[Ppnews] The Persecution of Muhammad Salah - Part 2

Political Prisoner News ppnews at freedomarchives.org
Wed Dec 3 16:07:19 EST 2008


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SECRETS AND LIES: THE PERSECUTION OF MUHAMMAD SALAH (PART II)

MICHAEL E. DEUTSCH AND ERICA THOMPSON

Among the handful of high-profile terrorism cases 
in which the U.S. government has failed to win 
convictions in jury trials, that of Muhammad 
Salah stands out. Like the cases against Sami 
Al-Arian, Abdelhaleem Ashqar, and the Holy Land 
Foundation, the case against Salah was built on 
the criminalization of political support for the 
Palestinian resistance. But while the 
Palestinian-Israeli conflict is at the core of 
all four cases, Salah’s, unlike the others, was 
primarily about Israel: the case was manufactured 
in Israel, the evidence on which it was based was 
generated in Israel, and its prosecution depended 
on close U.S.-Israeli cooperation at every turn.

Salah, a Palestinian-American Chicago resident 
and former grocer, was arrested in Israel in 
January 1993 while on a mission to distribute 
money to poverty-stricken Palestinians in the 
occupied territories. Accused of being a 
U.S.-based Hamas terrorist commander, he was 
interrogated by Shin Bet, tried before a military 
tribunal, and spent almost five years in prison 
in Israel. While the U.S. initially supported 
Salah and rejected Israel’s accusations against 
him, in January 1995 he be-came (while still in 
prison) the first and (to date) only U.S. citizen 
to be branded a “specially designated terrorist” 
by his government. Upon his return home in 
November 1997, he was one of the main targets of 
an intensive terrorism funding investigation, 
dropped in 2000 for lack of evidence but 
reactivated in 2002 in the wake of 9/11.

In this two-part exclusive report, Salah’s 
lawyers recount for the first time the details of 
their client’s labyrinthine case. Part I focused 
on the Israeli phase of the story, including the 
political context of Salah’s arrest, and the 
investigations and legal proceedings launched 
against him in the United States when he 
returned. In essence, part I laid the foundation 
for the trial to come, emphasizing in particular 
its complex legal underpinnings and implications 
as well as its importance as a “test case.” Part 
II focuses on the post-9/11 period that unfolded 
under the George W. Bush Justice Department, 
starting with Salah’s indictment in November 
2004, continuing with the two years of 
contentious pretrial preparations and hearings, 
and ending with the trial itself. As in part I, 
the legal dimensions of the case are emphasized, 
as are the government’s maneuvers to advance new 
standards governing the admissibility of coerced 
confessions and secret evidence at trial and to 
manipulate other established principles of the U.S. criminal justice system.

This article deals solely with Muhammad Salah, 
but Abdelhaleem Ashqar, a former professor of 
business administration in Virginia, was his 
codefendant at trial. Both were indicted, along 
with twenty other co-conspirators, for 
participation in a fifteen-year “racketeering 
conspiracy” to “illegally finance terrorist 
activities” in Israel and the occupied 
territories, as well as for several lesser 
charges. The two men had never met before the 
trial opened in October 2006. Despite the common 
charge, their cases were very different and went 
forward in parallel fashion, with different 
lawyers, witnesses, arguments, and entirely 
separate pretrial proceedings. When the jury 
trial ended in February 2007, both men were 
acquitted of all terrorism-related charges.

The U.S. war on terror launched in the wake of 
the 11 September 2001 attacks cleared the way for 
the George W. Bush administration’s pursuit of 
neo-conservative foreign and domestic policy 
objectives already on the drawing board. The 
tragedy also served to extend and deepen the 
U.S.-Israeli partnership in the U.S. war on 
terror, both at home and abroad. Within this 
context, the government’s prosecution of Muhammad 
Salah­a test case meant to demonstrate how 
bedrock constitutional principles governing the 
admissibility of coerced confessions and secret 
evidence at trial, closed courtrooms, and 
cross-examination rights could be stretched in 
the post-9/11 era to make U.S. trials resemble 
Israeli military tribunals in the occupied 
territories­is an outstanding example of a 
U.S.-Israeli joint venture in the legal realm.

SALAH AND THE “FINANCIAL WAR ON TERROR”

Within weeks of 9/11, the 500-page Patriot Act, 
which greatly expanded domestic surveillance and 
prosecutorial powers while strengthening 
financial controls on funds that could be 
construed as supporting “terrorism,” was ready 
for presentation to Congress, and was signed into 
law on 26 October 2001. But already on 24 
September 2001, the less visible “ financial war 
on terror” had been declared by President Bush, 
who vowed to launch “a strike on the financial 
foundation of the global terror network.”  The 
main targets were the Muslim charities claimed to 
constitute a “significant source of terrorist 
financing.” Almost immediately, the Treasury 
Department began naming the charities as 
“Specially Designated Global Terrorists” and 
closing them down. Most prominently, the Holy 
Land Foundation (HLF), the largest Muslim charity 
in the United States, was closed and its assets were frozen in December 2001.

U.S. government interest in “terrorist financing” 
was not new. Israel had been complaining since 
the early 1990s that substantial terrorist funds 
were owing from U.S. Muslim charities into the 
occupied territories to support Hamas. Israel’s 
determination to stop the flow had been a major 
factor in Muhammad Salah’s arrest at the Erez 
crossing into Gaza in January 1993. To emphasize 
the importance of Hamas’s supposed U.S. presence, 
Israel claimed that Salah was a U.S.-based senior 
Hamas military commander. With Salah’s alleged 
statements conveyed to Washington, branches of 
U.S. intelligence began to heed Israel’s 
warnings. By the mid-1990s, FBI counter terrorism 
units launched an investigation into terrorism 
funding targeting Salah (following his release 
from Israeli prison) and others.

The Clinton administration closed down the 
investigation in late 2000 for lack of evidence, 
but other parties were not so fastidious. In Boim 
v. Quranic Literary Institute, et al., a group of 
pro-Israel lawyers launched a civil damages suit 
in May 2000 against seven U.S. Muslim NGOs, 
including the HLF, and a handful of individuals, 
including Muhammad Salah, for the 1996 drive-by 
shooting death of an Israeli American student 
named David Boim, allegedly by Hamas. The suit 
claimed that the defendants were responsible for 
the killing because their financial support of 
charities allegedly linked to Hamas could be used to fund Hamas terrorism.

But while the Boim lawyers could file a civil 
damages suit against Salah and the Muslim 
charities in 2000 and have some chance of 
prevailing, a criminal case in federal district 
courts would have made little headway before 9/11 
led to looser interpretations of the law. Salah’s 
alleged crimes had been committed in 1993, almost 
a decade earlier, on foreign soil. More 
important, the acts for which he spent almost 
five years in Israeli prison had not been illegal 
in the United States at the time, and despite 
having been under constant surveillance between 
his return home in November 1997 and the closing 
of the investigation against him three years 
later, no credible evidence linking him to Hamas 
(designated as a terrorist organization since 
1995) had been found. Most crucially, Salah’s 
conviction by an Israeli military tribunal had 
been based on statements he had made during 
almost two months of “intensive interrogation” by 
Israel’s General  Security  Service (GSS, 
commonly known as Shin Bet), whose record of 
torture had been strongly condemned by human 
rights organizations and the U.S. State 
Department, and whose standard interrogation 
practices had been outlawed by the Israeli High 
Court of Justice itself.In 2002, however, in 
search of publicity victories in the war on 
terror, and emboldened by the newly minted Bush 
definition of torture, the Justice Department reopened the case against Salah.

The U.S. government spent two years crafting the 
charges. By August 2004, all the pieces had been 
assembled, and Attorney General John Ashcroft 
himself dramatically announced the indictment 
against Salah, Musa Muhammad Abu Marzuq, and 
Abdelhaleem Ashqar in a nationally televised 
press conference. The forty-three–page indictment 
contained three counts against Salah. Count I, 
for racketeering conspiracy, took Salah’s 1993 
confessions to Shin Bet and tailored them to fit 
the Racketeer Influenced and Corrupt 
Organizations Act (RICO), a law designed for drug 
traffickers and mobsters. Racketeering conspiracy 
was simply a clever way to circumvent the problem 
that Salah’s financial distributions in the 
occupied territories in 1993 had been legal in 
the United States at the time, as Hamas did not 
receive the U.S. terrorist designation for another two years.

Count II, material support for terrorism, was 
based exclusively on claims by a single FBI 
informant (long known as unreliable) concerning 
an otherwise uncorroborated 1999 incident linking 
Salah to Hamas. This count aimed to mask the 
blatantly political nature of a case built around 
a decade-old charge and to create the impression 
that Salah was involved in more recent activities 
threatening U.S. soil. Associating Salah with 
Hamas after its official designation as a 
terrorist organization in 1995 was moreover the 
only way the government could indict him for 
“material support for terrorism,” a charge that 
had far more resonance with the American public than the RICO charge.

Finally, count III, the relatively minor 
obstruction of justice charge, was based on the 
claim that in April 2001, Salah had given false 
or incomplete answers to written questions posed 
to him in the above-mentioned Boim civil damages suit.

THE LAUNDERING OF MUHAMMAD SALAH’S CONFESSION

The most important count for the 
government­indeed, the only reason it was 
interested in prosecuting the case in the first 
place­was the RICO charge involving money 
laundering and conspiring with a “racketeering 
enterprise” (Hamas) to finance terrorist 
activities in Israel and the occupied 
territories. Complicating the government’s case, 
even after 9/11, was the fact that count I rested 
almost entirely on Salah’s statements to Shin 
Bet. For a confession to be used as evidence at 
trial, U.S. law requires that it be 
voluntary­that is, that “the totality of the 
circumstances demonstrates that it was the 
product of rational intellect and not the result 
of physical abuse, psychological intimidation, or 
deceptive interrogation tactics calculated to 
overcome the defendant’s free will.” According to 
a 1944 U.S. Supreme Court ruling,

It is inconceivable that any court of justice in 
the land, conducted as courts are, open to the 
public, would permit prosecutors serving in 
relays to keep a defendant witness under 
continuous cross-examination for thirty-six hours 
without rest or sleep in an effort to extract a 
“voluntary” confession. Nor can we, consistent 
with Constitutional due process of law, hold 
voluntary a confession where prosecutors do the 
same thing away from the restraining influences 
of a public trial in an open court room.

 From his first meetings with U.S. consular 
officials following his arrest, Salah 
consistently maintained that his statements to 
his interrogators had been extracted under 
torture. U.S. law provides for such situations by 
allowing the defendant in a criminal case to file 
a motion to suppress all statements alleged to 
have been the product of coercion. If the motion 
is deemed worthy of pursuit, a pretrial hearing 
is held at which the judge must decide on the 
basis of the evidence presented whether the 
statement was coerced; if so, it cannot be used 
at trial. In October 2005, Salah’s defense 
formally led a suppression motion, with a sworn 
affidavit by Salah describing his interrogation 
attached as supporting documentation.

In the period following the indictment, Salah had 
petitioned the U.S. government to provide 
numerous classified documents needed for his 
defense. Not surprisingly, given the nature of 
the case, the overwhelming majority of these were 
Israeli classified documents, many of which the 
Government of Israel (GOI) had already made 
available to the prosecution. After asking 
Israel’s per-mission, the United States provided 
certain of these documents to the defense on the 
basis of a limited waiver. These included Salah’s 
own written and tape recorded “confessions” and 
the transcripts of the military proceedings in 
Israel. Meanwhile, the U.S. government 
declassified and turned over to the defense some 
of its own documents, including the consular 
files pertaining to Salah’s arrest, 
interrogation, and imprisonment in Israel, and 
records of his financial transactions.

Most of the materials essential to the defense, 
however, were not provided, either because Israel 
declined to make them available or because the 
U.S. government itself refused to ask for them. 
With the approach of the suppression hearing at 
which Salah would have to show that his 
statements had been coerced, such documents 
became even more crucial, and Salah’s 
constitutional right to see the evidence was 
beyond dispute. Facing yet more stonewalling from 
the U.S. government, in December 2005 the defense 
sought a court order directing it to produce the 
requested documents and to obtain those it did 
not possess from Israel.Among these were the 
written guidelines governing Shin Bet 
interrogations at the time of Salah’s arrest, 
which would show the degree of coercion routinely 
permitted in security cases. That such rules 
existed was clear from the court transcript of 
Salah’s military trial in Israel, where one of 
his main interrogators, while refusing to specify 
the methods used, stated “There is a framework 
and it is binding....The interrogation was 
performed according to GSS interrogation 
procedures [that] are known and I work according 
to them.” Salah also asked for the secret Annex 
II of the GOI’s 1987 Landau Com-mission Report 
authorizing the use of “moderate physical and 
psychological force” in interrogations; Annex II 
spelled out precisely what the authorized 
“moderate physical and psychological force” 
entailed. Also demanded was evidence regarding 
Israel’s surveillance of Salah starting from his 
arrival in Israel in mid-January 1993 and the 
circumstances leading to his arrest on 25 
January. (Israel had steadfastly refused to 
provide such information on the grounds that it 
was “classified.”) Finally, Salah requested the 
names of the IDF soldiers who had arrested him 
and driven him around for five hours before 
delivering him to Shin Bet “in need of medical 
attention,”as well as the identities of other 
persons who had been interrogated by Shin Bet, so 
that they could be called as witnesses.

Of particular interest to the defense was any 
information concerning the “bird exercise,” which 
Salah’s chief interrogator had called the 
“linchpin of the investigation” for having 
elicited “the most significant information.” 
Specifically, the defense sought to know the 
rewards the birds had been promised in exchange 
for participating, the identity of their Shin Bet 
contact person, their authorized methods, and the 
records charting the exercise. Again, that such 
evidence existed was shown in the transcript of 
the military trial, where Shin Bet interrogators, 
although refusing to provide details, testified 
that the “speech elicitors’ gambit” took place in 
stages and that “at each stage we would receive 
progress reports from different 
interrogators....The manuscripts from the speech 
elicitors [birds] . . . [and] the names of the 
interrogators who did [the bird debriefing] are in our possession.”

The prosecution responded by disputing both the 
relevance of the requested materials and its own 
obligation to seek them from Israel. Although the 
government lawyers had obtained what they needed 
to prosecute Salah from the GOI, they emphasized 
that the materials being sought by the defense, 
which were classified, were under the control of 
a “separate sovereign”­Israel­which was under no 
obligation to provide them. Indeed, the 
government claimed that the GOI had not disclosed 
all the documents even to its own lawyers.

The defense argued that consistent with the U.S. 
Constitution, the U.S. government could not be 
allowed to secure documents, witnesses, and other 
materials from the GOI that were needed to 
convict Salah and then claim to have no control 
over material evidence known to exist that could 
exonerate him. To allow this tactical maneuvering 
would open the door to abuse by positioning the 
government to launder the misdeeds of foreign agents in an American courtroom.

Judge Amy St. Eve, however, refusing to recognize 
U.S.-Israeli collusion in denying Salah access to 
critical materials, did not order that any of the 
documents be produced. Instead, she directed the 
defense to issue formal letters to the GOI 
requesting the evidence. The defense objected to 
this cumbersome and futile procedure, but 
nonetheless complied. No response of any kind was ever received from the GOI.

SHROUDING EVIDENCE: THE CLASSIFIED INFORMATIONPROCEDURES ACT

Meanwhile, the suppression hearing was set for 
March 2006. The government had already made clear 
its intention to call as witnesses several of 
Salah’s Shin Bet interrogators to “testify to 
Salah’s role in Hamas and activities in moving 
money for terrorist activities as obtained 
specifically through statements he made to them.” 
This move had been welcomed by the defense, 
which, having failed to obtain the needed 
documentation, looked forward to the opportunity 
to expose Shin Bet interrogation methods during 
cross-examination. However, just two months 
before the hearing, the government suddenly led a 
motion invoking the Classified Information 
Procedures Act (CIPA) in order to exclude the 
public and press from the courtroom during the 
Shin Bet testimony and to severely limit 
cross-examination. The justification for recourse 
to CIPA was that “the information to be provided 
through the testimony of the ISA [Israeli 
Security Agency] agents is classified under 
Israeli law.” Since according to the government’s 
motion the classification extended to Shin Bet’s 
“work, activities, information and procedures” 
and included “the information it gathers [and] 
the means by which the information is gathered,” 
closing the court to the public was necessary to 
“protect against unauthorized disclosure of 
classified information” as well as to assure the witnesses' safety.

The government asserted that the United States 
must treat as classified what-ever information 
Israel deems as classified “unless and only to 
the extent that Israel is willing to waive the 
classification.” The motion further advised that 
the GOI had “indicated willingness” to waive the 
classification for Salah and his lawyers on 
condition that the public be barred from the 
courtroom during the testimony. The waiver was 
not a “blanket” one, however, and the government 
motion reserved the right to exclude the defense 
from meetings with the judge to be held ex parte, 
in camera, for those parts of the Shin Bet 
testimony that Israel was unwilling to disclose 
(the “birds” exercise was specifically cited as 
an example). The motion also made clear that 
Israel, which had taken the “unprecedented step” 
of agreeing to send “operational agents of a 
sensitive intelligence agency to the U.S. to 
testify” was bending over backward to pro-duce 
the witnesses, hinting that the defense’s 
resistance to the measures could result in the decision’s being reversed.

Remarkably, the government made no attempt to 
conceal the intent of the motion. “When ISA 
agents testify in their own country,” the motion 
read, “the Israeli courts apply secrecy protocols 
for the purpose of safeguarding secret 
information. . . . These protocols are similar to 
what the Government seeks in this motion.” In 
other words, what the U.S. government had in mind 
was an Israeli-style military tribunal in the 
heart of Chicago in which the prosecution could 
use the Shin Bet evidence selectively, without 
scrutiny by the public or even the defense.

The fact that the record of Shin Bet torture was 
already widely known and documented­indeed was 
regularly criticized in the U.S. State 
Department’s own annual human rights reports ­was 
of no consequence given the government’s 
obligation to treat as classified information 
that had been classified by Israel. The defense 
therefore raised the issue only cursorily. On the 
other hand, it strongly objected to the 
government’s invocation of two presidential 
executive orders­one passed by the Clinton 
administration in 1995 and another by the Bush 
administration in 2003­as the basis for the classification.

In this regard, the defense noted that the 
executive orders contained provisions that “in no 
case shall information be classified in order to 
conceal violations of law or to prevent 
embarrassment to a person, organization or 
agency.” In this instance, it was obvious that 
the violations of law the CIPA classification 
sought to conceal were Shin Bet’s illegal 
interrogation methods, and that the entity it 
sought to protect from embarrassment was the Government of Israel.

The defense also challenged the applicability of 
CIPA to the Salah case. Passed in 1980 as part of 
the Carter administration’s effort to facilitate 
the prosecution of cold war spies, CIPA was 
intended to reconcile the government’s need for 
secrecy with a criminal defendant’s 
constitutional right to a fair trial. CIPA was 
designed to prevent the form of blackmail known 
as “graymail,” where by a criminal defendant 
threatens to reveal classified information as 
part of his defense as a means of forcing the 
government to dismiss an indictment to avoid the 
information’s disclosure. CIPA sought to sidestep 
the “disclose or dismiss” dilemma by setting 
forth procedures for the judge to review 
classified information before the trial or 
hearing. By this means, the judge would determine 
in advance whether or not a defendant was 
entitled to the information for his defense. If 
the judge ruled in the affirmative, the 
government could either declassify  the 
information and give it to the defense or tender 
unclassified  “substitutions” containing the 
essential information. Only if the government 
declined these options could the judge dismiss the indictment.

The Salah prosecution, of course, differed in at 
least one fundamental respect from the typical 
“disclose or dismiss” situation. It was not the 
defendant who possessed classified evidence with 
which to “graymail” the government, but the 
government that had chosen to indict a case 
steeped in classified evidence it did not wish to 
disclose; indeed, the government’s case was based 
on Salah’s “classified” confessions that had been 
conveniently “declassified” by the GOI for the 
trial, whereas the information concerning Shin 
Bet’s interrogation procedures and other 
documents needed for Salah’s defense remained 
conveniently classified. Moreover, the CIPA 
nowhere countenances closed proceedings. A 
provision authorizing closed trial proceedings 
was included in an alternative bill proposed at 
the same time as CIPA, but that bill had been 
rejected by Congress. The closed courtroom 
provision survived, however, to be incorporated 
into the military rules governing the use of 
classified information at court-martial proceedings.

The U.S. Supreme Court has long held dear the 
importance of “public access to criminal trials 
[which] permits the public to participate in and 
serve as a check upon the judicial process­an 
essential component of self-government.” It 
further holds that the presumption of open court 
proceedings may be overcome “only by an 
overriding interest based on findings that 
closure is essential to preserve higher values.” 
In Salah’s case, the “higher values” to be 
preserved, again, were Shin Bet’s systematic 
interrogation practices. Indeed, the government’s 
motion invoking CIPA stated openly that the 
“extraordinary government interest” at stake was 
Israel’s national security. Specifically, it 
asserted that disclosure of the evidence would 
harm “the national security of not only Israel 
but also the United States,” because it would 
“jeopardize the sharing of critical national 
security information between the two countries.”

In late January 2006, just over a month before 
the suppression hearing, a group of twenty-two 
Chicago community organizations along with the 
Chicago Tribune challenged the government’s 
motion to close the courtroom during key 
testimony. In an editorial dated 2 February, the 
Tribune’s public editor, Don Wycliff, explained 
that his paper’s intervention was not aimed at 
aiding either Salah or the government, “but [at] 
ensuring public access to a government proceeding 
of surpassing importance.” Not surprisingly, the 
petition for an open courtroom was rejected.


SALAH’S SUPPRESSION HEARING

Goingintothehearingon6March2006, the government 
had exactly what it wanted: a courtroom closed to 
the public and press, witnesses testifying under 
code names, and curtailed cross-examinations to 
protect “classified information.” The proceedings 
involving the Shin Bet interrogators were 
Kafkaesque. The government refused to call any of 
the “birds” or their Shin Bet handlers and called 
only two of Salah’s twelve interrogators. 
Code-named “Nadav” and “Chaim” and referred to as 
“Captain” and “Major” throughout the hearing, 
they were accompanied by GOI and Shin Bet lawyers 
as well as unidentified security personnel. 
During the Shin Bet testimony, the courtroom was 
cleared and the doors and windows were covered 
with black felt. Nadav and Chaim, seasoned 
operatives with long experience testifying at 
military court proceedings in Israel, declared 
under oath that Salah had not been threatened or 
coerced but had cooperated freely and voluntarily 
supplied all his statements. During 
cross-examination, whenever the witnesses were 
questioned about their training, authorized 
methods, other Palestinians they had 
interrogated, or anything relating to the 
“birds,” U.S. prosecutors, prompted by the 
Israeli legal contingent, asserted 
confidentiality and directed the witnesses not to 
answer. This happened more than one hundred fifty 
times in the two-week hearing. With the repeated 
objections and claims of classification, the 
defendant’s constitutional right to confront his 
accusers through cross-examination­which the 
Supreme Court has called “of critical importance 
in the truth-seeking process” ­was deeply prejudiced.

Nonetheless, bits of valuable information did get 
through. During the discovery process, the U.S. 
government, backed by Israel, had maintained that 
documents pertaining to Shin Bet’s operating 
procedures were unnecessary because Salah, as a 
U.S. citizen, would not have been tortured. When 
faced with a barrage of State Department records 
and independent determinations by human rights 
organizations to the contrary, the government 
fell back on another categorical exception: Salah 
could not have been tortured because he was “too 
old.” He was thirty-eight at the time. Once 
again, the government backed off when confronted 
with a wealth of evidence documenting Shin Bet 
abuse of the elderly and infirm. Ultimately, 
faced with the reality that no category of 
Palestinian was exempt from Shin Bet abuse, all 
these arguments were abandoned. At the 
suppression hearing, however, the prosecution 
asserted that Salah had been specifically 
exempted from standard interrogation procedures 
pursuant to a “special order.” Chaim, who was in 
charge of the interrogation, testified that he 
had “received a direct order from the head of the 
ISA, Yaakov Perry, saying that I should treat 
Muhammad Salah differently than other detainees, 
and that in his interrogation we shouldn’t use 
tools. . . .” When pressed on cross-examination, 
Chaim acknowledged that he had neglected to 
communicate the order to others on his 
interrogation team, and that if the order had not 
been received the interrogation would have been 
standard. When Nadav  was questioned, he 
testified that he never saw any special instructions.

Throughout the hearing, the Shin Bet witnesses 
and prosecution team held lengthy ex parte 
meetings with the judge. During these sessions, 
the judge presumably heard answers to some of the 
questions that the witness had refused to answer 
in the courtroom, but on a number of issues (as 
the judge later told the defense), the Israelis 
refused to disclose information even to her. 
After some nine hours of secret meetings, the 
judge informed the defense that the answers to 
the questions posed on cross-examination were 
classified and would not be disclosed. Instead, 
the defense was given four nearly meaningless 
CIPA “substitutions” for inclusion in the final 
brief on which the judge would make her 
determination. The following is illustrative:

The United States of America, for purposes of the 
suppression motion regarding statements of 
Muhammad Salah, does not contest that some, but 
not all, of the measures defendant Muhammad Salah 
alleges, were, in certain circumstances, legally 
available to interrogators of the Israel Security 
Agency during the period of Muhammad Salah’s interrogation.

Denied access to key documentation and full 
cross-examination rights, the defense was left to 
prove Shin Bet’s systematic use of torture and 
coercion through expert testimony. Yuval Ginbar, 
chief researcher for B’Tselem, the 
leading  Israeli human rights organization in the 
occupied territories, and Jonathan Kuttab, an 
attorney and founder of the Palestinian human 
rights group Al-Haq, both testified that the 
treatment described by Salah in his affidavit was 
consistent with the routinized methods used 
against Palestinian security detainees as 
documented by their own and every other human 
rights organization having studied the subject, 
not to mention by the United Nations and the 
United States. Incredibly, the prosecution 
challenged the testimony of Ginbar and Kuttab on 
the grounds that neither was privy to the secret 
interrogations or the classified military 
directives to interrogators. In other words, 
barred from obtaining the best evidence (the Shin 
Bet’s own guidelines), the defense was faulted for not having seen it.

Psychiatric testimony by Dr. Eyad El-Sarraj, 
director of the Gaza Community Mental Health 
Program, who has treated thousands of torture 
victims, established that most detainees are 
“broken” in the first forty-eight hours if they 
can be kept away from outside influence and 
deprived of the hope that someone will come to 
their rescue. El-Sarraj told the court about his 
own experience being held in solitary confinement 
by the Palestinian Authority (PA), and how within 
a matter of hours he believed his “life was over” 
and “would have signed anything” just to get out 
of isolation. In the Salah case, it was clear 
that six days of “intensive” Shin Bet 
interrogation, threats of administrative 
detention, and the repeated assurance that “the 
U.S. has no power to stop us­we control the FBI” 
was more than enough to extinguish Salah’s hope of rescue by his government.

In addition to expert witnesses, the Salah 
defense called two Palestinians who had also been 
interrogated by Chaim. Ahmadal-Batsh, a former 
Palestinian legislator, and Ribhi  Qatamesh, a 
well-known West Bank attorney, testified via live 
video from Ramallah about what “Chaim” had done 
to them during their interrogations. Both men 
described almost exactly the same techniques that had been applied to Salah.

In its summation, the defense argued that Salah’s 
1993 statements to Shin Bet should be suppressed 
because testimony at the hearing conclusively 
established that the organization had used 
coercive methods in Salah’s interrogation, 
including isolation and refrigeration cells, 
hoods and stress positions, week-long 
incommunicado status, sleep deprivation, threats 
to family, and relay interrogation that continued 
for almost two months. Moreover, since Shin Bet 
did not specifically deny using any of these 
methods, the defense argued that the statements 
should be suppressed on the basis of the uncontested record.

Turning a blind eye to the well-documented 
torture record, however, including corroboration 
of Salah’s treatment in U.S. consular reports, 
the judge held that Salah’s statements were 
admissible at trial, marking the first time 
evidence obtained by Shin Bet methods would be 
heard in a U.S. court. Judge St. Eve essentially 
credited the interrogators’ testimony and found 
that Salah’s five-hour recorded statement on the 
fifty-fourth day of his interrogation had 
“ratified” the “bird manuscript,” despite the 
absence of any witnesses or documentation 
concerning the bird gambit. The ruling gave 
American judicial imprimatur to statements 
obtained under torture as admissible evidence.

ISRAEL AND THE UNITED STATES: THE JOINT VENTURE

The defense had claimed from the beginning of the 
pretrial process that the case against Muhammad 
Salah was essentially a “joint venture” between 
the U.S. and Israeli governments, as evidenced by 
these governments’ continuing cooperation in 
denying Salah access to evidence critical to 
proving his innocence.  On 29 August 2006, with 
scarcely a month left before the opening of the 
jury trial and no additional documentation 
forthcoming, the defense led a motion for a 
hearing to establish the existence of a 
U.S.-Israeli “prosecutorial joint venture.” Were 
such a motion to  succeed, the court would have 
to compel the U.S. government to secure the requested materials.

The government had denied accusations of being in 
a “joint venture” all along, but its actions 
throughout the process belied its denial. Indeed, 
“joint venture” was a precondition from the 
outset: Without Israeli-generated documents and 
testimony, there would have been no case, and the 
prosecution could not possibly have gone forward 
without active U.S.-Israeli cooperation at every 
step of the way both in terms of securing 
witnesses and material evidence for the 
government and depriving the defense of the same. 
Through-out the pretrial period and almost up to 
the jury trial, government prosecutors (sometimes 
accompanied by FBI agents) made at least ten 
trips to Israel to meet with Israeli intelligence 
and government officials. Already provided with 
hundreds of classified Israeli documents, 
government lawyers were given access to witnesses 
for repeated interviews that would support the 
government’s case. By contrast, the investigator 
for the defense team in the West Bank was not 
permitted by the Israeli authorities to interview 
witnesses in Gaza or even in a neighboring West Bank town.

In preparation for the suppression hearing, 
Israeli authorities had threatened to arrest and 
refused to provide a travel visa to a defense 
witness (Ribhi Qatamesh) and warned another 
(Ahmad al-Batsh) that if he left his home in East 
Jerusalem to testify, he would likely not be 
allowed to return. Salah’s original lawyer at the 
Israeli military trial elected not to come to 
testify in person because she feared the 
authorities would interfere with her law 
practice. As noted above, lawyers from the 
Israeli Justice Ministry were active participants 
in the open court proceedings, repeatedly 
directing the U.S. prosecutors when to pose 
objections and signaling witnesses when to refuse 
to answer questions during cross-examination, and 
even in ex parte hearings in the back room without the defense.

The U.S.-Israeli “joint venture” long predates 
Salah’s U.S. trial. Collaboration between U.S. 
and Israeli security forces began during Salah’s 
interrogation in Israel. Faced with Salah’s 
refusal to plead guilty before the military 
tribunal, Shin Bet interrogators threatened to 
use their “close connections with the FBI” to 
have his family arrested in the United States. In 
spring 1995, even after his sentencing, a Shin 
Bet interrogator known as “Abu Ghazal” repeatedly 
visited Salah, asking him to answer questions 
prepared by the FBI, again threatening to have 
his wife arrested if he refused. When Salah 
demanded to see the U.S. consul, Abu Ghazal said 
the consulate had “no clue what is going on” and 
threatened to have his consular visits stopped 
altogether. Consul General Edward Abington, 
apprised of the threat, asked Washington to check 
with the FBI to see if any of its agents had been 
in touch with Israeli intelligence regarding 
Salah. In late May, consular official Kathy Riley 
reported Washington’s confirmation “that indeed 
the FBI had been up to no good with Salah again. 
(They didn’t have the guts to put it in a front 
channel?). ”Several days later she wrote a 
follow-up memorandum stating “The FBI admitted 
they were involved.... Their comment: ‘Sorry, we 
should have talked to the Embassy rather than the Shin Bet.”

There is evidence to suggest that close Shin 
Bet–FBI cooperation on terrorism, and 
specifically on Hamas, actually originated in the 
Salah interrogation. As detailed in part I, the 
U.S. government, including U.S. intelligence, had 
been extremely skeptical when Israel first 
publicized Salah’s alleged confirmed Israel’s 
claims asserting that Salah had been cooperating 
with the investigation in providing information 
about Hamas’ military leadership cadres in the 
United States and about money owing from U.S. 
Muslim charities to the occupied territories to 
support Hamas terrorism there. It later 
transpired that Prime Minister Yitzhak Rabin 
himself had invited Miller to Israel and arranged 
for her to meet Salah’s Shin Bet interrogators 
and to secretly observe a 30-minute segment of 
his interrogation on the basis of which she could 
write a credible story warning of the Hamas presence in the United States.

As a government witness at Salah’s jury trial in 
Chicago, Miller was forthright about the purpose 
of that visit (and the resulting article): “No 
one in the U.S. government was believing that . . 
. the U.S. was an important base for Hamas. . . . 
American officials assumed that Israel was 
exaggerating the external terrorist threat coming 
from the U.S. to justify the mass deportations 
and to deflect their condemnation.” Also at 
Salah’s jury trial, Shin Bet interrogator Nadav 
mentioned in passing that Shin Bet had “used 
Judith Miller to influence the FBI.” The gambit 
apparently succeeded, because shortly after 
Miller’s article appeared, the formerly skeptical 
FBI suddenly took Israel’s claims seriously 
enough to submit 125 written questions to Shin 
Bet to be propounded to Salah during his ongoing interrogation.

The “joint venture” went beyond official 
government channels to include nongovernmental 
bodies. The Anti-Defamation League (ADL) often 
served as a conduit of information between the 
United States and GOI, while providing the U.S. 
government with “plausible deniability.” The 
lawyers in the Boim civil suit, whose ties to 
Israel were very close, played a key role in 
advising Salah’s prosecution, particularly with 
regard to the obstruction of justice charge.

There is also evidence of direct links between 
the ADL and Shin Bet. For example, whereas the 
U.S. government repeatedly denied having 
intelligence concerning Salah’s 1993 arrest in 
Israel, the information turned up in an amicus 
curiae brief led by the ADL in 1998 which 
asserted, citing Shin Bet interrogation reports, 
that he had been arrested on information obtained 
from a Palestinian doctor arrested by Israel in December 1992.

The ADL’s possession of highly classified Israeli 
information purported not to have been shared 
with the United States raises interesting 
questions about the circular flow of information 
involved in the Salah case in particular and 
“terrorism” cases in general. Lines are murky, 
but the fact that Israel had been complaining to 
the United States for some time before Salah’s 
arrest that U.S.-based Muslim charities were 
“terrorism funders” and that the U.S. government 
(and the FBI) dismissed these accusations until 
they conveniently appeared in the alleged 
statements of a Palestinian American security 
detainee, suggest that Israel’s source for U.S. 
domestic “intelligence”­and more specifically 
about which U.S.-based organizations to “go 
after”­may have been U.S. groups associated with 
the pro-Israel lobby. Salah’s taped “confession,” 
much of which had been dictated by the “birds” 
under the direction of Shin Bet, contained 
specific names of charities (such as the HLF) and 
of individuals (such as Musa Abu Marzuq) that had 
previously not been identified as requiring 
scrutiny. Replete with names and alleged acts, 
the transcript of the five-hour tape was handed 
over to the U.S. government after Salah’s trial 
in Israel and became the blueprint for multiple 
prosecutions and arrests in the United States throughout the 1990s and beyond.


DISINFORMANT MUSTAFA AND THE “MATERIAL SUPPORT”CHARGE

The purpose of count II, besides situating 
Salah’s “crimes” on U.S. soil and making the case 
seem more current, was to link Salah to Hamas 
after its 1995 designation as a terrorist 
organization. The charge was based entirely on 
the allegations of a single person, a longtime 
FBI informant who went by the alias “Jack 
Mustafa,” whose veracity the FBI itself had 
questioned. Assigned to “be-friend” Salah upon 
his return to the United States in 1997, Mustafa 
was soon producing extravagant reports of Salah’s 
involvement with terrorist training camps in the 
American heartland, meetings with the Hamas 
military high command, and advice and assistance 
in terrorist plots in Israel. In 2000, however, 
Mustafa was removed from the case when the 
Clinton administration decided to close the 
investigation for lack of credible evidence.

When the government reopened the Salah case in 
2002, Mustafa was put back on the job. With the 
government clearly intending to rely on him as a 
witness, some FBI supervisors expressed grave 
concerns about the integrity of his information 
in a series of internal memos in 2003. Seeking to 
corroborate information supplied by Mustafa about 
another of Arab American target, FBI agents had 
caught him in a blatant lie; further 
investigation revealed that his story had been 
invented from scratch. The final FBI memo in the 
exchange, pointedly noting that Mustafa’s 
fabricated intelligence about the other 
individual was “eerily repetitive” of his claims 
concerning Salah, ended with the recommendation 
that “the asset’s reporting not be used in 
further FBI investigation unless independently 
corroborated. Corroboration by technical means is highly recommended.”

The FBI put a wiretap on Salah’s home and work 
telephone lines. It also put a wire on Mustafa 
and had him meet with Salah on numerous 
occasions. In none of the recorded conversations, 
however, either on the telephone or with Mustafa, 
was there any evidence of illegality or anything 
that corroborated Mustafa’s claims. The Bush 
Justice Department nonetheless pressed full steam 
ahead. In 2004, it selected one of Mustafa’s less 
preposterous claims for presentation to a grand 
jury, which returned an indictment charging Salah 
with “material support for terrorism.” The 
specific charge was that Salah had recruited 
Mustafa in October 1999 to “scout specific 
locations in and around Jerusalem for suitability 
as targets for Hamas terrorist attacks.” 
Significantly, there were no references to this 
trip in the FBI’s voluminous Mustafa debriefing 
reports turned over to the defense in the 
discovery process. Indeed, there was a complete 
absence of FBI reports on interviews with Mustafa 
during and in the immediate aftermath of the 
alleged 1999 trip, and the details of the 
“scouting” expedition appeared for the first time 
after the Justice Department returned Mustafa to 
the case in 2002. The claim that Salah, who had 
lived his entire adult life in the Chicago area, 
would send someone who himself had lived in the 
United States for the past twenty years on a 
scouting expedition to identify potential bomb 
locations in Jerusalem was patently absurd.

In the three-count indictment against Salah 
announced in August 2004, Mustafa was not 
identified by name but as “Individual A.” Members 
of the local Muslim community were able to 
surmise, however, that “Individual A” was 
Mustafa, and anonymous communications began to 
circulate warning persons whom he had 
“befriended” about his activities on behalf of 
the FBI. In early 2006, as preparations for trial 
were well underway, the prosecution reacted 
vigorously to complaints (apparently from 
Mustafa) about the communications by moving to 
revoke Salah’s bond and convening another grand 
jury. Salah and his seventy- five-year-old 
brother were subpoenaed and accused of witness 
intimidation. When the government failed to 
produce any evidence linking Salah to the 
anonymous letters, or any evidence that Mustafa 
was directly threatened (or even that such 
warnings were illegal), the judge denied the 
motion to revoke Salah’s bail, and no indictments 
were returned by the grand jury.

As the case progressed to trial, and the court 
refused to dismiss the indictment’s count II 
based on the unreliability of the Mustafa 
evidence, the defense demanded a record of all 
the rewards and incentives the government had 
offered Mustafa for his informing activity, the 
briefing documents, and the FBI files of the 
1997–2000 investigation of Salah and of any other 
investigation that had employed Mustafa. It also 
asked for Israeli intelligence files on Mustafa. 
Then, on the very eve of trial, faced with 
motions for disclosure of information known to 
exist and with the judge poised to grant them, 
the government suddenly dismissed the material 
support for terrorism charge. Though refusing to 
disclose its motivations, the government declared 
that it would not be calling Mustafa as a witness.

With count II gone, two counts of the original 
indictment remained: the RICO charge, and the obstruction of justice charge.

THE TRIAL BEGINS

Jury selection began on 6 October 2006. The 
defense went into the trial with a number of 
disadvantages. Besides having failed to obtain 
official documentation spelling out Shin Bet’s 
authorized interrogation methods, its ability to 
call witnesses was limited. Virtually all the 
witnesses relevant to Salah’s statements to Shin 
Bet were in Israel, and it was the U.S. 
government (in collaboration with Israel) that 
decided who would be allowed to appear. Once 
again, only two of Salah’s interrogators were 
called. The suppression hearing had functioned as 
a kind of “dry run” or “dress rehearsal” for the 
trial. Nadav, personable and soft-spoken, was 
apparently seen as having performed well and was 
retained for the trial, but chief interrogator 
Chaim may have been judged unlikely to have jury 
appeal and was replaced by the more affable 
Benny, whose role in the interrogation had been 
relatively limited. The defense had wanted to 
call all the interrogators, at the very least 
those closely involved in the “bird exercise,” as 
well as some of the birds themselves, but this was denied.

Judges always have the power to veto witnesses 
whose potential testimony is deemed “not 
relevant,” but Judge St. Eve exercised this 
prerogative rather liberally with regard to the 
defense’s requests in the Salah case. Thus was 
the testimony of the two Palestinians who had 
undergone Shin Bet security interrogations by the 
same team that handled Salah deemed irrelevant. 
Similarly El-Sarraj, who had given riveting 
testimony at the suppression hearing on the 
impact of prolonged isolation on a detainee, was 
not authorized to reappear, and it was only after 
strenuous written protest that world-renowned 
torture expert Metin Basoglu was permitted to 
testify on the psychological effects of 
interrogation on breaking a defendant’s will. The 
government could also refuse to disclose the 
identity of potentially important witnesses for 
the defense. For example, responding to the 
prosecution’s efforts to link Salah to “terrorist 
training camps” in the United States, the defense 
fought hard, without success, to discover the 
identity of an operative whose name had been 
redacted from a key FBI memo. The operative in 
question had infiltrated a so-called “terrorist 
training camp” in Milwaukee and reported 
afterward that it was like a family picnic with 
no discussion of violence at all.

The government again invoked CIPA for the trial, 
obliging Israel to extend its “classification 
waiver” to the jury. As at the suppression 
hearing, the courtroom was closed to the press 
and public during the testimony of Shin Bet 
agents. Although this time there was no visible 
Israeli presence in the courtroom in the form of 
Israeli lawyers signaling U.S. prosecutors 
whether or not a witness should answer this or 
that question, the defense’s right to 
cross-examination remained tightly controlled.

On the other hand, prior to trial the defense had 
succeeded in persuading the judge to revisit the 
CIPA stipulations granted during the suppression 
hearing, which had been very far from meeting the 
CIPA requirement of “provid[ing] the defendant 
with substantially the same ability to make his 
defense as the disclosure of the specific 
classified information.” The revised 
stipulations, while hardly a substitute for full 
cross-examination, represented an improvement 
over the earlier ones. Thus, instead of the 
meaningless admission that “some, but not all” of 
the torture measures Salah had claimed “were, in 
certain circumstances, legally available to [Shin 
Bet] interrogators,” the government was forced to 
specify that Shin Bet was authorized to use 
hoods, threats of violence, sleep deprivation, 
shackling to small chairs, and slapping, and that 
these methods could be used regardless of the 
detainee’s age or citizenship. Another 
stipulation acknowledged that Salah was placed in 
an unmonitored cell with ten to twenty prisoners 
who received reduced sentences, better prison 
conditions, and/or money for their participation 
in the “bird exercise.” The government also 
conceded that Israeli interrogators are “trained 
in methods to maneuver a person into providing 
information.” There were five stipulations in all.

CONFLICTING NARRATIVES

The thrust of the government’s main case, the 
RICO charge, was to depict the “Hamas enterprise” 
as a racketeering outfit engaged in murder, 
kidnapping and hostage taking, maiming or 
injuring, money laundering, passport fraud, and 
obstruction of justice, and then to link Salah to 
this “enterprise” and its violent acts by proving 
that he was a member of Hamas and part of a 
decade-old conspiracy to support the 
organization. From the prosecution’s standpoint, 
the great merit of conspiracy law is that a 
person’s membership in the organization in 
question is sufficient to show guilt of 
conspiracy. Moreover, since Salah was charged 
with RICO conspiracy and not substantive RICO, 
the government was not required to prove that he 
had in fact committed any of the offenses­or even 
that the offenses had actually been committed­but 
merely that he agreed that such offense could be 
committed to further the goals of the “enterprise.”

Despite the indictment’s unprecedented political 
language and allegations, the prosecution 
initially took the position that all evidence 
about the Israeli-Palestinian conflict was 
irrelevant and should be barred from the trial. 
There was no dispute that funds from bank 
accounts associated with Musa Abu Marzuq had been 
transferred to Salah’s bank account, or that 
Salah had travelled (on his own passport) to the 
West Bank and Gaza to deliver funds to 
individuals there. But the defense argued that 
the jury needed to understand the humanitarian 
situation in the occupied territories in order to 
determine Salah’s intent and motivation. In this 
instance, the court ruled in favor of the 
defense: the jury’s need to determine Salah’s 
intent compelled the government to allow the jury 
to hear evidence about the history and conditions of the Palestinian people.

The government claimed not to take sides in the 
Palestinian-Israeli struggle, but the narratives 
of the conflict and the role of Hamas presented 
by the prosecution and the defense could not have 
been more different. For the prosecution, Hamas 
was a ruthless Islamic fundamentalist terrorist 
operation driven by hatred of the Jewish people 
and committed to the destruction of Israel and 
the derailment of the peace process, with its 
network of charities being no more than a way to 
funnel money to its terrorist activities. For the 
defense, Hamas was a legitimate part of the 
Palestinian national movement for 
self-determination while its network of zakats 
provided desperately needed social services to 
Palestinians living under a harsh illegal 
military occupation whose conditions had 
dramatically worsened during the 1987–93 intifada.

Dr. Matthew Levitt, a senior counter terrorism 
analyst for the Treasury Department’s Office of 
Foreign Asset Control (OFAC) and author of a book 
on Hamas, presented the government view of Hamas. 
Though Levitt knows no Arabic, has spent very 
little time in the occupied territories, and did 
not interview Hamas leaders or rank and file 
members, he is a frequent expert witness on Hamas 
on the U.S. terrorism prosecution circuit. 
Levitt’s account focused al-most entirely on the 
impact of terrorism on Israelis. He showed a 
color chart of Hamas suicide bombings with the 
dates (all after Salah’s arrest) and the number 
of victims; he never mentioned the far more 
numerous Palestinian deaths by Israeli military 
raids, or any Israeli act that might have 
precipitated the Hamas attacks (though he did 
acknowledge under cross examination that the 
first such attack had been a response to the 
massacre by an Israeli settler/army reservist of 
over two dozen Muslims praying at a Hebron 
mosque). Levitt’s discussion of Hamas’s goals 
relied entirely on its 1988 “charter,” ignoring 
the numerous sub-sequent policy statements issued 
by the movement’s leadership that directly 
contradict it. Israel’s illegal occupation of the 
territories was also absent from Levitt’s 
account, though in cross-examination he conceded 
that the living conditions of Palestinians under 
occupation were deplorable and that they were in 
real need of humanitarian assistance. He further 
conceded (again under cross-examination) that the 
first intifada was a nonviolent grassroots uprising against the occupation.

The witness for the defense, Dr. Khaled Hroub, an 
independent Palestinian researcher associated 
with the Middle East and Islamic Studies center 
at Cam-bridge University and the author of two 
acclaimed books on Hamas, presented a very 
different picture. Though not an apologist for 
Hamas, he has extensively interviewed many of its 
leaders and is intimately familiar with its 
workings. He emphasized the Hamas movement in its 
totality, the vast network of essential social 
services and charities and their separation from 
military and political arms, and provided a broad 
context for its rise. Hroub also emphasized the 
evolution of Hamas’s views, sharing with the jury 
official statements and communiqués issued after 
1988, including one as early as 1994 that 
expressed Hamas’s willingness to agree to a joint 
cessation of violence with Israel.

The government, playing on common American 
stereotypes, suggested that Hamas’s opposition to 
Oslo was in itself indicative of extremism, if 
not terrorism. (Hroub devoted part of his 
testimony to showing that opposition to Oslo went 
far beyond Hamas, and that it drew much of its 
strength from unbridled Israeli settlement 
expansion, land confiscations, and the widespread 
Palestinian conviction that the peace process was 
part of an Israeli plan to consolidate and 
institutionalize the occupation.) The government 
spent days presenting evidence secretly recorded 
by the FBI in 1993 at a three-day conference of 
Palestinian (mainly Hamas) activists in 
Philadelphia to discuss ways of conveying to the 
American public the dangers of the Oslo process. 
The government’s attempt to equate terrorism and 
opposition to Oslo was seriously undermined by 
its own witness. During cross examination, FBI 
special agent Robert Miranda (the case agent in 
charge of the Dallas-based HLF prosecution) 
admitted that not once in three days of 
continuous surveillance had any conference 
participant mentioned violence or any illegal 
activity whatsoever. Indeed, what the jury heard 
made clear that the conference participants’ main 
concern was that the American people, convinced 
that “peace had been achieved,” would turn their 
attention away from the daily suffering of the Palestinian people.

The prosecution’s attempt to depict Hamas as a 
gangland-style organization also suffered 
setbacks at trial. The government highlighted a 
1996 official communication from Hamas asking the 
U.S. government not to comply with Israel’s 
request to extradite Abu Marzuq, who had been 
arrested in the United States, to Israel. The 
prosecution’s witness in this matter was Paul 
Matulic, foreign policy adviser to Senate 
Judiciary Committee Chairman Orrin Hatch, who had 
been the one to receive the official 
communication from Hamas. Matulic did not testify 
as the government expected, however. He stated 
that he did not consider the letter to be a 
terrorist threat. In his experience, terrorists 
did not provide their names, addresses, and phone 
numbers, nor would they ask the United States “to 
kindly consider” their proposals. Moreover, 
Matulic testified that the letter was 
“professional in tone” and made clear that Hamas 
was not opposed to the United States, but that 
its “struggle has always been confined to 
resisting the Zionist occupation of Palestine.”

SALAH AS “HAMAS MILITARY 
COMMANDER”

In addition to demonstrating the terrorist (or 
racketeering) nature of Hamas, the government had 
to link Salah to Hamas’s alleged terrorist acts. 
Specifically, the prosecution sought to present 
Salah as a “high-level military commander” who 
delivered money to Hamas for the purpose of 
buying arms and rebuilding military cells. The 
primary source of these allegations was Salah’s 
coerced statements to Shin Bet, but evidence was 
also provided by Shin Bet witnesses at trial.

To demonstrate Salah’s high status within the 
Hamas military hierarchy, the prosecution leaned 
heavily on Shin Bet’s claim that a week into 
interrogation Salah had revealed where the body 
of a missing IDF soldier, kidnapped and presumed 
killed by Hamas in 1989, had been buried. Both 
Nadav and Judith Miller testified about this at 
trial­Miller in fact had reported in her February 
1993 article in the New York Times, written just 
weeks after Salah’s arrest, that the head of Shin 
Bet had told her that Salah must be a Hamas 
military leader because he had identified a place 
near Hebron as the soldier’s burial site. In her 
testimony at trial, Miller also mentioned that 
Shin Bet had shown her a map drawn by Salah of 
the location. Nadav likewise mentioned the map, 
but he testified that Salah had said the body was 
buried by a well in Yavne, south of Tel Aviv, 
hours away from Hebron.  The government made much 
of Salah’s supposedly inside information (How, it 
was argued, could anyone but a high-level 
military commander have access to it?) even 
though efforts to locate the body with it 
predictably led nowhere. In fact, the body was 
finally recovered three years later near a 
garbage dump outside Tel Aviv on the basis of a 
detailed map supplied to Israel by the PA. When 
the prosecution produced the map allegedly drawn 
by “military commander” Salah, which consisted of 
three circles and a dot labeled “well,” the jury laughed out loud.

THE “CONFESSION”:  VOLUNTARY OR COERCED?

In the absence of corroborating testimony or 
credible witnesses, the charges against Salah, 
once again, depended on the credibility of his 
confession and whether or not it had been 
coerced. Shin Bet interrogators Benny and Nadav 
assured that it had not been, and Judith Miller 
testified that during the half hour she secretly 
observed Salah being interrogated in Arabic by 
good cop Nadav, the interaction between them had 
been cordial and Salah had seemed “jaunty and 
combative.” Nadav, totally contradicting his own 
testimony at the suppression hearing, said there 
had been a “special order” that Salah (despite 
his supposed status as a military commander) was 
to be treated differently, but no supporting 
documentation or corroborating witness were 
produced. Nadav also asserted that Salah had been 
allowed to go “at his own pace” (though Benny 
spoke of waking him repeatedly in the night for 
interrogation). Some of the statements of both 
Shin Bet witnesses strained belief, for example 
Benny’s claims that the “good cop/bad cop” 
routine existed only on television and that there 
was no such thing as the “shabeh” position, and 
Nadav’s insistence that a defendant’s “waiting” 
in the context of interrogation meant sitting in 
a private room in a regular chair without being 
handcuffed and being able to get up and open the 
window. Neither Benny nor Nadav professed to know 
anything about the bird exercise.

Because of CIPA constraints, the defense was 
unable to hammer away at the Shin Bet witnesses’ 
credibility during cross-examination, but 
testimony by B’Tselem’s Yuval Ginbar, drawing on 
ten years’ experience documenting Shin Bet 
tactics­not only through interviews with 
Palestinians but also from Shin Bet testimony at 
Israeli military tribunals and admissions by the 
Israeli government before the High Court­was 
overwhelming. Ginbar testified extensively about 
the “bird” exercise­a common Shin Bet 
technique­and explained how interrogations, which 
had been completely systemized and where the 
practices described by Salah were absolutely 
routine, had been carefully designed to break 
resistance. Ginbar also testified that from his 
own experience “lying was the norm” in Shin Bet, 
and that the Landau Commission’s 1987 finding 
that Shin Bet routinely committed perjury with 
the sanction of its supervisors had been 
corroborated by subsequent GOI reports. For its 
part, the defense was able to present highly 
redacted versions of State Department telegrams 
and correspondence that showed that Salah had 
consistently complained of torture from the 
start, and that consular officials themselves believed he had been tortured.

In arguing that Salah’s statement had been 
voluntary, the government made much of the 
transcript of the five-hour tape-recorded session 
in which Salah, with prodding and encouragement 
from good cop Nadav, had essentially read the 
“bird document” aloud. In the taped transcript, 
Salah had said to Nadav, “You are my friend,” and 
had even joked with him. For the prosecution, the 
“friendly” relations of “trust” between Nadav and 
Salah evidenced in the tape, supplemented by 
Miller’s testimony, constituted proof that the 
statements could not have been coerced and that 
torture had not been used on Salah.

This is where the testimony of Dr. Metin Basoglu, 
chief of Trauma Studies at University of London’s 
Institute of Psychiatry, came in. Widely 
considered to be the world’s foremost researcher 
on the subject of torture and psychology, Basoglu 
explained that Salah’s bravado and joking stance 
while making his statement was the common 
reaction of a broken man desperately trying to 
assert some control. He also explained at some 
length the devastating effectiveness of the “good 
cop/bad cop” routine in psychiatric terms, 
clarifying the confused and complex feelings of 
dependency and gratitude the “good cop” elicits 
in the detainee. Basoglu shared the findings of 
his study based on interviews with hundreds of 
torture survivors around the world who had been 
asked to rate the mental distress caused by 
various forms of torture. The results established 
that psychological manipulation, sleep 
deprivation, nudity, forced stress positions, 
blindfolding and hooding, threats of violence to 
self and others, and mockery and verbal abuse­all 
standard Shin Bet practices at the time of 
Salah’s interrogation­caused at least as much if 
not more distress than physical torture. When 
published to acclaim just two months after his 
testimony, Basoglu’s study severely undermined 
U.S. Defense Department and U.S. Justice 
Department position statements, issued in the 
aftermath of human rights abuses by the U.S. 
military at Guantanamo Bay,  that argued for a 
definition of torture that would stop just short 
of acts causing severe physical pain. 
Significantly, the prosecution declined to cross-examine Basoglu.

MATERIAL  EVIDENCE?

One of the most striking features of the 
prosecution’s case was the virtual absence of 
material evidence. Reference was made to 
surveillance photos of Salah prior to his arrest; 
none was shown. Reference was made to timing 
devices found in Salah’s home; none was produced. 
What the government did have was reams of Salah’s 
bank records detailing hundreds of transactions 
between 1989 and 1993. These documents, however, 
far from proving Salah’s guilt, gave the defense 
the opportunity to emphasize yet again that the 
activities for which he was being tried had been 
completely legal and above-board at the time. The 
utter transparency of the records proved beyond 
doubt that this was no money laundering 
operation­there were no aliases, no hidden 
accounts under other names or “front 
organizations,” no circuitous routings, but 
straightforward transfers, many from accounts of 
Abu Marzuq (under his own name) to Salah’s 
account. The government tried to suggest that the 
fact that Abu Marzuq, who received much of the 
money from foreign donations, was the main source 
of the funds going into Salah’s account in itself 
proved that the funds were destined for 
military/terrorist uses. The defense argued that 
Abu Marzuq, a legal U.S. resident at the time, 
was living openly as the political head of Hamas 
and as such was responsible for a movement most 
of whose budget went to cover its vast social 
services and zakat networks. The prosecution was 
unable to produce any credible evidence that any 
funds given to the charities were ever used for any but charitable purposes.

The prosecution also inferred undercover dealings 
and illegality from Salah’s resort to money 
changers rather than banks in the occupied 
territories. To make the point, it called as 
witness a Chicago resident who had a 
money-changing business in Gaza with his brother 
and who had been there at the time of Salah’s 
1993 trip. Though a government witness, the man 
explained that it was impossible to wire money to 
the territories because all banks were under 
Israel control and the money would be 
confiscated. For the same reasons, he said, it 
was too risky to physically transport it across 
borders, leaving anyone wanting to help alleviate 
the terrible poverty in the occupied territories 
no choice but to go through money changers.

If the government’s evidence linking Salah to 
Hamas military activities was unpersuasive, to 
say the least, there was not a shred of evidence 
of any contact between Salah and any branch of 
Hamas after his return to the United States in 
1997. The government had dropped the Mustafa 
charge, so the defense was unable to introduce 
the fact that Salah had been the subject of a 
far-reaching investigation and thus under 
constant surveillance from the time of his 
return. In its closing arguments, however, the 
defense was allowed to allude to the surveillance 
and wiretapping to emphasize that despite this 
the government had found no evidence of any 
involvement with Hamas since it had been declared a terrorist organization.

OBSTRUCTION OF JUSTICE: THE BOIM INTERROGATORIES

Indeed, the only link between Salah and Hamas 
since 1993 was in the above-mentioned Boim civil 
suit led in May 2000, where Salah was named a 
defendant. In that case, Salah and seven U.S. 
Muslim organizations were sued for $600 million 
in damages for the 1996 killing attributed to 
Hamas of David Boim on the grounds that their 
support for the zakats funded Hamas terrorism. 
Salah should not have been part of this case at 
all, since he could not possibly have engaged in 
any funding activities for more than three years 
before the shooting, having been in Israeli 
prison since January 1993. In fact, the real 
agenda driving the case was to bankrupt the U.S. 
Muslim charities, to deter financial 
contributions to these charities, and to lay the 
ground for future criminal prosecutions.

Salah, like the other defendants in the Boim 
suit, did not have to appear in court but was 
required to answer in writing the 
questions­called “interrogatories”­posed by the 
lawyers. The twenty-one interrogatories had no 
relation to the Boim murder and virtually nothing 
to do with material sup-port. Salah was asked, 
for example, to list every meeting he had ever 
attended that addressed the issue of Palestine, 
“specifying in each case the subject involved and 
the names of all others in attendance at the 
occasion or event.” Although the Boim lawyers had 
unrestrained use of subpoena power to obtain all 
of Salah’s bank records, they demanded that he 
list all of his “annual receipts and expenditures 
from 1 January 1989 to the present giving a 
detailed description of each item.” He was also 
asked to list every organization to which he had 
ever belonged and all documents he had 
“authored,” an apparent at-tempt to trick him 
into characterizing his statements to Shin Bet as having been voluntary.

Salah’s civil lawyers mounted strenuous 
objections to the interrogatories on the grounds 
that they constituted a “witch hunt” and a “ 
fishing expedition” calculated to intimidate 
their client. Nonetheless, Salah, in keeping with 
his lawyers’ advice, provided limited answers, 
each of which was prefaced by the statement “over 
objection, I’ll give some answers,” which 
automatically invalidated the answers for use in 
the suit. Had the Boim’s lawyers really needed 
Salah’s answers to the interrogatories for the 
purposes of their suit, they would have led a 
motion to compel more complete answers. But they 
did not. In-stead,they took the incomplete 
answers to the Justice Department and showed Bush 
administration prosecutors how they could be used 
in a criminal case against Muhammad Salah.

For the jury to be able to properly evaluate the 
obstruction of justice charge, it needed to know 
the forces at work behind the Boim suit and the 
illegitimate nature of the interrogatories. The 
defense had hoped that the architect of the case, 
Nathan Lewin, would be the government’s chief 
witness, since given his openly held views it was 
safe to assume that the jury would understand 
from the cross-examination the precise nature of 
his agenda. For example, in 2002 Lewin 
recommended before the Senate Judiciary Committee 
that any funds seized by the U.S. government from 
Muslim charities should go to pay private lawyers 
(like himself) who sue the charities 
(irrespective of the outcome) and that the 
government be required by law to cooperate with 
the lawyers bringing lawsuits against alleged 
terrorism funders. Lewin had also called for the 
execution of the family members of suicide 
bombers, and accused the Clinton Justice 
department of “selective prosecution and 
fomenting terrorism” when it refused to 
extradite, try, and seek the death penalty for 
David Boim’s killer (convicted by the PA) on the 
grounds that the evidence against him had been obtained by torture.

The government apparently realized the dangers of 
allowing Lewin to testify, however, and did not 
call him. Deprived of the opportunity to 
cross-examine Lewin, the defense tried to call 
professor Nor-man Finkelstein, a well-known 
academic and author of numerous books on the 
Israel-Palestine conflict and the Israeli lobby, 
to tell the jury about the power and political 
motivations behind the Boim lawsuit. But the 
prosecution challenged Finkelstein’s expertise 
and the relevance of his potential testimony, and 
the judge agreed, so the jury was given no 
evidence that could have clarified where the Boim 
case fit into the rest of the case.

THE VERDICT

Throughout the three-month jury trial, the 
Chicago Arab-American and progressive communities 
turned out in unprecedented numbers to show 
support for Salah and his codefendant Ashqar. 
Salah being a longtime Chicago area resident, his 
case especially galvanized the local community. 
Initially, however, many Arab Americans were 
reluctant to attend hearings, deterred by the two 
separate security checks (at the courthouse and 
the courtroom entrances) and especially by the 
mandatory scan of driver’s licenses of everyone 
seeking to observe proceedings in high-security 
cases. Once the jury trial began and it became 
clear that the defense was managing to present a 
piece of the Palestinian narrative and that 
issues were being debated that rarely got a 
hearing, the situation changed. People began 
forming long lines early in the morning to get 
seats, and additional overflow courtrooms were 
opened where the proceedings were shown on closed 
circuit television. Some community members 
approached defense lawyers with tears in their 
eyes, expressing thanks for “speaking for us,” for “telling our story.”

Closing arguments were presented in mid-January 
2006. The jury deliberated for two weeks. When 
the verdict acquitting both Salah and Ashqar of 
all terrorism-related charges was read on 1 
February 2007, the explosion of joy in the 
courtroom was such that the guilty verdict for 
obstruction of justice seemed to go unnoticed. 
With regard to Salah, the defense never knew 
which interrogatory answers the jury found 
obstructive, and in any event the split verdict 
was very probably the result of a compromise 
among jurors to avoid a hung jury. Indeed, 
several jurors who attended the Salah’s later 
sentencing “unofficially” informed the defense that this was the case.

The day after the verdict, banner headlines in 
both major Chicago dailies trumpeted the victory. 
“Two Found Not Guilty of Supporting Hamas: Split 
Verdict Seen as Setback for the Bush 
Administration,” announced the Chicago Tribune. 
Quoting Salah’s first words after the verdict, a 
front page Chicago Sun Times banner headline 
proclaimed, “We Are Not Terrorists” and showed 
members of the Muslim community kneeling in 
prayer in front of the federal court-house. 
Statements of support and solidarity flooded in from around the world.

The month after the verdict, however, the 
government, ignoring the acquittal on terrorism 
charges, demanded that Salah be given a ten-year 
sentence for his Boim interrogatory responses, 
arguing that they had been “calculated to protect 
Hamas.” (The jury had never made such a finding.) 
Manipulating the U.S. sentencing guidelines, 
which judges are required to consider among many 
other sentencing factors, the government insisted 
that “terrorism enhancement” be applied and that 
the judge must not be bound by the acquittal 
since judges are entitled to apply in sentencing 
a less onerous standard of guilt than the “proof 
beyond a reasonable doubt” required of a jury. In 
other words, the government was urging the judge 
to sentence Salah as if he had been convicted of the terrorism charge.

The community rallied in support of Salah, 
submitting more than 600 letters to the court 
setting forth the exemplary life and 
extraordinary record of service to the community 
of this man who had grown up in the Qalandia 
refugee camp in the West Bank and come to the 
United States when he was seventeen. Many letters 
described him as the “conscience of the 
community,” a role model and inspiration who gave 
hope and guidance to young people, encouraging 
their education. The letters detailed his kind 
and gentle nature and his role as a mentor and 
friend to several generations of young Arabs, 
teaching them English, Arabic, math, and Islam. 
Other letters described how as a small grocer he 
gave credit and free food to the needy and 
refused to sell alcohol, pork, or pornography in 
his store. Letters also told of his volunteer 
work at his mosque, where he acted as janitor and 
caretaker and ran programs for youth. Several 
people described how he prepared the deceased for 
Muslim burial. Many praised the jury and thanked 
them for restoring their belief in justice. All 
the letters urged the judge not to send Salah to 
prison but instead to return him to the community 
so that he could continue to serve.

The defense maintained that Salah should not be 
sentenced to prison be-cause of his record of 
service, lack of criminal history, the needs of 
his five children, the minor nature of the 
conviction, the punishment he had already endured 
(and would continue to endure) by virtue of his 
OFAC “terrorist designation,” and his previous 
five-year prison term in Israel. Nonetheless, on 
11 July 2007, the judge sentenced Muhammad Salah 
to twenty-one months in prison, a $25,000 fine, 
and one hundred hours of community service.

Although far lighter than what the government 
asked for, the sentence was unwarranted. Indeed, 
Salah’s sentence, when juxtaposed with the 
contemporaneous presidential pardon of Scooter 
Libby, convicted of lying to a federal grand jury 
and three other counts of obstruction, exposes 
the politically motivated nature of the entire 
prosecution. Still, what has been shown in the 
cases of Muhammad Salah and Abdelhaleem Ashqar, 
of Sami Al-Arian in Tampa, and the hung jury in 
the HLF case in Dallas, is that American juries 
are not willing automatically to convict 
Palestinians for supporting resistance to 
occupation because they realize that these 
defendants do not pose a threat to American soil. 
These cases also show that when the nature of the 
conflict is exposed, juries appear to question 
America’s unwavering support for Israel.

At the end of trial, the lead prosecutor­before 
he fought tooth and nail to obtain a maximum 
sentence for Salah­called Salah’s lawyers to 
congratulate them on a verdict he acknowledged to 
be a victory for the defense. Without doubt, the 
acquittal on terrorism charges had been a 
stunning blow for the government, a clear defeat 
for the Bush Justice Department’s plan to join 
with Israel in targeting those in the United 
States who give aid and support to people living under occupation.

Yet at the same time, the government also made 
important gains in terms of breaking ground for 
future prosecutions. The Salah prosecution was 
the first 
whereacoercedconfession­certaintobeanimportantelementinapost-9/11 
world­was admitted in a U.S. court; furthermore, 
the fact that the coerced confession was made on 
foreign soil laid the ground for extraordinary 
renditions. The case pioneered the use of CIPA 
for allowing secret evidence and can serve as a 
model for establishing prosecutorial joint 
venture that previously ­ coupled with the 
government’s failure to produce evidence to which 
Salah was entitled­could have been grounds for 
dropping the indictment based on 
Israeli-generated documentation and testimony. 
The government also used the case to manipulate 
the civil discovery rules so as to create the 
basis of an obstruction of justice criminal 
indictment, the likes of which had never before 
been seen in federal court, and marked the first 
time that anyone had ever been charged criminally 
for providing incomplete or false answers to interrogatories in a civil case.

In short, the Salah case established precedents 
which, unless challenged or invalidated by the 
Supreme Court, will be available for prosecuting 
terrorism cases in the future if and when­under 
whatever administration­the government chooses to 
use them. And that was mainly, or largely, what 
this case was about in the first place. It is 
doubtful that it was ever really about a 
soft-spoken, big hearted former grocer from 
Chicago by the name of Muhammad Salah.



NOTES AVAILABLE UPON REQUEST



MICHAEL E. DEUTSCH AND ERICA THOMPSON are lawyers 
with the People’s Law Office in Chicago, which 
has been representing political activists, 
political prisoners, and victims of government 
repression and police misconduct and brutality since 1969.




Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

www.Freedomarchives.org  
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