It appears that there are serious improprieties with the case presented by federal prosecutors in the 2008 Holy Land Foundation retrial. The allegations of unfair and unconstitutional practices used to get a conviction are contained in the opening brief filed on behalf of convicted HLF officer Ghassan Elashi. Elashi is currently serving 65 years for his purported role in financing Hamas terrorism.
There were many reasons to doubt the charges from the very beginning. Years ago I made a diary about the discovery of fabricated evidence. Now it appears that many of my initial concerns about the HLF's 2008 convictions were probably justified.
The following are all excerpts from a post on my blog which summarizes the case made in the opening brief.
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 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.
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 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).
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."
The brief summarizes the problems with the government's case in the following paragraph:
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.
Hopefully the Fifth Circuit's ruling on this matter will satisfy the cause of justice.