“Anybody associated with [the HLF trials], if there is any inkling that somebody can publicize this, to make an issue out of this, I’m telling you, they will fly to see you.” This was the first thing that John Boyd said to me. We had only met for the first time five minutes earlier.
A question that plagued me from the start of this project was where to begin telling the story of the injustice. John Boyd, from Albuquerque, New Mexico, who had represented HLF early on during the civil trial, gave me the answer.
New Mexico is one of my favorite places in the United States. In the fall of 2015, I was giving a series of lectures across the state when I had the chance to meet Jeffrey Haas, a veteran human rights attorney. Jeff represented Fred Hampton and the Black Panthers, and his book The Assassination of Fred Hampton (Chicago: Lawrence Hill Books, 2010) is a must-read on the subject.
When Jeff told me John Boyd, who had represented HLF, was going to be at a dinner party with him the following evening, I jumped at the invitation.
Jeff’s wife, Mariel, had been arguing a case before the New Mexico Supreme Court with Boyd and a few others that day, and Fadwa and I met up with the group at her office before heading to the party. When we arrived, we heard that the arguments had gone well. John Boyd was sitting in the conference room, still in his suit—black with a red tie—and he looked tired but jubilant.
Fadwa and I introduced ourselves to John, and I mentioned I was writing about the Holy Land Foundation case and hoped to get his angle on the legal proceedings. He gave me permission to record, and then for the next eighteen minutes the story just poured out of him.
Although it had been thirteen years, John was as passionate about the case as if he had argued it that day. It was as though a floodgate had opened or a dam burst. He spoke about the case with fluency and passion, gesticulating to stress a point here and there. When we had to break for dinner, John invited us—insisted, in fact, that we come—to his office the following day so that he could continue.
That evening I listened to the recording of my conversation with John, and at the end of the eighteen minutes I had my answer. I knew where to start telling the story.
In the mass hysteria that plagued the Unites States after 9/11, it was decided at the Treasury Department that something had to be done, and fast. In Ron Suskind’s book The Price of Loyalty: George W. Bush, the White House, and the Education of Paul O’Neil (New York: Simon & Schuster, 2004), there is an entire section devoted to this moment in US history.
Treasury Secretary Paul O’Neil had appointed David Aufhauser to oversee the “financial war” on terror. Suskind describes the atmosphere like this: “Aufhauser would have to prove his worth organizing a fractious interagency group to track terror assets, under a weight of high expectations,” and adds that Secretary O’Neil told Aufhauser that “everyone wanted results, two days ago.”
The first thing this new group had to do was to set up a legal structure allowing the government to freeze assets on the basis of evidence that, according to Suskind, “would not stand up in court.” In order to establish that procedure, Suskind theorizes that they needed to “seize some assets and quickly.”
Time was not on their side. President George W. Bush planned to announce Executive Order 13224 as soon as possible, ostensibly to combat the financing of terrorist organizations, and he needed to show that such financing existed.
According to Suskind, Aufhauser said, “We just listed out as many of the usual suspects we could and said, ‘Let’s go freeze some of their assets.’”15
When John described the scenario to me over a decade later, he used almost the exact same words. “It was like, let’s round up the usual suspects,” he said, “and Holy Land was one of the organizations whose assets were seized.”
HLF was one of “the usual suspects” in part because two years prior to 9/11 the parents of David Boim had filed a lawsuit against HLF and others demanding money for the death of their son.16 David Boim was seventeen years old, a student in a fundamentalist Jewish high school, or Yeshiva, in the Settlement of Beit-El, in the heart of the West Bank. In 1996, he was sitting at a bus stop outside the school when two Palestinians drove by and shot him. David’s parents sued HLF because of a law that allows US citizens to sue any person or organization that is suspected of funding a terrorist group that injures you.
John got involved in defending HLF in this case, and he told me that by then, “There were already poisonous press reports that accused HLF of funding Hamas.”
The Boims obtained a judgment against HLF, and HLF appealed on a variety of issues. John argued the case before Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit in Chicago.
“Judge Posner is a conservative Jewish jurist, very smart, a very highly regarded intellect, a famed member of our judiciary.”
John wanted to make the point to the judge that there was no evidence in the record that the death of David Boim had anything to do with anything the HLF had ever done, that there was zero connection between the two.
“‘Well,’ [Judge Posner] says, ‘I think it’s pretty well known that if you give money to the charitable arm of a terrorist organization that it frees up money to buy guns and bombs.’”
John paused for a moment to let this sink in before giving me a quick lesson in the law. “There is a concept here called judicial notice. It means that a judge can take judicial notice of something that everyone knows, that you don’t need proof, something we all accept as true.”
And so John posed the following question to the Judge: “Judge Posner, are you saying that you would take judicial notice that for the purpose of this case, if HLF gives money to charity that there is causation for the death of Daniel Boim?” That is, John was asking Judge Posner if he was saying that “everyone knows” that if an entity like HLF gives money to charity, that donation is the cause of the death of people like David Boim.
John recalled that Judge Posner said nothing; he just spun in his chair and turned his back to John.
The first time HLF went to court over Executive Order 13224, it was not a criminal matter. Shukri and Ghassan hired John to represent the organization in a civil case, suing the government to un-freeze their assets and undo the HLF designation as a terrorist organization. In the initial interview with John, Shukri and Ghassan made it clear that there was “nothing to worry about: every penny was accounted for; they had been audited and their accounting was beyond reproach.”
Judge Gladys Kessler, a Clinton-appointed liberal judge, presided over the case.
John Boyd is a very thorough man who has been practicing law for many years. I was grateful when he took the time to explain to me in layman’s terms how the legal system should work and where it failed in this particular case. What transpired during the civil trial and the rulings made by Judge Kessler opened the door to everything that followed.
When a government agency decides to do something like freeze the assets of an organization suspected of funding terrorism, it is required to prepare what is called an “administrative record.” In this document the government explains why it made the decision to act as it did. The law gives people the right to contest the adequacy of the record in court.
“The administrative record was laughable,” John said, slamming a hand down on the table. “It was bullshit! Not a single statement under oath, a bunch of unrelated documents, and a report that is not supported by any evidence that claims Shukri Abu-Baker is a member of Hamas.”
The report also claimed—but offered no supporting evidence—that HLF was the fundraising arm of Hamas. The government claimed that HLF had an orphan support program that the government somehow discovered and that it showed HLF supporting Palestinian children who were orphaned because their fathers were Hamas terrorists.
“They had included lists and photos of children according to which most of the children were orphans of shahids, or martyrs.” In the context of modern Palestinian reality, there are many reasons to assign a dead person the respectful title of shahid. Many deaths occur as a result of the Israeli occupation: accidents that could have been avoided, people killed by security forces by mistake or as “collateral damage,” and so on. Very few people are not referred to as martyrs upon their death.
“So as we looked at the list, it turned out that out of the entire list of seventy or eighty names, only three of the fathers died as a result of [participating in] what you could call terrorism. They were killed when a bomb they were preparing blew up and killed them. Eleven of the fathers were killed by Hamas itself for being collaborators.”
The government had also included what it claimed was a statement by Mohammad Anati, the former manager of the HLF Jerusalem office, given to Israeli police. “That was not good, we said to ourselves,” John exclaimed with some sarcasm. I had already met with Mohammad Anati and his attorney and had my own suspicions about the quality of the statement. Attorney Leah Tsemel testifies often in trials that agents of Shabak regularly lie in court under oath.
“It was translated from Arabic to Hebrew and then to English by anonymous translators, with no authentication of the translation and no sworn statement that it was a true translation.” John was getting exasperated all over again, as exasperated as he must have been at the time. According to the government’s version of the statement, Anati had said that while most of HLF money did go to charity, some of the funds were channeled to Hamas.
“At this point we were worried,” John admitted, “so we got hold of Anati’s lawyer, Leah Tsemel. And Leah Tsemel says to us, ‘I have every statement Anati ever gave and he said no such thing. I can send you the statements.’”
John hired a translation firm to get an accurate translation of the statements. “They authenticated the translation and swore under oath that it was true—unlike the government’s translation—and he said no such thing!” John’s deep voice was now loud enough for the entire office to hear.
According to the authenticated translation, what Mohammad Anati told the Israeli police was this: “I am the manager of the HLF Jerusalem office, and I know where every penny is spent. I can tell you we never gave money to Hamas.”
“So we put all this in the [court] record, the proper translation; we had an affidavit regarding the orphans, and once we understood that all the money was accounted for and that the orphan thing was absurd and the Anati statement was a lie, we filed a motion for a preliminary injunction to lift the blocking of the assets and undo the designation of HLF as a terrorist organization.”
But the statement in the administrative record is the first one, with the wrong translation. These translation “issues” would come up time and time again in the course of HLF’s dealings with the government.
The following morning at 9:00 a.m., we met John in his offices in Albuquerque. “I will give you as much time as you like,” he told me. Fadwa and I had a 1:00 flight to catch, which meant we had three hours.
“I think this is important to understand,” he began. I doubt that I could explain the procedures in play as well as he explained them to me that day, but they are indeed important to understand if one wants to know why the civil case was so crucial to everything that would come afterward.
“Under the law, under the Rules of Civil Procedure, there are two fundamental ways that a judge can dismiss a case before going to trial. One is a motion to dismiss, and one is a motion for summary judgment.17 The motion to dismiss is based on the idea that whatever you have in your complaint doesn’t cut it, what you’ve alleged is not enough and there is no legal basis to proceed.”
Instead of allowing the case to proceed and HLF to submit its evidence to the court or a jury, Judge Kessler dismissed the case. “She just ordered to dismiss the case without allowing us to conduct discovery.” Discovery is the process by which parties to a lawsuit obtain information about each other and about the case, through requests for documents, depositions (statements under oath), requests for admissions of facts, and the like. Most of the fight over what a case will look like in court and what evidence might be presented takes place during this phase of a lawsuit.
John paused for a moment and then added, “She had also stricken all of the evidence from the record.”
I didn’t think I had understood what he said correctly, so I looked at John in puzzlement before asking, “How can she do that?”
He flung his arms out in exasperation. “She did, she struck all of it out.”
“She can do that?” I asked again.
“Well, she did.”
There was a long moment of silence in the room before John proceeded.
“So we appealed.”
In response to the appeal, the appellate court said something that would also become a theme in the criminal case.
At the federal Circuit Court of Appeals, a panel of judges hears a case. These judges do not rule on the underlying facts of the case but on whether the law was applied correctly by the court below. The only factual information in front of these judges is what is in the record from the case already, and you cannot submit new facts.
“They said, well, we find that the District Judge was mistaken in dismissing the case. She shouldn’t have dismissed the case. She should have allowed discovery. In a normal case,” John looked around the room and then slapped the table again, “that’s the word they used, in a normal case, the court should have allowed discovery, should have allowed the party opposing this motion to put on evidence and to conduct discovery to establish factual basis for their claim.” He paused again, frustrated. “However, in this case, which involves sensitive matters of national security”—I can still hear the edge in John’s voice as he described the ruling—“and this is where, as a lawyer, this is where the steam starts coming out of my ears. They say: however, this case is unique, these are errors—no question about it—but this case is unique because of the national security issues so, we are going to nevertheless affirm her decision by doing the following.”
Before I delve into the Court of Appeals ruling, John’s second lesson to me on procedure is important.
“A summary judgment motion is a case where maybe you have enough evidence for the court to address your claim, but you don’t have adequate facts to substantiate the claim,” John explained.
“For example,” he continued as we listened attentively, “you have an accident at an intersection and you sue. You say the other person ran a red light and ran into you and injured you, but the other person says that they had a green light. So that’s the [question to be decided at] trial: who had the green light.” John paused and looked to see if we are following, then he continued.
“So let’s say you sue them and they put in a declaration under oath that they had the green light and they put in five affidavits from passers-by saying that they had the green light. You put in an affidavit saying, no, no, no, I had the green light. So now we have a dispute and there’s a trial.”
“If, on the other hand,” John went on, “in that same situation they put in the affidavits saying they had the green light and you don’t put in an affidavit, then you lose because there’s is no admissible evidence that proves you had the green light—and so, that is a motion for summary judgment. It’s when the other side has all the evidence that they had the green light and there is no evidence to contradict it, so there is no case, case over, dismissed.”
“In our case, the court said the following: We are going—on appeal—to convert the government’s motion to dismiss, to a motion for summary judgment.” He lifted and then dropped his long arms on the table again. “It’s completely unheard of in the annals of the law!”
The difference is absolutely critical. A dismissal only means that there were not enough facts alleged when the case began. Some dismissed cases may even be refiled as a new case. Summary judgment, on the other hand, means that after all of the facts have been presented, after discovery has taken place, the case can only be decided one way. It is a final judgment on the facts, as final as if there had been a jury involved. But in this case, Judge Kessel had not permitted discovery and had stricken the evidence.
“If someone is moving for summary judgment based on the facts, you are allowed to put in your affidavits saying, ‘I had the green light!’ And here they are saying, ‘We are going to convert it to a motion for summary judgment and grant it’ because—and here is the best part—although HLF was given more than adequate notice, it completely failed to offer evidence into the record to rebut the government’s allegations.”
“Can they do that?” I blurted out again.
“Judge Kessler had stricken all of the HLF evidence from the record,” John reminded me. “So there’s no evidence [rebutting the government’s case on record].”
“So what did you do after that?” Fadwa asked, eager to hear the end of this legal drama.
“We asked to have the entire panel of judges of the Circuit Court of Appeals hear the case.”
“What did they say?” she asked
“They come back with just a one liner: ‘Nah, forget it.’ We file a petition with the Supreme Court. Nah, nothing, end of case.” The only appeal from a decision of a federal appeals court is the United States Supreme Court. The Supreme Court hears a small fraction of the cases submitted to it each year. To have your case heard, you file what is known as a “petition for writ of certiorari.” The Court reviews your petition and decides whether your case is worth its time.
But John wasn’t done with his story. He was enraged and disappointed, to a point where told us he had considered quitting the law.
“We were absolutely confident, and correctly so, that these people had done nothing wrong—nothing! I mean, they were just people who were delivering aid to Palestinians: food for Eid, medicine, building libraries, giving away books, clothing, backpacks, you know. The HLF had accountants, they had lawyers, they had books and records, they could account for every penny. But we know now that today in the US you can take the most frivolous charges against any Muslim, Arab, Middle Eastern, and the presumption of innocence and any restraint on prosecutors all goes down the garbage.”
Around 2003, after it seemed that the dust had settled, the HLF lawyers received alarming new information.
“We heard that there’s a grand jury going on—that they’re investigating criminal charges against these guys. What the hell is that, we wondered. What possible crime can they be accused of? We know all the allegations, we know they are all bullshit, and there’s no factual basis for any of them, so what could they possibly be pursuing?”
Soon enough, however, they realized what was going on. There had been a shift in post-9/11 America, and the judicial system had changed dramatically.
“We were looking at this like lawyers, without appreciating that post 9/11 it became so easy for the government to trump up phony charges.”
“We played all our cards in the civil case.” Frustration and regret warred in John’s voice as he explained. The government had seen HLF’s documentation. It knew exactly what evidence it needed to avoid and what HLF was going to be able to show in court. “We had spent so much time and so much energy debunking all of the allegations, and the regret is that if we had known, or if we had understood how the government was going to play it—we basically gave them what they needed to put together the criminal case, and so they come up with a theory which they were able to sell to a jury.”
John paused for a moment to let this sink in, then explained the theory that the government pursued through two criminal cases against the HLF-5.
“They claimed that the zakat committees, the local Palestinian charities on the ground, were really affiliated to Hamas, even though—and this is what kills me about this, really kills me—these zakat committees had been vetted and approved by the State Department; they had been investigated by the CIA and they work closely with USAID.” The local Palestinian charities also had contracts with [PricewaterhouseCoopers, LLP], a big accounting firm, to provide assistance using State Department money. In fact, for two years after the HLF-5 were indicted the United States government continued to fund projects through the same committees.
“The only people in the world that took the position that the zakat committees were affiliated to Hamas were the judge, prosecutor, and jury in the courtroom in Dallas.”
After we got over our disbelief, I asked John if there was anything he would have done differently to protect his clients if he had known the government was preparing a criminal case against them.
“We would never have filed the civil case. We would not have given the government all this information about how easy it is to prove that this is bullshit.” In other words, having seen how easy it was for HLF to refute the claims of having supported the orphans of suicide bombers and to undermine the purported statement by Mohammad Anati, the government abandoned these positions and was able to maintain some credibility. Instead, a different set of charges were brought.
John gave us another lesson on how the federal court system works to protect everyone by having a clear set of procedural rules. “There is [Federal Rule of Civil Procedure] 12(b), which says, ‘This is how you get a case dismissed,’ and then you have Rule 56—the summary judgment rule—that says how things are supposed to work to make sure that people have the right to put on the evidence to show that [there is a question of material fact to be decided by a factfinder]. What would it be like if a judge could just arbitrarily say, ‘He gets to put in his affidavit but you don’t?’”
It seemed to John that the rules that have been put in place to protect people had been suspended in this case. “It was just hysteria.”
John went so far as to describe what happened as “a collapse of the system of justice,” although he was careful to say that he doesn’t think there was any specific conspiracy against HLF in particular. “I don’t think anyone sat with Gladys Kessler and said here is what you have to do, so when you go into that courtroom, I want you to strike their evidence from the record.”
No one had to do any such thing, John argued, because this was shortly after 9/11, and “the federal government was saying we had to stop the funds going to terrorist organizations. The President was in the Rose Garden and announced—get this—that ‘we struck a blow against the funding of terrorism.’”
“And that blow—that was the HLF?”
“That was the HLF.”
15 Ron Suskind, The Price of Loyalty: George W. Bush, the White House, and the Education of Paul O’Neil (New York: Simon & Schuster, 2004), 192, 193.
16 See Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1001, 1003 (7th Cir. 2002); Boim v. Holy Land Found. for Relief & Dev., Nos. 05-1815, 05-1816, 05-1821, 05-1822, at 4 (7th Cir. 2007) and Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 687 (7th Cir. 2008) for a history of the case and its various appeals.
17 A court may also dismiss a case sua sponte, on its own, as though a motion to dismiss had been filed by one of the parties.