Miko Peled | The Electronic Intifada | 14 February 2018
In July 2004, federal agents raided the homes of five Palestinian American families, arresting the fathers, who had been leaders of a Texas-based charity called the Holy Land Foundation.
The Holy Land Foundation was once the largest Islamic charity in the United States, but months after the 11 September 2001 attacks the federal government shuttered the organization and seized its assets.
The first trial of the Holy Land Five was held in 2007 and ended in a hung jury. A second trial resulted in guilty verdicts. Both were marked by highly questionable procedures including the admission of testimony from anonymous Israeli security agents.
The failure to get a conviction in the 2007 trial was a huge embarrassment for the prosecutors, for whom this had been a flagship terrorism case. But they learned from their mistakes.
“We came back a year later,” John Cline, the lawyer for defendant Ghassan Elashi, 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 offense 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 Holy Land Five ended in a mistrial, it had not “concluded” in a legal sense.
Second trial
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 32 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.
Mohammad El-Mezain, Mufid Abdulqader and Abdulrahman Odeh 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 Abu Baker, on the other hand, faced 24 charges. Ghassan Elashi had 33. 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 the Holy Land Foundation 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 US government.
Major changes
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 ’80s and early ’90s 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.
First, 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 the Holy Land Foundation’s point that it had tried to make sure that it was not giving money to terrorists and that the zakat committees – local charitable societies in Palestine which collect annual contributions from devout Muslims and oversee their distribution – had never been listed as terrorist entities by the government when so many others had. They wanted to prove that the Holy Land Foundation had not done enough to make sure their money wasn’t going to terrorists.
Second, 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 in West Bank cities during the Operation Defensive Shield incursion in April 2002, more than a year after the Holy Land Foundation was closed down.
The documents, undated and with no identifiable author, supposedly showed that Hamas controlled the zakat committees. Judge A. Joe Fish, who had presided over the earlier, inconclusive trial, had agreed that these documents were not admissible evidence, but now the new judge, Jorge Solis, allowed them in.
Third, 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 as a foreign terrorist organization.
In his testimony he brought up the 11 September 2001 attacks, which was a serious problem. The defendants had nothing to do with the attacks, Hamas had nothing to do with the attacks, and the trial had nothing to do with the attacks. By creating this association in the jury’s mind, the government was able to imply things far beyond the scope of the trial.
Lastly, Mohammad Shorbaji was a witness that the government chose to call in the second trial but not the first.
Shorbaji, a Palestinian from Gaza, had been convicted in early 2007, on a charge of embezzling $600,000 from the carpet company in Virginia for which he worked, and as part of a plea bargain he had agreed to cooperate with the FBI.
He testified that “everyone” in the West Bank, to which he had never been, knew that the Holy Land Foundation was the fundraising arm of Hamas and that all the zakat committees were Hamas.
Guilty verdicts
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 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.”
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.
Decades-long sentences
Mufid was given a 20-year sentence, while Mohammad El-Mezain and Abdulrahman Odeh were given 15 each for the exact same charges. Ghassan Elashi and Shukri Abu Baker were each sentenced to 65 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 Barack Obama to commute the sentences of the Holy Land Five. I was asked 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 US deemed “friendly,” asking them to speak to 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.
This essay is adapted from Injustice: The Story of the Holy Land Foundation Five by Miko Peled (Just World Books, 2018).