The Holy Land Foundation Case

As the five defendants of the Holy Land Foundation (HLF) case were being sentenced May 27 in Dallas, Texas, many members of the local Muslim community came together to rally outside the Federal building. They held a banner that read "Feeding children is not a crime" and wore black shirts with the words "Free the Holy Land Five."

Three of the five men, ranging in age from 49 to 58, received the maximum sentence possible. Ghassan Elashi received 65 years on 35 counts; Shukri Abu Baker received 65 years on 34 counts; Mohammad El-Mezain was given 15 years on a single count; Mufid Abdulqader and Abdulrahman Odeh, received 20 years and 15 years respectively, each on 3 counts. All the defendants have filed notices of appeal with the 5th U.S. Circuit Court of Appeals. This has now become the largest terrorism financing case in the United States since 9/11—and the most disputed.

In this landmark case, United States v. Holy Land Foundation, the Holy Land Five were convicted on 108 counts of "material support of terrorist organizations," money laundering, and tax fraud—for sending money, food, clothing, medical and school supplies to Zakat committees which support Palestinian charities in the Middle East through the Richardson-based Holy Land Foundation.

The Holy Land Foundation, a U.S. charity founded in the 1980s, became the largest Muslim charity in the United States. After 9/11, the Bush administration said that the charity was funding Hamas and would shut it down by executive order. Since records taken from the charity showed that no supplies went to Hamas and audits of the charity couldn't support claims that the group funded Hamas, a new definition of material support for terrorists was created.

In 2004, the Bush administration claimed that there was a conspiracy to support Hamas because the charities that the Holy Land Foundation gave material goods to were controlled by Hamas. When Israel launched "Defensive Shield" in 2002, the charities were raided and identified as "Hamas controlled" because they had posters of Hamas leaders, which were prevalent in Gaza at the time. The U.S. government said this was a crime because Hamas didn't have to use any of their own funds to win over the hearts and minds of the Palestinians and on July 23, 2007 it brought the Holy Land Five to court.

Evidence normally has to meet all such rules in court, including relevance, materiality, competence, and foundation. If the evidence doesn't meet these criteria, then it cannot be shown to the jury. Yet, the government argued that in order to prove a conspiracy theory, the regular procedures for rules of evidence did not have to be met to prove their case.

The First Trial

According to Khalil Meek, president and CEO of Muslim Legal Fund of America, prosecutors used evidence of video footage from HLF fundraisers in 1988, 1989, and 1990 that showed members singing old folk songs that portrayed Hamas in a positive light. This was before the Clinton administration designated Hamas as a terrorist organization in 1995.

Meek said the prosecution claimed that the Holy Land Five lied on their taxes because they claimed the money was a donation for charity when it was actually "material support for terrorists."

The defense pointed out that the Zakat committees to which the Holy Land Foundation gave the money were not listed as terrorist organizations on the government's Specially Designated Terrorist Organizations list and that the United States Agency for International Development was giving supplies to the same charities within the same time period (through 2004) .

Edward Abington, former U.S. Consul General stationed in Jerusalem in the late 1990s and a senior official for the U.S. State Department, testified on behalf of the defense. He said he got daily CIA briefings on security threats in the region and was never informed that Hamas controlled the Palestinian charity groups, or Zakat committees, to which Holy Land donated money.

During the deliberations, the jury had asked Judge Joe A. Fish if any demonstrative exhibits, or persuasive arguments put together by lawyers that cannot be used by the jury to make their deliberations, had accidently become mixed in with the evidence and sent back to the deliberation room. The judge then asked both the prosecution and the defense if they knew of any demonstrative exhibits missing that might have made it into evidence and after both councils said they knew nothing, the judge had deemed that all the material the jury had to deliberate with was evidence.

Despite the confusion, the jury came back not guilty. But after the verdict was sealed for three days because the judge was out of town, three of the jurors changed their minds when polled after the verdict was finally read. A mistrial was declared and the defendants were to be retired after one year. Meek said that it was later discovered that a 200-page demonstrative exhibit of the prosecution had made it into evidence and was used by the jury to make their deliberations.

Demonstrators outside a Dallas courtroon in October 2007—photo from h4jusa.com

The Second Trial

In the retrial the prosecution used tactics that have never before been used in an American courtroom—all allowed by Judge Jorge A. Solis.

Government witness Atef Shafik, a senior language analyst for the FBI, made the argument that Muslims using common phrases that refer to peace and God are terrorists because the phrases reveal that they are Islamists and this makes them part of the Muslim Brotherhood, a shadowy anti-Israel organization that supposedly calls for the destruction of Western civilization from within in order to replace it with an Islamic society. Defense attorney Theresa Duncan said Shafik's words expressed pure bigotry and were clearly "an attack on Islam."

According to an article by Bob Sanders in the Fort-Worth Star Telegram, the prosecution presented unsigned and unauthored documents seized in a raid on the Palestinian Liberation Organization that the defense was not allowed to see. The items were introduced through an unnamed Israeli soldier who was not present when the items were seized.

The court also allowed evidence from selective declassification from wiretapping records. If the government is to use wiretapping surveillance evidence in court, it is procedure to declassify all records pertaining to the case so that the defendant may see all of their statements. Yet, in this trial, the records were not entirely declassified and the government denied the defendants access to their own recorded statements.

Edward Abington's testimony also changed in the retrial, as the CIA forbade him from making any references to the agency or to the specific information revealed to him in the briefings, according to an article by Jason Trahan in the Dallas Morning News.

The prosecution also showed the jury inflammatory evidence, biased in nature and not relevant to the case: various photos depicting violence perpetrated by Hamas, such as pictures of the aftermath of suicide bombings and little kids dressed up as suicide bombers.

The most striking of all was the use of an anonymous Israeli secret agent, "Avi." He testified at length as an expert and was used to tie together all of the prosecution's highly questionable evidence. Because "Avi" did not have to give his name, he did not have to worry about perjury charges.

The government also published a list of 300 unindicted co-conspirators consisting of major mainstream Muslim organizations. According to Meek, the list was initially meant to be private, but went public after the government published it with the indictment in official public records. With the public told that the heads of these organizations are terrorists, the implications are staggering.

If the appeals made by the defense fail to win in court, the outcome of the case will essentially link Islam to terrorism in an unprecedented and very permanent way. This case would make the stigma attached to Muslims official, as many prominent Islamic organizations are listed as co-conspirators simply based on the nature of their faith and their empathy towards the plight of the Palestinian people.

Noor Elashi, journalist and daughter of defendant Ghassan Elashi, has vowed to clear her father's name: "This community should come together and should stay together because one thing that the government wants is for us to be broken apart. When the government sees how strong we are they cannot come attack us anymore."

In a "Democracy Now!" interview, Elashi said: "From the very beginning of the case, the media coverage has been very biased, including many Israeli bloggers and people obviously anti-Muslim, anti-Palestinian in the news articles."

The context of this case is critically important for the American public to understand in such times. We must continue to recognize prejudice and persecution and stand against injustice. Describing the impact of the sentencing to the Richardson Muslim community, Elashi said, "Today does not mark the end; rather it marks the beginning of the human and civil rights era for Muslims in America."