professor of law at Georgetown University, ao-Author of Less Safe, Less Free: Why America Is Losing the War on Terror. He’s also the lead lawyer for Maher Arar, Canadian citizen and victim of the U.S. extraordinary rendition program.
president of the Muslim Legal Fund of America. He is the spokesperson for Hungry for Justice, an interfaith coalition of national and local civil rights organizations advocating for a fair trial for the Holy Land Foundation. He is also the president of the local chapter of the Council on American Islamic Relations, CAIR.
The now-defunct Holy Land Foundation was once the largest Muslim charity in the United States. It collected donations for local committees providing humanitarian aid in the West Bank and Gaza Strip. The government had accused it of providing "material support" to a foreign terrorist organization. But jurors failed to reach a unanimous verdict, and the U.S. district judge declared a mistrial on most of the charges. We speak to David Cole, professor of law at Georgetown University, and Khalil Meek, president of the Muslim Legal Fund of America. [includes rush transcript]
AMY GOODMAN: A mistrial was declared Monday in the Bush administration’s largest terrorism financing case. The government had accused the now-defunct Holy Land Foundation for Relief and Development of providing "material support" to a terrorist organization. But jurors failed to reach a unanimous verdict, and the U.S. district judge declared a mistrial on most of the charges in the federal case against the Holy Land Foundation and five of its former leaders.
The Texas-based Holy Land Foundation was once the largest Muslim charity in the United States. It collected donations for local committees providing humanitarian aid in the West Bank and Gaza. But the U.S. government claimed the committees were controlled by Hamas, which has been designated a terrorist organization since 1995.
The case against Holy Land Foundation relied on Israeli intelligence and disputed documents and electronic surveillance gathered by the FBI over a span of 15 years. However, one juror told the Los Angeles Times the government case had "so many gaps" the prosecution was "a waste of time." This case is one of numerous material support prosecutions. Hina Shamsi, staff attorney with the ACLU’s National Security Project, said the material support statute "criminalizes guilt by association" and can be used to prosecute innocent donors.
David Cole is a professor of law at Georgetown University, the co-author of Less Safe, Less Free: Why America Is Losing the War on Terror. He joins us from Capitol Hill. Welcome to Democracy Now!, David.
DAVID COLE: Good morning, Amy.
AMY GOODMAN: It’s good to have you with us. Explain exactly what happened in this case. Begin from the beginning. When was the Holy Land Foundation shut down?
DAVID COLE: Well, it was nearly six years ago, in December 2001. All their assets were frozen. All of their records were seized. The entity was shut down without a hearing, without a trial, without even a statement of reasons. And when the group sought to challenge that designation and that freezing in court, the court refused to allow the Holy Land Foundation to introduce evidence in its own defense and relied on secret evidence that the government presented to it behind closed doors, so that the foundation couldn’t respond, and rejected its arguments that this whole process violated due process by depriving it of its property without any meaningful opportunity to defend itself.
AMY GOODMAN: What exactly have you come to understand now at this point was the evidence, the secret evidence? Both U.S. and Israeli?
DAVID COLE: Well, it was U.S. and Israeli, and it was gathered, as you suggested, over a course of 15 years. But what’s most remarkable is that even though they subjected this group to 15 years of surveillance, they found not one piece of evidence that showed that this group was funding Hamas itself during the period since 1995, when Hamas — when it was illegal to fund Hamas. And instead, the argument that they made in court was that it’s not that you funded Hamas, but you funded these zakat committees; you should have known that these humanitarian aid local zakat committees in Ramallah, in Hebron, etc., were in fact fronts for or otherwise associated with Hamas.
But the government has the power to designate as terrorist any front or affiliate or associate of Hamas, and it hasn’t ever to this day designated any of these committees. So the government is basically saying, you should be put in jail, not for funding a group that we put on a blacklist — Hamas — but for funding groups that we chose not to put on a blacklist, but you should have known that they would have been on the blacklist anyway. It’s a real stretch, and I think that’s why the jury did not reach a single guilty conviction on 197 counts.
AMY GOODMAN: Now, it was against the Holy Land Foundation, but also individually its heads? Who are they?
DAVID COLE: That’s right. It’s five members of the board and employees of the foundation who did the work of the organization over the course of its existence. And one of the five was acquitted on all charges but one. Two others, the jury initially said that they were acquitted, as well, but when the judge polled the jury, two jurors said, "Well, that’s not my vote," and they went back in, and they came out, and, in fact, they couldn’t reach unanimity. So at the end of the day, no convictions.
For the government, I think, you know, the real lesson here is, six years ago we had a conviction in a totally one-sided proceeding, you know, where Holy Land didn’t have any opportunity to defend itself and the government didn’t have to put its evidence on the table; now, the government has to put its evidence on the table, Holy Land has the opportunity to defend itself, and a jury of American citizens refuses to find, you know, them guilty in any respect. I think that suggests that this initial process, by which the government can unilaterally shut down charities without any real process, real hearing, needs to be revised.
AMY GOODMAN: We are talking to David Cole. He is a professor of law at Georgetown University, speaking to us from the Capitol Rotunda in Washington, D.C.
We are also joined on the telephone from Louisville, Texas, by Khalil Meek. He’s the president of the Muslim Legal Fund of America, the spokesperson of Hungry for Justice, a national coalition of civil rights groups supporting a fair trial for the Holy Land Foundation.
Khalil Meek, thank you for joining us. Your reaction to the mistrial?
KHALIL MEEK: I’m sorry. I didn’t hear the question.
AMY GOODMAN: Your reaction to the mistrial?
KHALIL MEEK: Oh, a reaction to the mistrial? Well, we still, as a Muslim community, consider this a huge victory. I mean, we’re happy, relieved. We think the truth came out or is still coming out. But we think it was a win for the American people, the jury system, due process, because, like David said, what we had here was a case, you know, built on 13 years of investigation and wiretapping, surveillance, the largest terrorism case in history, coordination with other security agencies, millions and, you know, millions and millions of dollars spent over three months in a courtroom, the largest deliberation in Texas history, almost 200 indictments, and the jury said not one guilty verdict, no conviction, and that there were more fear over facts or evidence in any of the counts.
AMY GOODMAN: Khalil Meek, how has the Holy Land Foundation case, the closing of it more than six years ago, the terrorism charges, affected the ability of Muslims in this country to give charity?
KHALIL MEEK: Well, I think it’s dramatically affected ability to give charity to Palestinians. I think this is a very specific political process that has really damaged the Palestinians. All the charities that were given to Palestine have either been shut down or under extreme scrutiny, and it is so difficult to provide aid in that area of the region that it’s affected it dramatically. I’m not sure that it’s affected all other areas of charity and all other charitable outlets, but it has had a dramatic effect in that area.
AMY GOODMAN: David Cole, can the government retry this case?
DAVID COLE: Well, they can, and they’ve said that they will. A mistrial is just that: a mistrial. You start over. But it’s not as if the government is going to have any better evidence the next time around. They had 13 years to prepare the case. It’s not like the second time around they’re going to do a whole heck of a lot better. It’s extremely expensive, and I think there will be significant incentives for the government to try to reach some sort of settlement on some kind of safe face-saving minor guilty plea. But they may well try it again, and then we’ll see.
I mean, you know, I think what we ought to take away from this is that this is, number one, a very, very troubling statute. It is essentially a guilt by association statute. No matter what your intent, no matter what kind of aid you provide to a designated group, you are treated as a criminal terrorist under the statute. But this case shows that the government is not even satisfied with that guilt by association theory, and instead it wants to go further and hold people responsible for groups that have not been — for supporting groups that have not been designated. Again, the zakat committees have not been designated to this day, and yet the government wants to hold these people criminally liable, put them in jail for supporting a group that the government never said you couldn’t support. That’s truly a scary proposition and will have a tremendous chilling effect throughout the charitable communities.
AMY GOODMAN: David Cole, you wrote a piece in The Washington Post today, an op-ed piece called "Anti-Terrorism on Trial: Why the Government Loses Funding Cases." And you say this failure isn’t the government’s first. You talk about 2005, the Tampa jury acquitting Sami al-Arian, the University of South Florida professor, of the most serious counts against him, involving alleged fundraising for a Palestinian Islamic Jihad. You also talk about a Chicago case. Can you elaborate on these? Sami al-Arian remains in prison.
DAVID COLE: Sami al-Arian remains in prison, although through shenanigans of the government, not by virtue of that particular case, where again they had a multi-year investigation, thousands of hours of wiretaps, a six-month trial, they put on eighty witnesses. Professor al-Arian didn’t put on a single witness in his defense, because he felt that the case the government made was so weak, and the jury acquitted him on all the most serious charges and voted 10-to-two to acquit him on a handful of other charges. And he ultimately pled guilty to a minor charge and eventually will be allowed to leave the country.
Then, in Chicago, just this year, a jury acquitted two Palestinians of allegedly, again, supporting Hamas, again after a lengthy investigation. And again, the government sought to push the envelope. These people were alleged to have supported Hamas before it was illegal to support Hamas — that is, before 1995. But the government’s theory was, well, we’re going to treat Hamas as a RICO enterprise, as essentially like the Mob, and any support to it constitutes a RICO crime. The jury again acquitted.
And I think — and then, of course, you have the Saudi student in Idaho who was charged with providing material support to a terrorist organization by putting up links on a website to other websites that had jihadist content on them.
All of these, I think, show that the government is really pushing the envelope in the name of preventing terrorism and going after people where it doesn’t really have the goods, where it really doesn’t have evidence that they’ve committed crimes, and it’s trying instead to expand the definition of the crime to hold people responsible, not for what they have done, but for what we fear, based on speculation, they might do in the future. And I think the jury system has, fortunately, in these cases worked. The juries have been much more faithful to the First Amendment and to the principles that this country stands for at its best than has the Justice Department.
AMY GOODMAN: Khalil Meek, how much interest and attention is being paid by the Muslim community in this country to the Holy Land Foundation case?
KHALIL MEEK: Well, I think it was a very galvanizing case for the Muslim community. Almost every Muslim in America was affected by this case or could have been, because the government decided to make it really a dragnet for all the Muslim organizations. They listed over 300 individuals and organizations as unindicted co-conspirators in this case, so that if they got a guilty verdict, you would have our largest charity convicted of something with terrorism, and the largest advocacy groups, the largest educational groups, the largest holding companies. So everything in America was put on trial in the Holy Land Foundation case. And so, I think it galvanized the Muslim community. I think everybody had something at stake in this.
And we think that this is, you know, a process of — I don’t know, maybe like, to summarize what David said, it’s a fishing expedition. I mean, they’re not putting crimes on trial here. The Holy Land Foundation is not even accused of any violent act or destruction of property, harming anyone. They’re accused of feeding, clothing, sheltering, you know, educating, providing medical assistance to Palestinian women and children. And somehow that becomes criminal.
AMY GOODMAN: Khalil Meek, I want to thank you for being with us, president of the Muslim Legal Fund of America; also David Cole, our guest, professor of law at Georgetown University.