[Pnews] How the US jailed five innocent Palestinians
ppnews at freedomarchives.org
Wed Feb 14 17:40:42 EST 2018
How the US jailed five innocent Palestinians
Miko Peled <https://electronicintifada.net/people/miko-peled> - 14
In July 2004, federal agents raided the homes of five Palestinian
American families, arresting the fathers, who had been leaders of a
Texas-based charity called the Holy Land Foundation
The Holy Land Foundation was once the largest Islamic charity in the
United States, but months after the 11 September 2001 attacks the
federal government shuttered the organization and seized its assets.
The first trial of the Holy Land Five was held in 2007 and ended in a
hung jury. A second trial resulted in guilty verdicts. Both were marked
by highly questionable procedures including the admission of testimony
from anonymous Israeli security agents.
The failure to get a conviction in the 2007 trial was a huge
embarrassment for the prosecutors, for whom this had been a flagship
terrorism case. But they learned from their mistakes.
“We came back a year later,” John Cline, the lawyer for defendant
Ghassan Elashi <https://electronicintifada.net/tags/ghassan-elashi>,
told me, “and we had a new judge who I think was determined to get a
The Fifth Amendment to the US Constitution provides: “Nor shall any
person be subject for the same offense to be twice put in jeopardy of
life or limb.”
This clause is known as the Double Jeopardy Clause, and it means that
after a case has concluded it can’t be retried. But because the 2007
case against the Holy Land Five ended in a mistrial, it had not
“concluded” in a legal sense.
The second trial began in September 2008. The prosecuting team had a
year to fill the holes in its case and find ways to get around the
defenses raised in the civil and first criminal cases.
“In the second trial,” Cline said, “the government decided they will
throw out all the stops, and the judge seemed willing to give them
anything they wanted.”
The first major change was that not all five defendants faced the same
32 charges. The prosecutors had taken all those charges to a jury
already and they knew with which ones they were likely to succeed;
changing the list let them focus more carefully on the charges they knew
a jury would be more likely to favor.
Mohammad El-Mezain, Mufid Abdulqader and Abdulrahman Odeh were charged
with conspiring to provide material support to a foreign terrorist
organization; conspiracy to provide funds, goods, and services to a
specially designated terrorist; and conspiracy to commit money laundering.
Shukri Abu Baker, on the other hand, faced 24 charges. Ghassan Elashi
had 33. In addition to the charges brought at the first trial, the
prosecution had added “filing false returns of an exempt organization”
to the mix.
This was the first anyone had heard that the government supposedly
believed the Holy Land Foundation had been filing illegitimate tax returns.
All the money was raised, accounted for, declared and transferred
legally and above board. No one ever lied on the tax forms, no one lied
on the bank statements, and everything was done in the open. None of the
committees listed in the indictment had ever been listed or designated
as terrorist organizations by the US government.
I spoke to John Cline in depth about the differences between the first
and second trial. I needed to know how the government had managed to get
convictions in the second trial where it had failed in the first.
“What the government did skillfully in the second trial,” he explained,
was use the fact that “in the ’80s and early ’90s some of the guys were
sympathetic to certain aspects of Hamas activities like opposing Oslo
and the kids throwing rocks.”
This was no different from most Palestinians or even from a substantial
number of people in the West who were able to see that the Oslo accords
<https://electronicintifada.net/tags/oslo-accords> were going to have
far-reaching negative effects on Palestinians. But again, the jury heard
this information out of context, isolated, and it may well have seemed
to them that only the defendants and actual terrorists had those ideas.
In addition to changing the charges, the government made four major
changes in the case it presented to the jury.
First, Robert McBrien from the treasury department testified that in his
opinion one cannot tell whether the government will consider a person or
organization to be a terrorist simply by checking the lists of
terrorists that the government publishes.
The prosecuting team brought McBrien to counter the Holy Land
Foundation’s point that it had tried to make sure that it was not giving
money to terrorists and that the zakat committees – local charitable
societies in Palestine which collect annual contributions from devout
Muslims and oversee their distribution – had never been listed as
terrorist entities by the government when so many others had. They
wanted to prove that the Holy Land Foundation had not done enough to
make sure their money wasn’t going to terrorists.
Second, documents that were brought in by the Israeli military were
entered into evidence. The documents were allegedly found when Israeli
forces had gone into zakat committee offices in West Bank cities during
the Operation Defensive Shield incursion in April 2002, more than a year
after the Holy Land Foundation was closed down.
The documents, undated and with no identifiable author, supposedly
showed that Hamas controlled the zakat committees. Judge A. Joe Fish,
who had presided over the earlier, inconclusive trial, had agreed that
these documents were not admissible evidence, but now the new judge,
Jorge Solis, allowed them in.
Third, the prosecution brought in Steve Simon, a witness to whom the
defense strongly objected on the basis that his testimony was irrelevant
and more prejudicial than probative. Simon had been on the staff of the
National Security Council when Hamas was designated as a foreign
In his testimony he brought up the 11 September 2001 attacks, which was
a serious problem. The defendants had nothing to do with the attacks,
Hamas had nothing to do with the attacks, and the trial had nothing to
do with the attacks. By creating this association in the jury’s mind,
the government was able to imply things far beyond the scope of the trial.
Lastly, Mohammad Shorbaji was a witness that the government chose to
call in the second trial but not the first.
Shorbaji, a Palestinian from Gaza, had been convicted in early 2007, on
a charge of embezzling $600,000 from the carpet company in Virginia for
which he worked, and as part of a plea bargain he had agreed to
cooperate with the FBI.
He testified that “everyone” in the West Bank, to which he had never
been, knew that the Holy Land Foundation was the fundraising arm of
Hamas and that all the zakat committees were Hamas.
These four changes gave the government the edge it needed to convince a
jury to convict.
Upon appeal the defense raised these four items as errors, but the court
said that although they were indeed errors, they were “harmless.” That
is, the decision would not have been different if this evidence had not
This was “the most ridiculous, indefensible response by a respected
court I have ever seen in my life,” Cline told me.
You can petition, which the defense did, pointing out that the errors
identified were the ones that made the difference, but the court came
back with no further explanation. The Supreme Court was also petitioned
but declined to hear the appeal. And that’s that.
“The /habeas corpus/ was hopeless,” John Cline told me, “and an
executive clemency doesn’t seem likely.”
The second trial ended in November 2008, and after nine days of
deliberations, the jury came back with all guilty verdicts.
All five men gave eloquent speeches prior to their sentencing, though in
Shukri’s case Judge Solis cut him short.
They all thanked God, they thanked their families and friends who
supported them. They expressed their deep faith in the work they did,
and not one of them in the slightest way expressed regret for the price
they would now have to pay for doing that work.
These five men demonstrated that their convictions were firm and their
faith unimpeachable. They did the right thing, they would do it again,
and God only knows how He will judge all of us when the time comes.
Mufid was given a 20-year sentence, while Mohammad El-Mezain and
Abdulrahman Odeh were given 15 each for the exact same charges. Ghassan
Elashi and Shukri Abu Baker were each sentenced to 65 years.
They were now among thousands of Palestinian political prisoners, and
perhaps millions of political prisoners around the world, nearly all of
whom were convicted with a lack of real due process, all paying a price
for being true to themselves.
A great deal of time, money and effort went into an attempt to get
President Barack Obama to commute the sentences of the Holy Land Five. I
was asked if there was anyone I knew with whom they might speak and ask
for help. Sadly, I knew no one who had any influence and would speak for
five innocent Muslim Palestinians imprisoned in the United States.
A delegation went overseas to plead with Muslim heads of state whom the
US deemed “friendly,” asking them to speak to Obama before he left
office, but to no avail.
Offers were made to provide the five with citizenships in other
countries should they be released and deported.
But as John Cline once told me, this is too “politically fraught,” and
Obama failed these innocent men just as he had failed the cause for
justice and peace in Palestine.
It is very likely that these five Palestinian political prisoners will
be freed once all Palestinian political prisoners are freed, and that
will only happen once their homeland, Palestine, is free.
/This essay is adapted from/ Injustice: The Story of the Holy Land
Foundation Five <http://justworldbooks.com/books/injustice/> /by Miko
Peled (Just World Books, 2018)./
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