The failure to get a conviction in the 2007 trial was a huge embarrassment for the prosecutors, for whom this was the flagship terrorism case. But they learned from their mistakes.
“We came back a year later,” Ghassan Elashi’s lawyer John Cline told me, “and we had a new judge who I think was determined to get a conviction.”
The Fifth Amendment to the US Constitution provides: “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
This clause is known as the Double Jeopardy Clause, and it means that after a case has concluded it can’t be retried. But because the 2007 case against the HLF-5 ended in a mistrial, it had not “concluded” in a legal sense.
The second trial began in September 2008. The prosecuting team had a year to fill the holes in its case and find ways to get around the defenses raised in the civil and first criminal cases. “In the second trial,” Cline said, “the government decided they will throw out all the stops, and the judge seemed willing to give them anything they wanted.”
The first major change was that not all five defendants faced the same thirty-two charges. The prosecutors had taken all those charges to a jury already and they knew with which ones they were likely to succeed; changing the list let them focus more carefully on the charges they knew a jury would be more likely to favor.
Elmezain, Mufid, and Abdulrahman were charged with conspiring to provide material support to a Foreign Terrorist Organization; conspiracy to provide funds, goods, and services to a Specially Designated Terrorist; and conspiracy to commit money laundering.
Shukri, on the other hand, faced twenty-four charges. Ghassan had thirty-three. In addition to the charges brought at the first trial, the prosecution had added “filing false returns of an exempt organization” to the mix.
This was the first anyone had heard that the government supposedly believed HLF had been filing illegitimate tax returns. All the money was raised, accounted for, declared, and transferred legally and above board. No one ever lied on the tax forms, no one lied on the bank statements, and everything was done in the open. None of the committees listed in the indictment had ever been listed or designated as terrorist organizations by the United States government.
I spoke to John Cline in depth about the differences between the first and second trial. I needed to know how the government had managed to get convictions in the second trial where it had failed in the first.
“What the government did skillfully in the second trial,” he explained, was use the fact that “in the ‘80’s and early ‘90’s some of the guys were sympathetic to certain aspects of Hamas activities like opposing Oslo and the kids throwing rocks.” This was no different from most Palestinians or even from a substantial number of people in the West who were able to see that the Oslo Accords were going to have far-reaching negative effects on Palestinians. But again, the jury heard this information out of context, isolated, and it may well have seemed to them that only the defendants and actual terrorists had those ideas.
In addition to changing the charges, the government made four major changes in the case it presented to the jury.
1. John Robert McBrien from the Treasury Department testified that in his opinion one cannot tell whether the government will consider a person or organization to be a terrorist simply by checking the lists of terrorists that the government publishes. The prosecuting team brought McBrien to counter HLF’s point that it had tried to make sure that it was not giving money to terrorists and that the zakat committees had never been listed as terrorist entities by the government when so many others had. They wanted to prove that HLF had not done enough to make sure their money wasn’t going to terrorists.
2. Documents that were brought in by the Israeli military were entered into evidence. The documents were allegedly found when Israeli forces had gone into zakat committee offices during Operation Defensive Shield in April 2002, more than a year after HLF was closed down. The documents, undated and with no identifiable author, supposedly showed that Hamas controlled the zakat committees. Judge Fish had agreed that these documents were not admissible evidence, but Judge Solis allowed them in.
3. The prosecution brought in Steve Simon, a witness to whom the defense strongly objected on the basis that his testimony was irrelevant and more prejudicial than probative. Simon had been on the staff of the National Security Council when Hamas was designated. He brought up 9/11, which was a serious problem. The defendants had nothing to do with the attacks of 9/11, Hamas had nothing to do with the attacks of 9/11, and the trial had nothing to do with the attacks of 9/11. By creating this association in the jury’s mind, the government was able to imply things far beyond the scope of the trial.
4. Mohammad Shorbaji was a witness that the government chose to call in the second trial but not the first. As part of a plea bargain in his own embezzlement trial, he testified that “everyone” in the West Bank, to which he which he had never been, knew HLF was the fundraising arm of Hamas and that all the zakat committees were Hamas.
These four changes gave the government the edge it needed to convince a jury to convict.
Upon appeal the defense raised these four items as errors, but the court said that although they were indeed errors, they were “harmless.” That is, the decision would not have been different if this evidence had not been allowed.
This was “the most ridiculous, indefensible response by a respected court I have ever seen in my life,” Cline told me. You can petition, which the defense did, pointing out that the errors identified were the ones that made the difference, but the court came back with no further explanation. The United States Supreme Court was also petitioned but declined to hear the appeal. And that’s that. “The habeas corpus was hopeless,” John Cline told me, “and an executive clemency doesn’t seem likely.”
Other than the four differences mentioned above, the second trial was very similar to the first. Both sides made their opening statements and began to call witnesses.
Dr. Levitt once again testified for the prosecution. Because this was the second trial, the team knew they’d have to make a stronger link between charities that raise money for Hamas and suicide bombers.
Hamas suicide bombers may not know which charities or individuals do it, but they know it will be done, as I know from my interviews of Hamas operatives. And they don’t worry about it, and they go into the attack knowing that whether they are captured or killed their families will be taken care of. And that incentivizes the act of suicide. It certainly removes the barrier, if you know as a father or husband that your family will be taken care of even if you go out and kill yourself while killing others or get captured in the process.
In his “interviews with Hamas operatives,” Dr. Levitt apparently failed to notice that the vast majority of Palestinian suicide bombers had no children. The typical profile of a suicide bomber was a young single person with no dependents.
The anonymous witnesses were back for the second trial too. “[T]o this day I don’t know who ‘Avi’ was,” John Cline remarked.
The defense’s own witness list came back as well. Cline commented, “I had done a number of terrorism cases, and it’s hard to find what you might call respectable witnesses who could appeal to an American jury. But we had Ed Abington and John Bryant who were as respectable and non-partisan as you can be.”
John Robert McBrien was a new witness. The prosecution knew by now that the attorneys for the defense were able to show that HLF had done everything possible to ensure that their money did not go into anything that might be seen as terrorism, and they did this by diligently checking with the government and the government’s published lists of terrorist organizations and individuals. The prosecution knew they had to do something about that in the second criminal trial, to show that HLF had been at least careless, if not deliberate, in its donations.
Mr. McBrien was an associate director of the Office of Foreign Assets Control (OFAC) at the Department of the Treasury. He explained that a Specially Designated Terrorist, or SDT, is a person or an entity that has been defined under the authority of an executive order as “Prohibited party for US persons to have any transactions of any sort with, and whose assets will be blocked within US jurisdiction.” Once the President has listed an SDT, OFAC is responsible for imposing economic sanctions. Mr. McBrien also confirmed that both the President and the US Department of Treasury have the authority to designate an SDT.
Then Ms. Shapiro asked the question that set up the prosecution’s whole case:
So, when the President or the Treasury Department designates an organization as a Specially Designated Terrorist, do they typically designate every subgroup of that organization, or every component of the terrorist organization?
In other words, if none of the committees in the indictment has ever been designated an SDT, could they still theoretically be designated if we could prove they were subgroups of an SDT?
McBrien responded that the government does not typically list all subgroups of a terrorist group.
McBrien and Shapiro also untied another complicated knot in the government’s theory. None of the board members of any of the zakat committees in the indictment have ever been SDTs either, something the defense had brought up many times.
Q: Does OFAC try to designate all individuals associated with a terrorist organization?
A: No. We do not.
[…]
Q: So, are [donors] expected to do more than just check the list?
A: Yes.
According to McBrien’s testimony, it is every charitable donor’s duty to “exercise good faith, due diligence to understand what parties they are dealing with, particularly those that are dealing in a high-risk area such as the Middle East.” Or, as Shapiro clarified, “to ensure that money isn’t going to any subentity or front organization, or any organization in which a listed organization has an interest.”
The donor is apparently supposed to figure out not only what group they are giving to, and who its board members are, and where the money goes, but to know whether that group might be part of another organization, and what that organization’s leadership looks like, and where its money goes, even if the money does not go to the same place, and so on and so forth, until one either encounters or does not encounter an SDT somewhere in the mix.
John Cline did the cross-examination for the defense. He listed no fewer than seven organizations and six individuals that OFAC had declared are part of Hamas and that had been designated separately. And then he went through the zakat committees that were included in the indictment, and still none of them nor the members of their boards had ever been designated.
So sometimes OFAC does, and sometimes it does not, designate subgroups or member organizations. Cline’s argument was that if designating an organization automatically designates all its subgroups and associates, none of the groups or individuals that he listed would have had to be designated.
The process the government uses to determine who is a terrorist, then, is admittedly opaque and confusing, and groups who do business in the Middle East are supposed to take extra care. The defense knew that they had to show that HLF had done that “due diligence” Mr. McBrien suggested.
Cline tried to show just that.
The Treasury Department issued voluntary antiterrorist financing guidelines in 2002, nearly a year after HLF had been closed. Prior to that, there were no real guidelines in place, McBrien admitted, telling organizations how to comply.
So HLF had sought its own guidelines. In 1995, less than a month after Hamas had been designated a terrorist organization, leaders of the Arab and Muslim communities had met with government officials. Ghassan Elashi represented HLF at this meeting. Mr. McBrien had also attended this meeting, as did the then-head of OFAC. In fact, a number of senior Treasury Department officials had attended the meeting, and Cline walked McBrien through the whole list before proceeding to describe the meeting.
Mr. McBrien agreed that “the Arab-American attendees at this meeting were seeking guidance from the Treasury Department in terms of who they could send money to and who they couldn’t send money to.” He also agreed that the senior officials of the Treasury Department present had told the attendees that the list in Executive Order 1294727 was the primary guidance available.
But McBrien couldn’t remember how long the meeting had lasted and admitted that the government could not find any record of the meeting beyond the handwritten sign-in sheet that was found in one of the HLF boxes confiscated by the government, that had been stored at the InfoCom facility, Ghassan Elashi’s family business.
Q: Apart from this document, which you say you didn’t find, there is not a single scrap of paper anywhere in the Department of Treasury reflecting what went on at this meeting.
A: We have not located any.
Cline told me that it is unheard of for a meeting at a government agency with senior officials of the agency present to go without being recorded and proper minutes taken.
The defendants, however, had kept documentation. Cline directed the witness’s attention to a handout that was given to the attendees at this meeting, in which measures were prescribed that would help ensure that funds from charitable organizations would not end up in the hands of the designated terrorist groups listed in Executive Order 12947. McBrien did not dispute the authenticity of this document.
The government’s position, established during direct examination of McBrien, seemed to be that HLF had not done enough to make sure its money would not fall into Hamas’ hands. “All it had done” was monitor the list of SDTs and keep asking the government for six years for guidance on what else it should be doing to comply. The guidelines were finally released a year after HLF’s closure, and one wonders after McBrien’s testimony whether following them would have been enough to protect HLF, had they been available.
The guidelines are purely voluntary. McBrien agreed that if an organization were to ignore the guidelines, it would not be breaking any laws.
“In fact,” Cline pressed on, a “footnote [in] one of the guidelines says, ‘non-adherence to these guidelines in and of itself does not constitute a violation of existing US law.’ Correct?”
“Correct.”
“On the other side of the page, following the guidelines doesn’t mean you are not violating the law. Correct?”
“That is correct.”
“So, to sum up the effect of those two notions, you don’t have to follow the guidelines, and [even] if you do you can still be prosecuted.”
McBrien replied in the affirmative.
A major evidentiary issue in the second criminal trial was the admission into evidence of documents supposedly seized by the Israeli army and then used by the prosecution. Even Judge Fish had agreed that the documents were questionable enough to keep them out of the case, but Judge Solis repeatedly denied the defense’s requests to have them suppressed.
Linda Moreno objected vociferously to the inclusion of materials that hadn’t even existed at the time HLF was closed down, which HLF couldn’t possibly have been aware of.
This is about fifty-five pages, Your Honor, of what the government terms Shahid files, files of suicide bombers, and within those documents they have the dates. And it appears, as I went through the dates, that these are also all post-closure of the Holy Land Foundation, meaning that these events occurred after the closure of the Holy Land Foundation.
Moreno objected to other documents, too, reminding the judge that “the testimony in the first trial indicates that what is being described within that document occurred after the Holy Land Foundation closure, some sort of military operation, so we are talking post-December 2001.” And then there was another group of documents, including a video: “The video was made in 2004, three years after the Holy Land closure.”
Nancy Hollander objected to another set of documents, which she described saying, “It has no date, no beginning, it has no end. It is some piece of typewritten paper, and that is all it is in English and in Arabic. It starts with the words, ‘Missing Text’ and near as I can tell it just ends. So we have no idea what that is.” Then Hollander presented another objection, that,
the defense has been denied to search for these documents ourselves […] The government’s expert Mathew Levitt testified that he actually had an index from the government of Israel that we were not even permitted to see. And the defense has not been permitted the opportunity to go through the documents that evidently lay individuals can go through, since he did. So on the ground of due process, Your Honor, we object to the government introducing any of these documents.
Ms. Hollander concluded by saying it was the defense team’s firm belief “that the government is providing a false idea of these documents by plucking them without the defense having the opportunity to go through them.”
Judge Solis listened, and at the end he said, “I am going to overrule the objections. I think the exhibits are permissible. I think they are relevant.”
Ms. Caddedu added to the defense’s objections by saying that
[T]he government’s position is, this Hamas document was found in this zakat committee and so therefore it is a Hamas zakat committee. But we want to probe the fact that there were lots and lots of documents found and that they only pulled some of these and that we haven’t had the opportunity to go and pull out the ones that were also found with it…. [T]here is a universe of documents that they have gotten to go through that we can’t go through, [because] we don’t have access to them.
Context, again, was everything in the HLF cases, and now the defense team could not even find out what context they needed to provide.
The defense could not even get access to the documents the way the prosecution had. A request had been made that the court send “letters rogatory”28 to Israel, but Judge Solis said the request had come in too late for him to deal with it. He added that he was not convinced that the request was not “anything other than a fishing expedition.” Had the request been approved the defense might—though it seems highly unlikely—have been able to get permission from the government of Israel to view the documents themselves.
The defense was also denied access to the transcripts of the thousands and thousands of hours of taped phone conversations—conversations in which the defendants had supposedly participated. The transcripts were classified, and the government only allowed the defense to view the portion that the government had declassified, thus denying the defense access to crucial evidence.
Mohammad Shorbaji was a new key witness, and in his opening statement, lead prosecutor Jim Jacks made it clear that this was a Palestinian from Gaza who knew the HLF from the inside and was testifying against them.
He failed to see how this might make his witness less credible.
Shorbaji is from Khan Yunis, in the Gaza Strip, as is Mohammad Elmezain. In fact, their families were well acquainted, and Elmezain’s father performed the Tat’hir, or circumcision, on Shorbaji, which in Islam is a religious duty. Shorbaji came to the United States as a student when he was eighteen years old. In 1993, Elmezain helped him find work as an Imam and again later helped him land a job with a company called Alexandria Carpet in Rome, Georgia.
On March 9, 2006, the FBI caught him embezzling over $600,000 from his employer at Alexandria Carpet. He was never charged with stealing the money but instead was charged with one count of providing material support for a terrorist organization, Hamas, to which he pleaded guilty and received a reduced sentence. In Shorbaji’s trial, the prosecutor stated that Shorbaji “enabled the bomb-throwing individuals to continue their work.” She claimed that he did so “by working with the Holy Land Foundation, by encouraging the people in his congregation to give money, which he then funneled to Hamas.”
On February 27, 2007, Shorbaji was sentenced. During the sentencing hearing his attorney argued that
Mr. Shorbaji was confronted with his violations by the FBI long before a lawyer, myself, got involved and on his own he took full responsibility for what he did and he tried to ameliorate some of the harm that he thought he had done, by helping the FBI.
The attorney for the US government took a less rosy view of Shorbaji’s “altruism.”
The government, in exchange for his cooperation, did not charge him for the fraud that he perpetrated on his employer. He stole $600,000; $80,000 of that was stolen from his employer and his wife’s personal accounts. That’s conduct that does not suggest a generally law-abiding citizen.
The cooperation she was referring to was “valuable assistance, including testifying at a trial against other terrorism suspects and that extraordinary measure of cooperation deserves, in the government’s view, a reduction [of his sentence.]” With regards to his testimony, she described it as “consistent with prior debriefings.”
The court sentenced Shorbaji to less than eight years in prison, which is a considerable reduction considering he had pled guilty to providing material support to Hamas. The charges for embezzlement were dropped entirely. The ones who really paid the price were the HLF-5, whose freedom Shorbaji traded for his own by testifying in court that HLF money went directly to Hamas.
His participation in the HLF trial is worth examining. After the first day of his testimony, John Cline made the following statement on the record: “I think the Court observed yesterday that this witness is a bit of a loose cannon,” he said, and continued, “He has a tendency to say, ‘everyone knew’ such and such, ‘everyone knew they were Hamas’ ‘everyone knew this’ ‘everyone knew that.’” Cline requested that “the government make the questions pretty precise with him to avoid eliciting that kind of thing.”
Furthermore, Cline described Shorbaji’s tendency to “testify to a fact that it turns out he knows only from reading it in the paper,” and the problem with that, Cline pointed out, is that “now he is repeating as his own knowledge something that he really learned from somebody else.” A witness in court is supposed to only testify to their personal knowledge, and the rules of evidence, enforced by the judge, are supposed to hold them to that.
Reading through Shorbaji’s testimony, I’m forced to agree with this description. Even the prosecutor, who he was supposedly working with, struggled to get the “right”—or at least the expected—answers out of him. Sometimes he was almost too agreeable, and other times he seemed to have to be led to the answer.
Q: “Did IAP29 ever become part of Hamas?”
A: “Yeah, IAP was completely concerned about Hamas, and all of the work of IAP was for Hamas.”
His answers on direct examination were often erratic and unclear, and Jim Jacks was visibly having a hard time getting straight answers, or at least the answers he was hoping to get. He was asked over and over again how he came to know about the connection between Hamas and the HLF. He mentioned names of people and institutions to which HLF money was going who he claimed were connected to Hamas. He mentioned the Islamic compound in Khan Yunis, he mentioned the Islamic University, he mentioned names of people he supposedly knew, and then, finally, he gave an answer that was critical to the prosecution’s case: “From Mohammad Elmezain.”
After more questioning, he added Shukri and Ghassan as well.
Shorbaji was also an invaluable source of the “association” evidence that prosecutors had leaned on in the first trial. He testified about a supposed closed meeting that took place at a MAYA30 conference in 1994. “The speaker was Khaled Mash’al. I recall being there Mohammad Elmezain, Shukri, Ghassan.”
He mentioned other names, and Jacks had to ask him to slow down.
Q: “You said there was a financial or funds section, money section?”
A: “Correct.”
Q: “Who was the head of that?”
A: “Mohammad Elmezain.”
Q: “What was your understanding about how that money would be applied, to whom it was to be delivered?”
A: “To organizations who were controlled or funded by Hamas in the Occupied Territories.”
Jacks struggled to get Shorbaji to be more specific. Over and over Jacks had to ask who controlled the zakat committees with which HLF was working and to whom HLF was giving money. Shorbaji’s replies were again all over the place.
Q: “Who controlled the zakat committees that Holy Land was sending their food packages or money to buy food packages? Who controlled these zakat committees in the West Bank?”
A: “There are a number of zakat committees in the West Bank, some of them controlled by Hamas, others run by different people, not necessarily Hamas.”
Q: “Well, the ones that—Do you know which ones—which ones was it your understanding were controlled by Hamas?”
At this point Josh Dratel objected and his objection was overruled. He objected again and once again was overruled. Finally, Shorbaji came up with the answer the prosecution needed.
A: “Zakat charity—I am sorry, Nablus zakat charity, Jenin, Ramallah, Hebron. That is the ones I know.”
Those were the committees mentioned in the indictment. Jacks had better luck with his witness when he supplied the names of the organizations himself.
Q: “You said that one of the organizations that Holy Land sent funds or some of the funds to was the Islamic Center?”
A: “Islamic Society.”
Q: “Islamic Society. And there is also the Islamic compound? Or is that a physical location?”
A: “There is a place called the Islamic Compound, and there is another one called the Islamic Society.”
Q: “And did the Holy Land Foundation send money to the Islamic Compound?”
A: “Yes, sir.
Q: “And I think one of the other entities you said was the Islamic University in Gaza?”
A: “That is correct.”
Q: “Was it provided money by the Holy Land Foundation?”
A: “Correct.”
Q: “Those three entities, what organization controls those three entities?”
A: “Hamas.”
Linda Moreno cross-examined Shorbaji for the defense. She established that he had never been to the West Bank nor visited the zakat committees. Josh Dratel went on to take Shorbaji to task and impeach his credibility. He began by reminding Shorbaji of the fateful moment when, on March 9, 2006, the FBI confronted him with the fact that he was caught stealing hundreds of thousands of dollars from his employer.
Q: “And they told you that you were looking at twenty years for each count of fraud, right?”
A: “Correct.”
Q: “And you asked about what your sentence might be?”
A: “Right, correct.”
Q: “And you wanted it to be as low as possible?”
A: “Correct.”
[ … ]
Q: “Now you testified on Thursday that you defrauded Mr. Samir Khatib and Alexandria of approximately $240,000.”
A: “Correct.”
Q: “And in fact the Restitution Order is for $610,000.”
A: “Correct.”
Q: “So in fact you stole $610,000.”
A: “Correct.”
Q: “So what you said Friday wasn’t true, under oath?”
When Shorbaji fumbled for an explanation, the questioning continued.
Q: “Now at some point August of 2006 you reached an agreement with the government. Right?”
A: “Correct.”
[ … ]
Q: “It is an agreement where you agree to do certain things and the government agrees to do certain things.”
A: “Correct.”
[ … ]
Q: “And in fact you didn’t even plead to this fraud of $610,000. Right?”
A: “Correct.”
Q: “Now, you told some lies to the FBI. Right?”
A: “Correct.”
Q: “You weren’t charged with lying to an FBI agent either. Right?”
A: “Correct.”
Mr. Dratel then established that Shorbaji wasn’t prosecuted for lying on his tax returns, or for failure to pay taxes—all of this in return for his testimony against HLF. Dratel further revealed, and Shorbaji affirmed, that if the government deems his cooperation to be “substantial,” they could reduce his sentence even more after the HLF trial ended. But that was not the end of what Shorbaji had been promised.
Q: “Now, you received some additional benefits from your plea agreement beyond the ones we just discussed. Right?”
A: “Such as?”
Q: “Such as certain of your family members who traveled overseas and were having trouble getting documents to come back into the US.”
A: “Correct.”
Q: “The government made sure that they got back.”
A: “Yeah. They got the paper for my wife to come back. My kids are US citizens.”
Q: “And the government also agreed to assist you to reside legally in the United States.”
A: “Right. Correct.”
Q: “As a felon you would be deportable. Right?”
A: “Correct.”
At one point Shorbaji actually blurted out the following:
A: “Let me just explain one thing. OK? Because what happened is this. OK? I did contribute a lot of money to Hamas, OK? And for so many years after the closing down of The Holy Land Foundation, so when the FBI came in with all these questions I thought that if I can lie I just can go home and forget about it.”
Q: “So you lied at that time because you wanted to go home.”
A: “Correct.”
If Steve Simon’s testimony was the least relevant to the case before the jury, it might have been the most relevant to the result they reached. He was called to testify because he had worked on the National Security Council between the years 1994 and 1999, working under two National Security Advisors, first Anthony Lake and then Samuel Berger. Interestingly, it came out during cross-examination by Josh Dratel that part of his work in the NSC was to prepare US politicians who were going to speak before the America-Israel Public Affairs Committee (AIPAC), also known as the Israeli lobby. However, Judge Solis prevented him from expanding on this and went so far as to ask the prosecution to object, which he then of course sustained.
Simon was questioned by Ms. Shapiro, and most of his testimony had to do with explaining why the Israeli-Palestinian peace process was important to US national security and what risks lay in store for US national security and stability if the peace process failed. This is the premise upon which Executive Order 12947, which designated Hamas as a terrorist organization, rests. The executive order states that Hamas and other organizations that threaten to disrupt the Middle East peace process pose a threat to US national security.
The National Security Council staff was involved with helping the Israelis and Palestinians figure out how to work through some of the problems, the logjams that arose in the process of these negotiations, and in particular advising the President how to communicate with the leaders.
Simon was asked about problems that arose after the first Oslo Accord was signed, and his response made it seem as though there was equivalency between the two sides, Israelis and Palestinians. “There were things on both sides that were problematic,” he began, and then added, “1993 was the year the declaration of principles was signed, and that was followed in 1994 by a lot of terrorist violence by Palestinian groups.”
But there is not an equivalence to be found here, and in fact the 1994 violence was sparked by a massacre committed by a Jewish-American terrorist.
On February 25, 1994, Baruch Goldstein, a Jewish-American doctor living in a Jewish settlement near the Palestinian city of Hebron, managed to walk into the Ibrahimi Mosque in Hebron and open fire on worshipers as they were kneeling on the ground in prayer. He ended up killing twenty-nine Palestinians during worship and injuring scores of others. Goldstein was overtaken and killed on the spot. He is considered a hero among many Jewish settlers, and a shrine was built in his memory in the Jewish city of Kiryat-Arba.
In response to the attack, the Israeli authorities imposed severe restrictions on the Palestinian residents of Hebron, which restricted their movement and eventually brought after the closing of Shuhada Street, the main business street in the Old City of Hebron. Of course, the attacker was not Palestinian. Coincidentally, or perhaps not so much, those same measures created very favorable conditions for the Jewish settlers residing in Hebron. In retaliation, Hamas began a series of suicide missions. When Israeli security personnel came to ask Sheikh Ahmed Yassin to denounce the suicide missions, the Sheikh offered them a deal, either short-term or comprehensive: both sides would agree to end the killing of civilians. Israel did not respond.
Over the years, Hamas leaders, including Sheikh Yassin, offered Israel a truce by which both sides commit not to target civilians, but Israel showed no interest in such an agreement. In an interview with Olivia Ward in December 2004, Khaled Mash’al said: “Should Israel stop, we too would be ready to stop.”
Simon made no secret of the fact that US interests in Israeli-Palestinian peace had to do with oil and with the United States’ own vulnerabilities as a superpower with bases and military presence around the world. “To be blunt, oil is extremely important to the United States,” Simon stated.
According to Simon, the United States was interested in seeing an Israeli-Palestinian peace accord come to fruition in order to appease Arab dictators who were worried about their own stability. “Governments need to maintain some kind of legitimacy. They need to satisfy public opinion.” And so the United States had to act to help those governments that supply the United States with oil, and that is why opposing the Oslo Accords was a danger to US national security. And then, in an argument that could not have been less relevant, Simon added that “then there were proliferation concerns.” Upon further probing by Ms. Shapiro, Simon explained that there was a concern that Iran was seeking to develop nuclear weapons. One wonders how a statement like that gets to be admitted in a trial about an American-Muslim charity organization in the State of Texas.
Then Simon dropped the bomb for which it is reasonable to suspect he was brought in by the prosecution: “The problem now, and we all know this since 9/11,” he made sure to stress, “[is] that people from there who are angry at the United States are motivated and capable of coming over here and hurting us quite badly.”
Once again, the attacks of 9/11 were being invoked to demonize people, places, and events that had nothing to do with the attacks. There could be no other reason for mentioning 9/11 in that courtroom other than the fact that the defendants were of Arab-Muslim origin and the prosecution wanted the jury to feel there was a connection, however remote, to Osama Bin Laden and other Muslim Arabs whom Americans have been taught to fear.
Judge Solis was perfectly willing to let the prosecution pursue this line of questioning. What did bother the Judge was when Josh Dratel, for the defense, asked Simon about his work as an NSC employee in preparing administration officials for appearances in front of pro-Israeli organizations. The bizarre exchange went like this:
The Court (to the prosecution): “Do you have an objection to this area of questioning?”
Ms. Shapiro: “I object to relevance and outside the scope.”
The Court: “Sustained.”
The second trial ended in November 2008, and after nine days of deliberations, the jury came back with all guilty verdicts.
All five men gave eloquent speeches prior to their sentencing, though in Shukri’s case Judge Solis cut him short. They all thanked God, they thanked their families and friends who supported them. They expressed their deep faith in the work they did, and not one of them in the slightest way expressed regret for the price they would now have to pay for doing that work. These five men demonstrated that their convictions were firm and their faith unimpeachable. They did the right thing, they would do it again, and God only knows how He will judge all of us when the time comes.
Mufid was given a twenty-year sentence, while Abu-Ibrahim and Abdulrahman were given fifteen each for the exact same charges. Ghassan and Shukri were each sentenced to sixty-five years.
They were now among thousands of Palestinian political prisoners, and perhaps millions of political prisoners around the world, nearly all of whom were convicted with a lack of real due process, all paying a price for being true to themselves.
A great deal of time, money, and effort went into an attempt to get President Obama to commute the sentences of the HLF-5. John Bryant called me at one point asking if there was anyone I knew with whom they might speak and ask for help. Sadly, I knew no one who had any influence and would speak for five innocent Muslim Palestinians imprisoned in the United States.
A delegation went overseas to plead with Muslim heads of state whom the United States deemed “friendly,” asking them to speak to President Obama before he left office, but to no avail. Offers were made to provide the five with citizenships in other countries should they be released and deported. But as John Cline once told me, this is too “politically fraught,” and Obama failed these innocent men just as he had failed the cause for justice and peace in Palestine. It is very likely that these five Palestinian political prisoners will be freed once all Palestinian political prisoners are freed, and that will only happen once their homeland, Palestine, is free.
27 Exec. Order No. 12947, 3 C.F.R. (1995).
28 Letters rogatory are a formal request from a court to a foreign court for some type of judicial assistance. https://en.wikipedia.org/wiki/Letters_rogatory
29 Islamic Association of Palestine. A US based organization dedicated to promoting the Palestinian issue in the US. They too were accused by the US government and pro-Israeli groups of supporting Hamas.
30 Muslim American Youth Association.