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Lawsuit raises stakes for opponents
By GRAHAM BRINK, Times Staff Writer
TAMPA -- In moving the dispute with Sami Al-Arian into civil court, USF president Judy Genshaft has set up a possible legal dilemma for the suspended computer science professor.
Or he could choose to clam up, which would make it more difficult for him to come out on top in the civil case. Losing that battle likely would precipitate his firing and erode his already tenuous position in the court of public opinion. Former federal prosecutor John Fitzgibbons called USF's new strategy clever and potentially brilliant, but acknowledged it could backfire. Genshaft wanted to fire Al-Arian but didn't want to risk censure from the American Association of University Professors or face a lawsuit from Al-Arian. Now, Al-Arian faces the tough decisions, Fitzgibbons said. "The 800-pound gorilla that will loom over this whole civil case is the possibility of federal criminal charges that could put Al-Arian in prison for the rest of his life," Fitzgibbons said. "This new strategy raises the stakes." Al-Arian, who denies being a terrorist, released a brief statement Wednesday and scheduled a news conference today. The latest twist came Wednesday when USF's legal team filed a declaratory relief complaint against Al-Arian in Hillsborough Circuit Court. Plaintiffs often file for declaratory relief when in doubt about their legal rights. In this case, USF officials believe the evidence shows that Al-Arian has ties to terrorism that "adversely affect the legitimate interests of the University" and those activities constitute misconduct under the collective bargaining agreement between USF and the professors union. Given those beliefs, the officials want the judge to decide if firing Al-Arian for those reasons would violate his First Amendment and other constitutional rights, as Al-Arian has argued. USF officials believe they have grounds to ask the judge for relief because of Al-Arian's threat to sue if he is fired. Also, the American Association of University Professors has made it clear it will censure the school if Al-Arian is fired. The AAUP believes the university's reasons for firing Al-Arian would violate academic freedom and Al-Arian's constitutional rights. "We need the judge to clarify this issue for the sake of all the parties," said USF's general counsel R.B. Friedlander. Hillsborough Circuit Judge Vivian Maye's first job will be to decide whether to hear the case. Al-Arian could attack the complaint as an improper use of declaratory relief. "On its face there is certainly the potential for the judge to go forward and hear it," said George Barford, a management labor relations lawyer at the Carlton Fields law firm in Tampa. If Maye lets the case proceed, Al-Arian will be subject to questioning under oath from USF's legal team. Fitzgibbons predicted such a deposition could last days, given the scope of the material and the quality of USF's lawyers. The team includes Thomas Gonzalez, a labor law attorney in Tampa; Bruce Rogow, a constitutional law expert who has argued cases before the U.S. Supreme Court; and Greg Kehoe, a former federal prosecutor who tried war criminals in The Hague. USF's lawsuit alleges that Al-Arian's misconduct dates to 1988, when he incorporated the Islamic Concern Project and made the statement "Death to Israel" at a conference in St. Louis. USF's lawyers could comb through those years, nitpicking over details. Such a deposition, taken under oath, would lock Al-Arian into his answers and explanations. Anything he said in the deposition could be used in other court proceedings, including any criminal case brought by the federal prosecutors who have already acknowledged they have an ongoing investigation into Al-Arian. Al-Arian could chose to assert his Fifth Amendment right and refuse to answer the questions, as he did in 2000 when prosecutors tried to question him in his brother-in-law's immigration case. In a civil case, however, a refusal to answer questions can be used by the judge as evidence in favor of the opposition. Fitzgibbons said that in his opinion Al-Arian would be an "absolute fool" to be questioned under oath, given the ongoing criminal investigation. Quitting his job would be a better option than exposing himself to the potential criminal fallout, he said. "Dr. Al-Arian is going to have one of the toughest decisions of his life," Fitzgibbons said. "I wouldn't want to be tried in this country right now on terrorism charges, innocent or not." As the case proceeds Al-Arian will get access to USF's evidence from the investigation. If Al-Arian feels he can refute the evidence, he could turn the tables on USF, essentially telling the university to "put up or shut up," Fitzgibbons said. "He might be able to convince the judge that the university just doesn't have a case," he said. Ed Page, another former federal prosecutor, said when it comes to the law, just about anything is possible. "You never know what kind of argument he could mount," Page said. "Or what the judge might decide." Whatever Judge Maye decides, the losing side will likely appeal, which could set in motion months of further legal wrangling. If the appellate courts resolve the issue in Al-Arian's favor, Friedlander said, "we're certainly prepared to do whatever the court tells us to do." If the issue is resolved in favor of USF, university officials have said they will fire Al-Arian. The two sides then would likely go through arbitration, in accordance with the collective bargaining agreement. The arbitrator would have to decide if the preponderance of the evidence proves Al-Arian's alleged actions violated that agreement. If so, the arbitrator can then uphold the firing. For now, Al-Arian remains on paid leave. "We are hoping for a quick resolution," Friedlander said. "But we are prepared to see this through to the end."
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