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<a href="http://electronicintifada.net/v2/article9222.shtml">
http://electronicintifada.net/v2/article9222.shtml</a> <br>
<br>
The Grand Jury and the persecution of Dr. Abdelhaleem Ashqar <br>
Michael E. Deutsch, <i>The Electronic Intifada,</i> 14 January 2008
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<img src="http://electronicintifada.net/artman2/uploads/2/070403-ashqar.jpg" width=235 height=285 alt="[]">
<br>
Dr. Abdelhaleem Ashqar (Sh. Kifah Mustapha) <br><br>
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.]<br><br>
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.<br><br>
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."<br><br>
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.<br><br>
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
<i>Brown v. Walker,</i> 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."<br><br>
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.<br><br>
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.<br><br>
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.<br>
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.<br><br>
<i>Michael E. Deutsch is a lawyer with the People's Law Office in Chicago
and one of the defense counsel for Muhammad Salah.<br><br>
<br><br>
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