Maureen Clare Murphy
A motion citing new evidence has been filed to exonerate five humanitarians who are imprisoned in the United States for providing aid to Islamic charities in Palestine, the Muslim Legal Fund of America announced yesterday.
The five defendants were prosecuted for their work with the Holy Land Foundation, which was the largest Islamic charity in the US before it was shut down without due process by an executive order issued by President George W. Bush in late 2001.
US attorneys argued that the men had provided material support for foreign terrorist organizations by funding charitable committees in the occupied West Bank which the government says are controlled by Hamas, a Palestinian political party and armed resistance organization which the US designated as a foreign terrorist organization in 1995.
The Muslim Legal Fund of America, a civil liberties group which has funded the defense of the Holy Land Five since 2007, summarized the lengthy court saga faced by the men after the Supreme Court declined to hear their case last year:
The defendants faced two trials. The first ended in no convictions, but the judge ruled it a mistrial and granted prosecutors another opportunity to put the five men on trial. The second trial ended in convictions, with the key witness for the prosecution being an anonymous expert who defense attorneys were unable to adequately cross examine – a fact at odds with the Sixth Amendment. MLFA funded the defense, appeal and US Supreme Court petition due to the significance the case has on the future of civil liberties for everyone in America. Representatives from the legal fund are gravely concerned over the court’s decision to not hear the case.
The defendants are serving prison sentences ranging between 15 to 65 years and some are being detained in Communications Management Units. These are incarceration facilities opened in secret in 2006 and 2008 and which are mainly populated by Muslim prisoners who are closely monitored and severely restricted from communicating with the outside world.
Motion for exoneration
The motion filed in federal district court in Texas last month argues that the Holy Land Foundation defendants should be exonerated of all charges on the basis of new evidence as well as the evidence presented at trial.
The motion argues that there was no factual basis to the government’s claims that Hamas controlled the Zakat Committees listed in the indictment and that the testimony of the government’s witnesses relied on “pure speculation.”
“Neither the government or the defense presented any testimony from any person with actual personal knowledge as to how the committees operated that would have addressed the question of whether Hamas controlled the committees,” the motion states.
Newly submitted affidavits from Palestinians who were members of the Zakat Committees named in the indictment during the time that they were supported by the Holy Land Foundation establish that Hamas did not control the committees, according to the the motion.
The motion refers to expert testimony by George Washington University political science professor Nathan Brown who was called by the defense for the first trial but not the second trial and whose “testimony refuted the government’s argument that Hamas controlled the Zakat Committees.”
The motion further states that defense attorneys provided inadequate counsel by failing to pursue a motion to suppress evidence obtained from the Holy Land Foundation’s offices without a warrant.
Further evidence suppressed by the prosecution, including materials seized from the Zakat Committees’ offices in Palestine currently housed in an Israeli military warehouse, could have proved the defendants’ innocence during the trial, the motion argues.
According to the motion, evidence suppressed by the prosecution demonstrates that the government entrapped the defendants. This includes comments made by the defendants during secretly recorded phone conversations which “indicate a desire to follow the law and a belief that they [were] following the law. The government, through their classification of these calls, denied the defendants’ access to the calls in order that all of these exculpatory conversations could be located for use at trial.”
The motion further argues that the defendants’ counsel was ineffective “for not requesting an entrapment defense instruction or pursuing an entrapment defense.”
Defendant Ghassan Elashi, on behalf of the Holy Land Foundation, along with representatives of other American Muslim organizations, met with the US Department of Treasury to seek guidance shortly after Hamas was designated a terror group in January 1995. The US government declined to provide the Holy Land Foundation and the other organizations with a “white list” of acceptable charities, the motion notes.
“These facts establish that the HLF defendants were attempting to comply with the law and that the government deliberately misled them into thinking they were doing so. This demonstrates no offense would have been committed but for the government’s conduct,” the motion states.
The motion also calls for vacating the sentences of the Holy Land Foundation defendants because of the constitutional vagueness of the application of the laws prohibiting material support to foreign terrorist organizations, given that the Zakat Committees named in the indictment were never designated as such.
Prosecuted for being Muslim
“An examination of the evidence, with a proper application of the law, will show that Hamas did not control these committees any more than the fact that a person is a member of the Republican party, and is an officer of Walmart, means that the Republican party controlled Walmart. The evidence simply shows that Zakat Committees were composed of community leaders, some of whom were Hamas sympathizers and some of whom were not,” the motion states.
The motion also claims that “The defendants in the Holy Land Foundation case were prosecuted for one reason, and one reason only: that they are Muslim” and that virtually all of the prosecutions under the statute barring material support to foreign terrorist organizations have targeted Muslims.
The attached exhibits supporting motion’s selective prosecution argument include “Various news articles showing non-Muslims alleged to have committed similar acts that were not prosecuted.”
The motion states regarding the selective protection of Muslims:
A hearing should be held, and discovery ordered on this issue. If allowed this discovery and a hearing, the ugly underbelly of this prosecution will be revealed. These defendants and the Holy Land Foundation were targeted, prosecuted, and imprisoned based on their religion. The United States government has made policy decisions to ignore and not prosecute similar conduct by non-Muslims. The prosecution in this case was motivated by a discriminatory purpose and had a discriminating effect.