U.S. Losing Court Battles in War on Terror

Acquittal of Hamas Supporters Latest in Series of Judicial Setbacks

By Marc Perelman

Published February 23, 2007, issue of February 23, 2007.
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A series of recent verdicts favoring Palestinian defendants in high-profile terrorist cases are raising questions about the American government’s strategy in prosecuting supporters of militant groups.

Earlier this month, a Chicago jury acquitted Mohammed Salah and Abdelhalim Ashqar of being part of a racketeering conspiracy to finance and support Hamas. The two men faced life sentences after being charged with laundering funds and providing recruits for the group. In the end, however, they were convicted on lesser charges of obstruction of justice and criminal contempt.

The verdict followed two other setbacks for federal prosecutors in high-profile cases involving Palestinian suspects.

Late last month, a federal immigration judge dismissed the government’s long-running attempt to deport two men who were arrested along with six other American residents 20 years ago because of their alleged ties to the Popular Front for the Liberation of Palestine. Calling the prosecution’s conduct “an embarrassment to the rule of law,” Judge Bruce Einhorn ruled that the government had violated the constitutional rights of Khader Hamide and Michel Shehadeh by its “gross failure” to comply with his instructions to produce “potentially exculpatory and other relevant information.”

In December 2005, a jury in Florida acquitted former South Florida University professor Sami Al-Arian of eight terrorism charges and deadlocked on nine others. Arian eventually pleaded guilty to supporting members of the Palestinian Islamic Jihad and is serving a 57-month prison term.

The indictments in Chicago and in Florida were initially trumpeted by then-attorney general John Ashcroft as major accomplishments in the prosecutorial side of the war on terror after the attacks

on September 11, 2001. But defense lawyers in the cases say that the actual verdicts were products of the government’s overreaching, most notably its frequent use of the “material support” criminal charge, which encompasses a wide variety of activities from actual operational support to advocacy.

“Today, the prohibition to provide any support to a blacklisted group has become the functional equivalent of the guilt-by-association charge that was put aside years ago,” said David Cole, professor of constitutional law at Georgetown University. Cole represents several plaintiffs in cases challenging government terrorist charges.

Matthew Levitt, a former FBI and Treasury official who was an expert witness for the prosecution in the Chicago trial, cautioned against drawing hasty conclusions from the verdicts. Still, he expressed disappointment over the fact that the two Hamas supporters were able to beat the terrorism-related charges.

In this case, prosecutors faced the additional challenge of trying to punish activities that occurred before Hamas was declared a terrorist organization by the American government in 1995.

Salah, an American citizen, was accused of helping funnel hundreds of thousands of dollars to militant groups in the West Bank and Gaza. He was captured by the Israelis with $100,000 cash in 1993, and reportedly confessed to being a Hamas military commander. Ashqar was alleged to have helped launder money and facilitate communications for Hamas.

Neither man denied helping move money for Palestinian causes, but both insisted that they did not aim to promote terrorism. In addition, Salah said that his confession was the result of torture on the part of Israeli officials. In an unusual move, the prosecution brought two Israeli interrogators to testify under aliases that Salah was treated well. Former New York Times reporter Judith Miller, who had attended an interrogation session in Israel in the early 1990s, also testified for the prosecution.

In the end, Salah was convicted of obstruction of justice for providing false answers to questions in a civil suit filed by parents of an American teenager who was shot and killed by Hamas terrorists at an Israeli bus stop.

Ashqar was convicted of obstruction of justice and criminal contempt for refusing to testify before a federal grand jury after receiving immunity from prosecution.

One other defendant remains under indictment in the case: Mousa Abu Marzook, Hamas’s deputy political bureau chief, who was deported from the United States in 1997 and is now in Damascus. Prosecutors have charged that Marzook sent Salah on his mission to Israel and supplied him with money to give to Hamas leaders. In the PFLP case, Hamide and Shehadeh, both longtime legal residents of the United States, were part of a group that was dubbed “the L.A. 8” after the government launched attempts to deport them in January 1987.

All have steadfastly maintained that they were being persecuted even though their political activities — distributing newspapers; participating in demonstrations; assisting Palestinians with human rights and medical needs; raising money for hospitals, youth clubs and day-care centers — were lawful.

In the latest twist in the case of former Florida professor Arian, he is currently on a hunger strike to protest his jail conditions. He began his strike after learning that he will have to serve the remaining 18 months of his jail sentence for his refusal to testify before a grand jury in another terrorism case. His attorneys claim that an earlier plea agreement freed him from further cooperation with the government and that he expected to be deported. But the government claims that no such commitment had been made in a plea agreement reached last May, in which Arian admitted that he was conspiring to provide services to Palestinian Islamic Jihad. The jury did not convict him on the more serious charges that he was actively involved in terrorist activity.

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