminal charge. The current legal strategy seems part and parcel of this punitive regime.