By Jerry Markon
Washington Post Staff Writer
Sunday, September 14, 2008
Sami al-Arian, one of the nation's most prominent terrorism defendants, was about to be released into his daughter's custody to await a new trial on contempt charges. Assistant U.S. Attorney Gordon Kromberg protested, saying that "in this particular culture," a woman could not prevent her father from fleeing.
U.S. District Judge Leonie M. Brinkema lashed out at the prosecutor, calling his remark about the Muslim family insulting. Earlier, she had chastised Kromberg for changing a boilerplate immunity order beyond the language spelled out by Congress and questioned whether Arian's constitutional rights had been violated.
"I'm not in any respect attributing evil motives or anything clandestine to you, but I think it's real scary and not wise for a prosecutor to provide an order to the Court that does not track the explicit language of the statutes, especially this particular statute," Brinkema said at the hearing in the Alexandria courtroom.
Kromberg, 51, is in many ways the quintessential post-Sept. 11 prosecutor, a relentless interrogator and sophisticated lawyer who has won convictions in high-profile terrorism cases. But he has been dogged by a pattern of controversial comments and actions that some Muslims say reflects bias against their faith. Those allegations have swirled on the Internet, in the halls of the Alexandria federal courthouse and in sworn affidavits by defense attorneys, who say Kromberg joked about a suspect being tortured, improperly confronted another suspect in public and decried "the Islamization of the American justice system."
Defenders of the fast-talking New York native say he has a tough-but-fair style that keeps Americans safe and reflects the Bush administration's aggressive approach to fighting terrorism. They expressed frustration that Arian's supporters, who have mounted an international campaign for his release, have made a career prosecutor the issue almost as much as the convicted terrorism supporter whose testimony he is pursuing.
"Gordon is very effective and professional," said Andrew McCarthy, a former federal terrorism prosecutor. "As long as nothing goes boom, they want to say you're an Islamophobe. The moment something does go boom, if the next 9/11 happens, God help anyone who says they weren't as aggressive as Gordon."
Defense lawyers and legal ethicists argue that Kromberg's comments and actions, if true, crossed the line. "He's a loose cannon," said Stephen Gillers, an expert in legal ethics at New York University Law School who reviewed court documents in the Arian case. "If I were the Justice Department, I wouldn't want him on the front lines of these highly visible, highly contentious prosecutions."
Through a spokesman, Kromberg declined to comment.
The tensions surrounding Kromberg burst into public view during the Aug. 8 hearing for Arian, who is charged with refusing to testify before a grand jury investigating whether Islamic charities in Northern Virginia were financing terrorists. The prosecutor arose in the crowded courtroom, accused his critics of "venomous, hateful, anti-Semitic attacks" and cited a rally in the District last month at which a former U.S. senator from Alaska told Arian supporters to "find out where [Kromberg] lives."
"Find out where his kids go to school. Find out where his office is. Picket him . . . call him a racist," said Mike Gravel, who ran for the Democratic nomination for president this year, according to an audiotape.
An NYU Law School graduate who worked as a military defense attorney for the Army in the 1980s, Kromberg was using cutting-edge legal tactics before Sept. 11, 2001. After joining the U.S. attorney's office in Alexandria in 1993, the wiry, quick-witted prosecutor became an expert in forfeiture -- seizing money and property gained from crime.
He highlighted his approach during a 1999 speech at the Cato Institute in Washington, saying the government should seek the assets of drug dealers even if they are not charged. "Does that mean you should just walk away and let the activity continue? . . . Not if you want to punish the defendant in some way short of prosecuting him," he said, according to a videotape.
During the 1990s, Kromberg helped the government seize fees defense attorneys had received from drug dealers, an uncommon tactic that led to denunciations from defense lawyers nationwide. William Moffitt, who lost one of those cases, called Kromberg "a very good prosecutor and a very smart man."
But Moffitt, who also has represented Arian, said Kromberg "clearly has a bias. Some of his statements indicate that he's stepped over the line with regard to Muslims."
In 2003, Kromberg was asked by a defense lawyer whether Ahmed Omar Abu Ali, a Falls Church man held in a Saudi prison amid allegations he was being tortured, would be brought to the United States to face charges.
Kromberg responded: "He's no good for us here. He has no fingernails left," according to an affidavit filed in court by the lawyer, Salim Ali. Abu Ali was later convicted of plotting with al-Qaeda to kill President Bush. Salim Ali, who moved to Kuwait several years ago, could not be located but told a reporter in 2004 that he stood by the affidavit.
Paul J. McNulty, who was U.S. attorney at the time, said he never saw any sign of bias and praised Kromberg for "selflessly devoting himself to preventing terrorism through enforcement of the law. He is aggressive, but in an appropriate way." The current U.S. attorney, Chuck Rosenberg, called Kromberg a "dedicated, talented and scrupulously fair prosecutor," and added that decisions on whether to prosecute cases are "based strictly on the facts and the law and in the pursuit of justice, period."
Kromberg's highest-profile case since joining the office's new terrorism unit after Sept. 11 was what prosecutors called the "Virginia jihad network," 11 Muslim men convicted on such charges as preparing for holy war by, among other things, playing paintball. Justice officials hailed it as a classic post-Sept. 11 case of prevention, but civil libertarians and some Muslims said it targeted Muslim men.
But the Arian case escalated the tension. Arian pleaded guilty to one count of supporting Palestinian Islamic Jihad in Tampa in 2006 after a federal jury acquitted him or deadlocked on other counts. The judge who sentenced Arian to 57 months in prison called Arian a "master manipulator" who had been a "leader" of the terrorist group.
Kromberg sought Arian's testimony in the Islamic charities probe and refused to delay his appearance until after the Muslim holiday of Ramadan because, he said, that would aid the "Islamization" of the courts, according to an affidavit filed by one of Arian's attorneys, Jack Fernandez.
"They can kill each other during Ramadan, they can appear before the grand jury. All they can't do is eat before sunset," Kromberg said in the 2006 conversation, according to the affidavit.
"I have no clue what's in Gordon Kromberg's heart," Fernandez said. "It struck me as intemperate. More emotion than you'd want in a prosecutor."
Arian's attorneys seized on that reported comment, accusing Kromberg of bias and filing a motion to dismiss the contempt indictment for "selective prosecution." Arian's attorney at the Aug. 8 hearing, Jonathan Turley, declined to comment. Arian was released this month into his daughter's custody. His trial has been delayed indefinitely.
The lawyers also filed a sworn affidavit from Arian saying Kromberg approached him at a meeting of the American Muslim Council in Alexandria in 2002, when he was an investigative target but had not been charged. The affidavit says Kromberg refused to shake Arian's hand, telling him "you have blood on your hands." After Kromberg apologized, he spoke to Arian for an hour, discussing the federal probe and asking about his views on the Israeli-Palestinian conflict, Arian wrote.
Kromberg declined to comment. Ethics rules restrict a prosecutor from speaking to the target of an investigation without his attorneys present, and lawyers said that rarely happens.
Gillers, the legal ethics professor, said Kromberg's reported comments and actions show a "groupthink" view of Muslims that constitutes bias. "You can't make generalizations about people in our courts simply because they are a member of a particular racial, religious or ethnic group," he said. "It's not allowed."
The current dispute in the Arian case centers on the immunity order drafted by Kromberg and signed by a judge. Prosecutors sometimes seek such orders when a witness refuses to testify. Closely tracking a federal law, they are considered boilerplate, almost always saying the witness can be prosecuted for his testimony if he lies, lawyers said.
Kromberg acknowledged in court that he changed that wording, expanding the categories for which Arian could be prosecuted, based on his testimony, to obstruction of justice and crimes he might later commit. Defense attorneys and the judge said that could violate Arian's Fifth Amendment rights against incriminating himself, and the defense is asking Brinkema to dismiss the indictment.
Kromberg argued that his order gives defendants more protection and warning because courts have allowed prosecutions for obstruction and future crimes, despite the federal statute. He acknowledged that his action was unique because "most of my colleagues haven't thought about it and haven't researched it."
Justice Department officials said they hadn't known about the wording change. But they are strongly backing Kromberg, telling Brinkema in a court filing last week that Kromberg's order "only provides accurate information" to a witness and "does not infringe any of his rights in any way."