Low-Hanging Fruit

Zakat,​ the Quranic obligation on Muslims to give alms for the relief of poverty, is one of the five pillars of Islam. The Holy Land Foundation (HLF), founded in 1988 by American citizens of Palestinian heritage, raised money for distribution by zakat charitable committees in Gaza and the West Bank. Most of it went to buy food, clothes and education for children. Between 1992 and 2001 the foundation raised at least $56 million. On 3 December 2001 the US Treasury Department decreed that the HLF was a ‘specially designated global terrorist’ (SDGT), and the next day, without informing the foundation of this decision, the FBI closed down its offices. Five staff members and the HLF itself were charged in 2004 with a variety of terrorism offences, on the basis that the money the organisation raised was ultimately going to fund Hamas.

The first trial, in 2007, resulted in a hung jury. The defendants were convicted in a retrial the next year. The leaders of the HLF, Shukri Abu Baker and Ghassan Elashi, are serving 65-year sentences and will die in jail. Three others were given prison sentences of 15 or 20 years. They lost their appeals, and the Supreme Court refused to hear the case, despite patent failings and abuses in the legal process. The 9/11 attacks precipitated much hasty and panicked action by the US authorities: hence the Patriot Act and the other instruments of at best dubious legality that the Bush administration used to advance the war on terror. But as a tale of legal chicanery by a government, of moral panic and of complicity on the part of the judiciary, what happened to the HLF is hard to beat.

In 1995 the Clinton administration designated Hamas a terrorist organisation, banning all financial support for it, and this classification remains. The HLF’s phones were tapped for at least ten years and the defendants were recorded saying over and over again that the HLF must obey US law and ensure that its funds were not being used for terrorism, or for any specific party or group, but for purely humanitarian purposes. No one at the trial disputed the extent of the human crisis that the HLF sought to alleviate. On the contrary, the former US consul general in Jerusalem (the de facto ambassador to the Palestinian Territories) said the HLF had a ‘good reputation’ for ‘low overhead costs and for projects of assistance that went to needy Palestinians’.

The prosecution did not contend that the HLF was funding Hamas directly or that its money was used (or was intended to be used) to support suicide bombings or other sorts of violence. They maintained that Hamas controlled the zakat committees the HLF used and that by distributing humanitarian aid by means of those committees, the HLF had helped Hamas win the ‘hearts and minds’ of the Palestinian people. None of the seven committees identified as suspect by the prosecution had ever been proscribed as a terrorist organisation and no one connected with them had ever been accused of being a terrorist. After the proscription of Hamas, the HLF sought guidance from the US government on how best to carry on its work with these committees, but received no advice. The foundation continued to make sure that the Treasury Department knew what it was doing and who it was dealing with. The US consul general testified that he visited the West Bank zakat committees and received regular briefings about Hamas. He stated that he had never heard of a link between Hamas and the committees.

The United States Agency for International Development provided funds for many years to the committees named in the indictment, while itself scrupulously avoiding contact with Hamas. This funding continued after the government closed the HLF in 2001, until at least 2004, when the indictments against the HLF five were laid. The prosecution was unable to prove that the money raised by the HLF actually went to Hamas: it asked the jury to infer it, on the basis of other evidence. Shukri Abu Baker’s attorney, Nancy Hollander, says that ‘the government traced every penny from the Holy Land Foundation directly to charity. No guns, no suicide belts, no explosives. Yet, because this charity went to families in Palestine, it was a crime.’

So intent was the prosecution on proving that the HLF was funding Hamas that it called an anonymous witness, known only as Avi, to testify as an expert that Hamas controlled the zakat committees named in the indictment. Experts normally have to demonstrate what makes them experts but neither the defence nor the jury were allowed to know who Avi was or what his credentials were – if he had any. All he disclosed (and there was no way of knowing if even this was true) was that he was a lawyer working for the Israeli Security Agency. A second Israeli witness, using the pseudonym Major Lior, was allowed to produce documents allegedly seized by the Israeli army, the provenance of which he personally had no knowledge. But another expert state witness, whose identity was not classified and who could therefore have been more meaningfully cross-examined, was not called. Judge Solis of the North Texas District Court, who presided over the retrial, permitted all this untested and untestable evidence to go to the jury.

In the second trial the prosecution called a witness, Mohamed Shorbagi, whom they had not used before. He testified under a ‘plea and co-operation agreement’, meaning that he agreed to give evidence for the prosecution in return for a massively reduced sentence for his own, separate offences: these included sending money to Hamas on his own account, a fraud in which he scammed $610,000 from his employer, and lying to the FBI. (There is some suspicion that his plea to funding Hamas, which cost him nothing in prison time, may have been a ruse to bolster the credibility of the prosecution case.) In return, he got seven and a half years instead of a potential life sentence, with a promise of further reductions if he continued to ‘co-operate’. His credibility was heavily compromised from the start and his evidence should have been laughed out of court: he had never been to the West Bank, and had not been in Gaza since 1991, but testified nonetheless that Hamas controlled four of the West Bank zakat committees. He admitted that he got this information from the internet, newspapers and leaflets, and conversations with friends.

The government case also relied on three documents produced by Major Lior allegedly seized by the Israeli Defence Force from the Palestinian Authority headquarters in 2002 during a raid in the West Bank. Two of the documents – the authors of the documents and their sources weren’t named – purported to identify the HLF and the Ramallah zakat committee as parts of Hamas’s fundraising network. Judge Solis admitted as evidence this anonymous double hearsay; the judge at the first, abortive trial ruled it out. Other dubious, ambiguous, anonymous documents seized by the FBI from HLF employees were said to show links between the HLF and Hamas, but they predated the banning of contact with Hamas. Ghassan Elashi’s lawyer, Linda Moreno, was alarmed by the conduct of the prosecution case: ‘The unprecedented use of an anonymous expert by the government,’ she said, ‘along with the admission of unauthenticated hearsay evidence, secured a conviction wholly lacking in integrity. The constitutional right to confront the evidence was ignored, and demeaned.’

The Fifth Circuit Court of Appeals backed Judge Solis’s decisions. Its judgment starts by setting out as facts what is in reality a series of highly contentious propositions: the HLF, it asserts,

raised millions of dollars over the course of its existence that were then funnelled to Hamas through various charitable entities in the West Bank and Gaza. Although these entities performed some legitimate charitable functions, they were actually Hamas social institutions. By supporting such entities, the defendants facilitated Hamas’s activity by furthering its popularity among Palestinians and by providing a funding resource. This, in turn, allowed Hamas to concentrate its efforts on violent activity.

The appeal court’s explanation of this partisan account was simplicity itself: it was, the court said, derived from ‘the evidence at trial, which we view in the light most favourable to the verdict’. Since the admissibility of much of the evidence and the consequent validity of the verdict were the matters the appeal was intended to examine, one wonders what the point of the judgment was. Examining the case in the light ‘most favourable’ to the verdict, the appeal court found that Hamas’s social wing launders money for dark purposes, wins over hearts and minds to the terrorists’ cause, and ‘critically assists Hamas’s goals while also freeing resources for [its] military and political activities’. This may be so, but it has nothing to do with whether there was enough reliable evidence to prove that the HLF was intentionally funding Hamas. The court played the trump card of national security to defend the use of anonymity for the key witnesses. It also decided, without explaining its reasoning, that disclosure of the witnesses’ identities would not have helped the defence. The court played the trump again, upholding a decision to refuse to order disclosure to the defence of the background material used in the application to tap the defendants’ communications.

The appeal court had more trouble with Shorbagi, admitting that much of his evidence should have been ruled out as hearsay, but they got around the difficulty by finding that the trial judge’s error was ‘harmless’ – it made no difference to the outcome. The court claimed that enough of his evidence (‘from personal knowledge’) was not hearsay to disinfect the parts that were; it ignored his compromised position as a convicted conman and as a co-operating witness, who needed a judge’s good opinion for his own sentencing. The Court also glossed over the fact that his supposed ‘personal knowledge’ was in any case out of date.

It decided that the ‘strongest evidence’ the prosecution case had was that the HLF continued to send money to the allegedly Hamas-controlled committees even after Hamas was designated a terrorist organisation. It failed to question the reliability of the claim that Hamas controlled the committees and did not refer to the phone-tap evidence that showed the defendants were anxious to obey the law. If that was the strongest part of the case, it cannot have been a very strong case.

Perhaps​ because it knew it was on weak ground, the prosecution in the second trial decided to scare the jury by adducing evidence of Hamas suicide bombings, including an explanation of how suicide bombers choose their targets, carry out their plans and prepare bombs to make them more lethal; testimony about Hamas’s killing of collaborators with Israel; videotapes of demonstrators destroying American flags; violent images of the aftermath of Hamas suicide bombings found in temporary files on HLF computers, and so on. The appeal court knew this was prejudicial but got around the rule that it should have been excluded on this basis by claiming that ‘virtually all evidence is prejudicial.’ The prosecution evidence, the appeal court claimed, gave ‘context and explanation’, even though the HLF officials were not charged with committing acts of terrorism. It was not ‘unduly prejudicial’ (you have to ask what ‘unduly’ adds here). But the probative value of this evidence was nil: the prosecution adduced it solely to frighten the jury and inflame their emotions.

The appeal court was forced to acknowledge several other errors by the judge, all of which it deemed harmless. A government witness was allowed to give evidence that the non-designation of a zakat committee as a terrorist organisation did not mean that it was not part of Hamas: this was an error, but harmless. Two FBI agents gave evidence they were not competent to give: no harm done. A former National Security Council official gave evidence about the threat he said Hamas posed to US interests in the Middle East: irrelevant, the court said, and should have been discounted, but no harm done. The refusal by the trial court (after a delay of five months) to issue a formal letter to the Israeli authorities requesting material needed by the defence was discounted; the defence, the appeal court said, had been trying to mount a ‘fishing expedition’.

After the first trial, the defence discovered that the prosecution had sent a hundred pages of documents and three videos into the jury room which had not been part of the evidence. It argued that this meant that as a matter of law there should not have been a retrial: the case should have been dismissed. The jury, apparently, had been on the verge of acquitting all the defendants when one juror changed his mind (the US system does not permit majority verdicts). The appeals court assured everyone that the prosecution had not acted in bad faith.

‘After a full review of the record,’ the appeal judges concluded, ‘we are left with the firm conviction that the trial errors we have identified do not require reversal … error in admitting evidence will be found harmless when the evidence is cumulative.’ This may sound familiar to those who remember the miscarriage of justice inflicted by the British legal system on the Birmingham Six. Lord Lane held in their 1988 appeal that ‘the longer this hearing has gone on, the more convinced this court has become that the verdict was correct.’ The US Court of Appeals seems to have accepted the prosecution case wholesale, convinced itself a priori of the defendants’ guilt, and found ingenious ways of getting round the glaring deficiencies in the evidence and the judge’s numerous errors. The court was dismissive of the defence’s complaints about the prosecution and the trial judge. It did not seem alarmed by the 65-year sentences.

The defence case, by contrast, was described as a ‘theory’ that the accused did not support Hamas. The court noted the defence’s ‘view’ that the government had never designated any of the zakat committees as a terrorist organisation (it was an uncontested fact), and claimed the defence was merely ‘suggesting that non-designated committees were not controlled by Hamas’. Of course it is possible that some of the $56 million raised by HLF found its way into the wrong hands, but that isn’t the point. What matters is whether its principals knew the money was going to Hamas via the committees or intended that it should, not whether Hamas was a bad thing or even whether it controlled or influenced the committees.

In late 2001, the Bush administration wanted the world to think it was in charge of events. According to David Aufhauser, a senior Treasury Department lawyer, there was great political pressure on the department to name those who’d funded al-Qaida’s terrorism: ‘We just listed as many of the usual suspects as we could and said: “Let’s go freeze some of their assets.”’ The HLF, a co-operative organisation which sent large amounts of money to the Palestinians, must have looked like low-hanging fruit.