The first criminal trial of the HLF-5 took place at the US Courthouse in the Northern District of Texas in Dallas. The presiding judge, The Honorable A. Joe Fish, opened the proceedings on July 24, 2007. Present were the five defendants, each of whom was charged with thirty-two separate counts. Attorneys for the defense were Nancy Hollander representing The Holy Land Foundation and Shukri Abu-Baker; Linda Moreno and John Cline representing Ghassan Elashi; Marlo Cadeddu representing Mufid Abdulqader; Joshua Dratel representing Mohammad Elmezain; and Greg Westfall representing Abdulrahman Odeh. The prosecution team was led by Jim Jacks and included Barry Jonas, Elizabeth Shapiro, and Nathan Garrett.
The indictment included the following charges:
• One count of conspiracy to provide material support and resources to a Designated Terrorist Organization.
• Nine counts of providing or attempting to provide material support and resources to a Designated Terrorist Organization.
• One count of conspiracy to provide funds, goods, and services to a Specially Designated Terrorist.
• Ten counts of providing funds, goods, and services to a Specially Designated Terrorist.
• One count of conspiracy to commit money laundering.
• Ten counts of money laundering.
In his instructions to the jury, Judge Fish stated that “the indictment is simply a list of charges made by the government against the defendants, but it is not evidence that the defendants committed a crime.” He went on to say that the defendants had all pleaded “not guilty” to the charges and that a defendant is presumed innocent and “may not be found guilty by you unless all of you unanimously find that the government has proven the defendant’s guilt beyond reasonable doubt.”
On the issue of the defendants being tried together the judge said, “You will have to give separate consideration to the evidence against each defendant. Each is entitled to your separate consideration. Do not think of them as a group.”
Like all of the instructions given in a courtroom, the judge’s comments are meant to help the jurors understand their job. A real trial is very different from what we see on television. First, each side makes “opening remarks,” which are not evidence. The lawyers are not allowed to argue the case in these remarks, but they can give the jury a peek at the story they’ll be trying to tell later on.
After the opening remarks, the prosecution puts on its entire case. The defense does not—except in rare cases—get to call witnesses or introduce evidence until the prosecution has had its whole say. This is because there is a special motion that can be made after the prosecution concludes its case. It works like the motion to dismiss and motion for summary judgment that John Boyd explained to me: if the prosecution has failed to put in the right evidence to at least support its case, the defense may have any unsupported charges dismissed without having to put on its own evidence to refute them. Innocent until proven guilty, and it’s the prosecution’s job to put in the proof.
But in the HLF-5 trials, this order of events presented the defense with a difficult challenge. Speaking first meant the prosecution got to tell the jury what words like zaka or shahid meant. And in the US after 9/11, it is hard to imagine a jury where the jurors did not have a notion of what jihad was, shaped by a media and government only too ready to find someone—anyone—to blame for the attacks. So even when the government’s witnesses were cross-examined, the jury heard those words as meaning what the prosecution wanted them to mean. By the time the defense was allowed to put on its case, it would be an uphill battle to explain the terms and give context.
Jim Jacks, the lead prosecutor, told the jury that they would be looking for the answers to two questions:
[T]hese organizations that are named in the indictment—these zakat committees and other organizations that were recipients of money from the Holy Land Foundation—the question will be were or are those organizations controlled by or affiliated with or operated for the benefit of Hamas. And the second question will be, did the defendants know that? Now the government expects its evidence will show the answer to both of these questions is yes.
Because the prosecution speaks first, its attorneys have the opportunity to shape the jury’s expectations and set the tone for the trial, as Jacks went on to do with statements like “the State of Israel came into existence in 1948. In 1967, Israel was attacked by Egypt, Jordan, Syria, and Iraq.” Israel, of course, was not attacked in 1967, but rather, it initiated war with a “pre-emptive” attack.
This was not the end of Jacks’ subtle miscasting of world events. He also touched on the Muslim Brotherhood, which according to Jacks has a declared goal “to establish a global Islamist state.”
“The Muslim Brotherhood has members who are from different nations,” Jacks conceded, and then he added, “but in the 1980s, the control of the Muslim Brotherhood was in the hands of Palestinians.” There are branches of the Muslim Brotherhood all over the Arab and Muslim world. Also according to Jacks, the Muslim Brotherhood, controlled by Palestinians, set a goal to “assist the Palestinians to regain the land where the State of Israel exists and to establish an Islamic state there.”
One of the basic tenets of logic is that correlation is not causation. That is, if the sky is cloudy on Thursday and your car breaks down on Thursday as well, it does not mean that the clouds caused your car to break down.
Jacks threw this rule out the window with his next remarks. The year 1987 was the year that HLF was established; it was the year of the beginning of the First Intifada, which he described as a “violent confrontation between the Palestinians and the Israelis”; and it was the year that Hamas was established.
While it was no coincidence, the connection is not the one Jacks was inferring for the jury. The creation of the HLF had more to do with the experience that Shukri had with his daughter Sanabel, who was also born in 1987. The fine treatment that she was able to get through charity-funded hospitals inspired him to create the HLF. The Israeli response to the civil disobedience and unarmed protests that marked the start of the First Intifada was severe and violent and caused a great deal of suffering, and so the need for relief became critical. HLF provided this relief, as other charitable funds had provided relief to Sanabel.
The prosecution team, however, remained determined to conflate charity with terrorism. “You are going to learn,” Jacks informed the jury, “that the investigation began sometime in the mid-1990s […] in order to determine if there is a threat to the national security of the United States.”
He was implying that there might be a threat to US national security from a charity organization that was providing aid to Palestinians.
I am not the only one, of course, who noticed the defects in the prosecution’s description of events. Before the defense team made opening statements, Nancy Hollander, who was Shukri’s personal attorney and also represented the HLF, argued to the judge that the government had left out crucial parts of the history of the conflict.
The government presented a history which is very brief and does not include parts of this history that are central for this jury to understand which has to do with the land that Israel believes belongs to it, has to do with why the Intifada started, has to do with why the Palestinians are in the situation they are, the need.
Ms. Hollander pointed out that Mr. Jacks’ statements had ignored the history of the West Bank settlements, which had helped create the pressing need for relief. And she concluded her remarks to the judge by reminding him that while, as Mr. Jacks had noted, Hamas had opposed the Oslo Peace Accords of September 1993, “so did the Likud party in Israel.”18 And what was perhaps even more germane to the case being argued, “the settlements were a conscious effort on Israel’s part to oppose some of the restrictions of Oslo.”
Judge Fish’s response was a little odd: “I understood Mr. Jacks to be saying that he didn’t think there would be any issue in this case about those settlements. Is he wrong about that?”
“Yes sir, he is wrong about that,” she replied.
Ms. Hollander had the task of making the first opening statement for the defense team. Besides whatever she had planned to say, she now was faced with the job of fixing the jury’s understanding of history.
She began by reminding everyone that none of the defendants had been charged with committing acts of violence against anyone.
Ms. Hollander took the jury back through the history of Palestine and the fate that befell Palestinians when Israel was established in 1948. She touched on the conditions of refugees in camps in and around Palestine. She discussed how Israel had taken the West Bank in 1967 and began to build cities and towns for Jews only, on Palestinian land. She talked about the 1977 ascent to power of the Likud Party and Ariel Sharon and the boost that this gave to the settlement-building project in the West Bank:
These settlements are cities. They have schools and hospitals and fire departments and police departments and water supply. And they now have what are called bypass roads, which allow the settlers to travel from one settlement to another and to Israel, while Palestinians have to use roads that are largely unpaved and have to go around the settlements.
In doing all this, she laid out the conditions that ignited the First Intifada in 1987 and described the killing and the imprisonment of countless Palestinians by the Israeli authorities. The prosecution objected, but Ms. Hollander stuck to her guns, explaining that it was relevant: “Because of the many Palestinians who were killed and imprisoned, there was a greater need in Palestine than ever before.” This was the need that HLF was created to meet. It was the government’s job to prove that by supporting the families of these political prisoners, HLF had supported terrorism.
Hollander then talked about the 415 Palestinians that Israel had deported without charge or trial in the dead of winter in December 1992. For many months they remained in a no-man’s-land between Israel and Lebanon, and HLF, along with the Red Cross and other relief organizations, came to their aid. It became a major relief operation, as these men needed tents and food and warm clothes. HLF also helped to provide relief to some of their families, who were now left with no breadwinner and were in need.
Ms. Hollander mentioned a meeting that took place in 1993 in Philadelphia, which throughout the trial would be referred to as “the Philadelphia meeting.” The FBI had bugged the rooms where this meeting took place, and she knew that the prosecution planned to use the transcripts to demonstrate that the defendants were supporters of Hamas and that they opposed the Israeli-Palestinian peace process and were bent on derailing it. She also knew that the discussions were held in Arabic and what was missing was proper translation and in some cases proper voice recognition of who was saying what. She needed to give the jury some context, and fast, before the prosecution had a chance to spin its story.
In this meeting, members of the Arab and Muslim community in America had discussed their opposition to the Oslo peace process because it was not meeting the minimal requirements for justice or sovereignty for Palestinians. And, of course, they discussed Hamas. In 1993, Hamas had not been designated a terrorist organization and it was not illegal to support it, much less to speak about it or even to be affiliated with it.
“But who knew which organizations were going to be illegal?” Hollander asked.
Another crucial point Hollander made was in regard to the zakat committees. The prosecution had already said they expected the jury to find “[the zakat committees were] controlled by or affiliated with or operated for the benefit of Hamas.” Hollander tried to give the jury some context to understand these committees too.
“They are audited, they keep books, they have a board of directors, and they run hospitals and clinics.” In other words, she told the jury, the committees are serious, legitimate institutions that were licensed by the government of Israel and then by the Palestinian Authority long before Hamas came into existence. Even the US government, through the US Agency for International Development (USAID), also worked with the zakat committees.
When Ms. Hollander concluded, the individuals’ lawyers took over. Each of them discussed their clients as individuals, with rich histories that shaped their desire to give back to their people through their work at HLF. And they, too, tried to provide context for the prosecution’s “evidence.”
Mohammad Elmezain’s lawyer, Josh Dratel, reminded the jury that the government had to prove beyond reasonable doubt that these men knowingly and intentionally provided material support for Hamas through zakat committees that “pre-existed Hamas and were licensed by Jordan and the Palestinian authority and were never designated as terrorist organizations.”
Ghassan Elashi’s lawyer, Linda Moreno, also explained how the zakat committees functioned within the context of Islam: “Those donors who gave their money, their tithing, their zakat to the Holy Land Foundation, that money could only go to one place. In [Elashi’s] religion it could only go to benefit the needy.” Ms. Moreno made it clear that Ghassan had a commitment to the donors to deliver the money to the needy, and a commitment to the United States to obey its laws and even to Israel with whose laws HLF had to comply, and that he understood that without these commitments his work on behalf of the needy could not be accomplished.
This is important to understand because it had been and would continue to be a major point in the prosecution’s case that by providing charitable funds to the needy, HLF had somehow freed up Hamas’ own charitable funds to be used for weapons instead. But in Islam, funds that have been earmarked for charity cannot be diverted later to the purchase of weapons. That would be a sacrilege.
The individuals’ lawyers also reminded the jury that the HLF and its board and employees had done their best to make sure that their donations would be without reproach.
“In fact,” Ms. Moreno reminded the jury, “[Elashi] called the FBI” to determine how to comply with the law. He went to Washington, DC, and met with top Treasury officials. In a conversation on April 23, 1996, Ghassan and Shukri were recorded speaking on the phone, discussing a law that had been passed and they agreed that they needed to wait to see a list of organizations with whom they shouldn’t work.
“They are still waiting because no list was ever provided,” Moreno added.
The other evidence that the defense attorneys knew they’d have to deal with, and quickly, was the government’s list of the men’s family, friends, and acquaintances. Over ten years of surveillance, one can only imagine how many conversations were recorded, and the government was more or less free to pick and choose among those conversations as it liked because, having classified all the transcripts the government dictated which of the conversations’ transcripts would then be declassified and made available to the defense team.
Foreseeing how the government’s prosecutors would spin the recorded conversations, Linda Moreno said, “You will hear some of these gentlemen speaking passionately about Palestine.” But speech is protected by the Constitution. “Sometimes the language of political discourse is harsh, but it is protected and it is our right as Americans.”
“The government,” Dratel also explained, “wants to make this about associations—whom you talk to, whom you know.” But he continues, “Association isn’t a crime. It’s not a substitute for evidence.” Neither, he pointed out, is a family relationship. In Palestine, many people have a relative who is a supporter or a member of Hamas. It is really that ubiquitous. The same goes for the defendants in this case. But having a family member who may do something is not the same thing as doing it yourself, or even the same thing as encouraging them to do it.
Mufid Abdulqader’s attorney, Marlo Cadeddu, followed up on that in her own opening. “The government will bring to you a lot of associational evidence.” However, “the fact that [Mufid’s] brother is the head of the political bureau of Hamas cannot be considered as evidence of his guilt.” She pointed out that it wasn’t until 2003 that his brother, Khaled Mash’al, was placed on the US designated terrorist list and so dealing with him prior to that cannot and should not be considered a violation of US law.
Greg Westfall, Abdulrahman Odeh’s lawyer, also had to draw a line for the jury about associations, and quickly. “The government mentioned the sons of Yahiya Ayash. [Ayash] was a revered Hamas commander and was nicknamed ‘The Engineer’ because of his bomb making skills. After a long search Israel found and assassinated him by using a Palestinian collaborator who gave him a cell phone using the premise that his sick father was on the line. When Ayash took the phone it blew up. Years later, the former chief of Israeli Shabak called this ‘a clean operation’.”
The assassination of Ayash, which took place during a cease-fire between Israel and Hamas, lit up the streets and was followed by a period of terrible bloodshed. The decision to assassinate Ayash was made by Israel’s then-Prime Minister Shimon Peres, who had to have known that the consequences would be deadly.
When Abdulrahman heard of the assassination, he “sponsored one of the sons of Yahiya Ayash,” Westfall told the jury. “The son was two months old, and every month while Abdulrahman sponsored him he sent $50 to HLF. The money was sent each month to the boy’s family, just like every other recipient, whether they were children of martyrs, collaborators, children of people who died in car accidents, or children of people who died of natural causes. Everyone got the same amount of money, and that little boy did too.” The HLF did not distinguish between victims and believed that a child’s condition was not the child’s responsibility or fault.
“All the people killed by Israel in this were called martyrs,” Ms. Caddedu had told the jury. “Martyr, you will hear, is not a synonym for a suicide bomber.”
The defense did its best, but the trial took place in the traditionally conservative Northern District of Texas in the aftermath of 9/11. At the end of opening statements, the defense lawyers could only hope they had done enough to undo the damage the prosecution had done by spreading its misinformation.
The first witness for the prosecution was Dr. Matthew Levitt. He is a well-credentialed terrorism expert who wrote his doctoral dissertation on the extremist Islamist and Jewish terrorism during the Oslo peace process. He had worked for the FBI and been a professor as well as serving on advisory boards for counterterrorism research.
But with all of his credentials and expertise, Dr. Levitt’s testimony was woefully incomplete. He began by claiming that the most significant threat to the peace process was terrorist attacks by parties “outside the process” like Hamas. He failed to state that many believe that the problem with the Oslo Peace Accords, once hoped to bring a lasting solution to the conflict between Israelis and Palestinians, is the nature of the Accords in general, which did not give the Palestinians the self-determination they sought, and which was their due. Indeed, the Accords placed the Palestinians at a hopeless disadvantage and gave rise to the frustrations that fueled the growth of Hamas and the other groups that called for a new, fairer process.
When questioned on Hamas and the Muslim Brotherhood, Dr. Levitt seemed vague, stating, “[Hamas] was formed in 1987, but it existed before that.” He believed that the Muslim Brotherhood existed “through the 1980s and 1970s. The Brotherhood really started picking up at the 1967 war.”
The Muslim Brotherhood branch of Palestine had an office in Jerusalem in May of 1946.
Dr. Levitt’s testimony, of course, as an expert witness for the prosecution, helped define how the jury viewed Palestinian history as well as terms that would be used later in the trial. For example, he claimed that Palestinians refer to 1948 as the Nakba, or “The Catastrophe.” because, “it led to the partition of some of their land.” This seems like a mild way to describe the destruction of Palestine: countless Palestinians killed in massacres or being marched off their lands at gunpoint, the displacement of ultimately close to one million Palestinians who were forced out of their homes, and hundreds of towns and cities destroyed. The Nakba was the single cause for the creation of the Palestinian refugee problem.
Asked how much credit Hamas terrorist attacks should get for the derailing of the peace process, Levitt answered, “The whole of my dissertations showed me that there is nothing more significant than outside terrorist attacks, whether Hamas or Jewish, to the peace process.” But violence is one of the symptoms of the failure of the peace process, not the cause of the failure. Had the process instilled confidence, security, and a sense that justice would be served to all concerned there would be no significant resistance to the process. Resistance is a reaction to oppression and injustice—not the other way around.
Dr. Levitt testified that he speaks no Hebrew or Arabic, yet he claimed that he met and spoke with members of Hamas in Israeli jails. He claimed to have access to documents, videos, etc., seized by Israeli authorities, and also to “Hamas institutions.” He had apparently made little attempt to verify these documents or sources beyond what the Israeli authorities had told him, and on cross-examination could only come up with people whom he had interviewed who he claimed were members of Hamas.
Material he claimed to have reviewed included key chains, postcards, and posters of martyrs that “glorify their activities.” These items would later be admitted to evidence along with a calendar. All of this material was in Arabic, and Dr. Levitt had depended on a translator to tell him what it meant.
“Basically, Hamas is made of three wings,” he told the examining attorney, “the political, the charitable, and the military. And each wing is the same […] The social welfare wing may provide services to facilitate the services of the terrorist wing.” His knowledge of these institutions was such that that he repeatedly called the political leader of Hamas Khalil Mash’al instead of Khaled Mash’al. He went on to say that “at the macro level,” what the prosecution called “the extremist wing” is the decision-making body. He never clarified which of these additional named wings was which, of course.
Perhaps the most telling part of Dr. Levitt’s testimony is the following brief exchange on cross-examination by Ms. Caddedu:
Q: “How would you characterize your area of expertise?”
A: “I would say Hamas is in my area of expertise.”
Dr. Levitt was asked about his book Hamas, in which he references documents confiscated by Israeli military during Operation Defensive Shield in 2002.19 He could not identify any of the officials interviewed and in fact admitted he had never been given full names for many of them. He also apparently made no attempt to verify the documents he had reviewed beyond being told they were seized by the Israeli military during an invasion into Palestinian cities.
The prosecution needed Dr. Levitt’s testimony to help establish its claims that zakat committees were effectively run by Hamas. On cross-examination, however, he told a different story. Despite having discussed multiple zakat committees when talking to the prosecutor, he admitted that he had only visited zakat communities in Bethlehem. A key point of the prosecution’s case was that proof of zakat committees being “owned” by Hamas was that there were supposedly pictures of Hamas figures and Hamas martyrs on the walls of their offices.
But Dr. Levitt didn’t know what zakat committees had on their walls because he had never visited any of them. The Ramallah committee, the defense showed, had pictures of Yassir Arafat. There was serious competition between Arafat’s PLO and Hamas, both politically and ideologically.
There was a constant attempt by the prosecution to push the issue of Hamas terrorism but to prevent the defense from giving context. In one motion early on, the chief prosecutor, Jim Jacks, stated, “I believe that Ms. Hollander plans to use a map that depicts Israeli settlements in the Palestinian Territories […] We’re simply not aware of any relevance that would have to this matter….”
As an expert, Dr. Levitt’s testimony was spotty. For example, he claimed he did not know how many casualties the Palestinians incurred during the Intifada, though the numbers were available everywhere and were discussed openly in the media. He claimed that Hamas conducted a coup, while it was actually Fatah with Israeli support and US-trained forces that tried to oust the democratically elected Hamas-led government and reinstated Fatah to lead the Palestinian Authority. But unless anyone on the jury already knew better, they had no reason to doubt his version of the story because the prosecution presents its case first.
In another exchange, Dr. Levitt claimed that Israel is an “ethnically Jewish” state. The mere fact that some Jewish people are white-skinned and have European features while others are brown-skinned with Arab features speaks to the multiethnic nature of Jews, many of whom are now Israeli citizens. His statement is, however, in line with the Zionist ideology that tries to hide that Jews are a religious group that is part of many nations.
Dr. Levitt continued to fidget on cross-examination, admitting that he had not studied the licensing or laws of the zakat committees beyond “interviews or discussions.” Ultimately, Levitt said nothing about licensing zakat committees but talked instead about why Israel licensed Islamic relief organizations at one point and then shut them down later due to “connections with terrorist organizations.” The process is better described as the Islamic movement becoming more engaged in the struggle for liberation, while the zakat committees themselves remained committed to relief.
This is a crucial element that touches on the legitimacy of the committees and how they are regulated and run. The zakat committees being licensed and legitimate represent at least part of the reason for international organizations agreeing to work with them. When Ed Abington, who had been the US consul general in Jerusalem from 1993 to 1997, testified for the defense, he stated, “The Unites States has never labeled zakat committees as controlled by Hamas or as being terrorist organizations.”
While the depth of Dr. Levitt’s expertise on Hamas is questionable, he did do a good job of describing the process by which an organization is designated a terrorist organization. The US government maintains two lists, one at the Treasury Department and one at the State Department. Both lists are published on the internet. Executive Order 12497, signed by President Bill Clinton, provides that the Secretary of State can designate a person as a “Specially Designated Terrorist” if he was found to have committed or posed a significant risk of committing acts of violence with the purpose of effect of disrupting the Middle East peace process, or if he were to assist in, sponsor, or finance material or technical support for such acts of violence. An organization can receive the designation if it is controlled by or acts for such a person.
The zakat committees, of course, had never been listed.
Dr. Levitt also testified as to the “desperate need” created by the conditions under which Palestinians live. “It gave [Hamas] a background, context on which they could radicalize and proselytize and build for the grass roots support, which is unfortunate because you want the desperate need to be removed. […] Hamas is able to take advantage of the fact that Palestinians are in this desperate condition to radicalize them.”
In other words, Levitt admitted that the desperate conditions exist because Israel has not done enough but claimed that Hamas takes advantage of these conditions to recruit. He did not apparently consider the possibility that the conditions themselves gave rise to Hamas as a resistance organization. The Islamic movement found itself in a position that providing relief was deemed not enough by Palestinians themselves, who demanded that the Islamic movement become engaged in the active resistance to Israel, which is the cause of the need for relief to begin with.
Atef Shafiq was the translator the government called to the stand to describe the conversations that took place under FBI surveillance. In his testimony, he described his job as “language analyst who is responsible for translating from Arabic to English and analyzing the material we translate.” In reality it seems that he was the source of a long series of misunderstandings and mistranslations.
As already discussed, context was everything in the HLF case. No one is more important to the understanding of context than the translator. Mufid later told me that the government had originally planned to call on Shafiq as an expert on Islam as well in the second trial. His only credentials for that were living in an Islamic country.
By the time of the trial, Shafiq had been working on the case for nine years, which meant his entire career with the FBI was dedicated to the HLF case. At the beginning of his testimony, he was asked by the prosecution to explain the process by which the government conducts surveillance: “FISA is the Foreign Intelligence Surveillance Act, and it allows the FBI to intercept communications, and based on that phone calls are intercepted.” Shafiq could log into the government’s system and select a recording to translate. There was no formal system for him to identify speakers who did not identify themselves in that recording, other than his own familiarity with the voices.
Not all Arab countries are the same, and while there is a classic, written Arabic that all Arab countries share called Fus’ha, each country and indeed each region within each Arabic country has its own dialect, which is called A’miya and referred to as Spoken Arabic. When one studies Arabic, one needs to study both or else choose whether the intent is to read texts or to be able to speak and to communicate with people. Egyptian A’miya is quite different from Palestinian A’miya. And while Egyptian A’miya is understood in most Arabic-speaking countries because of Egypt’s enormous film industry and its influence on Arab culture, it does not go both ways. One would have to live in Palestine or take a course in Palestinian A’miya in order to understand, not to mention translate, it. Atef Shafiq did neither. He is an Egyptian Christian, also called a Coptic Christian, and has never been to Palestine. From some of the mistakes he made in the translation it seems that that he is unfamiliar with spoken Palestinian Arabic.
Because the defense had no access to the transcripts, other than what the government had permitted, the defendants couldn’t review the translations. However, there were a few instances where his mistakes were brought to light on cross-examination.
Mufid described Shafiq to me as “vindictive” and brought to my attention that “in one of the translations he added about half a page of his own ideas while translating a phone call between Shukri and Ghassan. He added stuff such as how much Shukri and Ghassan hate the Jews though that was never expressed in the phone call.”
When Shukri discovered that particular mistake and brought it to light, Judge Fish refrained from admonishing the translator. Mufid told me that “all he did was revise the [specific] translation and remove all the added, fabricated text. The truth is that no one knows how many more phone calls or documents he fabricated by adding, deleting, or changing the meanings of what was actually said.”
Shukri pointed out another inaccuracy to me in a later letter: “Shafiq alleged that regular Muslims do not use in their daily conversations terms such as ‘Insha Allah,’ ‘Alhamdulillah,’ and so on, terms that are part of almost every conversation in Arabic and used by Muslims, Christian, and Jewish Arabs all the time.” Shafiq claimed that these are phrases used by Muslim fanatics and extremists who hate Jews and want to destroy the West.
Shukri also explained another mistranslation, where using the correct words would have given the conversation an entirely different meaning. Here is how Shukri described it:
The statement I made was, “In the past we used to give the Muslims one hundred thousand and the others five thousand.” In essence I was trying to assure the attendees that as a Muslim charity we did direct most of our zakat funds to Muslim organizations in Palestine because that was the expectation of the donors who trusted the HLF with their zakat contributions. However, being a government agent keen on winning the case, Shafiq knowingly changed the context of my statement and made it sound sinister. He translated my statement as follows: “We give the ‘Islamists’ one hundred thousand and the others five thousand.’ He changed the verb tense from past to present and he changed the word “Muslims” to “Islamists.” After a long argument, he conceded that this was a mistake, but still insisted on using the term “Islamists” instead of “Muslims.”
The battle over translations and evidence never ended. One day in court began with a discussion on the admissibility of some documents that Jim Jacks wanted to enter into evidence. John Cline objected on behalf of the defendants and argued strongly that his objections were “based on lack of authentication, lack of relevance in instances and the risk of prejudice, confusion, waste of time substantially outweighs the probative value, whatever it is of these documents.”
“In addition,” Cline continued, “a great many of these documents I think predate the designation of Hamas in 1995 and are not in any way connected with a crime. We consider those documents to be covered by the First Amendment. Almost all of the statements here that we’re talking about occurred before providing support for Hamas was rendered illegal in January 1995. So to the extent those documents show some sort of agreement to support Hamas, it was not at that point an unlawful agreement. We have no evidence that the defendants and declarants have anything in common other than perhaps some overlap of views generally about the situation in the Middle East, Israel, and Palestine.”
In other words, the documents could not be relevant to the government’s case because even if they showed that the defendants specifically had supported Hamas before 1995, that would not be evidence of a crime.
Mr. Cline concluded, “I don’t think one would ever say that members of the NRA are agents of each other such that what one says about, say, gun control laws or the right to bear arms becomes an admission by all the other members of the NRA.”
To this Judge Fish replied, “I am going to tentatively admit this evidence.” While he went on to remind the prosecuting team that they would have to provide support for its admissibility, it is not that simple. A jury cannot un-hear or un-see evidence, whether they are instructed to disregard the information. That is why objections, proffers, and discussions outside the jury’s hearing can make or break a court case.
No witness spent more time on the stand than Special Agent Lara Burns, and perhaps no agent was more invested in the HLF case. She had barely started working for the FBI when she had been assigned to the Joint Terrorism Task Force and given this case, and it seemed to the defendants and their families that she was determined to take down the HLF. She was the one who tried the hardest to get Abdulrahman Odeh to collaborate and who threatened and made good on her threat, that he would regret not “cooperating” with the FBI. She was part of the team that arrested Shukri.
Perhaps the most telling testament about Agent Burns is that none of the people with whom she interacted, including the family members, could describe her appearance to me. When I asked, all I would get was a barrage of emotions and expressions of disbelief that anyone can be so callous, insensitive, and determined to do evil to others.
On direct examination, Special Agent Burns explained that she had worked on the criminal investigation of the HLF, which started in December 2001, and that the criminal investigation had been preceded by an intelligence investigation that began in 1994. The prosecution wanted to use Special Agent Burns to introduce and support the “evidence” it had gathered against HLF, which quickly became apparent when Mr. Jacks asked her not only about the FBI’s search warrants, but about MLATs.
“An MLAT is a Mutual Legal Assistance Treaty,” she explained, “a treaty that the Unites States has with various governments abroad that outlines the nature of the official relationship so that if the FBI needs to obtain official records from a foreign government, they have to follow the process outlined in the treaty.” This can be by way of requesting documents or other evidence required to conduct investigations. In the HLF case, Agent Burns said, the US had sent requests “to the United Kingdom, to England, and several to the government of Israel.”
Over the course of Special Agent Burns’ testimony, the Philadelphia meeting was mentioned many times by the prosecution. Because I knew it was the prosecution’s job to explain the meeting a certain way, I asked Ghassan, who was present at this meeting, to give me some context. He told me that the meeting had been arranged to discuss the impact of the Oslo Accords on Palestinian political and charity work in the US. Most of the attendees were active members of different Palestinian and Islamic organizations in the US. The HLF was invited, being in the forefront of that charity work. Representatives of the IAP, or Islamic Association for Palestine, were also present as a community and political organization focusing on the Palestinian issue.
“The meeting was in a hotel in Philadelphia, and it was open and public.” Ghassan wrote to me, adding, “I guess the FBI or other spying agencies were following someone who was at the meeting. The FBI kept the records of the meeting till after 9/11 when the Patriot Act was passed and allowed the use of such intelligence recording as evidence in criminal court.”
The prosecution made much of the fact that the name “Hamas” was mentioned. But “that was in 1993 when the First Intifada was still in going on and Hamas was nothing but a popular, mass demonstration and stone throwing political movement in the West Bank and Gaza. Some of the zakat committee names were mentioned in the meeting as recommended entities to deal with. Most of the attendees were opposed to the Oslo agreement, and they realized that it will have an impact on the Palestinian issue both politically and in terms of the charity work.”
This is not how Special Agent Burns described the meeting.
Burns said that she had reviewed tapes of the meeting as part of the investigation. The discussions were all in Arabic, so she was dependent on translations made by men such as Shafiq. She said that the Oslo Accords were discussed, but the discussion focused on ways in which they could be derailed, like using the media and focusing on issues like human rights, the rights of refugees, and making sure people understand that these are important issues to which the Oslo Accords provided no solution.
One part of the Burns testimony that could have been comical had it not had such tragic results is that she accused attendees of trying to mask the word Hamas.
They refer to Hamas during the meeting on several occasions, but they were corrected by the defendant Shukri Abu-Baker, who asked them to use the term “Samah,” Hamas spelled backwards, for security purposes.
Then Burns read a portion from the transcripts of the recorded, translated conversation.
Shukri is a man with a sense of humor. When he speaks there is almost always a smile on his face. And in fact, in a statement that Shukri made about this in 2002, which was brought forward in the trial and which the government already knew about, Shukri admits to making these comments as a “whimsical” play on words, that in Shukri’s opinion, “was making ironic fun of Hamas, not adopting a secret term to disguise their reference to the organization.” After all, Hamas was not an illegal entity and there was no reason to worry about mentioning Hamas or hiding the use of the name Hamas. But I will let the transcript speak for itself:
“Please don’t mention the name Samah, in an explicit manner. We agree on saying sister Samah and we will talk about her honor.” Later on in the meeting, another speaker does say “Hamas” and is reprimanded and then corrects himself, at which point laughter is heard on the tape.
Shukri is also quoted in the transcripts as saying, “I believe that I as a charity organization should not give an opinion or a political judgment at all [….] Amicable relationships must be maintained with all parties in Palestine.” All parties. Not Hamas, not any specific government, group, or individual, because Shukri and HLF focused on one thing: meeting the needs of people who were desperate for help. “Our relationship with everyone must be good regardless.” In response to his comment, Ghassan says in his dry cynical tone, “Including the Islamists, of course.” The final word on this scene is the transcriber’s note: “And there is group laughter.”
Reading through this section of the trial transcript, I could not help but be reminded of a scene from the 1990 movie Presumed Innocent. The movie is about a highly respected prosecutor named Rozat Sabich, played by Harrison Ford, who becomes the prime suspect in a murder. There is a scene where the prosecutors in the case claim that the defendant admitted that he was guilty of the murder. The judge, played by African-American actor Paul Winfield, asked them if they were referring to the fact that when confronted with the charges, the defendant said, “Yeah, you’re right!” When they confirmed that was the statement they meant, the judge looked down from the bench and said, “In my neighborhood, had Mr. Sabich come from those parts, he would have said, ‘Yo Mama!’”
Either the prosecution didn’t understand the joke as well as this fictional judge, or they understood only too well what those individual phrases would sound like robbed of context. After all, why ruin a good story with the facts?
Because of the availability or unavailability of witnesses over the course of this long trial, testimony by one witness was often interrupted for another witness. So there was some time elapsed between when Agent Burns took the stand for the first time and when the defense was allowed to cross-examine her.
Nancy Hollander began her cross-examination by raising the translation issue. There was the quote that was attributed to Shukri, which the government translator, Shafiq, had translated, “We will give the Islamists $100,000 and the others $5,000.” Agent Burns claimed, based on this statement, that when HLF donated after the Oklahoma City bombing, they only donated $5,000 and they only did so to divert suspicion.
To begin with, Ms. Hollander insisted on the correct translation: “we used to give” not “we will give.” From the excerpted portion of the transcripts it is not even clear whether this was a serious conversation or it was all said in jest, but the defense insisted that the correct translation go into the record, with Shukri saying no preferential treatment was going to be tolerated and that HLF needs to be true to its mission of “need not creed.”
Special Agent Burns maintained that there was “no substantive difference” between these two statements, so Hollander turned to another angle, her comments about the Oklahoma City bombing. Burns had already talked about HLF’s $5,000 check sent to disaster recovery, but Ms. Hollander wasn’t done. She showed a check for $2,500 HLF had made to the Red Cross for the Oklahoma City Bombing dated April 19, 1995, the day of the bombing. She also forced Burns to admit that HLF had sent volunteers to Oklahoma and organized a blood drive in Dallas.
All the documents showing these efforts had been in the files Burns claimed to have reviewed.
Q: “You looked forward to see what they did in the future, and you found a five-thousand-dollar check to Oklahoma City, is that correct?”
A: “That’s correct.”
Q: “And you didn’t think to look to see what it cost them to bring a number of people to Oklahoma City during that time, did you?”
A: “No, I didn’t.”
Q: “So you haven’t looked for the airplane tickets for the fifty people who went to Oklahoma City that was charged to Holy Land, did you?”
A: “No, I didn’t.”
Hollander then had Agent Burns read from three letters that were in evidence. These were heartfelt thank-you letters from Feed the Children, The City of Oklahoma, and Blood Care that were addressed to Shukri, thanking HLF for its role in the relief work that followed the Oklahoma City Bombing. HLF’s contribution had begun, not ended, with the $5,000 donation.
The government and the prosecution were trying to minimize the importance of the relief work that HLF did and to magnify whatever connection they may have had with Hamas. But because they kept bringing up the documents and files they had reviewed in preparing their case, they opened the door for the defense to clarify what those files really contained. For example, Ms. Hollander successfully got Special Agent Burns to read into the record an assessment saying the top four Islamic welfare organizations, of which HLF was one, provided food assistance to more than 145,000 households between 2000 and 2001.
The report concludes, “Both macro and micro views suggest the amount of food assistance from the Islamic social welfare organizations declined from 2001 to 2002. One of the four reported to be a major source of food assistance, the Holy Land for Relief and Development, was locked down by the United States in December 2001.”
But the defense wasn’t always, or even usually, successful in introducing evidence to counter the prosecution’s story. Ms. Hollander had a heated exchange with Judge Fish that deserves to be noted here. Ms. Hollander wanted to offer photos into evidence and the judge granted the government’s objection.
Ms. Hollander: “With all due respect to the court—and I say this, Your Honor, because I believe I must to preserve my record.” Not everything an attorney says over the course of a case is necessarily aimed at winning the case. If one loses because of something like evidence not being admitted, but did not raise an issue in the case itself, the issue cannot be pursued on appeal.
[E]very time the defense has objected throughout this trial on relevance grounds we have not had the opportunity to argue. Every time the government objects, the court listens to arguments. That’s exactly what happened here. The government introduced [Exhibit] 1069, which is the transfer of an amount of $16,000—Your Honor saw it—the document I wish to introduce continues in the same box as she described the Holy Land documents.
It is the progress report of victim families in Rafah whose houses were demolished by the Israelis on Saturday, June 3, 2001. It describes the background, the locations of those losses. It describes the objective of Holy Land and what Holy Land does, and what this case is about. It provides the implementation plan, the parties that Holy Land coordinated with, the representatives of the Palestinian Authority, to establish that Holy Land was working with the government at that time and providing that charity.
The government has argued and continues to argue that they don’t know whether the money really got to the people, and this is a project report that describes the distribution. Six blankets per family, straw mats, a gas plate, gas stove, kitchen utensils, and a washing machine. It describes exactly—it has a financial report. […] The photographs specifically establish that these people really did get these particular items. I have to have them shown to you. [Exhibit] 419, it shows exactly the things Holy Land provided to these people that I just read to your honor. It shows blankets. It shows the mattresses, the straw mats. It shows the gas and it shows a family, a man from Holy Land. The next picture, [Exhibit] 434, it shows the delivery of a washing machine. The next picture, [Exhibit] 444, shows the tents the people live in, the man delivering the mats. It shows a man with a book showing that he is checking this off to make sure they get it. The man over here, the man with the red hat has a Holy Land logo. There are more mats in the truck that they are delivering, actual services to people.
Nancy Hollander completed this heartfelt entreaty with the following:
When the government brings in a document that simply says, well, we know they sent $16,000, but of course, we don’t know where it went, we have to be able to show the jury that it went for the services that Holy Land said it went for.
Judge Fish responded quite coldly, “These exhibits may be under other circumstances admissible,” but, he added, “they object on hearsay20 grounds, and I still haven’t heard anything to overcome that.”
Hollander, undeterred, replied, “It goes to show and impeach this witness who introduced something and said, well, yeah, that’s what the document says, that it’s $16,000, but we don’t know where it went. It’s impeachment,21 intent. It’s the theory of the case.”
The Court: “I understand your position, but I will adhere to the rulings I made earlier.”
Hollander knew how prejudicial this stance was to Holy Land and the HLF-5. She asked immediately for a mistrial “on the grounds that my client is not getting a fair trial based upon the ground that the court is allowing the government to argue its rulings and to listen to the government’s evidence and not the defendant’s evidence.”
The Court: “I will overrule that motion as well.”
This was not the last time the defense team made a motion for a mistrial.
Josh Dratel’s cross-examination of Special Agent Burns broke down as well, and his frustration was expressed in an exchange with Judge Fish during the midday break. Mr. Dratel had tried to offer summaries to show what information the government had or had not pursued in its investigation. The judge had granted the prosecutor’s objection to this.
“But you allowed the government to put in interpretations of documents that we don’t know where they came from,” Mr. Dratel protested.
“I thought you wanted to make a proffer,”22 the judge replied. “Go ahead and do it, but I don’t need any more argument about what I’m letting the government do.”
“It’s not hearsay for that reason. I’m putting it on to show intent and state of mind.”
“You are not putting it in.”
Dratel cited several cases to make his point and then continued his argument.
“It’s about the quality of the investigation. They have ninety-six hundred pages of summaries. All of this material is in the summary. They don’t check a single thing, and bias can be proved by extrinsic evidence, and bias is widest on cross-examination.”
“The Supreme Court of the United States concluded,” Dratel continued, “in US v. Abel 23 that the Federal Rules of Evidence contemplate impeachment of a witness for bias as ‘proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of the witness’ testimony.’ And stated further, ‘Bias’ is a term used in the common law of ‘evidence’ to describe the relationship between a party and witness.”
The Court: “I’ll read the case. You don’t need to read it to me.”
“‘Slant, unconsciously or otherwise.’” Dratel tried to finish. “Your Honor, that goes to the Confrontation Clause as well. This witness said over and over again, ‘I didn’t check that. I didn’t think I needed to check that.’ I should be able to go into what the investigation revealed to her, and [what] she did not go and corroborate because she was only interested in finding things that supported her theory. The court is prohibiting me from doing it.”
“I understand your position. I don’t need any argument. Have you finished your proffer?”
Mr. Dratel listed summaries that the court was preventing him from discussing in front of the jury until the judge stopped him with a brusque “I don’t want any more argument. We need to go to lunch.”
Mr. Dratel, too, moved for a mistrial on the basis that “the Court has eviscerated the cross-examination.”
The judge was not convinced, nor did he grant a mistrial.
Dratel did manage to take Agent Burns to task over the somewhat ease with which the government accepted the claims made by Israel about the 1992 deportees. When Burns initially interviewed Elmezain, she asked him about the deportees and he told her all that he knew, including the fact that he had a cousin among them.
In the interview, Elmezain also mentioned that among the deportees were some of the finest scholars and preachers in Palestine. When asked about this directly, Agent Burns replied, “That’s what he said.”
“That’s what he said.” Josh Dratel pressed her. “Did you ever check any of these credentials?”
“I’m not sure. I know that he did.”
“Yes or no?”
At this point Jim Jacks objected, exclaiming that “He’s cutting her off.” In response, the judge finally ruled in favor of the defense, saying that this was a “yes or no question.”
Q: “Did you check the credentials of these people?”
A: “Some of them.”
Q: “Which ones?”
A: “For example, I know that some of these individuals …
Q: “Not what you know. Which ones did you check?”
(Burns then went through a list of names she did check, and indeed they were all scholars and preachers at mosques.)
Q: “The fact is that of the deportees, 108 were imams?”
A: “I didn’t know that.”
Q: “Did you check? After Elmezain told you the deportees were the best scholars and imams, did you check?”
A: “No.”
Q: “And that thirty of them had Ph.D.’s?”
(Burns said she wasn’t sure, that she didn’t count them.)
Q: “And eleven physicians?”
A: “I don’t know the exact number.”
It was the best he could do, and he had to hope it would be good enough.
John Cline’s cross-examination focused on the lists of designated terrorists and terrorist organizations. He reviewed with Agent Burns the different types of lists and when they were created. This exchange and the details of the lists are quite fascinating, and Cline is a terrific inquisitor.
He began by establishing how people and organizations were placed on “Specially Designated” lists. This can be by executive order or the Treasury Department and State Department can also add to the list.
Q: “And it’s a list that the Department of Treasury maintains on its website so that anybody can pull it up?
A: “That’s correct.”
Q: “And it’s a list that if a person is thinking about doing business with anybody else they can check to see if the other end of the transaction has been designated a terrorist?”
A: “Yes.”
The government never disputed that HLF had not only checked the list but had also initiated contact with the Departments of Treasury, Justice, and State to see what else they could do to ensure they were complying with US law.
Another point that the prosecution leaned heavily on was the affiliation of HLF’s donors. The defense had to refute, or at least explain, the fact that Hamas leaders had donated to HLF.
Before Musa Abu Marzook became a well-known Hamas leader, he lived in the United States legally for many years. Shukri told me that Abu Marzook was known to be a generous giver, and in 1992, he donated over $200,000 to HLF. At the time there were no designations, no limitations regarding Hamas or any of the Hamas leaders.
The prosecution made a big deal of the fact that a well-known Hamas figure gave such large amounts of money to HLF. This, they claimed, must mean that HLF is controlled by Hamas. However, the money was going in the wrong direction to prove that statement.
The money was Abu Marzook’s money and had he wanted to give it Hamas he could have done it directly. He could have taken it to Gaza and given it to whomever he wanted. In other words, any money he gave to HLF was specifically going from, not to, Hamas.
In the course of his cross-examination of Agent Burns, Cline presented the tax forms showing that the donations by Abu Marzook to HLF were reported as the law requires. There were no attempts to hide these donations by Abu Marzook or by HLF, and the notion that there could be an issue had not even crossed their minds.
This trial was unique in many ways. But the most blatant disregard for the protections afforded by the Sixth Amendment was the fact that the judges permitted two key witnesses (who were foreign nationals) to testify anonymously and using aliases. These were “Major Lior,” allegedly an Israeli army intelligence officer, and “Avi,” who was said to be from the Israeli secret police, or Shabak. When they were testifying, no one but the defendants’ immediate family members were permitted in the courtroom, and they were led in and led out before the jury was permitted to enter. This, I was told over and over again by the lawyers, had no precedent in the history of the US judicial system. Shabak itself released a report after the second HLF trial stating that this testimony “formed a critical factor in the decision to convict the defendants.”24
Part of the Bill of Rights is the Confrontation Clause of the Sixth Amendment. It says that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” But how can you be said to have looked your accuser in the eye when you don’t even know who they are?
The first anonymous witness to appear was “Major Lior.” Before he entered, the judge reminded everyone that the courtroom had to be kept clear except for the permitted people. He described Major Lior to the jury as “another witness for the prosecution, and he is a member of the Israeli Defense Forces, and he will be testifying under a name other than his real name because that is apparently required by Israeli law for security reasons.”
Major Lior also required an interpreter because as he said when Elizabeth Shapiro began his examination for the prosecution, he spoke Hebrew and little English.
He described his work as such: “I am in the unit who’s there for taking care of documents and other items that has to deal with informational database.”
It soon became clear that the Major was being used to introduce documents supposedly found in the offices of zakat committees by his unit during Operation Defensive Shield in 2002, during which countless documents were confiscated.
On several occasions, lawyers for the defense objected when Major Lior was asked about events that took place during the operation, as he himself was not present when his soldiers entered the specific locations to remove documents. A major issue for establishing the authenticity of evidence in the courtroom is what is called chain of custody. If the chain of custody cannot be established, it is only hearsay and not actual knowledge that a document was found in a certain location. These objections were overruled by the judge.
The exhibits that were brought forward and that were part of the documents taken during the raid of zakat offices and other Palestinian institutions by the Israeli army were used as exhibits by the prosecution. The “documents” included a poster, a postcard, two keychains, and a calendar.
Major Lior was cross-examined by Ms. Moreno, who took him to task over that fact that the documents were seized in a military raid and without any judicial process. His reply was, “I serve in the army.” She also pressed him regarding the fact that he was actually not present in the raids and so has no firsthand knowledge of how the exhibits were retrieved. His reply was that these were “retrieved by his soldiers.”
The prosecution’s other anonymous witness was an Israeli national called “Avi.” He was an employee or agent of what is officially called the Israeli Security Agency (ISA), or General Security Services (GSS), but is commonly known as Shabak. He testified that Shabak is similar to the FBI, but in reality it is more like a secret police that is charged with spying on Palestinians, the likes of which one finds in a totalitarian regime. Secret police agencies are in fact intelligence agencies that operate in secrecy and are, in consequence, subject to little or no oversight, accountability, or requirement for transparency of action. Avi, so I was told by the family members who were in the courtroom, claimed that his expertise was such that he could “smell Hamas.”
Initially, he was examined by Ms. Shapiro to determine whether he was able to satisfy the federal rules regarding an expert witness. When an attorney calls an expert witness to the stand, it is customary to establish their qualifications. Then the other side can also examine them on these qualifications and challenge whether they are an expert or the description of the field of expertise. During the examination, it was determined that “Avi” was an Israeli with a typical Israeli upbringing. After his mandatory military service, he went to law school and joined the ISA as a legal advisor. Ms. Shapiro offered him as an expert in the field of the financing of the Hamas social wing. The defense objected, and Josh Dratel cross-examined him.
Mr. Dratel’s cross-examination revealed that Avi spoke no Arabic and had read a total of three books on Hamas. He had never studied the topic of Hamas or presented in an academic setting; all the knowledge he has is from his experience “on the ground.” John Cline examined him further.
Q: “If I understand correctly, you will be testifying [ … ] that in your opinion Hamas exercises [control] over certain zakat committees, correct?
A: “I would say more than control. If you want to be accurate, I am talking about the committees being part of Hamas.”
Avi was admitted as an expert witness by the court on this basis.
Avi testified during his examination by Ms. Shapiro that Hamas had indeed emerged from the social wing of the Islamic movement, which of course is well known. He described the work of the Islamic movement, the Muslim Brotherhood, and Hamas as follows: “They are talking about in general the jihad through charity.”
“Despite the clarity of the nature of the original concept of jihad, an English language dictionary can scarcely be found that does not suggest ‘holy war’ as its meaning,”25 Azzam Tamimi writes. He continues, “There is nothing whatsoever in the Islamic sources that describes war as holy.” Jihad is first mentioned in the Quran in reference to the early Muslims who faced religious persecution and were asked by the Prophet to show restraint and perseverance. Jihad was referred to as a struggle against oppression at a time when, in the early stages of Islam, there was a prohibition on fighting. Early Muslims were in fact forbidden by what they believed was divine commandment from using violence in their jihad, or struggle.
The jihad for which there is the promise of divine rewards in the hereafter is associated with one’s self-restraint, effort, and abstention from violence, as is explained in the Surat al Ankabut, the 29th Sura of the Quran. The effort, or jihad, that a believer is required to perform is in resistance to oppression and an effort to create a world that is just. It is a commitment to pursue personal liberty as well as the liberty of one’s people and at the same time strive to avoid the creation of a greater evil. It is said that for the Prophet Mohammad, the greatest jihad was to speak out against an unjust ruler to his face, or in other words, to speak truth to power.
Avi and the prosecutors, on the other hand, subscribed to the notion that jihad means strictly “holy war,” and in post-9/11 America, it was easy to sell that definition to a jury that had never heard the word before 2001. But jihad in Islam is the effort to combat injustice. In that light, combating injustice through charity is clearly different than the horror show the prosecutors wanted to convey. Even Avi said that the social wing of Hamas, about which he was proclaimed an expert, is involved in “education, health care, supporting the special segment of the population like martyrs, prisoners, and others. Supporting institutes, many institutes that give services to Palestinians.”
Avi was later asked to comment about a letter that was written by the late Hamas leader Sheikh Ahmad Yassin requesting funds for a school in Gaza. One of the lines he read out loud to the court says that “education at this school will be free for children of martyrs and detainees and orphans and the poor and the needy.” Education is important to the social work of Hamas.
He also quoted Khaled Mash’al, Mufid Abdulqader’s brother, saying, “If you want jihad, you have to do it with money.” In other words, through charity.
Q: “What is it about this document that is meaningful to you as an expert studying this field?”
To begin with, Avi testified that he hadn’t studied this field and never said that he is studying the field. He studied law and learned about Hamas and its social wing through non-scholarly ways like newspapers and the Internet and fieldwork with the Shabak. He had read a total of three books on Hamas. Then if there was any proof needed to dispute his status as an expert, it was his reply:
Well, it seems if you are talking about charity organization you wouldn’t expect to find violence in this document. We are talking only school complex, building schools. They are using violent words like “blood,” like “jihad.”
He was referring to a line that reads in English as follows:
A thousand greetings as you are committing jihad with your monies in the land of steadfastness whose blood is spilled and sanctuaries violated.
Jihad is not a violent word. Jihad with money means “fighting” against injustice by helping the poor and the needy, the families of “martyrs” and prisoners, none of who would be poor or needy, none of whom would have been imprisoned or orphaned had it not been for the occupation of Palestine by Israel.
The martyrdom, poverty, despair, and mass incarceration that are part of Palestinian life did not fall from the sky. They are all a direct result of the policies of the state of Israel. The fact that the Palestinian people need to be “steadfast,” that their blood is being spilled and their “sanctuaries violated” are all because they have been placed in this reality by Israel. None of this is the result of Hamas, but rather its cause, and the need to provide for them is precisely why there is a social wing, not the other way around. Blood and desecration is the daily bread of Palestinians, which is why it is mentioned not only in this letter, but also in speeches and letters that relate to Palestine all the time. Either Avi was not the expert he claimed to be, or he and the prosecution chose to cherry-pick their documents and phrases until the picture they painted was completely distorted.
Avi insisted that these were terms one would not find in the discussions and documents of “regular charities.” But Palestinians do not live under “regular” conditions. For decades they have been living under a brutal military occupation. This brings into question the reasoning of having an agent of the Israeli intelligence community charged with maintaining the occupation and the misery of the Palestinian condition. Avi’s entire testimony was based on documents he claims Israeli authorities found and then translated. The conclusions reached sound suspiciously like those of the Israeli authorities in order to justify their actions, which were by and large designed to maintain the dire conditions under which Palestinians are forced to live.
Avi was thoroughly cross-examined by John Cline. Since Avi was supposed to be an expert on zakat committees and the financing of the Hamas social wing, Cline began with asking Avi about the members of the boards of the zakat committees described in the indictment of the defendants. It is to Avi’s credit that he apparently took his oath to tell the truth seriously; all he came up with was that he thought he had read articles that led him to the opinion that these people were affiliated with Hamas during the 1990’s. Cline reminded him that he was not interested in his opinion but in finding out if there had been any actual disclosure that the board members of the Jenin zakat committee were affiliated with Hamas, and Avi replied, “I cannot point you to a specific article.”
Cline walked Avi through lists of designated terrorist organizations, asking repeatedly if he could show the court and jury where members of the Jenin zakat committee appeared on those lists. Avi could not, not even on lists dated after the arrests of the HLF-5. Eventually, Avi declined to look and plainly said he wasn’t expecting that they would be on the list. Cline then went on to ask about the board members of all the zakat committees that were included in the indictment—Tul-Karem, Qalqilia, Ramallah, and on and on—and all the replies from Avi were the same. He recalled very few names, and of the ones he remembered none were listed.
In some cases Avi even fell back on relationships with the deportees from 1992 to try to prove Hamas affiliation. The problem with that argument is that none of them were formally accused or charged, and there was no burden of proof required for the deportation. It was only the government of Israel saying that they were Hamas—which by Israeli standards is sufficient. Though this was not his intention, it was made clear through Avi’s testimony that none of the zakat committees mentioned in the indictment or any of the members of any of the boards of the committees in the indictment were on the government’s list of terrorists. Not one. Even though other organizations that Avi said were part of Hamas were listed.
But that wasn’t the end. Nancy Hollander continued to discredit Avi. She pointed out that not only was the US government working with zakat committees and the hospitals and other charities with which they were associated, but there was a report that said that there was no merit to the claims that the zakat committees were affiliated with Hamas. Hollander used Avi as a witness in ways the government had likely not anticipated, to reinforce that the zakat committees on the list could not be Hamas-affiliated because USAID had continued to work with them long after HLF had been shut down. So if work with those committees was enough to shut down HLF, it ought to have been sufficient to shut down USAID as well.
In his opening statement, the head prosecutor said that the case was not about family connections and that one cannot be convicted because of familial connections. By doing this, he subtly suggested that the defendants had family connections that needed to be discussed. FBI Special Agent Rob Miranda, who was assigned to the counterterrorism squad of the Dallas division, which is the Hamas squad and part of the North Texas Joint Terrorism Task Force, was the witness the prosecution used to connect the HLF-5 to members of Hamas. Nathan Garret questioned him for the prosecution.
Special Agent Miranda described his work as “[p]rimarily investigations of Hamas terrorists, but also other Palestinian groups.” He focused on the “areas of overseas speakers, security, family connections, and knowledge of the legislation.”
Miranda had somehow “determined that there is extensive relationships” between the HLF-5 and Hamas. No one had ever denied that they had family members who were part of Hamas, though. The question in front of the jury was whether HLF and these men had given money to Hamas in support of terrorism.
Through a series of questions, the prosecution managed to establish the well-known fact that Shukri Abu-Baker had a brother named Jamal Issa, who was a member of Hamas’ political bureau in “the Yemen,” as Special Agent Miranda called it. After listening to Miranda’s description, one would almost imagine Jamal Issa with a camouflage outfit, carrying an AK-47 and with a knife between his teeth. In fact, he is a diplomat, wears a suit, and likely was never involved in any military activities.
Khaled Mash’al and Jamal Issa
Special Agent Miranda placed great importance on a call that Shukri made to the Sudan “at two o’clock in the morning and lasted approximately twenty minutes.” Well, when it is 2:00 a.m. in Richardson, it is 10:00 a.m. in the Sudan, a perfectly reasonable time for a phone call. When Miranda was questioned further, he described the participants in the call as the brothers and “a host of children and wives.”
John Cline made a significant point on cross-examination that Shukri’s brother has not been designated a terrorist and his name does not appear on any list. The only thing Agent Miranda depended on to cast that call as suspicious was that it was to the Sudan, where almost 30 million people lived in 2001, and that it was at 2:00 a.m.
Other connections that Miranda “revealed” were that Mohammad Elmezain is distantly related to Musa Abu Marzook, who is a well-known Hamas figure, and that Ghassan Elashi’s second cousin is married to Abu Marzook.
The other well-known connection was Mufid Abdulqader’s brother, Khaled Mash’al, who for several decades had been the official face of Hamas. The two had not seen one another for decades, lead completely different lives, and in fact live on different continents.
After the prosecution finishes its case, it is the defense’s turn. There is a strategic decision to be made: Is the jury tired? Is there any benefit to calling additional witnesses? What has the defense been unable to establish on cross-examination, or what evidence does it need to admit? But the defense had a few stellar witnesses.
The first witness for the defense was Ed Abington, who served as the US Consul General in Jerusalem from 1993 to 1997. He described his role during the trial, and it is unique in ways that few people realize.
The consulate in Jerusalem has a unique status in terms of American representation abroad. Usually, all consulates are under the representation of an ambassador. The consulate in Jerusalem is the only truly independent consulate that reports directly to Washington and the Secretary of State. It does not report through the embassy in Tel Aviv but directly to the Secretary of State, and the consulate is held by the White House as the chief of mission, which means that this position is equivalent to that of an ambassador, unlike the US Consuls General in Paris or Rome or any other city.
The US Consulate in Jerusalem is unique also in that it dates back to the 1830s, which was when the first US Consul was sent to Jerusalem, largely to serve US citizens who were visiting the Holy Land as pilgrims. Jerusalem was then part of the Ottoman Empire and was regaining some of its prominence, so several Christian countries opened consulates there to stake their claim in this holy city and look out for their interests. The Consul General in Jerusalem, therefore, has the same status as an ambassador and can be regarded as the de facto US ambassador to Palestine.
On November 29, 1947, UN Resolution 181 was passed. It called for the partition of Palestine into an Arab state and a Jewish state. Jerusalem was not included in the area allocated for the Jewish state and was in fact supposed to enjoy international sovereignty. Israel occupied West Jerusalem in 1948 and claimed it as its capital, but this was never officially recognized internationally, and countries with which Israel has diplomatic ties have their embassies in Tel Aviv. In 1967, Israel occupied the eastern part of the city, thus bringing all of Jerusalem under Israeli control, and soon thereafter it annexed it. The annexation has never been recognized as valid by any significant actors in the international community.
The period during which Abington served in Jerusalem, 1993 to 1997, was a crucial one, and he played key roles in negotiating the agreements that led to the creation of the Palestinian Authority.
Abington’s career in the State Department spanned over three decades. Before that he served as an analyst in the CIA and served in the US military. After serving as Consul General in Jerusalem, he served as Senior Deputy Assistant to the Secretary of State on Intelligence and Research, which is considered the number-two intelligence position in the State Department.
Abington’s testimony about the international intelligence community was damning to the government’s case. Though he testified in both the first and second HLF trials, the US government restricted his testimony significantly in the second trial.
Abington discussed the role of the CIA in the consulate with HLF’s attorney Nancy Hollander on direct examination, including the briefings that they would receive from Israeli intelligence.
Q: “How often would you and in what form would you see information that the CIA collected from Israeli intelligence?”
A: “On almost a daily basis in the form of CIA intelligence reports.”
Q: “As a United States representative, did you consider Israeli intelligence to be reliable?”
A: “No.”
Q: “Why is that?”
A: “I feel that the Israelis have an agenda in terms of trying to influence the thinking of US policy makers and that they apply intelligence in a selective fashion to try to influence US thinking. Sometimes the intelligence was good and sometimes it was not so good.”
This is arguably one of the most important and at the same time damning statements made during the entire trial. Besides the fact that the vast majority of the government’s case against the HLF was built on documents and reports provided by the government of Israel, this statement casts a shadow on US-Israel security relations in general, relations that have been sacred for decades. It is rare to find a US official who will give such a blunt assessment as a matter of public record.
Hollander asked Abington what he believed the CIA thought of the quality of Israeli intelligence, but the prosecution objected and the judge sustained their objection in the face of Hollander’s frustrated reminders that the government was given much more leeway than the defense. So she took a different approach with her questioning.
Abington was familiar with the zakat committees through his work in Jerusalem. He described them as “formed in a community to […] decide how to distribute the alms or the charity given by Muslims.” This is a much more accurate description than the prosecution’s version. He went on to testify that the committees had been around for hundreds of years, and that not only did the US government not have any restrictions on meeting with members of the zakat committees, USAID had provided them with funding. He also testified that it was forbidden for USAID to provide funding to Hamas or its affiliates.
Abington, unlike the prosecution’s witnesses, was also familiar with the projects HLF had funded. He described the hospital in Jenin as “a relatively small hospital, around twenty beds. It was newly constructed. It was very clean, sanitary conditions were excellent, in contrast to the Israeli-run hospital that the Israeli military ran for the Palestinians. It had new and modern medical equipment. I was impressed by the cleanliness and the orderliness of the hospital.” He described the other, Israeli-run, hospital that was available to serve Palestinians as “really abysmal. You would not want to set foot in that hospital for serious medical treatment.”
Ms. Hollander asked, “During the course of your work there did you ever learn from anyone that Hamas got credit for the services received from the zakat committees?”
The answer was simply, “No.”
Finally, the defense was allowed to discuss the Jewish settlements in the West Bank that had been a point of contention in the opening statements. When asked about these settlements, Abington had a great deal to say:
The settlements are built on some of the best agricultural land in the West Bank. In addition the settlements are built on the water aquifers on the West Bank that feed into Israel. So it gives Israel control over much of the water in the West Bank, which by and large is diverted to Israel.
He described the roads Israel built for the settlers, saying, “They cut up and cantonize and isolate Palestinian cities and agricultural land in the West Bank and make it extraordinarily difficult for commerce and agriculture to function normally in the West Bank.” He added that Palestinians rarely receive compensation for land that is taken from them or homes that are demolished by Israel. He summed it up by saying, “The effect of all this has been to severely damage the Palestinian economy.”
He continued to say that even UNRWA, which is charged with caring for Palestinian refugees, is on a tight budget and so is unable to resettle families whose homes have been taken by the Israeli authorities. The Palestinian Authority tries to help and there are Islamic charities that pitch in to help.
“When I was the Consul General in Jerusalem,” Abington told the jury, “I had heard of the Holy Land Foundation as a Palestinian-American charity that distributed assistance to needy families in the West Bank and Gaza.”
Hollander then asked Abington about some of the documents that were presented by the prosecution that were provided by the Government of Israel. Many of the documents were seized by the Israeli forces from Palestinian Authority offices and zakat committee offices.
“The State Department considered the documents to be essentially a propaganda exercise by the Israelis to undermine the reputation of the Palestinian Authority,” he said. “You can’t really rely on these documents as showing a true picture.”
HLF had also run programs to help families of Palestinians held in Israeli prisons. Hollander asked Abington about the nature of these detentions. He said that Palestinians have no legal rights; they were not subject to writ of habeas corpus—the right for an attorney to enquire as to the proof of the charges. Abington testified that Israel was at the time holding 10,000 Palestinians under detention without trial. With no trial, no proof, one would have to have a great deal of faith in the word of a government agent with an obvious agenda to assume these prisoners were all Hamas.
Another issue that was seriously misrepresented by the government was the definition of what it means to be an “Islamist.” The government contended it means an extremist. Hollander asked Mr. Abington what he thought of this term.
“I consider it to be a pious Muslim.”
Nancy Hollander ended her examination of Ed Abington with questions regarding the transparency and effectiveness of the zakat committees, both individually and generally as a system for providing relief to the poor. “It’s effective,” he told her, “because it’s done at a very, very low level. There is no cost of administration. An individual comes forward with a need and the zakat committee decides whether to meet that need.”
Abington was then cross-examined for the prosecution by Mr. Jonas. Jonas tried to discredit Abington and then brought up the very documents and statements that Abington already said were not reliable and had no foundation. In one exchange, Jonas referred to photos that were allegedly found in zakat committee offices, confiscated during a raid by the Israeli army, and that depicted blown up buses and people throwing stones at soldiers.
“[I]s this the type of document that a pious religious organization should have in its possession?”
The unflappable witness replied, “This is a document that represents the daily life of Palestinians, and whether it is in the hands of a pious organization or not, I don’t quite see the relevance of that.”
The defense wasn’t done. Another stellar witness was former congressman John Bryant. Mr. Bryant served as a member of the House of Representatives from 1983 until 1997 representing Texas’ 5th Congressional District. After leaving Congress, he worked for the government in an overseas assignment for a while and then picked up his law practice. In 1997, the Holy Land Foundation had retained him in order to look into allegations that were being made against them, claiming that they were funding terrorism. While it is unusual for a party to call its own attorney as a witness, Mr. Bryant had been responsible for HLF’s review of the law and the lists of designated terrorists and for making sure HLF was compliant with the law.
Bryant testified that:
There had been unattributed news reports in which critics of the Foundation accused them of being involved in providing assistance to foreign organizations that were illegal, and it was my purpose to go to these agencies that the news report indicated these reports came out of and ask them if indeed there is a problem, what is the problem, and what can this foundation do to operate in a way that does’t cause you any discomfort if there is a problem.
Not only did Mr. Bryant speak to the US government about HLF’s reputation and practices, he went so far as to contact a Mr. Ben David at the Israeli embassy in Washington, DC. Eventually, however, “[Mr. Ben David] told me that his government told him not to talk to this foundation anymore.”
Two final questions by John Cline summarized the issue. At no point in time did anyone from the State Department or the FBI tell Bryant that his clients, HLF, should not work with zakat committees and charitable societies in the West Bank and Gaza, nor were they advised that they ought to change anything in the way they operate.
John Bryant was cross-examined by Mr. Jonas. Jonas made the point that since there was an “intelligence investigation” taking place into HLF activities, Bryant should not have expected a direct answer or advice from the State Department or the FBI. Bryant replied, repeatedly, “I would expect them to acknowledge that they are the source of a news report, if indeed they are the source.” Furthermore, Bryant added that he would expect both the State Department and the FBI “to provide American citizens guidance when they inquire on how to comply with complicated US laws.”
There were other witnesses, more examining and cross-examining, but much of it was more of the same. But there was one drama yet to come that determined the fate of one of the defendants even more than the other four.
The trial itself ended on September 19, 2007, and the jury ended its deliberations nineteen days later. The verdicts were as follows:
There were no guilty verdicts.
Regarding HLF as an entity, Shukri, and Ghassan, the jury could not agree on any of the counts, so no verdicts were handed down.
Elmezain and Odeh were found not guilty on all counts but one. The jury could not reach a verdict on the first count: conspiracy to provide material support to a Designated Terrorist Organization.
Mufid Abdulqader was found not guilty on all counts. That should have been the end of the matter for him, and yet he is in prison today serving a twenty-year sentence.
I asked Mufid’s wife, Diane Abdulqader, for a detailed description of what took place when the jury announced its decision regarding Mufid. Diane kept detailed notes over the course of both trials, filling twenty-five small notebooks that fit in her purse. Here is what Diane wrote to me:
[T]he case rested on 9/19/07 and the jury started deliberations. All of us (defendants, lawyers, and some family members) were waiting every day in the Adolphus Hotel, because we had to be able to get back to the court within 15 minutes. We were told that the verdict was to be sealed until Monday morning at 10:00 a.m., when Judge Fish returns….
Although the verdict was ready on Friday, it was placed in a sealed envelope that was not supposed to be opened while Judge Fish was out of town for the weekend, so they had to wait. There were some suspicions raised as to what transpired during the weekend: whether the envelope that held the verdict was kept sealed the entire time, and whether any information was leaked prior to the Monday when the verdict was heard in court.
Diane’s account continued:
On 10/22/07 we attended the verdict hearing. Mufid was found NOT GUILTY on all 32 counts. Judge Fish read them individually and said not guilty 32 times! After the verdict was read for all the defendants, the prosecution asked the Judge to poll the jury to see if they all agreed with the verdict, even though the head juror was asked this before the verdict was read. Three jurors (#2, #6,26 #10) said this was not their verdict. The head juror commented that everyone was asked whether they agreed about the verdict before deliberations ended and told the court that they had reached a verdict and she did not understand why the three jurors were saying this. Judge Fish ordered the jury to go back and resolve this and to come to a decision whether or not the verdicts were unanimous. Eleven out of twelve jurors agreed further deliberation would get no further results. Our lawyers asked if the jury could be polled for each individual defendant, to see if the jury all agreed on the verdict for any individual.
This was especially important in Mufid’s case, since he was found not guilty on all 32 counts. Judge Fish said to the jurors, what about Mufid, he was found not guilty on all counts—do you three jurors who said disagree with verdict—what about this defendant? Juror #2 said he agreed with verdict. Juror #10 said he agreed with verdict. Juror #6 said she disagreed with verdict. (Note: juror #6 was asleep for much of the trial, and did not even listen to the testimony).
Judge Fish said he would not proceed with further deliberations, believed that will not be productive and released the jury from service.
It was a win, albeit a temporary one, for the defense. The government had been unable to convince a jury to convict the HLF-5. The defendants, their families, and their supporters were jubilant, but the government and the prosecutors were not.
The President of the United States had declared that HLF was a major terrorist funding network, and the prosecutors took their duty to “prove” that seriously. The prosecutors prepared for a new trial, and the new judge, Jorge Solis, proved to be an important ally for them.
18 The Oslo Accords were negotiated in Oslo, Norway, and then were signed in September 1993, in Washington, DC, by the Government of Israel and the Palestinian Liberation Organization (PLO). They were expected to lead to a Palestinian State and a final Israeli-Palestinian peace agreement, but those goals were never attained. The Palestinian Authority, an interim “self-governing authority” with none of the attributes of sovereignty, was established as a result of the Oslo Accords, but Israel retains all the prerogatives (and responsibilities) of an Occupying Power in the lands it seized in 1967.
19 Operation Defensive Shield began on March 29, 2002, and was the broadest counter-insurgency operation in the West Bank since 1967. Palestinian government offices, charity organizations, and other facilities were raided, and large amounts of documents were seized by the Israeli forces. Many of the documents that the prosecution brought up in the HLF trial were seized during this operation. The documentary Jenin, Jenin describes some of the horrors that took place in the Jenin refugee camp during the operation.
20 Hearsay is the legal term for certain statements offered as evidence during a trial or hearing for the purpose of attempting to prove the truth of the matter asserted in the statements that were not made while testifying at the trial or hearing itself. An example of hearsay is a witness that wants to say, “Sally told me Tom was in town.” If the statement is made to prove that Tom was in town, it is hearsay. On the other hand, the statement could fall into one of the nearly thirty exceptions to hearsay. For example, if the witness said, “Sally told me Tom was in town” and the statement is being made to explain why the witness went to town, rather than to prove that Tom was actually in town, it would be admissible.
21 Witness impeachment, in the law of evidence of the United States, is the process of calling into question the credibility of an individual testifying in a trial using inconsistent statements or similar evidence.
22 In a trial, to make a proffer (or offer of proof) is to offer a statement usually outside the jury’s hearing attempting to show what the question you weren’t allowed to ask or the evidence you haven’t been allowed to enter would have proved, or how it would have been relevant. After the proffer, the judge may decide that the line of questioning or evidence is relevant or important enough to go back and allow it in front of the jury. Failure to make a proffer may result in an issue not being preserved for appeal.
23 469 U.S. 45 (1984)
24 https://www.Shabak.gov.il/SiteCollectionImages/english/TerrorInfo/hlf09_report_en.pdf (accessed September 24, 2017).
25 Azzam Tamimi, Hamas: A History From Within (Petaluma, CA: Olive Branch Books, 2011), 176.
26 Juror #6, Kristina Williams, later gave a troubling interview about her decision. The family suspects that there were attempts to inappropriately influence her to change her vote regarding Mufid’s verdict.