Holy Land Foundation appeal exposes deceptive and unconstitutional practices by prosecution

The Holy Land Foundation for Relief and Development (HLF) case has become the quintessential example of material support law in action. Allegations against the defunct charity stretch back about two decades and the legal wrangling surrounding it began in 2001. The case is worth bringing up now because just last month numerous legal briefs were submitted appealing the guilty verdict the HLF and its officers received in 2008. One of the briefs in particular goes into great detail about allegedly unconstitutional practices by the prosecution. Relying on already public court records, it gives an excellent glimpse of the numerous improprieties in the government’s case which largely went under-reported by the US media.

BRIEF HISTORY OF CASE

The HLF was considered the US’ largest Muslim charity before its assets were frozen and offices raided in Dec. 2001. US officials in the Treasury Department’s Office of Foreign Asset Control (OFAC) declared it a Specially Designated Global Terrorist and claimed  it served as a fund-raising front for Hamas. A federal grand jury in Dallas returned a 42-count criminal indictment against the organization and several of its officers on 27 Feb. 2004. The initial charges included money laundering, false charitable tax returns, material support for a terrorist organization and engaging in financial transactions considered harmful to national security. A trial consisting of eight weeks of evidence and twenty days of deliberation began in late Jul. 2007. This ended with a hung jury for most counts and acquittals on a few others. A new trial began the next year, and on 24 Nov. 2008, the US government obtained guilty verdicts against the organization and five of its individual officials. Two of the defendants, Ghassan Elashi and Shukri Abu-Baker, were given hefty prison sentences of 65 years. The brief that I linked to earlier is the appeal for Elashi.

THE FACTS OF THE CASE

In order to understand why the criminal case was so contentious, it is vital to to keep in mind what the prosecution itself did not assert HLF’s criminal actions were. As the brief states:

The government did not contend that HLF provided funds directly to Hamas or that its funds were used (or intended to be used) to support suicide bombings or other violence. Rather, the government’s theory was that Hamas controlled the zakat committees [i.e. charitable societies] that HLF used and that by distributing humanitarian aid through those committees, HLF helped Hamas win the “hearts and minds” of the Palestinian people (p. 27 of PDF).

The US banned material support to Hamas on 25 Jan. 1995 with President Clinton’s signing of Executive Order 12947. The same EO gave the Treasury Department the authority to designate groups “owned or controlled” by Hamas as front groups to which material support would be banned as well. The brief notes that the government never designated any of the zakat committees the HLF worked with as Hamas front groups. It is thus incredibly strange that their work with these zakat committees formed the basis of the prosecution’s case. In Feb. 1995, Ghassan Elashi and other Muslim American representatives met with Treasury Department officials in Washington DC seeking guidance on how to avoid legal problems in their charitable giving. The officials refused to provide them with a “white list” of approved Muslim charities and claimed that the Department “was not going to make a determination for them as to who they could or couldn’t send money to beyond the entities already listed in Executive Order 12947.” In a wiretapped conversation on Apr. 1996, HLF heads Baker and Elashi discussed the possibility that the zakat committees they work with could be designated terrorist group fronts by the US government. The two men agreed that if such designations were made they would promptly stop working with the committees.

The idea that the zakat committees were all extensions of Hamas are improbable for various other reasons. For starters, they have been licensed and audited by either the Israeli government or the Palestinian Authority in the time period HLF stood accused of working with them. Both Israel and the PA have been bitter enemies of Hamas since they signed the 1993 Oslo Accords. It is also the case that the US Agency for International Development provided large amounts of funds to the committees over the years as well.

The government used a variety of questionable sources to claim that the zakat committees were controlled by Hamas:

  • The testimony of an anonymous witness known only as “Avi.” He purported himself to be a lawyer for the Israeli Security Agency (ISA).
  • A Palestinian witness that previously pleaded guilty to defrauding his employer and sending money to Hamas. He agreed to testify against HLF in exchange for the right to plead guilty to a single count. He claimed Hamas control of at least some of the zakat committees based on “what he had read on the internet and in newspapers and leaflets and heard in conversation with friends.”
  • Three documents seized from PA offices in 2002. Two of them had unnamed authors and also relied on unnamed sources.
  • More documents that relied on unnamed sources there were confiscated from the homes of two men who had no relation to HLF. All the documents predated the US designation of Hamas as an illegal terrorist group in 1995.

LEGAL ARGUMENTS

The brief argues quite convincingly that Elashi and his cohorts were wrongfully convicted. A list of the main legal arguments follows:

  • National security-based secrecy made a comprehensive cross-examination of witnesses and other evidence almost impossible. Two Israeli witnesses, the ISA lawyer previously mentioned and an IDF servicemen, testified under pseudonyms as requested by the Israeli government.
  • The prosecution used prejudicial hearsay in order to tie the zakat committees and HLF to Hamas.
  • The court allowed “unfairly prejudicial evidence that had little or no probative value.” Much of it consisted of gruesome testimony and exhibits of Hamas atrocities such as suicide bombings against Israelis and killings of Palestinians suspected of collaborating with Israel.
  • Opinion testimony that clearly went beyond the scope enabled by federal rules of evidence was utilized by the prosecution and accepted by the court. This included ex-National Security Council staff member Steven Simon’s testimony that Hamas actually posed a significant risk to the US homeland.
  • The court refused to ask Israel’s government for defense counsel access to the many documents the IDF seized from the zakat committees. This greatly inhibited the defense’s ability to rebut the prosecution’s portrayal of the committees.
  • The vast majority of conversations recorded by the government under FISA remained classified and were not disclosed to the defendants despite federal rules requiring defendant access to all “relevant” statements.

IN-DEPTH EXAMPLES

The brief is 130 pages long and consists mostly of legal analysis applied to the different types of evidence accepted by the court to the HLF trial that resulted in conviction. While I recommend anyone truly interested at least skim the entire document, I will take a moment to summarize the details surrounding some of the claims made by the appellant.

Temporary Internet Files

One of the strangest pieces of evidence used by the prosecution was a series of images that depicted the carnage following Hamas suicide bombings which were found in the temporary internet files of HLF computers seized by US authorities. The images were not intentionally saved or downloaded by the users and the computers on which they were found and had little or no direct connection to any of the individual defendants. For all one knows, the images could have resulted from HLF employees browsing sites that condemned Hamas by showing images of the consequences of their attacks.

At one moment during the trial, the prosecution showed the jury an image of a suicide bombing scene that was obtained from the temp files of a computer used by HLF in Chicago. They then deceptively declared that “this is the HLF’s own material” (pp. 87-88).

Flag-Burning Footage

An videotape found among items stored by HLF contained a brief segment showing protesters burning American flags. However, the bulk of the tape’s footage was of a library opening in the West Bank city of Hebron. As it turns out, the individual who filmed the library event taped over a video which contained the protest footage and apparently failed to eliminate the segment containing the flag burning. The video fragment was admitted as an “HLF record” by the court despite its irrelevance and unfair prejudice and an testifying FBI agent later suggested that the flag-burners were Hamas associates without any evidence.

The brief offers this observation in a footnote:

Ironically, at the library ceremony a representative of PA Chairman Yasser Arafat gave a speech, and Baker spoke by telephone and praised Arafat. There was no mention of Hamas. It is hard to imagine how HLF’s funding of a library for which Fatah claimed credit helped Hamas win Palestinian hearts and minds (p. 73).

Failure to Disclose Wiretaps

Rule 16 of the Federal Rules of Criminal Procedure mandates that the government disclose all recorded statements by the defendant which are found to be “relevant.” In the HLF case, tens of thousands of the defendants’ phone conversations were intercepted by the government between 1994 and 2004. Of these conversations, only 10% of them were deemed “pertinent” by FBI Arabic “language specialists” and were thus summarized in English. A smaller group of the conversations deemed pertinent were transcribed verbatim. The government granted the defendants and their counsel access to the English language summaries (which were found to be unreliable). But–in a bizarre twist–it denied the defendants access to the bulk of the recordings while granting access to their counsel. Since none of the defense lawyers knew Arabic they could not search for exculpatory statements.

The government claimed it had the right to withhold these recordings under the State Secrets Privilege. In both trials, the judges held that the court does “not have the power to require the government to declassify documents.” This goes against Supreme Court precedent in US v. Reynolds (1953), which held that the role of the judiciary in determining the government’s classification needs “cannot be abdicated to the caprice of executive officers.”

AN UNFAIR TRIAL

The brief asks the Fifth Circuit to consider the “cumulative” effect of the circumstances mentioned above and asks it the reverse the conviction of Ghassan Elashi by declaring that he was convicted in an unfair trial. The argument is summarized in a concise manner on page 113 (p. 131 in PDF):

Elashi was convicted based on the testimony of an anonymous expert witness, the hearsay testimony of a well-rewarded cooperator, the admission of highly prejudicial hearsay documents, gratuitous evidence of Hamas violence, improper lay and expert opinion, and a range of other inadmissible evidence, and he was denied access to his own FISA statements and to the items seized from the zakat committees. The combination of those errors produced a trial unrecognizable by standards of contemporary fairness.

It will be very interesting to see what the response of the US government will be as well as the final ruling of the Fifth Circuit on this matter.

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