The Justice Department's anti-terrorism campaign was dealt a defeat yester day when a jury in Tampa, Fla., refused to convict a former Florida college professor, Sami Al-Arian, and three other men who were on trial for operating an American wing of Palestinian Islamic Jihad.
Mr. Al-Arian, 47, was found not guilty on eight counts, including one of the most serious, conspiracy to maim or murder outside America. After the five month-long trial and 13 days of deliberations, the jury could not reach a unanimous verdict on nine other counts against the former University of South Florida academic, including a charge of conspiracy to provide material support to a terrorist group.
The jury, made up of six men and six women, reached a similar impasse with respect to one of Mr. Al-Arian's co-defendants, Hatim Fariz. Mr. Fariz was acquitted on 25 counts, such as the maim-or-murder conspiracy, but the jury was unable to render a verdict on the other eight charges.
Two other co-defendants, Sameeh Hammoudeh and Ghassan Ballut, were acquitted outright.
"There was not one guilty verdict in 51 counts for four of these men," a lawyer for Mr. Al-Arian, Linda Moreno, told reporters as supporters of the ex-professor celebrated on the courthouse steps. "Dr. Al-Arian has always believed in the system," she said.
Jurors, whose names were kept secret by the court, said they were not persuaded by the prosecution's presentation.
"They didn't connect all the dots," one woman on the jury said, according to WFTS - TV in Tampa. "A lot of it, I felt it was hearsay."
"The evidence wasn't all there," a male juror said, according to the station.
The jurors who favored convicting Mr. Al-Arian and Mr. Fariz on some charges apparently passed up the opportunity to speak with reporters. Earlier yesterday, one juror sent Judge James Moody Jr. a note describing an emotionally strained deadlock. "My nerves and my conscience are being whipped into submission," the juror wrote.
In a written statement yesterday, the Justice Department pointed to its victories in other terrorism-related cases. "The Justice Department has a strong track record of success in prosecuting terrorists and those who support terrorist activities," a spokeswoman, Tasia Scolinos, said. "While we respect the jury's verdict, we stand by the evidence we presented in court against Sami Al Arian and his co-defendants."
Prosecutors said yesterday that they will consider whether to retry Mr. Al-Arian and Mr. Fariz on the charges where the jury reached no verdict. "We'll be making a determination in the very near future," an attorney on the prosecution team, Walter Furr III, told reporters.
Ms. Moreno said she plans to seek the release of Mr. Al-Arian, who has been jailed since he was arrested in February 2003. Even if the judge frees the Kuwaiti-born ex-professor, the government could use its immigration powers to keep him locked up.
Mr. Fariz, who is an American citizen, will remain free as prosecutors debate their next move.
As Mr. Ballut emerged from the courthouse after being cleared of all charges, he said he was not surprised by the trial's outcome. "I was expecting this really. I was having trust in this justice system in the United States," said Mr. Ballut, a Palestinian Arab who runs a dry-cleaning store in Tinley Park, Ill. "It comes at the right time in the seasons greeting when justice comes over everybody," he told reporters in Tampa.
The victory was more bittersweet for Hammoudeh. After his acquittal was announced, a federal magistrate ordered Hammoudeh transferred into the custody of immigration authorities to await deportation. Earlier this year, he and his wife, Nadia, agreed to be removed from America after they entered guilty pleas to tax and immigration fraud charges brought separately from the terrorism case.
A New Jersey man, Stephen Flatow, whose daughter Alisa, 20, was killed in a Palestinian Islamic Jihad bombing in Gaza in 1995, said he was disappointed by the trial's conclusion.
"I was not expecting that at all," he said in an interview yesterday. "I think it was just a very long trial, that the amount of evidence introduced was simply a lot."
Jurors heard from more than 80 witnesses, saw thousands of pages of exhibits and listened to lengthy excerpts from thousands of hours of secret wiretaps that the government conducted since 1993.
Mr. Flatow, who testified in the case, praised the prosecutors, but said he worries that the defeat will make it harder to bring cases against people who willingly aid terrorists without participating directly in terrorist acts. "No one ever said that Sami Al-Arian pulled the plunger on the bomb that killed Alisa. If he had his fingerprints around it, this would be a different kind of prosecution," Mr. Flatow said. "It's a setback for this type of prosecution. It kind of gives a signal to people who are in this country raising money for terrorists that they've got the green light somehow."
One difficulty for the prosecution was that its best evidence against Mr. Al-Arian, wiretaps where he could be heard negotiating with Palestinian Islamic Jihad leaders, were more than a decade old, dating to 1994 and 1995. In November 1995, FBI agents executed search warrants at Mr. Al-Arian's home, university office, and an office used by a think tank he ran, the World and Islam Studies Enterprise. After that, little incriminating proof was turned up against the computer engineering professor.
"You'd have to be out of your mind to continue out in the open after that time," Mr. Flatow said.
It remains unclear why the Justice Department waited until 2003 to seek an indictment against Mr. Al-Arian. "I was one who from the mid-1990s argued for some sort of prosecution," a retired immigration agent who worked on the case, William West, said in an interview.
Mr.West said he favored a narrow indictment against Mr. Al-Arian, but prosecutors chose a different tack. "It wasn't an absolute, 'No,'" the former agent said. "It was a 'We're going to hold off on that to continue the larger investigation to wrap everything up into larger, grand indictments that occur somewhere down the road.'"
In an interview last month with a weekly newspaper in Tampa, Creative Loafing, Mr. Al-Arian said his defense team obtained a draft indictment of him that was prepared in 2000, but never presented to a grand jury. The attorney general at the time, Janet Reno, "wouldn't go for it," the ex-professor said.
Mr. West said he was unaware of any such draft indictment.
A former federal terrorism prosecutor, Andrew McCarthy, agreed that delays may have hurt the case. "You would not tee it up that way with any criminal case that we're going to let somebody violate the law for ten years and then put it all in a basket and prosecute it," he said. "You certainly wouldn't do it with a terrorist who's in the business of killing people."
Mr. McCarthy blamed the delay, in part, on a federal government policy that limited communications between criminal investigators and counter-intelligence teams such as those monitoring Mr. Al-Arian. Congress dismantled that so-called wall when it passed the USA Patriot Act in 2001. "If any message comes out of this it's what a disaster it was for the security of the United States to have a barrier between intelligence agents and criminal law enforcement," the former prosecutor said. "If we're going to try to do these cases with one hand tied behind our back, and they don't come out that well, we can't be all that shocked."