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AMP Report - October 25, 2007
A tale of three show-case trials of Muslims in America
By Abdus Sattar Ghazali
This week’s failure to win any convictions against the Holy Land Foundation for Relief and Development, once the largest Muslim charity in the US, was the third show-case trial of Muslims in the post-9/11 America. In February this year, a federal jury in Chicago acquitted Muhammed Salah and his codefendant Abdelhaleem Ashqar of supporting terrorism financing charges. Muhammed Salah was charged with “terrorism” based upon a confession extracted by torture in an Israeli jail. In December 2005, former college professor Dr. Sami Al-Arian was acquitted on eight counts of aiding the Palestinian Islamic Jihad. After a six-month trial, jurors deadlocked on nine other counts.
What is common in the three major trials? The three cases have been touted by the Bush administration as a major breakthrough in disrupting “terror financing cells.”
The Holy Land case was considered so significant that President Bush personally announced the seizure of its assets in December 2001. He made this announcement at a press conference in the Rose Garden four days after a request from then Israeli Prime Minister Ariel Sharon. The president said that money raised by the group "is used by Hamas to support schools and indoctrinate children to grow up into suicide bombers."
In 2004, John Ashcroft, the then US Attorney General, personally announced the indictment in the HLF case. "This prosecution sends a clear message: There is no distinction between those who carry out terrorist attacks and those who knowingly finance terrorist attacks. The United States will ensure that both terrorists and their financiers meet the same, certain justice," he said.
At the time of Al-Arian's 120-page indictment in February 2003, John Ashcroft, said Al-Arian has been actively funding terrorist attacks in Israel. Ashcroft described Al-Arian as the US leader of Palestinian Islamic Jihad. A charge that was not proved.
The case against Salah, and his co-defendant Abdelhaleem Ashqar, was deemed so significant that the indictments were announced in a news conference by John Ashcroft along with Chicago U.S. Attorney Patrick Fitzgerald in 2004. At the time, Ashcroft said that these two men "played a substantial role in financing and supporting international terrorism ... [and] took advantage of the freedoms of an open society to foster and finance acts of terror."
With beefed-up investigative powers authorized under the Patriot Act, the prosecution utilized all the legal tools available in the post-9/11 America: Secret evidence, years of secret wiretapping and even evidence extracted through torture by Israelis.
In Holy Land Foundation and Mohammad Salah’s cases Israeli intelligence agents were allowed to testify under fictitious names. During the trial of Salah, the trial judge’s rulings set very negative precedents regarding due process for future cases. First, the judge admitted Salah’s confession when he sided with the prosecution claim that Salah was not tortured. Second, the judge allowed two Israeli agents to act as witnesses using fictitious names. Consequently, in Holy Land Foundation trial, Israeli agents were allowed as witnesses using fictitious names.
Salute to the jurors who had the courage and integrity not to fall for the government's much abused "terrorism" rhetoric. In the HLF case even one juror proclaimed that there was no credible evidence, with the government relying on information dating back 20 years -- before Hamas had been declared a terrorist organization by the United States -- as well as loads of "secret" documents and anonymous intelligence witnesses from Israel.
The Dallas Court has declared mistrial in the Holy Land Foundation case but still pending before the court is a request from the Council on American-Islamic Relations (CAIR) to strike a list of un-indicted co-conspirators filed by prosecutors in the case. The Holy Land Foundation prosecutors used McCarthyite tactics by implicating mainstream Muslim groups to silence genuine Muslim voices while providing ammunition to the anti-Muslim organizations. The Department of Justice named 306 individuals and organizations as un-indicted co-conspirators which include the largest Muslim civil right group, CAIR; the nation's largest Muslim educational source, the Islamic Society of North America (ISNA), and the North American Islamic Trust, the country's largest holding company of deeds to about 300 mosques, Islamic centers and schools in the U.S.
The perverse nature of the un-indicted co-conspirator designation made public in the HLF case is that those so-designated cannot challenge the designation in a court of law and thus have no way to restore their reputation to its earlier standing. This is a unique situation where any person or organization can be designated “guilty by association” and stigmatized as such without legal redress.
There is no doubt that the Department of Justice in selecting that list of organizations and individuals intended to accomplish such results, especially for three of the largest and most effective American Muslim organizations.
It will not be too much to say that the three showcase trials are likely to go down in the record books as one of the great abuses of the American legal process. About 500 cases have been brought against Muslims in America after 9/11. Tellingly, half of these have been dismissed as being without merit. The rest have all resulted in either acquittals or negotiated pleas on minor charges which are unrelated to the original indictment. Of the 500 cases, it is estimated that some 30 of them may have had some reasonable foundation in law.
The cloak of secrecy
The foundation of America's legal system is transparency. If one side makes an argument to a judge, the other side gets to be there to disagree. However, the emerging national trend goes against this. Although a defendant has a right to challenge any search and seizure, which would include wiretap evidence, challenging the constitutionality of those wiretaps is difficult without knowing what evidence was used to secure them. Federal prosecutors just simply say, “You are not entitled to know. We will give the information to the judge, and the judge will decide.” (Mohammad Salah’s case)
The government often requires defense lawyers to obtain a security clearance in order to view key evidence against their clients. Even if attorneys get the security clearance, they are not allowed to discuss classified evidence with their clients. Other members of the defense team can see classified evidence only if the judge approves. And prosecutors also are allowed to file ex-parte evidence that is reviewed only by the judge -- not defense attorneys.
In Al-Arian's case, the government also classified "hundreds of thousands of hours" of wiretapped conversations and initially refused to release them to Al-Arian, even though he had been a party to them. The judge eventually declassified the information, allowing it to be seen only by the defense attorneys.
The Bush administration's judicial “war on terrorism” is cloaked in controversy. Legal scholars find the Department of Justice inflates its prosecution tally by classifying immigration and other low-level offences as terrorism. A Washington Post investigation reveals that most DOJ homeland-security cases have no terrorist connections at all. Prosecutions are littered with flawed investigations, false accusations, ineptitude and malfeasance. Here are few more examples:
Sami Al-Hussayen -- This University of Idaho graduate student, a Saudi, was acquitted of terrorism charges including raising money for Palestinian militants and ''building websites to recruit jihad terrorists.'' In June 2004, a jury of four men and eight women returned their verdicts after seven days of deliberation following a trial lasting seven weeks. Jurors could not reach verdicts on three more false statement counts and five additional visa fraud counts, and a mistrial was declared on those charges. Mortified prosecutors got off the hook when al-Hussayen agreed to deportation rather than challenge minor immigration violations. He left the US in July 2004.
Ahmed Omar Abu Ali – On March 29, 2006. Abu Ali, Saudi-American, was sentenced in a US federal court in Virginia to 30 years’ imprisonment but the jury was not allowed to hear evidence supporting his claim that he was tortured into confessing while he was held for one and a half years without charge or trial in Saudi Arabia (infamous for the human rights violations). Amnesty International expressed serious concern about the flawed trial that the case may have set a worrying precedent on the admissibility of torture evidence in US courts.
Richard G. Convertino: Richard G. Convertino, the one-time federal prosecutor who won two convictions in the nation's first terror trial after September 11, was formally indicted on March 30, 2006, on charges that he built that case on perjury and deception. The four-count indictment alleges Convertino and Harry Raymond Smith III, a State Department security officer in Amman, Jordan, concealed photographs and lied under oath about a hospital in that country that was supposedly a terrorist target. The pictures could have helped the defense attorneys, authorities say. The indictment marks another low point for the government in the disastrous Detroit sleeper cell case in which a jury convicted in June 2003 two of the men of terror-related charges and another man of document fraud. The fourth man was acquitted.
Reverting to the high profile trials, although the prosecution failed to get guilty verdict by the jury but such high profile arrests and trials are producing the desired results: intimidation of the Muslim community, defaming their faith (which is linked to acts of terrorism) and straining its financial resources because million of dollars are paid by the community in defense expenses. No body more bluntly expresses this attitude than Dr. Hatem Bazian, Professor at the Near East and Ethnic Studies Department, University of California, Berkeley, who believes that similar to the COINTELPRO against the African Americans during the 1960s, the Arab and Muslim are currently facing a new FBI counter intelligence program.
COINTELPRO is the acronym for a series of FBI counterintelligence programs designed to neutralize political dissidents. In the 1960s and 1970s - the program was directed against the civil rights movements, and especially against the community leadership of African Americans, Latinos and Native Americans. In the 1980s there was a program against Central American solidarity groups. Drawing on Brian Glick’s book - War At Home – Dr. Bazian pointed out that four methods were employed by the FBI during the height of the Cointelpro program during 1960s and the same methods are being employed now which are: 1). Infiltration. 2). Psychological warfare from outside. 3). Harassment through the legal system. 4). Extra legal force and violence.
The logical consequence of this campaign is reflected in the opinion polls. According to the Washington Post-ABC News poll of March 2006, a growing proportion of Americans are expressing unfavorable views of Islam, and a majority now say that Muslims are disproportionately prone to violence. The proportion of Americans who believe that Islam helps to stoke violence against non-Muslims has more than doubled since the 9/11 attacks, from 14 percent in January 2002 to 33 percent today, the poll indicated. In a chain reaction to this negative perception, there are now more hate crimes against the Muslim community, hate mails, attacks on Mosques/Islamic centers and in many cases rejection of plans to build new mosques/Islamic centers or expand the existing one. Just one example. After facing anti-Muslim sentiment at a public hearing in March 2006, the West Penn Cultural Center, a Turkish organization, dropped its plan to turn a vacant school in South Park, Pennsylvania into a cultural center. One could multiply examples to prove the point.
There cannot be two opinions on the priority of the security and safety of the nation but one wonders if such headline grabbing arrests and trials made the nation more safe or they are being used to maintain a state of fear among the masses and usurp their civil rights in the name of national security.
A summary and main points of verdicts in the three major cases:
Holy Land Foundation
The trial against the Holy Land Foundation for Relief and Development what - once the nation's largest Islamic charity - ended in a mistrial on October 22, 2007 as federal prosecutors in Dallas, Texas, were unable to gain a conviction on charges that the group's leaders had funneled 12 million dollars to the Hamas militants.
After two months testimony and 19 days of deliberations jurors returned no convictions against any of the five former leaders of the Holy Land. Mohammad El-Mezain, the Holy Land's original chairman and endowments director — was acquitted on most of the counts by a unanimous jury.
The jury forewoman told the judge that Mufid Abdulqader, a top Holy Land fundraiser and former Dallas public works supervisor, had been found not guilty on all counts. Abdulrahman Odeh, the foundation’s New Jersey representative, was also acquitted on most of the charges. She also said the jury was unable to reach a decision on all the other counts. When polled, some jurors told the judge that they did not agree with the verdicts on Mr. Abdulqader and Mr. Odeh.
The judge then declared a mistrial on all counts, except for those where Mr. El-Mezain was found not guilty. Asked by Judge Fish whether the government would retry the case, the lead prosecutor, James Jacks, answered, "Yes, your honor, my expectation is we will."
A juror, William Neal, told the Associated Press that the panel found little evidence against three of the defendants and was evenly split on charges against charity's former chief executive Shukri Abu Baker and its former chairman Ghassan Elashi, who were seen as the principal leaders of the charity. Neal said the jury was split about 6-6 on counts against Baker and Elashi.
"I thought they were not guilty across the board," said the juror, William Neal, a 33-year-old art director from Dallas. The case "was strung together with macaroni noodles. There was so little evidence," Neil said adding that the government's case had "so many gaps" that he regarded the prosecution as "a waste of time."
The mistrial came after two months of testimony, mostly from FBI and Israeli agents who described thousands of pages of documents and hours of videotapes seized from Holy Land in Gaza and from Palestinian charities that got money from Holy Land. The prosecution's key witness was lawyer for the Israeli intelligence agency Shin Bet, who testified under a false name. Prosecutors hoped the Israeli agent's testimony would complete a loop that started with Holy Land bank records, and show that the group secretly funneled millions to Hamas. Neal, the juror, said he found the Shin Bet officer's testimony unconvincing — that he would expect an Israeli official to condemn an ally of Palestinians. To borrow from Khalil Meek of the Hungry for Justice Coalition "this was an Israeli trial tried on American soil."
David Cole, a Georgetown University law professor, believes that the jury’s verdict called into question the government’s tactics in freezing the assets of charities using secret evidence that the charities cannot see, much less rebut. When, at trial, prosecutors “have to put their evidence on the table, they can’t convict anyone of anything,” he said. “It suggests the government is really pushing beyond where the law justifies them going… I think it is a huge defeat for the government," he said. "They spent almost 15 years investigating this group, seized all their records and had extensive wiretapping and yet could not obtain a single conviction on charges of supporting a terrorist organization."
Lawyers for some defendants say that their clients were being prosecuted because of their family ties to Hamas leaders. One defendant, Mufid Abdulqader, is the half-brother of Khalid Mishal, a Hamas leader who has been designated as a terrorist by the United States government. Another Hamas official and designated terrorist, Mousa abu Marzook, is married to a cousin of Mr. Elashi, who was sentenced last year to almost seven years in prison for having financial dealings with Mr. Marzook and for violating export laws.
Mohammad Salah
The Holy Land case was the third show-case trial that ended without convictions on the major counts.
On February 1, 2007, a federal jury in Chicago acquitted Muhammed Salah and his codefendant Abdelhaleem Ashqar of supporting terrorism financing charges. Muhammed Salah was charged with terrorism based upon a confession extracted by torture in an Israeli jail.
The case against Mr. Salah, and his co-defendant Abdelhaleem Ashqar, was deemed so significant that the indictments were announced in a news conference by then-Attorney General John Ashcroft along with Chicago U.S. Attorney Patrick Fitzgerald in 2004. At the time, Ashcroft said that these two men "played a substantial role in financing and supporting international terrorism ... [and] took advantage of the freedoms of an open society to foster and finance acts of terror."
Fitzgerald's office then promptly proceeded to announce that it would prove its case by attempting to introduce a purported confession that defendant Muhammad Salah gave in Israel to Israeli authorities after 80 days of interrogation in an Israeli prison in 1993.
When Salah's lawyers challenged the use of this purported confession as the byproduct of Israeli torture tactics, Fitzgerald's office promptly asked U.S. District Judge Amy St. Eve to close her courtroom to the public so that it could present the testimony of some of the Israeli agents in a secret proceeding. Not only would the courtroom be closed, but the Israeli agents would be permitted to testify in disguises with code names. St. Eve granted the government's request and conducted weeks of testimony in her courtroom that was completely shut off from the public.
St. Eve also had no problem at the end of the hearing permitting the government to introduce the confession at trial notwithstanding considerable evidence presented in the hearing with respect to torture tactics that were in place and regularly used by the Israeli secret police. She accepted the government's argument that the Israeli secret police decided not to use their torture tactics against Salah because he was an American.
Mr. Salah, 53, a former grocer who lives in suburban Chicago, and Ashqr, 48, a former Howard
University professor who lives in Springfield, Illinois, were convicted of lesser charges. Ashqar was convicted of obstruction of justice and criminal contempt for refusing to testify in front of a grand jury, while Salah was convicted of obstruction for providing false answers in a civil lawsuit. Though, he was found guilty of obstructing justice, he was found not guilty of racketeering, which was the major charge. The third charge of providing material support to a terrorist organization had been dropped mid-trial. In July 2007 Salah was sentenced to 21 months in prison for lying in a civil lawsuit.
Arrested by Israeli police in Gaza in January 1993, Salah allegedly confessed to being a Hamas military commander during 54 days of interrogation that included physical and psychological torments. Prosecutors charged Salah, a U.S. citizen, and Ashqar, a longtime resident, with using the safe haven of the United States to transfer funds, coordinate operations and provide other aid to Hamas. Mr. Salah was declared a terrorist through an executive order without any court of law finding him as such.
In an unsuccessful effort to bar the U.S. government from using the “confessions” as evidence, Salah filed an affidavit that described in chilling detail the “on-going nightmare of unmitigated and unbearable terror, threats, physical and psychological abuse” he faced in the Israeli dungeons.
In an attempt to refute Salah’s accounts of torture, the prosecution called Judith Miller as its star witness. …..This purveyor of U.S. war lies about Iraq had years earlier been invited by Israeli prime minister Yitzhak Rabin, her longtime friend, and Shin Bet to witness Salah’s interrogation. The purpose: to plant a story in the Times about Hamas and their supposed fundraising cells in the U.S.
Miller included an entire chapter about this incident in her 1996 anti-Islamic screed, God Has Ninety-Nine Names. In this book and in her testimony, Miller recounted watching Salah’s interrogation via a television monitor, his statements translated by an Israeli-supplied interpreter. She even provided questions for the interrogation. Miller portrayed the whole thing as a friendly chat.
Dr. Sami Al-Arian
In the third showcase trial, a federal jury, on December 6, 2005, acquitted the former University of South Florida computer engineer, Dr. Sami Al-Arian, of conspiring to aid a Palestinian group in killing Israelis through suicide bombings. Al-Arian was found not guilty on eight of 17 counts, including conspiracy to maim or murder. Jurors deadlocked on the rest of the charges, including ones that he aided terrorists.
The Tampa jury deliberated 13 days before rejecting arguments laid out over five months by prosecutors that Al-Arian and three co-defendants conspired with leaders of Palestinian Islamic Jihad -- which the United States has designated a terrorist group -- providing it money, strategy and advice. The accusations were based on 20,000 hours of phone conversations and hundreds of faxes secretly monitored beginning in 1993.
At the time of Arian's indictment in 2003, John Ashcroft, then US Attorney General, said Al-Arian was in fact the US leader of Palestinian Islamic Jihad. The group was designated a terrorist organization by the State Department in 1995. The trial of Al-Arian, that reportedly cost about 30 million dollars to taxpayers, was billed as a showcase of how beefed-up investigative powers authorized under the Patriot Act were helping protect the nation from a repeat of the 9/11 attacks.
The failure to convict Al-Arian was a stinging rebuke for the federal government. His case was once hailed by authorities as a triumph of the anti-terrorism Patriot Act, which allowed secret wiretaps and other information gathered by intelligence agents to be used in criminal prosecutions. The final outcome of the this three-year long trial was summed up by the Washington Post: “Stung by the defeat in the high- profile case, prosecutors pondered whether to retry him on the remaining charges, including three conspiracy counts, or deport him.”
Since his acquittal in December 2005, Dr Al-Arian has remained in prison. Following the trial, the government indicated its intention to retry him on the remaining charges, which is unprecedented given the jury's overwhelming rejection of the case. In April 2006, following pressure from the government and on the advice of his attorneys, Dr Al-Arian agreed to a plea agreement to finally put an end to this ordeal, especially to end the suffering of his family.
The government was forced to settle for a single charge of providing services to people associated with the Palestinian Islamic Jihad. Central to the plea negotiations was Dr Al-Arian's insistence that he would not be subject to any further prosecution or called to cooperate with the government on any matter. Defying all reason, in May 2006, the judge ignored the government's recommendation that he be given the lowest possible sentence, and sentenced Dr Al-Arian to the maximum.
In October 2006, in violation of the plea agreement, a government prosecutor in Virginia, who reportedly made numerous racist and anti-Muslim statements, called Dr Al-Arian to testify before a grand jury investigating an Islamic think tank. Dr Al-Arian refused to testify and was consequently held in civil contempt.
According to the law, Dr Al-Arian must be removed from the status of contempt if the grand jury is closed or if the judge is convinced that no amount of prison time will coerce him into testifying. Dr Al-Arian can be held up to 18 months more on this basis, with reviews every 6 months. In addition, the remaining time he has left on his original sentence is suspended until after the end of the contempt. Given this fact, the government has potentially delayed his release from this April 2007 to October 2008. On October 17 federal judge Gerald Lee rebuffed another bid by Dr. Sami Al-Arian, to end a contempt of court citation.
Unindicted co-conspirators
The Dallas Court has declared mistrial in the Holy Land Foundation case but still pending before the court is a request from the Council on American-Islamic Relations to strike a list of un-indicted co-conspirators filed by prosecutors in the case.
The Holy Land Foundation prosecutors used McCarthyite tactics by implicating mainstream Muslim groups to silence genuine Muslim voices while providing ammunition to the anti-Muslim organizations. The Department of Justice named 306 individuals and organizations as un-indicted co-conspirators in the case.
The government's co-conspirator's list includes the largest Muslim civil right group, the Council on American-Islamic Relations (CAIR); the nation's largest Muslim educational source, the Islamic Society of North America (ISNA), and the North American Islamic Trust, the country's largest holding company of deeds to about 300 mosques, Islamic centers and schools in the U.S.
Typically, prosecutors identify a person or a group as an unindicted co-conspirator so that their statements, or those of people involved in the listed organizations, about the defendants can be used in court without them being considered hearsay, which is not permitted in trial.
The document gave scant details, but prosecutors described CAIR as a present or past member of "the U.S. Muslim Brotherhood's Palestine Committee and/or its organizations." The government listed the Islamic Society of North America and the North American Islamic Trust as "entities who are and/or were members of the U.S. Muslim Brotherhood."
While the Holy Land was charged in the case, which was filed in 2004, none of the other groups was. However, the co-conspirator designation could be a blow to the credibility of the national Islamic organizations, which often work hand-in-hand with government officials engaged in outreach to the Muslim community.
The practice of publicly naming unindicted co-conspirators is frowned on by some in the legal community, chiefly because there is no trial or other mechanism for those named to challenge their designation. Justice Department guidelines discourage the public identification of unindicted co-conspirators by the government.
"In all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties," the Justice Department's manual for prosecutors says. When co-conspirator lists have to be filed in court, prosecutors should seek to file them under seal, the guidelines say.
In practice, the lists are often made public. A list of co-conspirators was released in connection with the federal trial in 2005 of a former college professor, Dr. Sami Al-Arian, on terrorism support charges. However, when Enron executives went on trial in 2006, the list of alleged co-conspirators was kept under seal.
The perverse nature of the un-indicted co-conspirator designation made public in the HLF case is that those so-designated cannot challenge the designation in a court of law and thus have no way to restore their reputation to its earlier standing. This is a unique situation where any person or organization can be designated “guilty by association” and stigmatized as such without legal redress.
There is no doubt that the Department of Justice in selecting that list of 306 organizations and individuals intended to accomplish such results, especially for three of the largest and most effective American Muslim organizations: The Islamic Society of North America, the North American Islamic Trust and the Council on American-Islamic Relations.
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