Holy Land Five appeal could set precedent on using ‘secret evidence’ in U.S. courts

Israel/PalestineUS Politics
on 13 Comments
Holy Land Foundation Press Conference from Sparrow Media on Vimeo.

On Monday the Supreme Court is expected to decide if it will hear an appeal that could overturn the conviction of the co-founders and chief staff of the Holy Land Foundation, a Texas-based humanitarian organization and once was the largest Muslim charity in the United States.

Defendants Shukri Abu Baker, Mohammad el-Mazain, Ghassan Elashi, Mufid Abdulqader, Abulrahman Odeh, or the Holy Land Five, were charged under the Material Support to Terrorist Act with the enhancement of the Patriot Act and convicted in 2008. Yet the sentences of 65-years and life, followed a first trial in 2007 that ended with a hung jury. The guilty verdict came after post-9/11 legal changes, which criminalized charitable donations to the besieged Gaza Strip, even though the Holy Land Foundation was donating to the same zakat charities that the U.S. government supported via USAID.

“This decision will come after 11 tumultuous years of raids, trials, arrests and appeals. This will be the last legal recourse for my father who is currently serving a sentence of 65 years,” said Noor Elashi, daughter of Ghassan Elashi at a press conference in New York City on Thursday.

“On the day that my father was arrested he managed to look into my eyes and say, ‘keep your head up high because your father did nothing wrong,'” continued Elashi.

The Holy Land Five’s appeal could be a game changer in how “terrorism” cases are prosecuted. During the 2008 trial, for the first time in a U.S. criminal court “secret evidence” was used by an anonymous source. A so-called Israeli intelligence expert testified under a pseudonym and said that the defendants had ties to Hamas. How did “Avi,” the Israeli intelligence officer, prove a “terror” affiliation? Elashi told me, while on the stand Avi said he “could smell Hamas.”

Attorney Michael Ratner says that Avi’s testimony violated the defendent’s sixth amendment right to face their accuser. This “screams to be heard by the Supreme Court and be reversed.” Relying on intelligence from a foreign country also reflects a troublesome sharing of intelligence between nations. If the Supreme Court decides to uphold the convictions it will mean that in future terror cases due process will be abandoned for an Israeli military court style system, which regularly imprisons Palestinians on secret evidence.

“We will look back on this period, not just the Holy Land Five, but the cases from the NYPD, down here with the Third Jihad, all they way to drone killings in Pakistan, we will look on this as probably one of the darkest, if not the darkest, periods of our history. And sadly, sadly, Noor’s father is paying the price of 65 years in jail,” said Ratner.

“Remember Baba,” said Elashi concluding her speech on Thursday, “we are approaching not the end, but the beginning. And you will remain in the consciousness of many until the day you are exonerated.”

h/t Annie Robbins.
 

13 Responses

  1. jewishgoyim
    October 28, 2012, 9:06 am

    I would be curious to list all the Israeli stinky policies that have been adopted by the US following 9/11.

    “Target assassinations” (now done with drones) is the most obvious. But I also remember that at the time of Abu Ghraib, it had been said that some of the techniques had an Israeli flavor to them but I cannot back that up with a link. Also there was this technique for interviewing people climbing aboard an American plane that was piggy backed on El Al (dropped now I think). I’m sure there are plenty others like this “secret evidence” justice.

    I mean a book needs to be written on the israelification of the USA after 9/11! Or maybe there is one already? Somehow I doubt it as the topic is kind of verboten and I’m sure such a book would have made a big splash.

    It is somewhat different but I also have vivid memories of accounts of Israeli telcos playing big roles in the US and kind of being part of the new surveillance society we’re leaving in. Funny how I was taught the USSR was evil because the regime opened the mail of dissidents or listened to them in their home. Now the USG is preemptively doing that to everybody but that’s ok!!!!

    Or people who are still praising movies like “The live of others” in East Germany and ponder on how the stasi was “horrible, horrible!”. Never mind that the surveillance is much wider now in the US. And this has many ramifications. For instance, if someone is a problem to the regime, they will just pull out his file, find his weakness and make him shut up (Elliot Spitzer and Scott Ritter come to mind). Anyway, I drifted…

  2. pabelmont
    October 28, 2012, 9:38 am

    Sounds as if “Avi” did not state a fact either connecting the defendants to Hamas (and if so, by what “material support”?) or connecting the recipients of the zakat monies to Hamas. Not a “fact” but only a “smell”, and a “smell” of what?

    As I recall reading about the case, the recipients were NOT on the State Department’s list of terrorist organizations, but were characterized as “fronts” for Hamas. Was the “Avi” testimony the key to the allegation of “front”?

    If USAID (and, as I recall, major non-Muslim non-government USA charities) also gave to the same recipients (hospitals?), how could the present defendants be guilty UNLESS the other charities were also guilty?

  3. pabelmont
    October 28, 2012, 11:45 am

    QUOTE from HLF’s petition for cert at US S/C:

    Beginning with the designations of Hamas and others in January 1995, the Treasury Department maintained a public list of all designated [as terrorist] persons and entities, including SDTs and FTOs. 7 R.7277-78, 7302. The list included persons and entities designated because they were determined to be “owned or controlled by, or to act for or on behalf of” Hamas. 7 R.7305. Hamas and several Hamas officials appeared on the Treasury Department list. But the government never designated as an SDT or FTO (and placed on the list) any of the zakat committees, or anyone connected with the zakat committees. 4 R.3860-62; 7 R.7344.

    COMMENT:

    This means that the USA deliberated and added to one of its lists (as “terrorists”) a number of organizations, but NOT those HLF gave zakat to. The USA appears to have sought to accomplish by TRIAL what it neglected to do administratively, a sort of after-the-fact criminalization of certain charitable giving (a bit contrary, at least in in spirit, to the Constitution’s prohibition on “ex post facto” statutes (Art 1, Section 9). (The statute itself was not ex post facto, but the statute made various actions criminal if recipients were earlier listed on DoS or DoTreasury lists of terrorists organizations, and this was not done in this case.

    It does not appear that the “ex post facto” argument was made in the present case.

    • Hostage
      October 28, 2012, 8:55 pm

      This means that the USA deliberated and added to one of its lists (as “terrorists”) a number of organizations, but NOT those HLF gave zakat to. The USA appears to have sought to accomplish by TRIAL what it neglected to do administratively, a sort of after-the-fact criminalization of certain charitable giving (a bit contrary, at least in in spirit, to the Constitution’s prohibition on “ex post facto” statutes (Art 1, Section 9).

      The D.C. Circuit ruling in Hamdan II has doomed similar legal tactics employed against foreign aliens by the US government. The Court’s analysis of Material Support for Terrorism MST (pp. 22-25) concluded that “[t]here is no international-law proscription of material support for terrorism.”:
      •No relevant treaty makes MST a war crime.
      •The Hague Convention IV does not mention MST.
      •The Geneva Conventions do not mention MST.
      •The Rome Statute does not deem MST a war crime.
      •The ICTY, ICTR, and SCSL statutes do not deem MST a war crime.
      •No international tribunal has ever held that MST is a war crime.
      •International-law scholars agree that MST is not a war crime.
      •The JAG Law of War Handbook does not identify MST as a war crime.
      See the decision @ link to lawfareblog.com

      For US citizens or resident aliens that only leaves the domestic statutes, which can’t be used to criminalize conduct ex post facto and should not be applied to entities that the government hasn’t identified as terrorist organizations.

  4. piotr
    October 28, 2012, 11:57 am

    Our Founding Fathers were idiots with their highfalutin ideas about “fair trial” and luckily, this idiocy is undone.

    Otherwise we would require that the accused knew that he/she did something wrong, or that a reasonable person would figure that out. If our government cannot figure out if an alleged uncharitable charity was in fact “treif” without help of another government, how an ordinary person can figure it out?

    A separate story is that we have agencies deputized to commit crimes, or what would be crimes if committed by ordinary citizens. They can kill, torture, kidnap, but they can also lie. Question: should we trust testimony from members of such organizations? Answer: this question gets you arrested under “Patriots do not doubt their Fatherland Act”. [I did not ask that question! Honest!]

    One can quibble and ask: but does that act require no to doubt other governments? Do we need “Patriots do not quibble Act” or is it subsumed in the PdndtFA?

  5. pabelmont
    October 28, 2012, 12:48 pm

    Continuing – – – the USA is in close contact with Israel on matters of terrorism. The USA could have learned of Israel’s view (if indeed it WAS Israel’s view, and not merely that of “Avi”) that these zakat groups were controlled by Hamas (though licensed by PA!). The USA could then have placed these groups on the DoT list. It didn’t, and shouldn’t prosecute HLF for aiding terrorists when HLF had specifically asked if gifts to the zakat groups would violate the law.

  6. Annie Robbins
    October 28, 2012, 1:07 pm

    i’m in wait, on pins and needles over this. i feel like the future of my whole country is on a precipice and their freedom could signal we are backing away from the cliff.

    • W.Jones
      October 28, 2012, 1:53 pm

      Annie,

      Noticing your concern, I would be interested if you could write a brief article on this important case as well. I thought Allison made very good points, and would be interested to hear more of your observations.

      Keep up your work, please.

      • Annie Robbins
        October 28, 2012, 2:16 pm

        wjones, i think allison’s report and ratner’s words represent my sentiments rather succinctly

        ratner:

        This “screams to be heard by the Supreme Court and be reversed.”….”we will look on this as probably one of the darkest, if not the darkest, periods of our history.”

        to think we could pass thru both the mcCarthy era and the civil rights movements and end up where we are today with this outward demonization of a people in our own country, our own citizens, fills me with so much shame. it threatens everything i was raised to believe about my own country and who we are as americans. and it is done partly to drag america into war in order to completely dominate another part of the world and partly to protect and sustain israel’s crimes by demonizing even the offering of charity to people suffering, the palestinians.

        and our justice system has been highjacked!:

        allison:

        the first time in a U.S. criminal court “secret evidence” was used by an anonymous source. A so-called Israeli intelligence expert testified under a pseudonym and said that the defendants had ties to Hamas. How did “Avi,” the Israeli intelligence officer, prove a “terror” affiliation? Elashi told me, while on the stand Avi said he “could smell Hamas.”

        i couldn’t have written this any better than allison, if i could have i would have written it myself. sometimes it’s best not to have people’s emotions (anger) splashed all over the page when important information is being relayed. and have no doubt, this is really important.

        these convictions piss me off to my core of what it feels and means for me to be a citizen of this country. deep deep shame. i pray the supreme court makes the right decisions here and reverses this travesty of justice. or else we’re in for a long dark night internally. a night in which we may never, as a country, fully recover.

      • Abierno
        October 28, 2012, 3:08 pm

        I think that Allison’s article is excellent, but there is a lot that went on
        behind the scenes in this case, particularly as regards the prosecutorial
        behavior that needs to be brought to light as well as the extensive network
        of assistance the Holy Land Foundation was bringing to the indigent in
        many countries. It would also be important to review current government
        treatment of the defendents. While Bernie Madoff and other white collar
        criminals lounge in “country club” minimum security prisons, these
        defendents – who had no prior history of criminal behavior – are held in
        a religiously segregated, high security prison.

        I would ask more knowledgeable readers, are the transcripts of the trial
        as well as the appeals a matter of public record? obtainable by journalists?
        or have they been “classified” for security purposes, unavailable even to
        public record requests?

      • pabelmont
        October 28, 2012, 3:27 pm

        In USA, first amendment “rights” always suffer during wars and scares. And get renewed after the scares recede. Communists in 1950s as an example.

        Here, we see charitable giving (or, more accurately, “giving while Muslim”) being criminalized, and, as noted, without proper notice and VERY vindictively, apparently because elements of the US DoJ are in the hands of zealots: neocons, anti-terrorists, Islamophobes, Zionists, and/or the politically ambitious — these categories of zealots often overlapping.

      • Allison Deger
        Allison Deger
        October 29, 2012, 6:54 am

        There a fair amount publicly available. From Scotus Blog, Supreme Court documents:
        link to scotusblog.com

        There’s a copy of the indictment on the Freedom to Give website (which also some great additional resources about the case):

        link to freedomtogive.com

  7. Philip Munger
    October 28, 2012, 4:36 pm

    We will look back on this period, not just the Holy Land Five, but the cases from the NYPD, down here with the Third Jihad, all they way to drone killings in Pakistan, we will look on this as probably one of the darkest, if not the darkest, periods of our history.

    I wish I could be as optimistic as Michael Ratner. Things are going to get far worse, and probably by the end of this decade. We’ll be seeing more Fukushimas and such, probably one every seven to ten years. Nuclear storage facilities like spent fuel pools and tank storage are degrading far faster than agencies are either able or willing to deal with rationally.

    We’ll be seeing far, far more erosion around coastlines, and destruction of trillions of dollars in coastal infrastructure. The dead zones in the oceans are growing larger faster. Ocean acidification is stripping the seas of life even faster than the giant offshore trawlers are.

    So many cans being kicked down the road it will become impossible to drive on it.

    I could go on for pages, but won’t. As serious as this case certainly is, these encroachments on our civil liberties will ramp up more from resistance to financial, environmental, industrial and nuclear meltdowns than they will from cases like that of the Holy Land five.

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