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Trial and Error

A mistrial is not the same as an acquittal. Five men escaped conviction in Texas this week on federal charges of financing terrorism through a Muslim charity, but they were not found innocent. The jury failed to agree on a verdict, and the judge declared a mistrial.

The government charged that the men’s charity, the Holy Land Foundation, was funneling money to Palestinian welfare agencies controlled by Hamas. That meant, the government said, that they were effectively funding Hamas and its terrorism, a criminal act. The defendants said there was no connection between Hamas and their charities, which they said are untainted by terrorism. The jury didn’t buy the government case and voted to acquit, but three jurors unexpectedly disavowed the verdict as it was read in court, triggering the mistrial. The government is free to try the case again before a different jury, perhaps hoping its luck will change.

But Uncle Sam’s luck is not likely to change. This trial was the third major terrorism case in as many years that the federal government brought before a jury and lost. A few smaller cases have brought convictions, but these were decided mainly by judges. Major criminal cases are brought before juries, and the feds don’t have much luck convincing the jurors.

The Holy Land case was supposed to end differently. The government’s case was 13 years in the making at a cost of millions of taxpayer dollars. Evidence reportedly included thousands of pages of transcripts, financial statements and phone records, plus hundreds of hours of wiretapped conversations and live testimony from an Israeli intelligence agent. From published news accounts, it sounded pretty convincing.

As it happens, the most damning bit of evidence surfaced just last week, as the jury was finishing deliberations. Mahmoud Abbas’s Palestinian Authority moved on October 18 to dissolve the main network of Islamic charities in the West Bank, according to a posting that day on a Hamas Web site, unearthed by the Investigative Project. The Palestinian Authority claimed that the move was intended to improve management, but a Hamas spokesman in Gaza insisted it was a naked bid to remove the charities from Hamas control.

Why, then, did the feds lose this case? For one, cases of this complexity, involving months of testimony and thousands of pages of financial details, are notoriously difficult to win in front of a jury. Jurors can take in only so much. Second, the Bush administration’s credibility in these matters is in tatters, eviscerated by four years of war in Iraq, the wreckage wrought by the war and the exposure of lies that led us to war. Even in Texas or Florida, a jury of 12 citizens cannot bring itself to vote “guilty” based on the administration’s evidence.

How, then, to avoid these embarrassments in the future? Our government might start by re-examining some assumptions and learning lessons from the past. The first lesson to be learned is how to identify enemies correctly. It was the assumption that all Muslim terrorists are the same — that Saddam Hussein equals Osama bin Laden — that led us blundering into the Iraqi quagmire in the first place. The terrible error could have been seen in advance, but the Bush administration lacked the curiosity to look.

So it is with Hamas. The organization was deservedly labeled terrorist in 1995, including both its military and political wings. That ruling has guided policy toward Hamas ever since. Unnoticed is the fact that Hamas declared a unilateral cease-fire with Israel in 2005 and has almost entirely avoided attacks on Israelis since then. No, it has not tried to impose the cease-fire on other groups — neither rival extremists like Islamic Jihad nor rogue elements within its own ranks. Nor has it renounced its goal of eliminating Israel. Nonetheless, the group is going as far as its ideology will permit in seeking coexistence.

America, meanwhile, continues as though nothing has changed in the past quarter-century. New grudges emerge, but the old ones never seem to be resolved, forgiven or reconsidered, and the list grows longer.

Hamas has signaled in every way possible in the past three years that it wants to break out of its isolation and become a responsible neighbor. It hasn’t gone nearly far enough nor been forthright and consistent enough, but it has moved. This moment in history, when a new peace initiative is about to be launched and the old, tried-and-true tactics of war are crumbling, is a perfect time to reconsider the quarantine of Hamas.

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