Texas Lawyer:
Appeals Follow Sentencing of Defendants in Holy Land Foundation Case
By Miriam Rozen
Texas Lawyer
May 28, 2009
After their sentencing on May 27, it took less than 24 hours for three of the five defendants in United States v. Holy Land Foundation, et al. to file notices of appeal with the 5th U.S. Circuit Court of Appeals.
Nancy Hollander, who represents defendant Shukri Abu Baker, the former HLF executive chairman, says all the defendants will file appeals.
On May 27, the five HLF defendants received a combined total of 180 years in prison on charges that they engaged in a conspiracy to help funnel at least $12.4 million to Hamas through a now-defunct Richardson-based Muslim charity, among other things.
U.S. District Judge Jorge Solis of Dallas sentenced Abu Baker, who faced a possible life sentence, to 65 years in prison; original HLF chairman Mohammad El-Mezain to 15 years, the maximum called for under the federal sentencing guidelines; former HLF chairman Ghassan Elashi, who also faced life in prison, to 65 years; former HLF volunteer fundraiser Mufid Abdulqader, who faced a possible 45-year sentence, to 20 years; and former HLF New Jersey representative Abdulrahman Odeh, who also could have received a 45-year sentence, to 15 years. El-Mezain filed a notice of appeal with the 5th Circuit on May 27 and Abu Baker and Elashi filed their notices on May 28.
On Nov. 24, 2008, a jury found the five defendants guilty on charges that they engaged in a conspiracy to fund Hamas, a Palestinian group in the West Bank and Gaza that the U.S. government has designated as a foreign-terrorist organization. In addition, the jurors found Abdulqader, Abu Baker, Elashi and Odeh guilty on charges of conspiring to commit money laundering, and Abu Baker and Elashi guilty on charges of money laundering, conspiring to file false tax returns and filing false tax returns.
As you can see, no charges of funding terrorist activities.
At trial and at the May 27 sentencing hearing, the HLF defendants denied the allegations, saying the organization was a charity that sent money it raised to individuals, groups and orphans in the West Bank and Gaza for humanitarian purposes.
The charges of funding Hamas stem from funding charities allegedly run by Hamas. But it turns out that even the US government has done the same thing. Back in the 1980s, cases against gun-runners for selling arms to Iranian terrorists were dismissed once it was revealed that the Reagan Administration had done the same thing in the Iran/Contra Affair. Today, funders of charities do not receive the equitable treatment afforded to gun-runners in the not-so-distant past.
At the sentencing hearing, Barry Jonas, an assistant U.S. attorney who helped prosecute the case, told Solis that a decision to enhance the defendants' sentences because they allegedly had furthered terrorist efforts was "a no brainer." Jonas added, "They provided millions of dollars to terrorist organizations. This is a bull's eye case for enhancement."
Sentencing enhancements are all too often a constitutionally questionable way of punishing people for crimes they haven't been convicted of--which is clearly the case with this request. In fact, Hamas is clearly becoming more like a normal political party. A rather hardline one, to be sure--just like all the major Israeli parties, who receive billions of US taxpayer dollars when they run Israel's government--but the defendants in this case were not funding it's terrorist activities, and there's good reason to believe that the more Hamas is concerned with providing for social welfare, the less inclined it is to engage in further acts of terror.
In contrast to these contestable dynamics, the clear purpose of the Holy Land Foundation was to provide assistance to victims of Israeli terrorism, occupation and political oppression--all of which is supported by US tax dollars.
During the sentencing of El-Mezain, 55, his lawyer -- Joshua Dratel of the Law Offices of Joshua Dratel in New York -- told the judge that ordering his client to serve the maximum number of years behind bars was not necessary since the conviction already had sent a stern message to potential subsidizers of terrorists. When El-Mezain spoke, he was defiant, as were his co-defendants. He told the judge he believes "the work of the Holy Land Foundation was right and successful."
Jonas, trial attorney for the U.S. Department of Justice's Counter-Terrorism Section, told the judge during El-Mezain's sentencing that the defendants "concealed their support for terrorism under the guise of helping charities. They took advantage of this country's good nature. They hoodwinked the people of this country." Referring to the first HLF trial in 2007, Jonas said he believed El-Mezain "got lucky."
"Got lucky"?
After the jury read its verdict in that case, then-Chief U.S. District Judge A. Joe Fish of the Northern District polled the jurors and three said they disagreed with some of the verdicts. After further deliberations the jurors could not come to a unanimous decision except to acquit El-Mezain on all counts except the charge that he conspired to fund a terrorist organization. The judge declared a mistrial on Oct. 22, 2007, but acquitted El-Mezain of the money-laundering charges. Fish, who took senior status on Nov. 12, 2007, subsequently transferred the case to Solis for retrial.
The reality here is that he was acquitted of virtually everything alleged against him. Had this been a civil proceeding, it would have been over, since a majority thought him innocent of the one remaining charge as well. If anyone "got lucky" at the first trial, it was the government prosecutors. But it gets even worse than that:
During the sentencing of Abdulqader, his attorney -- Dallas solo Marlo Cadeddu -- noted his unusual circumstances as a man who was almost acquitted in the first trial. In the 2007 trial, the jury initially acquitted Abdulqader on all counts but when Fish polled the jurors, one of them told the judge she had changed her mind about acquitting Abdulqader, 49.
Cadeddu told Solis she believes no defendant has ever been acquitted of so many counts only to later be convicted on those counts. "I can't even pretend this case makes any sense to me," Cadeddu said.
Talk about the government getting lucky! Here's a guy who actually had been acquitted, but then a juror changes her mind after the group deliberations have finished, after the verdict has been read!
Under the federal sentencing guidelines, Abdulqader could have been sentenced to 45 years in prison, but Solis sentenced him to 20 years saying, "You clearly are not in the same category as the other three defendants" -- Abu Baker, Elashi and El-Mezain.
What compassion!
Now to the Democracy Now! interview:
JUAN GONZALEZ: ....
It was the second trial against the Holy Land Foundation's five leaders after the first ended in a mistrial. The government's case relied on Israeli intelligence as well as disputed documents and electronic surveillance gathered by the FBI over a span of fifteen years.
AMY GOODMAN: Defendants Ghassan Elashi and Shukri Abu Baker each received sixty-five-year prison sentences. At his sentencing hearing, Elashi said, "Nothing was more rewarding than...turning the charitable contributions of American Muslims into life assistance for the Palestinians. We gave the essentials of life: oil, rice, flour. The occupation was providing them with death and destruction."
....
JUAN GONZALEZ: Noor Elashi, tell us about your father. When did he come to the United States, and why did he decide to found the Holy Land Foundation?
NOOR ELASHI: My dad came to the US in the early '80s. He got his master's degree from the University of Miami and thus started a family. And, you know, in the late '80s, during the Intifada, the uprising, he saw, like many Americans, images on television that just really went straight to his heart. And he, being Palestinian, originally Palestinian, took it to heart and felt like, you know, he had to do something. And that is, after seeing thousands of-the images of thousands of trees being uprooted, you know, many political prisoners in Palestine, many homes being demolished, he said there's definitely a need there, a humanitarian need. There's an economic crisis. And therefore, he and a few-a couple other people founded the Holy Land Foundation, which, like you mentioned earlier, became the largest Muslim charity in this country until the Bush administration shut it down.
The first Intifada, it should not be forgotten, was entirely peaceful. It is what forced Israel to finally engage in a peace process--a process that Israel continually sabotaged by the relentless expansion of illegal settlements in occupied lands.
Next, we get some of the historical background to the case:
AMY GOODMAN: Nancy Hollander, you're the attorney for the former Holy Land CEO, Holy Land Foundation CEO Shukri Abu Baker. Just looking at the time line for the whole Holy Land case: you have January '89, the organization that was renamed Holy Land Foundation is founded by Noor's father, Ghassan Elashi, and others to assist Palestinians affected by the Intifada, '89; 1992, Holy Land moves its headquarters to Richardson, Texas; '95, the US government declares Hamas a terrorist organization; '99, the government says it's investigating alleged financial ties between Holy Land and Hamas dating back to 1996. Explain this and what evidence the government presented on the connection between Holy Land and Hamas.
NANCY HOLLANDER: Well, the government's allegations-and this is extremely important, Amy-the government's allegations all along and what the jury found was that Holy Land provided charity. Every dime went to charity. It went through sometimes directly to individuals and sometimes through charity committees, which are called Zakat committees. This is part of Islamic law that Muslims must tithe, and they often do it through these committees. These committees are throughout the Muslim world and in Palestine. And Holy Land gave money, large sums of money, to these Zakat committees in all these local communities, and then that was distributed to individuals, mostly orphans or families in need.
There was never any allegation that any money went any where other than to charity. The government's position was that these particular charities were associated with or controlled by Hamas. And it's important to understand that the United States government, through USAID, continued to give money to the same charities for years after Holy Land was closed. But that's what the allegation was all the way along. Although the government spent a great deal of time in the trial talking about and showing the jury horrific pictures of violent acts that Hamas did, our clients were not accused of nor convicted of one single act of violence
From all the above, one thing should be clear: even if there was a crime that these people could have been charged with, it was politically foolish to demonize them and seek draconian punishments. It was just one more act of branding the entire Muslim-American community as "other", rather than seeing them as a bridge to moderate elements and impulses in the Middle East. Certainly, after the first trial ended without any convictions, it was time to drop the case if our desire were truly to seek peace rather than domination.
AMY GOODMAN: So, explain what they were convicted of.
NANCY HOLLANDER: They were convicted of providing material support to Hamas, which includes, under the US statutes, providing charity to associations and organizations that are associated with or controlled by Hamas. The issue of whether these particular charities were controlled by Hamas, we believe to this day that they were not. And the only evidence that they were came from a secret witness from Israel who claimed to be a lawyer with the Israeli Shin Bet, but we were never able to learn anything about him, because he was presented with a pseudonym, and we weren't allowed to know anything about him.
AMY GOODMAN: The Shin Bet being the Israeli intelligence.
NANCY HOLLANDER: Yes, yes, correct. And that's where they got the information
Whatever happened to being able to confront your accuser? How can you confront someone whose very identity remains unknown? And, really, how is this any different from the US government prosecutors calling another US prosecutor as a witness? The absurdity here is nothing short of Kafkaesque.
[NANCY HOLLANDER:] The government also claimed that by providing charity, Holy Land was assisting Hamas in winning the hearts and minds of the people. There was no evidence of that, of course. And Holy Land was closed in 2001. And although the government tried to make the leap to Hamas winning a large number of seats in the election in 2006, that was five years later. And the government never had an answer, during trial or at sentencing when we brought this up, to explain that USAID gave money, for example, $47,000 to the Qalqilya Zakat Committee in December of 2004, and why that didn't contribute to the hearts and minds theory, if in fact that theory makes any sense, which historically and politically it doesn't.
Hmmmm. Maybe we can finally convict Bush & Cheney of terrorist acts because of that. You think?
Nah. Didn't think so.
Finally, here's a chilling look at what this trial could mean to those engaged in international charitable work, from the Charity and Security Network:
Three challenges for charities and foundations in the wake of the Holy Land case are:
1. It is virtually impossible for charities to determine what foreign organizations they can legally partner with
At the trial, Robert McBrien from Treasury's Office of Foreign Assets Control testified that it can be illegal to deal with groups that have not been designated as supporters of terrorism and placed on government watchlists. He said that keeping up with front groups "is a task beyond the wise use of resources."
As a result, charities now have to guess about whether or not any local charity or community leader may be considered a supporter of terrorism. "The system is broken," said Kay Guinane, of the Charity and Security Network. "U.S. charities and foundations need clear standards about what is and is not legal, and should have the right to defend themselves when wrongly accused of supporting terrorism."
2. Holy Land's funds should only be used for charitable purposes, but may be confiscated by the government
The government has sought to have Holy Land's funds forfeited to it. But the donors who gave to Holy Land intended their funds to be used for humanitarian purposes. These intentions, and the humanitarian mission cited in Holy Land's organizational charters, should be honored. Charitable funds should be protected and used exclusively for charitable and humanitarian purposes. "Charities and foundations should not have to work with the threat of government confiscation of their funds hanging over them, especially when they cannot rely on Treasury to provide a complete list of organizations it is illegal to work with," Guinane said.
3. There is a contradiction between U.S. law and the International Committee of the Red Cross standards of humanitarian aid
The Holy Land case affirms that it is a crime to provide humanitarian aid if a designated terrorist organization is involved in any way, even if all the funds are used for charitable purposes. But international human rights norms bar discrimination based on religion, political affiliation or any other factor other than need. "Americans are a generous and fair people. Our laws should never criminalize humanitarian works. This contradiction needs to be resolved." Guinane said.
The right thing for the DOJ to do is to throw these convictions out, just as they threw out the conviction of Ted Stevens. Failing that, Obama should commute all their sentences, and grant them full pardons. It's time to show he really meant what he said in Cairo. |
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