The nomination of John Ratcliffe to the post of U.S. Director of National Intelligence, though ultimately withdrawn, has brought new light to the Holy Land Foundation case, a case in which Ratcliffe claims to have had a hand. It was disturbing to hear Ratcliffe brag about his role in the case, a case that saw five innocent men charged with and convicted of crimes they did not commit. It was almost equally disturbing that those who opposed him did so because he did not, as he claimed, play a significant part in this injustice — that he had, in effect, padded his resume.
Either way, Shukri Abu-Baker, serving 65 years; Ghassan Elashi, serving 65 years; Mufid Abduqader, serving 20 years; Abdulrahman Odeh, serving 15 years; and Mohammad Elmezain, serving 15 years, are innocent men who are about to complete their eleventh year in federal prison for providing material support to Hamas, a designated terrorist organization.
My book on the case, titled Injustice: The Story of the Holy Land Foundation Five, was published in 2018. It took four years to write and the research included extensive interviews with the five men who were accused, their families, their lawyers, and many, many others related to the case. I read over twenty thousand documents regarding the case, many of them court transcripts, and yet not once did John Ratcliffe’s name come up. Upon hearing that he claimed to be involved in the case, I once again asked the people involved and not one confirmed Ratcliffe’s story. At best, he may have been involved in some minor capacity inconsequential to the case and kept confidential. Regardless, Ratcliffe’s claims present an excellent opportunity to discuss the case once again.
Rounding up the usual suspects
On December 4, 2001, in the aftermath of the 9/11 attacks, President George W. Bush declared that the Holy Land Foundation for Relief and Development (HLF) had been designated a terrorist organization. Bush had HLF shut down by executive order and all of its assets frozen. It was a random act by a government in a state of panic that wanted to show that it had a handle on the situation. They picked Hamas and HLF even though neither Hamas and certainly not HLF had any connection to the attacks of 9/11.
In his book, The Price of Loyalty: George W. Bush, the White House, and the Education of Paul O’Neill, Ron Suskind writes that the Treasury Department decided to start a “financial war on terror.” The first item on the agenda, according to Suskind, was to set up a legal structure that would allow the government to freeze assets on the basis of evidence that “would not stand up in court.” So a list of “usual suspects” was created and off the Treasury Department went to “freeze some assets.”
HLF was a Muslim organization run by Palestinians. On top of that — as part of a smear campaign against HLF that was led by the Zionist organization, the Anti Defamation League, or ADL and goes back to the mid 1990’s — HLF had been wrongly implicated and sued for damages over the killing of David Boim, a Jewish American settler in the West Bank settlement of Beit El.
The stupidity and recklessness with which the government responded to the attacks of 9/11 are heightened when we compare them with the calm and confidence displayed by the officers of the HLF, which at that time was the largest Muslim relief organization in the U.S. and one of the most respected relief organizations in the world. John Boyd, one of several dedicated lawyers who represented the organization, told me that the officers of the HLF were not concerned: “They had all their tax returns, they had records and could account for every penny that went through their system.” They knew they had done nothing wrong, understood that the U.S. government was frightened and panicking, and they had full faith in the American justice system.
Not a normal case
HLF sued the government, and the HLF lawyers presented an impressive body of evidence showing that HLF did no wrong; that, in fact, it had gone above and beyond to do everything right. The government presented its “administrative file,” which included the “evidence” to support its case against HLF. “The ‘administrative record’ was laughable,” Boyd said to me when I visited him at his office in Albuquerque, New Mexico. “Not a single statement under oath, a bunch of unrelated documents, and a report that is not supported by any evidence that claims that Shukri Abu Baker is a member of Hamas.”
Boyd continued with obvious frustration, “We filed a motion for a preliminary injunction to lift the blocking of the assets and undo the designation of HLF as a terrorist organization.”
Instead of allowing the case to proceed, the presiding judge, Gladys Kessler, dismissed the case and struck all the evidence from the record. Why? That is not clear. When I wrote to ask her, she replied:
Dear Mr. Peled, I can’t talk with you about the case — everything I know and think about it — especially all these years! — is contained in my Opinion. Good luck with your book. — Judge Kessler.”
Upon appeal the appellate court concluded that the judge was wrong, “However,” it said, this is not a “normal” case, because it involved “sensitive matters of national security,” and so her ruling was upheld. According to the lawyers, it could only mean one thing: In the post 9/11 atmosphere, their clients, being American Muslims of Palestinian origin, will not get a fair trial.
The trials and the Sixth Amendment
The U.S. government, in collusion with the government of Israel and with the full cooperation of the U.S. justice system, did everything in its power to get convictions. There were two trials, the first trial ending with a mistrial, a hung jury and not one conviction. In fact, the jury was hung except for one acquittal: Mufid Abdulqader was acquitted on all 32 charges, and for reasons beyond comprehension Mufid is now serving a 20-year sentence in federal prison. But we will touch on that later.
The judges in the HLF trials allowed what was a blatant violation of the defendant’s right to confront their accusers, as prescribed in the Sixth Amendment. The amendment reads as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” (emphasis added)
Two key expert witnesses for the prosecution were Israeli nationals — one, Major Lior, said to be an officer in the IDF intelligence; and the other, who was identified as “Avi,” said to be part of the Israeli Shabak, or secret police. Both testified anonymously. There was no real possibility for the defendants to confront them. In fact, to this day no one knows who they really are.
Yet for the first time in the history of the United States judicial system, testimony by anonymous expert witnesses, who were also foreign nationals, was permitted by the presiding judge, Joe Fish. Before they entered the courtroom the judge announced that only the defendants and their lawyers were allowed to remain in the courtroom. All others had to leave. Before they entered the judge also announced that they would be identified by a name other than their own because, apparently, “Israeli law requires it.” In other words, the constitutional rights of U.S. citizens were violated in order to accommodate Israeli law.
The prosecution claimed, and these witnesses testified, that the local Palestinian charity organizations, called Zakat committees, with which HLF was working on the ground in Palestine, were “part of Hamas,” which in 1995 had been designated a terrorist organization. Therefore, the government claimed, HLF provided material support for a terrorist organization.
In the cross-examination, defense lawyer John Cline asked “Avi” to identify which of the board members of the “Zakat” or charity committees listed in the indictment were known to be members of Hamas. “Avi” could not identify a single one. In fact, of all the members of the boards of all the Zakat committees, “Avi” recognized only a few names and none of them were ever designated as terrorists by the United States government.
“Avi” was then questioned by another of the defense lawyers, Nancy Hollander. Hollander showed that the United States government had worked with the Zakat committees and that USAID had in fact financed hospitals and other projects in which the Zakat committees were involved. If closing down HLF and prosecuting its officers was justified because they had worked with these committees, then indeed USAID too should be shut down and its officers prosecuted.
A stellar witness for the defense
In an article I found on the Shabak website, the website of the Israeli secret police, the organization brags about the contribution made by its men in the trial of the Holy Land Foundation. But sending witnesses was not all that Israel did to help the prosecution of these innocent men. Thousands upon thousands of documents were sent over by the government of Israel to the U.S. to be used in the trial.
The most damning statement to the case was made by defense witness Ed Abington, former U.S. consul general in Jerusalem. In his role as U.S. consul general — which, in the unique case of Jerusalem, is equivalent to an ambassador and answers directly to Washington — Abington received daily CIA briefings. When asked if he believed, in his role as a representative of the U.S. government, that Israeli intelligence was reliable, he replied, “No.” He then explained that the Israelis “apply intelligence in a selective fashion to try to influence U.S. thinking.”
Abington testified that U.S. agencies were prohibited from working with Hamas because it was designated a terrorist organization by the U.S. government in 1995. However, he had never seen a directive that prohibited U.S. representatives from working with the Zakat committees. Hollander showed Abington documents that were provided by the U.S. government for the purpose of the trial and were presented by the prosecution and asked for his opinion. Abington’s response was: “The State Department considered the documents to be essentially a propaganda exercise by the Israelis.”
A hanging judge
As stated earlier, the first trial ended with no convictions, and essentially one acquittal. In September of 2018, I was interviewed by Ralph Nader, who was familiar with the case and had read my book. In this interview, Nader characterized the judge, Jorge Solis, who presided over the second trial, as a “Hanging Judge.”
In other words, a judge that could be relied upon when the government wanted a conviction. Judge Solis allowed all the evidence that the previous judge permitted, and other witnesses and evidence that she did not. Indeed, the second trial was concluded with guilty verdicts for all the defendants. The details cannot be listed here, but are outlined in detail in my book.
Appeals and a presidential pardon
Upon appeal, the appellate court concluded that, even though mistakes were made in the second trial, the verdicts would stand. Although they were presented with evidence showing that these mistakes were the reasons for the convictions, they still did not reverse the lower court’s decision. President Obama was petitioned to commute the sentences and deport the five innocent men to countries that were willing to give them citizenship. He declined.
Mufid Abdulqader: acquitted then convicted
As mentioned earlier, in the first trial Mufid Abdulqader was found not guilty on all charges. However, in a bizarre and unprecedented development, when polled by the prosecution, one of the jurors, identified as “Juror number 6,” said she changed her mind regarding Mufid. The judge, ignoring the objections by the defense and the fact that she had signed her name agreeing with the jury’s decision, called a mistrial in Mufid’s case as well as the others. At the end of the second trial, Mufid was sentenced to 20 years.
I recently received an email from Mufid, with an appeal, regarding Compassionate Release Status in the First Step Act, which was passed into law in December of 2018. Here is the request from Mufid, edited for brevity:
Please go to www.prisonprofessors.com and read about the new law which allows judges to release or reduce sentences for any prisoner if they can provide “Extraordinary and compelling reasons.” That is the only thing required and in our case there are so many compelling reasons. One of the most important ones is that if were convicted in Israel we would only serve 30 months maximum, not 65 years.
This is a unique opportunity to go back to court for the HLF 5. Please read the June 18 and June 24, 2019 blog on www.prisonprofessors.com by a prisoner who is now an Associate Professor of Law at Georgetown University Law Center. President Trump Honored him on April 1, 2019 at [a] White House ceremony for his tireless work on criminal reform.
Already two judges in Texas had released inmates who were serving long sentences to time served under this specific law. District Judge Marina Barcia Marmolejo resentenced Conrado Cantu to time served using this new law and he is home. Also Judge Sim Lake reduced Arturo Cantu-Rivera’s prior sentence [he was sentenced to two concurrent Life sentences] and his sentence was reduced to time served and he is home. We have a chance to get back in court and try.
Nobody should forget us. We and our families have suffered enough with over 11 years in prison unjustly.
Please don’t disappoint me and my other brothers and our families.
Feature photo | Zaira Abu-Baker, 25, right, holds her head as Noor Elashi, 22, right, speaks during an interview at a cafe in Richardson, Texas, Nov. 20, 2008. Elashi and Abu-Baker waited each day while a jury considered whether in the retrial of the Holy Land Foundation. LM Otero | AP
Miko Peled is an author and human rights activist born in Jerusalem. He is the author of “The General’s Son. Journey of an Israeli in Palestine,” and “Injustice, the Story of the Holy Land Foundation Five.”