Feeding children is not a crime

June 3, 2009

Candice Bernd provides the background to the case of the Holy Land Five, who received long prison sentences for the "crime" of aiding needy Palestinians.

AS THE five defendants of the Holy Land Foundation (HLF) case were being sentenced May 27, members of the local Muslim community came together to rally outside the Earle Cabell Federal Building in Dallas with a banner that read "Feeding children is not a crime," and black shirts with the words "Free the Holy Land Five."

The Holy Land Five were convicted of "material support of terrorist organizations" for openly sending money, food, clothing and medical and school supplies to Zakat committees that support Palestinian charities in the Middle East, through the Richardson, Texas-based HLF. This has become the largest terrorism financing case in the U.S. since September 11, 2001--and the most disputed.

Three of the five men received the maximum sentence possible. Ghassan Elashi, 55, received 65 years on 35 counts; Shukri Abu Baker, 50, received 65 years on 34 counts; Mohammad El-Mezain, 55, was given 15 years on a single count. The other two men, Mufid Abdulqader, 49, and Abdulrahman Odeh, 49, received 20 years and 15 years respectively each on three counts.

Supporters held vigils outside the trials of the five men convicted for participating in the Holy Land Foundation charity
Supporters held vigils outside the trials of the five men convicted for participating in the Holy Land Foundation charity (Indymedia)

In a May 28 Democracy Now! interview, Nancy Hollander, who represented defendant and former HLF executive chairman Shukri Abu Baker, said all the defendants have filed notices of appeal with the 5th U.S. Circuit Court of Appeals.

Federal prosecutors convicted the Holy Land Five on 108 criminal counts of supporting terrorist organizations, money laundering and tax fraud last fall in a second trial.

The Feds' first try ended in a mistrial on November 24, 2008, after 19 days of deliberation found the jury deadlocked on most of the counts after a sudden four-day wait to read the verdict prompted some jurors to change their minds when polled. The verdict, originally to be read on November 20, 2008, was sealed because the judge was out of town.

Defendants El-Mezain, Abdulqader and Odeh were acquitted on most charges after the first two-month-long trial had jurors asking questions about the validity of the evidence. A stunning zeitgeist of racism and paranoia is now apparent from what took place in proceedings starting in July 2007.

What you can do

For more information on this case, and to find out what can be done to support the HLF Five, visit the Freedom to Give Web site.

"My dad was the only one who was found completely innocent until a juror changed her mind," said Abdulqader's daughter Zainab. "In the second trial, he was found guilty of every charge. How can something like that happen?"

The HLF, a U.S. charity that originated in the 1980s, was the largest Muslim charity in the U.S. After September 11, the Bush administration said that the charity was funding Hamas and shut it down by executive order. Records taken from the charity showed that no supplies went to Hamas. Because audits of the charity couldn't support the claims that the Holy Land Foundation funded Hamas, the government created a new definition of material support for terrorists.

In 2004, the Bush administration claimed that there was a conspiracy to support Hamas because the charities that the Holy Land Foundation gave material goods to were controlled by Hamas. When Israel launched Operation Defensive Shield in 2002, the charities were raided and identified as "Hamas controlled" because the charities had posters of Hamas leaders, which were prevalent in Gaza at the time.

On July 23, 2007, the Holy Land Five were brought to trial. The government argued that, in order to prove a conspiracy theory, the regular procedures for rules of evidence did not have to be met.

Evidence normally has to meet all of the rules for court proceedings, including relevance, materiality, competence and foundation. If the evidence doesn't meet these criteria, then it cannot be shown to the jury. Yet in a conspiracy case, it is the sum total evidence that must meet the rules for evidence, not individual pieces. Almost all evidence can be allowed for the jury to consider its weight as evidence whether it is relevant or not.

WITNESSES AND lawyers gave this account of the proceedings:

The first trial

According to Khalil Meek, president and CEO of Muslim Legal Fund of America, prosecutors used evidence of video footage from HLF fundraisers taking place in 1988, 1989 and 1990 that showed members singing old folk songs portraying Hamas in a positive light--before the Clinton administration designated Hamas as a terrorist organization in 1995.

The defense pointed out that the Zakat committees to which the HLF gave money were not listed as terrorist organizations on the government's Specially Designated Terrorist Organizations list and that the U.S. Agency for International Development was giving supplies to the same charities within the same time period (through 2004) that the HLF had.

Edward Abington, former U.S. consul general, who was stationed in Jerusalem in the late 1990s and a senior official for the U.S. State Department, testified on behalf of the defense, saying he got daily CIA briefings on Hamas and other security threats in the region and was never informed that the terrorist group controlled the Palestinian charity groups, or Zakat committees, to which Holy Land donated money.

During the deliberations, the jury had asked Judge Joe Fish if any exhibits or arguments put together by lawyers that cannot be used by the jury to make their deliberations had accidentally become mixed in with the evidence and sent back to the deliberation room. The judge then asked both the prosecution and the defense if they knew of any exhibits missing that might have made it into evidence and after both councils said they knew nothing, the judge had deemed that all the material the jury had to deliberate with was evidence.

Despite the confusion, the jury came back with not one guilty case. Yet, after the verdict was sealed for three days because the judge was out of town, three of the jurors changed their minds when polled after the verdict was finally read. A mistrial was declared, and the defendants were to be retired after one year. Meek said t was later discovered that a 200-page demonstrative exhibit of the prosecution had made it into evidence, and was used by the jury to during their deliberations.

The second trial

The Holy Land Five were found guilty on all counts in the retrial as the prosecution was now aware of the arguments used by the defense. The verdicts came easily enough, with the prosecution employing tactics that have never before been used in an American courtroom--all allowed by Judge Jorge Solis.

The government witness Atef Shafik, a senior language analyst for the FBI, made the argument that Muslims using common phrases that refer to peace and God are terrorists because the phrases reveal that they are Islamists, and this makes them part of the Muslim Brotherhood, which he described as a shadowy anti-Israel organization that calls for the destruction of the Western civilization from within, in order to replace it with an Islamic society.

Defense attorney Theresa Duncan said Shafik's words expressed pure bigotry and were clearly "an attack on Islam."

According to an article by Bob Sanders of the Fort-Worth Star Telegram, the prosecution presented unsigned and unauthored documents seized in a raid on the Palestinian Liberation Organization that the defense was not allowed to see. The items were introduced through an unnamed Israeli soldier who was not present when the items were seized. The court also allowed, as a first, evidence from selective declassification from wire tapping records.

If the government uses wiretapping surveillance in court, it is procedure to declassify all records pertaining to the case so that defendants may see all of their recorded statements. Yet in this trial, the records were not entirely declassified, and the government denied the defendants access to their own recorded statements, Meek said.

Abington's testimony also changed in the retrial, as the CIA forbade him from making any references to the agency or to the specific information revealed to him in the briefings, according to an article by Jason Trahan in the Dallas Morning News.

The prosecution also showed the jury inflammatory evidence, or evidence not relevant to the case that is biased in nature, according to one defendant. Prosecutors showed the jury various photos depicting violence allegedly perpetrated by Hamas--pictures of the aftermath of suicide bombings and little kids dressed up as suicide bombers, Zainab Abdulqader said.

Most striking, however, was the prosecution's use of an anonymous Israeli secret agent with the alias "Avi," who testified at length as an expert and was used to tie together all of the prosecution's highly questionable evidence. Because "Avi" didn't have to give his name, he didn't have to worry about charges of perjury.

The government also published a list of 300 unindicted co-conspirators consisting of major mainstream Muslim organizations that cannot get off the list and cannot go to trial over it. According to Meek, the list was initially meant to be private, but went public after the government published it with the indictment. With the public potentially eyeing the heads of these organizations as terrorists, the implications of this move are staggering.

The impact

IF THE appeals made by the defense fail to win in court, the outcome of the case will essentially link Islam to terrorism in an unprecedented and permanent way. This case would make the stigma attached to Muslims official because many prominent Islamic organizations are listed as co-conspirators simply based on the nature of their faith and their empathy with the plight of the Palestinian people.

At two separate town hall-style meetings at a Richardson mosque before and after the sentencing, families and local leaders gathered to discuss how the community will stand against the injustice done in the Dallas courtroom. "The Holy Land Five were railroaded by a locomotive bearing the symbol of the U.S. Department of Justice," said Bob Sanders, columnist and senior editor at the Fort Worth Star-Telegram.

Noor Elashi, a journalist and daughter of defendant Ghassan Elashi, has vowed to clear her father's name. "This community should come together and should stay together because one thing that the government wants is for us to be broken apart. When the government sees how strong we are, they cannot come attack us anymore," she said in a speech that galvanized the room and received much applause.

Noor Elashi appeared on Democracy Now! with a critical eye on the media. She said in the interview:

From the very beginning of the case, the media coverage has been very biased, including many Israeli bloggers and people obviously anti-Muslim, anti-Palestinian in the news articles. For example, on sentencing day, I went to the New York Times Web site, the Los Angeles Times, the Washington Post and saw nothing. I mean, the Associated Press was there. But overall, this definitely--this case, from the very beginning, the arrests, the first trial, the second trial--I think deserves a lot more attention.

Director of the Dallas Peace Center, Rep. Lon Burnam (D-Fort Worth), also offered words of sympathy in a video that was played at the meeting. Burnam put the case into historical context by pointing out the many different immigrant groups that struggled in order to gain rights in America and shared the view that the Holy Land Five were being persecuted for the political standing in a heated time that reflects a general misunderstanding of Muslim culture and practice.

Describing the impact of the sentencing to the Richardson Muslim community, Noor Elashi said, "Today does not mark the end; rather it marks the beginning of the human and civil rights era for Muslims in America."

Further Reading

From the archives