TAMPA – Invoking a rarely used law, attorneys for Sami Al-Arian are asking a judge to dismiss charges against him on the grounds that the prosecution may have violated a prohibition against parts of the military enforcing civilian law.
The motion citing the Posse Comitatus Act is one of four seeking to dismiss various aspects of a superseding indictment handed up against Al-Arian and others in September.
The defendants are accused of being American organizers for the Palestinian Islamic Jihad, which is responsible for numerous suicide bombings in Israel. Al-Arian and three others, Sameeh Hammoudeh, Hatim Naji Fariz, and Ghassan Zayed Ballut, are scheduled to go on trial in January.
Al-Arian’s attorneys have filed a motion seeking a six- month extension in the trial date, and prosecutors have filed a response saying a three- month delay would be appropriate.
Among the motions to dismiss filed on Friday were familiar arguments that the criminal charges violate Al-Arian’s First Amendment rights to participate in the political process and express his point of view. Similar arguments were unsuccessful when they were made by the defense in relation to the first indictment.
Noting that Al-Arian is not accused of committing any violent acts, the defense maintains the government is trying to punish the defendant’s nonviolent conduct.
Defense attorneys are arguing separately that prosecutors abused the grand jury process in securing the superseding indictment in September, 19 months after the original indictment was handed up.
The most novel argument appears in the defense motion to dismiss the first four counts of the indictment on the grounds that some wiretap surveillance tapes may have been translated by a member of the military.
The defense cites the Posse Comitatus Act, which prohibits the use of the Army or the Air Force to execute the laws. The law does not cover the Marines, Navy, Coast Guard and National Guard.