[News] The Grand Jury and the persecution of Dr. Abdelhaleem Ashqar Michael E. Deutsch

[Anti-Imperialist News]

<http://electronicintifada.net/v2/article9222.shtml>http://electronicintifada.net/v2/article9222.shtml 


The Grand Jury and the persecution of Dr. Abdelhaleem Ashqar
Michael E. Deutsch, The Electronic Intifada, 14 January 2008

[]

Dr. Abdelhaleem Ashqar (Sh. Kifah Mustapha)

Ever since his sentencing on 21 November, I have been ruminating on 
the extreme injustice perpetrated on Abdelhaleem Ashqar by the US 
government and the federal court in Chicago culminating in a 
draconian sentence of 135 months for nonviolent acts of civil 
disobedience. Dr. Ashqar, a Palestinian and a former professor of 
business administration at Howard University, was acquitted this past 
February by a federal court jury of participation in an alleged 
racketeering conspiracy charged against Hamas, the elected government 
of the Palestinian Authority, which had been designated in 1997 as a 
foreign terrorist organization by the US government. [Disclosure: the 
author was one of the counsel for Dr. Ashqar's co-defendant Muhammad 
Salah who was acquitted of racketeering conspiracy, but convicted of 
obstruction of justice for filing false answers to interrogatories in 
a civil case and sentenced to 21 months in prison.]

Dr. Ashqar, who received his PhD from the University of Mississippi 
and was a candidate for the presidency of the Palestinian Authority 
in 2005, was convicted of one count of obstruction of the 
administration of justice and one count of criminal contempt stemming 
from his refusal to collaborate with federal grand juries, one in New 
York and one in Chicago, investigating Hamas and the Palestinian 
anti-occupation movement. His refusals to testify before 
investigative grand juries about his work and relationships with 
other Palestinians -- in effect to become an informer against his 
people and his liberation movement -- was part of a long history of 
resistance by activists in this country to "naming names" of 
political associates before government investigative bodies. Such 
refusals to cooperate with grand juries have occurred in response to 
the usurpation by prosecutors of the purported independent power of 
the grand jury.

The requirement that one must be indicted by a grand jury before 
being made to stand trial for a criminal felony offense, adopted from 
the English common law and enshrined in the Fifth Amendment of the US 
Constitution, was supposed to act as a safeguard to the accused from 
over-zealous or politically-motivated government prosecutors. In 
practice, however, the grand jury has never operated as a check on 
government overreaching and oppression either in England (which 
abandoned the use of grand juries in the 1930s) or in the United 
States. In reality, the history of the grand jury in both countries 
has been predominantly one of serving the interest of the government 
or the prejudices and passions of the local populace, and in the very 
few well publicized cases where individual grand juries have refused 
to indict political opponents of the government, government 
authorities have convened more compliant grand juries to obtain the 
desired charges. Whether against the early anti-federalist movement 
or the abolitionist, labor, anti-war or more recent Black and Puerto 
Rican liberation movements, the federal grand juries have been more 
than willing to follow the direction of the prosecutors, without 
providing any independent check on the government's exercise of 
power. As one former New York high court justice famously noted, "a 
grand jury would indict a ham sandwich if the prosecutors so requested."

In the last forty years the government has used the grand jury as a 
tool of political inquisition subpoenaing and re-subpoenaing 
activists the government knows will refuse to cooperate stripping 
them of their constitutional right against self-incrimination and 
forcing upon them the choice of informing on their movement or going 
to jail for contempt. At the government's choosing the contempt can 
be civil, limited by the maximum duration of the grand jury (up to 
eighteen months) or criminal, as in the case of Dr. Ashqar, with no 
maximum allowing for a possible sentence of up to life in prison.

The power of the government to strip away a person's right to remain 
silent before a grand jury by providing a grant of immunity which 
precludes the use of the person's own words to charge and prosecute 
him with a crime has been upheld by the Supreme Court. This was not 
always the case. In a landmark 5-4 decision fifty years ago the 
Supreme Court in Brown v. Walker, first upheld a grant of immunity in 
a case which concerned an investigation into economic regulation by 
the Interstate Commerce Commission and did not involve political 
associations and activities. Nonetheless, the four dissenters focused 
on the historic nature of the right against self-incrimination 
opining that the Fifth Amendment right was not just limited to be 
protected from criminal prosecution, but "[t]he Fifth Amendment also 
protects the witness from all compulsory testimony which would expose 
him to infamy and disgrace ... both the safeguard of the Constitution 
and the common law rule spring alike from the sentiment of personal 
self-respect, liberty, independence and dignity which has inhabited 
the breasts of English speaking peoples for centuries, and to save 
which they have always been ready to sacrifice many governmental 
facilities and conveniences."

The majority opinion gave the imprimatur for the government's use of 
the grand jury power coupled with limited immunity to haul political 
activists before these secret inquisitions, where the person called 
appears alone without his lawyer, and where he has no recourse but to 
answer all the questions or go jail. Beginning in the late '60s 
through the present, scores of political activists from varied 
movements were called before grand juries and many refusing to 
testify went to jail for months in civil contempt. A few even were 
indicted for criminal contempt and received sentences between two and 
five years. However, I know of no case in which anyone refusing to 
testify before a grand jury has received a sentence of longer than 
five years, let alone over eleven years as in the case of Dr. Ashqar. 
Lewis "Scooter" Libby, former chief of staff to Vice President Dick 
Cheney, before he was pardoned by President George W. Bush was 
sentenced to thirty months in prison for lying to a federal grand 
jury -- a far worse crime than standing on political principle and 
refusing to testify.

In Dr. Ashqar's case the limited immunity which only protected him 
from the use of his own words in a criminal prosecution in the US was 
woefully inadequate and unquestionably a threat to his personal 
liberty and self-respect. In 1998, Dr. Ashqar spent eight months in 
jail on civil contempt resulting from his unequivocal refusal to 
inform on others before a grand jury sitting in New York. He was 
released after a judge found that his refusal was based on deeply 
held principles which would not be affected by further incarceration. 
Four years later the government re-subpoenaed him to a grand jury 
sitting in Chicago. The subpoena was served just two weeks before Dr. 
Ashqar had voluntarily agreed to leave the country and forego his 
claim for political asylum. In light of his steadfast refusal in New 
York, the Chicago subpoena had no legitimate purpose and resulted in 
his imprisonment without criminal charge or trial. Further, the 
immunity offered to Dr. Ashqar in New York and Chicago, did not 
protect him from prosecution and persecution by the Israeli 
government and given the close working relations and sharing of 
information between the two governments there was more than a 
reasonable likelihood that any testimony by Dr. Ashqar would find its 
way to Israeli intelligence, jeopardizing his freedom when he 
returned to Palestine.

Despite this unfairness, the government chose to imprison Dr. Ashqar 
for civil contempt in Chicago and then after several months in prison 
indicted him for criminal contempt and obstruction for his grand jury 
refusals along with the racketeering conspiracy charge. After his 
conviction on the contempt and obstruction charges, the government 
relying on the "terrorism enhancement" in the sentencing guidelines 
asserted that Dr. Ashqar's refusal to testify before a grand jury 
investigating Palestinian terrorism, required him to be sentenced as 
if he aided and abetted terrorism, allowing for a sentence up to thirty years.
The district court, ignoring the fact that Dr. Ashqar was acquitted 
of a terrorism conspiracy, his long history of service to his people 
documented in hundreds of letters and the history of 
non-collaboration and civil disobedience vis-a-vis grand jury 
inquisitions, sentenced him to more time in prison than if he had 
committed a violent felony. The sentence fails to give proper respect 
to nonviolent acts based on political principle and unduly punishes a 
man motivated by love for his people and their right to resist an 
illegal occupation of their land. The sentence of Dr. Ashqar is a 
gross injustice and must be rectified.

Michael E. Deutsch is a lawyer with the People's Law Office in 
Chicago and one of the defense counsel for Muhammad Salah.





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