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.
In the short term, there is a tendency to say: for security's sake,
we have to take drastic action and pick up the pieces later.
But history tells us that taking such short-cuts is like taking cocaine:
each time its done, the system is damaged, and it becomes easier, and
more tempting, to do it again.
And after it is done again and again, the result is chaos.
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,
It is not possible to exercise one's freedom, of expression or of
industry, where the legal system has been rendered unpredictable
(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.
The really big security issues are long-range, and one big
security issue is that when agencies are given the power to take
drastic action, they wind up doing more damage than the alleged
public enemies they claim to be fighting.
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
But the law has to make a decision, and after over three millenia,
systems of laws have developed methods for reaching decisions.
The law relies on very careful investigations, careful reasoning, and
rules for making decisions; sometimes officials have to decide even
though not everything is known.
And civilized society has relied on the due process of the law to reach
First, in real life, the closer one looks, the more complicated the
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.
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:
While legislators (sometimes) try to make laws that citizens can obey
without too much complexity, the reality is that precision creates
The price of over-simplification is loss of precision; the price
of loss of precision is corruption of the legal process; the
price of corruption of the law is chaos.
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 United Faculty of Florida has been active in only one arena:
the confrontation between Al-Arian and the Board of Trustees.
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
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.
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
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
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
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
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
If a college student learns anything in college, it should be that
intelligent and honest people hold different views on important
And the United Faculty of Florida has never taken any position on
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
What Accusations Look Like
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
Charges should be specific (when, what, where, perhaps why, and how).
Official accusations, the only charges authorities can act upon, should:
The process can be maddening if you are angry or frightened; it
nitpicks, doubts, and proceeds at a stately pace.
That is the point: strong emotion is an impediment to clear thought,
and clear thought is indispensible to judgement.
The process itself consists of:
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
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
This is the way to avoid mistakes.
In general, there are sometimes signs that there is something wrong with
Readers will notice the USF Administration's past statements and actions
in the examples.
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.
Of course, when making accusations, some people do go overboard, and
start throwing in dubious accusations with sound ones.
Human beings almost instinctively gild their lilies.
Nevertheless, a lot of dubious accusations is often a bad sign.
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
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
There are (at least) two ways to make judgements:
And of course, there is the approach of supporting whatever position
looks strongest at the moment.
An official is obliged to take the approach fixed by law; a private
individual is free to take the approach dictated by her or his
But given the same evidence and the same case, two intelligent and
sincere people may reach different positions because they took
One may be right and the other wrong, but there may be no way of
knowing: being human, we are limited, and can only do the best
within our limitations.
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
This is how modern mathematics and modern philosophy works.
The Accusations in This Case
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
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
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
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
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 second Letter was never delivered.
It is the third one that is operative.
The third letter lists ``bases for termination'' and ``specific acts,''
from the original serious accusation of a conflict of interest
(between Al-Arian's service to USF and his service to his own
organizations), to a collection of charges based on the indictment.
The first letter had held Al-Arian accountable for threats made
by Al-Arian's opponents --- threats of violence and threats
This charge has disappeared, but it was described as disarmingly
honest by Ellen Schrecker, who visited USF early 2002.
The legal situation is different: the university has no due process
system preceding dismissal (and the USF Administration spurned a
Faculty Senate initiative to create one), so a dismissed faculty
member can only litigate after dismissal.
The first step is a ``grievance.''
Unlike (most of) the Overt Acts enumerated in the indictment, the
``specific acts'' enumerated in the letter were vague and spanned
Al-Arian's attorney has thrown his dice with the Board's grievance
But either way, since the contractual terms and state regulations
are different from criminal law, what constitutes a dismissable offense
is different from what constitutes a criminal act.
And standards of proof are different.
Thus it is possible that the criminal proceedings and the grievance
process will generate different conclusions.
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.
But Doesn't an Employer Have the Right to ... ?
One aspect of this controversy that seems to bother people is: doesn't
an employer have the right to fire people?
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.
Many employees have found that if they form a union to negotiate the
contract, they are in a better position to get a good contract --- and
making sure that it is followed.
And negotiating and enforcing a contract is what unions are
Employment, like many other business relationships, is usually governed
by some kind of contract.
The contract usually states terms of employment, including discipline and
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
The contract protects both employer and employee, and relies not only on
the good word of both, but also on enforceable contract law.
The Al-Arian case is a muddle partly because the Administration couldn't
decide what to do.
And that leads to a big problem: how does an employer decide whether to
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.
Just as due process in law minimizes arbitrary and capricious exercise of
governmental power, due process in labor relations minimizes arbitrary
and capricious exercise of corporate power.
And due process in handling institutional disputes is one of the primary
pillars of civilized society.
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