With his retrial set to begin March 8, Egyptian-born Canadian journalist Mohamed Fahmy says his strategy is clear: make sure the judge understands the difference between the work of individual journalists and decisions made by the network they were working for, Al-Jazeera.
"We are journalists with no ill intent," says Fahmy. "We should be judged for what we have done and not what the channel has done."
Fahmy, along with his Al-Jazeera English colleagues Australian Peter Greste and Egyptian Baher Mohamed, were arrested by Egyptian authorities in December 2013. They were tried, convicted and sent to prison on charges of broadcasting false news and supporting the Muslim Brotherhood, which Egypt has declared a terrorist group.
Fahmy was given a seven-year prison sentence.
After they spent more than 400 days in prison, the men’s convictions were thrown out and a retrial ordered. Greste was deported to his native Australia, while Fahmy and Baher Mohamed await their retrial.
Fahmy told the fifth estate he’s looking forward to the opportunity to address the judge personally.
This time around, he says, it is critical that the judge understands the difference between role of the journalists and that of their employer.
A key element of this, according to Fahmy, is to emphasize the separation between Al-Jazeera English, the channel for which he was bureau chief, and Al-Jazeera Mubasher Masr, also known as Al-Jazeera Egypt Live. The latter was Al-Jazeera’s 24-hour Egyptian channel.
Just days before Fahmy joined Al-Jazeera English, it was shut down by the Egyptian authorities for supporting the banned Muslim Brotherhood.
Despite being banned from the country, the Egyptian channel continued broadcasting into Egypt from Al-Jazeera headquarters in Doha, Qatar, infuriating the Egyptian authorities.
Soon after he began working for Al-Jazeera English, Fahmy says, he worried that the re-airing of his team’s footage on the Egyptian Al-Jazeera channel would endanger staff on the ground. He says it's important to emphasize the editorial difference between the channels.
But he says his efforts were seriously undermined by his own employer.
Fahmy emails Al-Jazeera
On Sept. 27, 2013, three weeks into his job as AJE bureau chief, Fahmy sent his superiors in Doha an email asking why a report prepared by his colleagues at the English channel was voiced into Arabic and then aired on Al-Jazeera’s banned Egyptian channel.
In the email Fahmy wrote, "I would imagine that due to the security situation this action may come back to bite us. The team here was also concerned regarding this matter."
In his reply, Salah Negm, AJE’s news director, assured Fahmy that he would "handle it."
But, according to Fahmy, his team's items were rebroadcast on the Egyptian channel at least five more times.
On Dec. 18, 2013, 11 days before Fahmy, Greste and Baher Mohamed were arrested, Al-Jazeera’s Egypt channel, broadcasting from Doha, aired a package that had aired two days earlier on Al-Jazeera English.
Looking back, Fahmy says in a recent interview, "The network’s negligence in opting to challenge the Egyptian government in an unethical manner made issues extremely difficult in court."
He says that when Egyptian national-security officers came to arrest him, they believed they were arresting a crew from Al-Jazeera Egypt.
When asked for comment on the network’s use of Al-Jazeera English material on the banned Al-Jazeera Egypt Live channel, Al-Jazeera’s press office told the fifth estate in an email: “This may have happened on a very small number of occasions over the course of three months.”
Al Jazeera had previously maintained that “No one has been able to provide specific instances” of this practice.
Al-Jazeera went on to say that its Egyptian channel used footage from many other networks.
"It does not follow that all these international journalists were therefore de facto employees of [Al-Jazeera Egypt Live]. Al-Jazeera English and [Al-Jazeera Egypt Live] are separate channels. This distinction has been explained to the Egyptian authorities many times, but unfortunately has fallen on deaf ears.
"Arresting journalists of any news organization is an abomination and should be condemned by all. In any case, this issue was not part of the final verdict, so is a distraction."
Al-Jazeera says it was relentless in its support of its journalists throughout their trial and imprisonment.
Trying to convince the judge
But Fahmy’s defence strategy of separating the conduct of the journalists from that of their employer was attempted unsuccessfully in the first trial. Lawyers hired by Al-Jazeera to defend Greste and Baher Mohamed wanted to employ that tactic.
In an interview in the fall of 2014 with the fifth estate’s Gillian Findlay, Fathy Farag says said he wanted to convince the judge that the journalists "were acting in good faith," and wanted to show that the defendants were unaware of what the network was doing with the material they produced.
In the end, Farag claims, Al-Jazeera didn’t want to use this strategy because it didn’t want to expose itself to that kind of scrutiny.
He added that as Al-Jazeera’s long-time lawyer in Egypt, he warned the network repeatedly that it did not have the proper licences and permits for Al-Jazeera English to operate legally in the country, but was ignored.
Farag says the final straw was Al-Jazeera launching a $150-million US civil suit against the Egyptian government in the middle of the trial, despite his urging them to wait until it was over. This, he says, led to him to withdraw from the case.
But Al-Jazeera strongly disputes this version of events.
In an email to the fifth estate in October 2014, Amin Saad Abdallah, Al-Jazeera’s head legal counsel, insisted that Al-Jazeera English was fully licensed. He described Farag’s comments as "misleading"and described his conduct during the first trial as "wholly unprofessional," adding that Farag did not resign but was fired.
Fahmy has rehired his own lawyer from the first trial.
He’s also looking forward to meeting the most high-profile member of his legal team, Amal Clooney, for the first time.
Fahmy says she plans to travel to Egypt as soon as she gets a visa.