By William Fisher
“Prior to this case, an anonymous expert has never been permitted in a US criminal trial as there is no genuine way to cross examine someone whose identity is unknown.”
The speaker is Michael Ratner. He is the leader emeritus of the Center for Constitutional Rights, a public service law firm that fought for the Holy Land group and in dozens of other unrelated cases.
The anonymous “experts” Ratner refers to were two Israelis who appeared at the trial as prosecution witnesses under assumed names. This, despite the clear and uncompromising language of the Sixth Amendment to the US Constitution, which says: “In all criminal prosecutions, the accused shall enjoy the right to …be confronted with the witness.”
The appellants argued that the trial judge's decision to permit the two Israeli witnesses to testify anonymously violated the Confrontation Clause of the Constitution. But in a unanimous decision, the Appeals Court ruled that, "while no trial is perfect, this one included, we conclude from our review of the record, briefs, and oral argument, that the defendants were fairly convicted."
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.
But Ratner’s view is 180 degrees from the Government’s. He says, “As I look at history, Stalin's show trials come to mind. The denial of the last appeal by the Supreme Court confirms that justice has fled America. If you’re Muslim and especially if you are involved with humanitarian aid for Palestinians, do not expect justice; expect to be hounded, driven from your endeavors and jailed. This country is in the midst of a plague of Islamophobia.”
Thus, it was in that depressing environment that the Supreme Court last week brought the Holy Land Foundation (HLF) case to the end of its last appellate avenue. SCOTUS declined to hear their appeal.
The Government had accused HLF – once the largest Muslim-oriented charity in the US -- of providing material support in the Palestinian territories to Hamas, which the US had now designated as a terrorist organization.
HLF was shut down on December 4, 2001, by presidential executive order and without due process. The charity's offices were raided by federal agents, who seized all documents, assets and funds of the organization as well as personal property of employees.
After prosecutors found that all funds raised by the charity went to humanitarian aid and that there were no illegal financial transactions from HLF, they employed the "material support" statute as amended by the USA Patriot Act – a statute that civil liberty advocates call dangerously vague – to charge the five men with indirectly supporting terrorism through their legal charitable work.
The prosecution's argument was that the ‘zagat’committees used to distribute aid were "under the influence" of HAMAS – despite the fact that none of these committees were on the government's list of banned foreign organizations and were used by other charities to distribute humanitarian aid in the region. It is worth noting that some of these charitable committees were still receiving US funding through the USAID program as late as 2006.
The defendants faced two trials. In the first, in 2007, after 19 days of deliberations, the jury was unable to come to a definitive conclusion and the case ended in a mistrial.
During the 2007 trial, lawyers representing the Muslim Legal Fund of America said that the Justice Department fabricated quotes and modified transcripts. Critics faulted much of the evidence given during the trial. The New York Times journalist Leslie Eaton said Israeli agents using pseudonyms testified for the prosecution.
The government did not allege that the foundation paid directly for suicide bombings, but instead that the foundation supported terrorism by sending more than $12 million to charitable groups, known as ‘zakat’ committees, which build hospitals and feed the poor. The prosecution said the committees were controlled by Hamas, and contributed to terrorism by helping Hamas spread its ideology and recruit supporters.
The jurors had acquitted on some counts but were deadlocked on other charges ranging from tax violations to providing material support for terrorists. One defendant was acquitted of most of the 32 charges against him. While the first trial produced no convictions, the judge ruled it a mistrial and granted prosecutors another opportunity to put the five men on trial.
The second trial ended in harsh convictions. Again, the key witness for the prosecution was an anonymous expert who defense attorneys complained they were unable to adequately cross-examine – a fact at odds with the Sixth Amendment.
Following the first trial, the New York Times reported: The decision today is "a stunning setback for the government, there's no other way of looking at it," said Matthew D. Orwig, a partner at Sonnenschein Nath & Rosenthal who was, until recently, United States Attorney for the Eastern District of Texas. "This is a message, a two-by-four in the middle of the forehead," Orwig said. "If this doesn’t get their attention, they are just in complete denial," he said of Justice Department officials, whom he said may not have recognized how difficult such cases are to prosecute."
Experts found the jury's failure to come to a definitive conclusion to be evidence of weakness in the government's ability to provide clear enough evidence against the charity. The Los Angeles Times quoted Georgetown University law professor David Cole as saying: "If the government can shut them down and then not convince a jury the group is guilty of any wrongdoing, then there is something wrong with the process.”
“The whole case was based on assumptions that were based on suspicions", said one of the jurors, who added: "If they had been a Christian or Jewish group, I don't think [prosecutors] would have brought charges against them."
The federal government began a retrial on August 18, 2008. On November 24, 2008, the jury delivered guilty verdicts against HLF and five individual defendants. Holy Land was found guilty of giving more than $12 million to support Hamas.
The jury found against HLF on all 108 charges. The charges included conspiracy to provide material support to a foreign terrorist organization, providing material support to a foreign terrorist, and conspiracy to commit money laundering.
The government was ecstatic. "Today's verdicts are important milestones in America's efforts against financiers of terrorism," Patrick Rowan, assistant attorney general for national security, said after the trial. "This prosecution demonstrates our resolve to ensure that humanitarian relief efforts are not used as a mechanism to disguise and enable support for terrorist groups."
The five convicted individuals were Ghassan Elashi, former CEO Shukri Abu-Baker, Mufid Abdulqader, Abdulrahman Odeh, and Mohammad El-Mezain.
Abu-Baker was sentenced to 65 years. Elashi, also a member of the founding Board of Directors of the Texas branch of the Council on American-Islamic Relations (CAIR), was also sentenced to 65 years. El-Mezain, former endowments director, received 15 years.
Because of the potential lengthy sentences for the criminal convictions, the individual defendants were remanded into custody without bail pending any appeal. A 2011 NPR report claimed some of the people associated with this group were being held in a new and highly restrictive prison known as the Communications Management Unit.
It has since been learned that the Communications Management Unit is a self-contained group within a facility managed by the United States Federal Bureau of Prisons (BOP) that severely restricts, manages and monitors all outside communication (telephone, mail, visitation) of inmates in the unit. A substantial majority of its inmates are Muslims.
"It is a dark day for America when our nation's highest court refuses to hear a case that is affecting everyone's ability to get a fair trial in America," said Khalil Meek, Executive Director of Muslim Legal Fund. "If judges are allowed to prevent defenders from challenging the credibility of expert witnesses, then our Sixth Amendment loses its teeth and our civil liberties suffer further erosion."
The verdict and the harsh sentences outraged Holy Land supporters.
Prof. David Cole told Prism, "In this case, the government made it a crime to engage in charity, without any evidence that a single penny went to further any violent, much less terrorist, act. The defendants now face decades in jail for having done nothing more than raising money to feed the hungry.”
Francis E, Boyle, a law professor at the University of Illinois, pointed out that The Holy Land Foundation was well known as being the leading source in this country for providing humanitarian assistance to the Palestinians. “For that very reason it was targeted for persecution and destruction by the pro-Israeli neoconservatives in the (George W.) Bush Administration. After a valiant Defense, the Holy Land Five lost their case in the same reactionary United States Supreme Court that gave the American people Bush Junior as President in 2000.”
And Prof. Chip Pitts, Lecturer at Stanford Law School and Former Chair of Amnesty International USA, told Prism, “When prosecutors single out Muslim charities and effectively shut down nearly all of them in the wake of 9/11, and when courts bend the rules to prevent suspects from confronting their accusers, it’s hard not to see prejudice at work distorting the right to equal justice under law.
“The Supreme Court’s failure to review this case and correct its many procedural and substantive errors is yet another sign of the increasingly degraded rule of law in the United States. Similar prejudice is endangering sensible policies with respect to allies like Turkey and Egypt.
“These are grave trends which jeopardize both domestic tranquility and authentic national security. They should not only concern us all, but must prompt concerted and strong demands for a return to principles of fairness, reason, and justice.”
Denial of certiorari was a huge blow to the remaining charities patronized by Muslims, which for several years had been engaged in planning, reorganizing and even talking with the Government (The Treasury Department, which is in charge of ‘material support” matters) about creating a ‘white list’ of permissible charities. For a time, contributions to other Muslim-oriented charities fell off a cliff, though they have since climbed closer to past norms.
Now, supporters of The Holy Land Five will be crafting initiatives to bring what they consider a travesty of justice to broad public attention. But, in the interests of truth, it needs to be said that these kinds of campaigns, while they are valuable as public education tools, rarely succeed in changing the minds of judges.