November 14, 2005

Al-Arian and academic freedom, redux

Greg McColm and my article, A University’s Dilemma in the Age of National Security (PDF), is now out in the National Education Association Thought and Action Fall 2005 issue (pp. 163-77). We've been working on this for over two years or, rather, Greg has done the vast bulk of the work and I've been putting in chip shots, academically speaking. He deserves any credit for clever turns of phrase as well as persistence that many other academics don't have. It's a little different from what we submitted but that's life with editing. Among other things that I've learned in working on this article is that some disciplines don't have standard citation styles because the rival proprietary journals have different ones, so the standard is to use the citation style of the source that material came from. But I'm sure that's not why you're going to read the full entry, which is about the criminal trial that's entering its concluding stage this week. Note: the article itself is unrelated to the trial, since it was written well before the trial started. Its appearance at the close of the trial is just coincidence.

This week, the prosecution will rebut the case raised by the lawyers for the four defendants. Al-Arian's team rested without presenting witnesses, but the others presented a few witnesses each before the summations. Journalists have described the summaries in essence as a battle over circumstantial evidence. Are the disparate pieces suggesting funding links between the defendants and the Palestinian Islamic Jihad enough to show that they raised money for PIJ with the intent to support the specific organizational mechanics of terrorism (and not just ancillary activities of PIJ)? There are bound to be appeals upon any convictions (and the several hundred pages of jury instructions, along with the dozens of decisions Judge Moody made in the course of the trial, will be fodder for them), but this seems to be the central question of the conspiracy and terrorism charges. (The other charges, about fraudulent immigration applications, is a whole other kettle of fish, and journalists haven't touched those at all, at least as far as I can tell.)

I haven't been sitting in the jury box, so I don't know the full evidence and won't comment on the key question. I'm sure that if there is a conviction, many will claim that the conviction is proof that the administration of USF did the right thing by trying to fire Al-Arian before indictment and by firing him right afterwards. That is essentially an argument that the end result of a criminal trial justifies the employment actions of a university. In some cases, where the basic facts are known before trial, that might well be the case. But I'm not so sure it holds here, with Al-Arian—not because he's anything like an angel. Far from it. But there are a few points that remain, specific to the trial:

  1. The firing of Al-Arian after the indictment was a purely symbolic and political act. There was no payroll difference for the university between an unpaid leave of absence during a trial, at the end of which a conviction ends the job, and firing a professor after indictment. In both cases, the defendant is unpaid.
  2. Many of the factual assumptions of Al-Arian's critics turned out to be in error, especially if you agree with the prosecution's case. In the early 1990s, Al-Arian wasn't adding to PIJ coffers, from all reports of the prosecution case that I've read. Instead, he was desperately seeking to raid PIJ accounts to support the think-tank he had co-founded. This prosecution claim doesn't necessarily obviate their central point, but it is related to the criticism of Al-Arian that he was using his employment at USF as a cover to legitimate the funding of terrorism. He may well have used his employment at USF as a mechanism to start a think-tank with delusions of Palestinian intelligentsia gravitas, eventually willing to propose various financial mechanisms to keep it afloat. (This is detail from the prosecution's case, detail that Al-Arian's lawyers may or may not dispute.)
  3. The immigration-fraud charges are a safety-valve for the federal government. If Al-Arian and the other defendants are acquitted on the more serious charges but are convicted on the fraud charges (which I am guessing have a lower threshold to prove), those convictions will be powerful tools at deportation hearings, which (I am also guessing) would proceed on a track parallel to the appeals of any criminal convictions. A fraud charge may not carry lengthy prison time beyond what the defendants have already served before trial, but such convictions could be used in deportation hearings. The end result might well be an even more complicated legal mess than some of my friends and colleagues are predicting.
  4. If there is no conviction or deportation order left standing at the end of the day, there is still Al-Arian's grievance against his firing. The USF administration's decision to fire Al-Arian on his indictment hinges on the legitimacy of that indictment, whose counts changed before trial, and (if it comes back to an employment case) would necessarily be a matter of not being proven in a court of law, at least as far as the law is concerned. The machinations to fire Al-Arian before indictment might well be used by Al-Arian's civil lawyer(s) as evidence that the termination decision was pretextual. And Al-Arian's civil lawyer in 2003 filed a pro-forma grievance under administrative rules passed by our Board of Trustees under the assumption that the Collective Bargaining Agreement with the faculty union was void, an assumption that Florida's courts have now made invalid. One more mess to consider.
  5. If there is no standing conviction or deportation order at the end of all this, and there is a university grievance process that results in upholding Al-Arian's dismissal, the AAUP investigation of USF will probably become active again. In the summer of 2003, staff and members of Committee A reported to the annual meeting that under AAUP procedures, universities were given more due process than they usually give faculty: a university's hearing process had to be concluded (or none started) for AAUP to officially censure the administration. Because USF's administration and Al-Arian's lawyer agreed to suspend the process for a post-termination grievance pending the outcome of a criminal trial, AAUP's staff and Committee A leadership concluded that the annual meeting could not fairly consider the censuring of USF's administration. But if Al-Arian is freed and the grievance proceeds, then that stoppage on AAUP action is lifted (at least as I read the AAUP process). That doesn't guarantee censure, but it does make some discussion within AAUP highly likely, at least in the annual meeting.
  6. For those who long argued for Al-Arian's termination, before an indictment, I wonder if they considered the likely results (at least until an indictment): a man as a cause celebre, with loads of time on his hands to raise funds for Palestinian causes. If those causes included terrorism,...
  7. For those who long argued for Al-Arian's termination, and who are delighted that Al-Arian is on trial, I wonder if they thought that federal agents were better or worse at investigation than university administrators, or if in retrospect they preferred that the administration hire private investigators, who could possibly have interfered with or discovered the clandestine wiretaps of the feds.

Since Al-Arian's lawyer filed his post-termination grievance in 2003 using non-union procedures, the United Faculty of Florida (my faculty union) is out of the loop officially regardless of the results of the trial, any deportation hearings, or the grievance process. Of course, I'm not ruling anything out given the twists and turns of all this. My longstanding concern here has been with the long-term consequences of administration actions on faculty morale and the university environment, and while there are many things that are operating significantly better today than almost four years ago, this episode is another patch of tarnish on USF's history. The administrators and trustees who served in late 2001-early 2003 may not have been responsible for all of the things coming at them, but they made enough errors to contribute to problems. Until someone convinces me otherwise, I think the university would have been better off waiting until an indictment and putting Al-Arian on unpaid leave until the end of the trial (and subsequence proceedings) or waiting for evidence that would clearly justify discipline or termination on its face. The guy is no model of university citizenship, but that's not the entire question here.

Correction (7:30 a.m., Tuesday): It looks like the jury instructions only took three hours for the judge to read. Deliberations start today.

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Posted in Academic freedom on November 14, 2005 11:18 PM |