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

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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.

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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… Read more »

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… Read more »

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… Read more »

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… Read more »

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… Read more »