Due Process

Law and due process are always irritating topics in times of great stress and danger because law and due process require a dispassionate attitude, and dispassion seems inappropriate in such moments. But in the aftermath of crisis, cases handled in accordance with law and due process leave much fewer hard feelings and ruined lives than cases mangled by mob rule, official fiat, or worse.

• If we look around the world today, to places where law and due process are not respected by arbitrary and tyrannical governments, much less by vicious and capricious gangs and paramilitary groups, we can see what life would be like if our government was not a government of laws.

• Looking at our own past, we must admit that at times niether we nor our government lived up to our ideals. Life was unusually dangerous and sometimes unusually cheap then, and the lesson we should learn is that our ideals --- including those of law and due process ---should not be shed out of disdain, inconvenience, or panic.

• It is not possible to exercise one's freedom, of expression or of industry, where the legal system has been rendered unpredictable by short-cuts. (This is a major reason why many high-tech companies have stayed in the U.S.A., despite America's higher labor costs.) Short-cuts corrupt the system and the people who operate it, and inevitably leads to miscarriages of whatever ``justice'' is left.

• Even for those people who keep their heads low, and don't get involved, life becomes more dangerous. First, as the system becomes more chaotic, it starts sweeping in victims at random. Second, genuine predators discover that they can take advantage of the chaos to manipulate or even evade the system: it is not rule-bound judges, but indifferent or corrupt officials, that are most likely to let monsters on the loose.

In some cases, the security agencies forget about the original threat entirely and start pursuing people that they simply don't like.

And when it is all over, the drastic action all too often accomplished nothing, while the shattered pieces could not be put together after all. And if the government, out of fear or folly, bows to those who call for putting the Constitution on a shelf, and doing the will of vigilantes, the result is more such demands until government operations and even public safety are compromised. In setting aside the law, the government invites chaos, and chaos does not make the world a safer place.

If we want to get to ``the truth'' of something, we face two problems

1. First, in real life, the closer one looks, the more complicated the situation becomes. Just as ``just give me the bottom line'' is not a good idea if one is trying to treat cancer or maintain a space shuttle, it is not a good idea when one is trying to find out what really happened in a high-stakes case.
2. Second, in real life, there are no guarantees. To this day, we don't know who killed Princes Edward and Richard of York, or whether Lizzie Borden killed her parents, or who precisely was involved in the plot to kill Lincoln. There is no guarantee that we shall find the truth.

A major difficulty is that law is often precise, and human beings have difficulty dealing with precision. In fact, as lawyers and mathematicians (and physicists!) have discovered, the precision of logic sometimes forces one to take very strange paths to reach what we call ``counter-intuitive'' conclusions. Mathematicians rely on precise logic to verify their conclusions (and so, increasingly, does high-tech industry). In law, the idea is this:

• Laws, regulations, and rules are created by legislatures, and these are rules that everyone --- especially officials --- are supposed to obey.
• These laws must be precise enough so that one can tell whether or not a citizen or official is obeying the law. And they must be followed ... precisely.

And the legal complexity sorrounding Al-Arian was already a deep thicket before Sept. 11. The purpose of this page is to give some idea of what is involved. There are several issues involving law and due process here. But before we look at the issues, we should look at the three different arenas in which judgements are being made.

• The U.S. Government v. Al-Arian. On Feb. 20, 2003, Al-Arian was arrested on a 50-count indictment (big .pdf file) accusing him of 255 Overt Acts, which collectively make up 40 counts of violations of the Racketeer Influenced and Corrupt Organizations Act. There are additional charges of perjury, obstruction of justice, and making false statements on a citizenship application. These are criminal charges, and the Government has the burden of proving these charges beyond reasonable doubt. Unless and until these charges are proven in a lawfully conducted trial, Al-Arian has the right to be presumed, by governmental agencies and under law, as innocent.
• The USF Board of Trustees v. Al-Arian. The USF Board of Trustees fired Al-Arian (for the second time) on Feb. 26, 2003. The Letter of Dismissal (small .pdf file) lists six alleged ``specific actions,'' which are in fact six projects or clusters of activities which the Provost asserts violated Florida Statute X 112.313 (7) (on a public official's or employee's conflict of interest) and unnamed terms of the Collective Bargaining Agreement (the contract), which the Board contends disappeared when expired on Jan. 7, 2003. These are violations of the terms of employment, and the employer (which may be the Board of Trustees) may fire someone for such a violation. However, the contract, whose terms and conditions the union contends are still in force, allows an employee to challenge such a dismissal in a grievance procees, and in this case, the burden of proof is on the employer to prove that the dismissal was justified. (The Board of Trustees contends that they do not know if the terms and conditions of the contract are in force, and so they claim to be free to violate them (!). In its place, the Board installed a different grievance procedure, as described in the Emergency Personnel Rules.) Al-Arian's attorney has announced that Al-Arian will grieve under the new rule 6C4-ER03-42, rather than under the contract.
• The court of public opinion. ``The world,'' wrote Sir John Bolt, ``may judge according to its wits; this court must judge in accordance with the law.'' Officials have no business requiring us to adhere to the official resolution of, say, the O. J. Simpson case. Let Parliament rule as it will, Mary Queen of Scots will still have her critics and her defenders (as well as those who claim that there are some pieces of that puzzle still missing). Indeed, the case of Mary Stuart (did he murder her husband?) reminds us that scholars make unofficial judgements all the time. The presumption of innocence is a legal principle that tells the officials how they are supposed to do their jobs. In reality, Al-Arian did or did not do something (or perhaps did something else), and the hope is that the truth comes out in the trial. But the legal principle is necessary because sometimes the truth does not come out, in which case, since a court must still decide, it must know who has the burden of proof. Different people have different suspicions: the observant browser will find five quite different views of Al-Arian's conduct. Some people are so sure of their views that they invest emotional capital in them. Others are so uncertain that they keep quiet (while others are willing to more noisily keep an open mind). But no matter what one's suspicions (or convictions) are, it is not wise to assume that those who disagree with you are stupid or dishonest, or that one's suspicions should be translated into official action. If a college student learns anything in college, it should be that intelligent and honest people hold different views on important issues.

• The only positions that the union has ever taken on any criminal proceedings against Al-Arian are (a) that criminal charges should be brought before a court, not the Board of Trustees, and (b) that, as a matter of custom and law, that Al-Arian should be presumed innocent until proven guilty.
• Before public opinion, the union has repeatedly asserted Al-Arian's right to due process. But UFF/USF Chapter President Roy Weatherford has repeatedly said that if Al-Arian is found guilty in a fair trial, then he should be punished.

Accusations are emotionally charged things, and when people get excited, there is a tendency for all sorts of stray charges to start flying about. Vague charges (you're un-American!), fantastic charges (you're building A-bombs in your basement!) and irrelevant charges (you're just like those cannibals, and I bet you'd like to eat people, too!) provide heat but no light. Charges should be specific (when, what, where, perhaps why, and how). Official accusations, the only charges authorities can act upon, should:

• Be specific: what specific acts is he accused of committing?
  There is a tendency for accusations to accumulate, both in public and private life (just recall a nasty family fight). So it is important to keep in mind the specific act that the accused is accused of.
• Be relevant: what acts is he accused of (as opposed to his neighbors, his brother-in-law, his avowed enemies, etc.)? Generally, people are responsible for their own actions, not for the actions of others.
• Be clear about what law, regulation or rule was violated. A crime is a violation of some particular law, regulation or rule, and laws, regulations and rules should not be invented on the fly simply to provide an excuse to go after some particular person authorities don't like.

• Filing written statements specifying the accusations and evidence;
• Both sides responding to these statements, either (or both) in writing or in hearings designed to test the legalities and the substance of the charges.

• The charges might be vague, or highly charged. For example, ``at some time, Mr. W raised money for terrorists.'' Vague charges are irrefutable (how could Mr. X prove he never raised money for ``terrorists''?) If the charges are extremely serious (like assisting terrorists), the accuser may be relying on emotion to carry a weak case. Vagueness is an indication that the accuser is not prepared, for whatever reason, to give specifics.
• The charges are an incoherent clutter. For example, Ms. X might be accused of misusing funds, misusing a logo, failing to issue disclaimers, etc., etc., etc. Such a clutter is often piled up in the hope that a thick stack of charges will be mistaken for a serious charge. Such a clutter is a poor substitute for a serious charge, and is often a sign that the accuser actually does not have any serious charges.
• The charges aren't clear about what law, regulation or rule was violated: laws, rules and regulations should not be invented simply to provide an excuse to go after some particular person authorities don't like. If authorities are free to discipline people for violations that the authorities invent as they go along, the authorities are free to punish anyone for anything. To their credit, officials at USF have generally made clear what laws, rules and regulations were at issue.
• The charges morph from time to time. For example, Mr. Y may be accused of one thing, and later that accusation may disappear, to be replaced by another accusation, which disappears and is replaced by a third accusation, and so on. If the accuser cannot decide what accusation to make, why should anyone take any of the accusations seriously?
• The charges are inappropriate. For example, Ms. Z may be accused of being targeted by the ABC group, and since the ABC group causes trouble, Ms. Z is trouble. Such ``blame the victim'' charges are often advanced by ABC sympathizers (!), or by people who are not inclined to stand up to ABC misbehavior. It provides a way for people to (ab)use the legal process to strike at their enemies, and allows predators to remove those who would oppose them.

There are (at least) two ways to make judgements:

• The statistical approach. One has a status quo consisting of a particular assumption (e.g., the accused is innocent). The burden then lies on anyone who challenges the status quo: one must prove any alternative to the status quo. This is how both modern law and modern science works.
• The logical approach. One has a status quo of ignorance (e.g., I have no idea if the defendent is innocent). The burden then lies on anyone who makes an assertion one way or another. This is how modern mathematics and modern philosophy works.

There are a number of accusations in this case. Some come and go; others stay put. We do not look at them in detail; we will merely describe their nature, and let the interested visitor research them on her or his own.

The criminal charges. The criminal charges are outlined in the indictment (big .pdf file), which is outlined on the page on the Indictment. We recommend that the visitor take a peek at that page.

• The basic accusation is that during during the 1980s and 1990s, Al-Arian was involved with the Palestinian Islamic Jihad (which is described in the section on Israel and Palestine). The indictment charges that Al-Arian was a member of the governing council, and that during the 1990s, he provided financial services to the PIJ, and helped bring members of the PIJ (presumably knowing that they were members of the PIJ) into the U.S. Much of the indictment covers the crisis that the PIJ suffered during the ending of the First Intifada, in 1992 through 1994.
• The indictment is 121 pages long (on our printer) and lists 255 alleged overt acts that collectively make up 40 counts of the Racketeer Influenced and Corrupt Organizations (RICO) Act. The 255 acts consist largely of intercepted communications, which were transcribed, translated, and then interpreted. The other charges are at least partially dependent on the RICO violations. This is typical of a RICO case. The RICO Act was designed to enable prosecution of individuals within illegal organizations who were insulated from (but still knew about the nature of) the illegal operations of those organizations. But a RICO prosecution, relying on the pattern that emerges from many alleged acts, is necessarily complex and the pattern can be subject to many interpretations.
• All this allows us to jump to several safe conclusions. First, it will take some time for the defense counsel to understand the case, and it will take some time for the prosecution to present it. This is going to be going on for some time. Second, although the case is very complicated, the stakes are so high that many pundits will oversimplify the situation to the point of misrepresentation. It would be wise to take many public statements with some grains of salt. Third, no matter what the outcome, someone will be unhappy.
• And the truth may be hard to discern: in fact, in many trials the truth never comes out: defendents are acquitted because the prosecution did not prove her case. In Scotland, the verdict would be ``not proven,'' but in the U.S.A., the verdict is ``not guilty.'' Legally, the verdict fixes what the government does; but the public is still free to think what it will.

The USF Administration's charges. The Administration has sent three letters of dismissal, with different sets of charges. The latest set of charges are enumerated in the Feb. 26 Letter of Termination (little .pdf file). The letter is analyzed in the section on the dismissal.

• The first letter had held Al-Arian accountable for threats made by Al-Arian's opponents --- threats of violence and threats against funding. This charge has disappeared, but it was described as disarmingly honest by Ellen Schrecker, who visited USF early 2002.

• Unlike (most of) the Overt Acts enumerated in the indictment, the ``specific acts'' enumerated in the letter were vague and spanned many actions.

• There is a grievance system under the Collective Bargaining Agreement (the contract), which expired on Jan. 7, 2003. UFF contends that as the expiration without replacement is due to the unlawful actions (or inactions) of the Board of Trustees, the terms and conditions of the contract remain in place. The Board claims that its actions and inactions were legal, and that the contract is entirely dead.
• Under the contractual grievance system, grieving faculty have the right to union assistance as they proceed through a sequence of steps, possibly up through impartial arbitration. The Board instituted a more restrictive grievance process, without any right to union assistance.

One aspect of this controversy that seems to bother people is: doesn't an employer have the right to fire people? Well, no. An employer can't fire someone for their ethnicity, or their sex, or because of a disability that the employer can reasonably work around. Many employers (depending on what jurisdiction they are in) cannot fire employees for being married, being gay, being veterans, or squealing on their employer to the government. The right to fire is not absolute.

• Employment, like many other business relationships, is usually governed by some kind of contract. The contract usually states terms of employment, including discipline and dismissal. If the employer and employee enter into a contract that says that an employee can only be dismissed for misconduct or incompetence, the employer cannot fire an employee for peacefully and lawfully demonstrating (on their own free time) in Central Park against apple pie and mother's milk: it may not be nice, but it's neither misconduct or incompetence. The contract protects both employer and employee, and relies not only on the good word of both, but also on enforceable contract law.

• The contract would be worth very little if the employer could simply decide to fire someone and not give a reason. So a good contract will specify a grievance process to deal with disputes between employers and employees. An employee may file a grievance, alleging that the employer has violated the contract. A grievance is handled somewhat like a lawsuit, with hearings and quiet negotiations, until it is resolved. A union enforces the contract by assisting employees with grievances, thus assuring that the contract is followed.

• An institutional employer, like a corporation or a university or a government agency or a large religious order, will want its management to be as reliable, as efficient, as honest, as competent ... as professional as possible. Such an employer will institute internal promotion, discipline, and termination procedures, with forms to fill out and even hearings to be held. Institutions do this because managers are as prone to error as the employees they manage, because it improves morale by showing people being treated fairly, because it assures reliability by making sure that issues are fairly aired, and because it minimizes the number of cases going into the more confrontational grievance process (or even worse, the courts). The American Association of University Professors specifically recommends that universities institute such pre-discipline and pre-dismissal processes.
  Yet USF has not done so, and the Administration has been making its decisions in the Al-Arian case in an ad hoc manner that has alarmed faculty and led a number of people to worry about the precedent it sets.