The acquittal on December 6 of Sami al--Arian, a former professor of computer engineering at the University of South Florida, on eight counts relating to terrorism was a setback not only for the Department of Justice and the Bush administration, but also for the struggle against Islamic extremism itself. That the Florida jury deadlocked on another nine counts, however, leaves open the possibility of his ultimate conviction.

Al--Arian was indicted in February 2003 for his involvement with Palestinian Islamic Jihad, a group that engages in terrorist acts including suicide bombings in Israel, Gaza, and the West Bank. And his trial did clarify once and for all-after years of denial by the professor and his supporters-that Al--Arian was a member of Palestinian Islamic Jihad, approved of its goals and methods, and raised money in the United States to finance its activities. Nevertheless, after five months of trial and 13 days of deliberation, the jury found Al--Arian not guilty on the most serious counts against him, including conspiracy to murder and maim abroad.

On these counts, the prosecution may have overplayed its hand. The Department of Justice built its case on nine years' worth of secret surveillance (fully authorized under the Foreign Intelligence Surveillance Act, by the way), including almost 500,000 intercepts of faxes and phone conversations, many of them exchanges between Al--Arian and leaders of Palestinian Islamic Jihad. The terms of the Patriot Act made this evidence admissible in court. And it showed Al--Arian's sympathies and intent beyond any doubt.

Government Exhibit T--516, for example, is a letter written by Al--Arian on February 10, 1995, to Ismail al--Shatti, a member of the Kuwaiti legislature. In the letter, Al--Arian noted that both Hamas and Islamic Jihad were "being threatened by the enemy." Al--Arian called for "preserving the spirit and flame of Jihad against the enemy," and went on to praise a recent suicide bombing in Israel carried out by "martyred mujahedeen" as "the best guide and witness to what the believing few can do in the face of Arab and Islamic collapse at the heels of the Zionist enemy." Al--Arian urged al--Shatti to "extend true support of the jihad effort in Palestine so that operations such as these can continue." He described the movement's "very difficult" financial situation and urged Al--Shatti to explore "the feasibility of assistance from benevolent people and institutions whom you know to the jihad in Palestine." The prosecution showed that Al--Arian spoke about the letter on the phone two days after writing it, asking a friend to "carry the message" overseas when he went abroad.

While the prosecution stressed the hideous nature of Islamic Jihad's attacks on civilians, it did not establish a link between Al--Arian and any specific act of violence. And it failed to persuade the court that the law required no such link for a conviction. This left an opening for the defense to argue-as Al--Arian's friends long had-that he was simply a professor persecuted for his political beliefs. The 1995 letter, the defense claimed, proved only that Al--Arian was a zealous crusader for the Palestinian cause, who wrote and spoke against the Israeli "occupation" of Palestine. Moreover, no evidence was provided that Al--Arian ever mailed the letter, or that al--Shatti ever received it.

But whatever mistakes the prosecution may have made, it cannot be blamed for Judge James Moody's confusing instructions to the jurors. As if collaborating with the defense-and over the prosecution's objections-the judge told the jury, "Our law does not criminalize beliefs or mere membership in an organization. A person who is in sympathy with the legitimate aim of an organization, but does not intend to accomplish that aim by a resort to illegal activity, is not punished for . . . lawful purposes of speech." Even advocating the use of force, the judge instructed the jury, is permissible as long as the words used are "not directed at inciting or producing imminent or lawless action." Al--Arian could be found guilty only if "the evidence proves he committed a crime charged in the . . . indictment."

What the judge did not emphasize-and the jurors either did not understand or, in an act of nullification, chose to ignore-was that fund--raising for a terrorist group is a federal crime every bit as much as personally planting a bomb. In 1996, Congress changed the law, correcting an earlier statute that required the government to prove that money sent to illegal terrorist groups was earmarked and used for the execution of terrorist acts. The new statute, section 18 U.S.C. 2339B, which became law in October 1997, prohibits "material support to designated terrorist organizations" whether or not it can be tied to particular acts.

As Wake Forest law professor Robert M. Chesney explained in a Harvard legal study, "the legislation creating 18 U.S.C. 2339B expressly stated a Congressional finding that all forms of aid-but especially financial aid-given to foreign terrorist organizations enhanced their capacity to cause harm, irrespective of the donor's intent." That groups like Hamas perform charitable functions for their constituency as well as committing acts of violence does not exempt a fundraiser from prosecution on the grounds that he only meant to help their worthwhile efforts.

Al--Arian's defense team, then-with help from the judge-succeeded in transforming a terrorism trial into a trial over free speech. The prosecution valiantly tried to prove that he was as guilty under federal law as the suicide bombers he supported and financed. The jury wasn't convinced.

A source high up in the Department of Justice who is close to the prosecution summed up the outcome this way: "Justice might have been better served by admitting up front that they were not trying to prove he ordered and funded a specific terrorist attack or suicide bombing; only that he engaged in raising money for an illegal terrorist group and arranged for its receipt by them, for which he was ably thanked. By spending much time showing the jury the horror of PIJ attacks upon civilians, the jury was reinforced in its thinking that the government had to prove Al--Arian's support of these specific acts."

At this writing, the Department of Justice is reportedly close to deciding to prosecute Al--Arian on the charges on which the jury was split. In any new trial, prosecutors would concentrate on the funding alone, a clear violation of the law. With the Patriot Act in danger of being rescinded early next year, it is essential to proceed quickly to a new trial.

Ronald Radosh, an adjunct senior fellow at the Hudson Institute, is coauthor of The Rosenberg File.

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