While the U.S. Justice Department ponders how it will retry its troubled terrorism finance case against a now- defunct Muslim charity, debris from the recent mistrial here shows signs of piling up at the White House doorstep.
The nation’s biggest terrorism finance case ended so badly for the government that it has thrown into question the Bush administration’s original order to shut down the Holy Land Foundation for Relief and Development six years ago.
Back then, President Bush accused the charity of aiding Palestinian terrorists. But similar allegations presented by federal prosecutors during the two-month trial in the president’s home state fell dramatically short of convincing a Texas jury.
The panel of eight women and four men failed to convict Holy Land or any of its five accused former officials on any of their 200 combined criminal counts of supporting terrorists. It was the first time the administration’s view of the charity had been argued in court because the original executive order shuttering Holy Land was never subjected to full judicial review.
Though attorneys and all five defendants in the case are still bound by a gag order, legal observers and three jurors say the recent trial exposed significant weaknesses in the government’s 15-year, multimillion-dollar investigation of Holy Land.
Before the mistrial was declared, vote tallies read in open court showed that the jury had acquitted one defendant on all counts and two others on many counts, and was deadlocked on convicting the remaining defendants of anything. Jurors later interviewed by The Times said they were far from agreement on any convictions.
“I kept expecting the government to come up with something, and it never did,” juror Nanette Scroggins, a retired claims adjuster, said in her only interview about the case. “From what I saw, this was about Muslims raising money to support Muslims, and I don’t see anything wrong with that.”
Fellow juror William Neal, an art director who said his father worked in military intelligence, agreed that the government never produced “any clear evidence linking” Holy Land funding to the U.S.-designated terrorist group Hamas.
“If the government can shut them down and then not convince a jury the group is guilty of any wrongdoing, then there is something wrong with the process,” Georgetown University law professor David Cole said.
George Washington University law professor Jonathan Turley said the criminal trial derailed the government’s long-publicized assertions about Holy Land.
“From the beginning, the allegations were highly suspect and only got worse,” said Turley, who has handled a number of national security cases.
Indeed, Turley said, if the government had begun with the troubled criminal case, it might never have succeeded in closing down the foundation administratively because its disputed evidence would have come to light years ago.
Such criticisms echoed those of Holy Land lawyers who had long complained that the charity was railroaded out of existence without due process of law and based on secret evidence.
“Before a person’s domestic pet can be taken away for being vicious, they are at least entitled to a hearing. So what happened to Holy Land wouldn’t happen to a dog,” John Boyd, one of Holy Land’s lawyers, said in an interview more than a year before the court imposed a continuing gag order.
Ironically, the government’s decision to seek criminal sanctions may have succeeded most in exposing weaknesses in the administration’s overarching case against Holy Land. Georgetown’s Cole said prosecutors failed to produce evidence that the charity provided “one penny to support terrorist activities.”
And in the end, despite years of FBI surveillance, wiretaps and seized documents, the case presented in court largely came down to conflicting testimony between an anonymous Israeli security official and a former American diplomat over which neighborhood charities in the Gaza Strip and West Bank were or were not affiliated with Hamas.
The government’s allegations not only proved unpersuasive but engendered skepticism among some jurors.
“The whole case was based on assumptions that were based on suspicions,” said juror Scroggins, who added: “If they had been a Christian or Jewish group, I don’t think [prosecutors] would have brought charges against them.”
An entrenched political, social and military organization among Palestinians, the Islamic militant group Hamas has long been an adversary of Israel and has been designated a terrorist organization by the U.S. since 1995. Last year, it won Palestinian parliamentary elections and now controls the Gaza Strip, home to 1.5 million people.
A White House spokesman declined to comment about the government’s actions against Holy Land and referred calls to the Department of Justice, where a press official said he was precluded from making statements by the judge’s gag order.
Former federal prosecutor Thomas Melsheimer of Dallas said he was surprised by the outcome and thought the Justice Department should drop the case since it already had closed down the foundation.
“Look, the fact that a jury in a law-and-order state like Texas failed to convict a group of defendants that the government labeled as supporting terrorism is a stunning result,” he said.
White House ties to the case date back to December 2001, when Bush used a Rose Garden news conference to announce executive action against Holy Land. He accused the foundation of raising money in the U.S. that “pays for murder abroad.”
“The Holy Land Foundation claims that the money it solicits goes to care for needy Palestinians in the West Bank and Gaza,” Bush said. Instead, he said, the funds were “used by Hamas to support schools and indoctrinate children to grow up to be suicide bombers” and to “recruit suicide bombers and to support their families.”
Acting under authority of the International Emergency Economic Powers Act, Bush said the Treasury Department was freezing Holy Land’s assets and seizing its offices.
“The message is this: Those who do business with terror will do no business within the United States or anywhere else the United States can reach,” Bush said.
Holy Land officials, most of them American citizens, disavowed terrorism and denied any financial ties to Hamas or other violent groups. Their lawyers launched legal challenges to the executive order but failed to get an evidentiary hearing to rebut the government’s underlying allegations.
In 2003 an appeals court ruled against the charity, citing “secret evidence” that defense lawyers said they never saw, nor ever had described to them. Finally, in March 2004, the U.S. Supreme Court refused without comment to hear the case.
A criminal indictment issued against Holy Land and five former officials in 2005 closely tracked allegations supporting the administration’s 2001 seizure order. In both cases, the government cited wiretaps, anonymous FBI informants and Israeli intelligence to claim Hamas was the primary beneficiary of the charity’s largesse.
“We have not alleged that Holy Land pulled the trigger or lit the fuse of a bomb,” one Justice Department official said in an interview after the indictment was released.
“But they have facilitated those who pulled the trigger or lit the fuse.”
Holy Land’s alleged role became less direct by the time prosecutors went before a federal jury, however.
Rather than accusing it of funding Hamas directly, prosecutors said Holy Land funneled money through zakat committees, local charities that the government asserted were controlled by Hamas.
To buttress that allegation at trial, the government relied solely on Israeli intelligence, calling on two Israeli security agents who testified anonymously in a courtroom closed to the general public.
The Israeli government’s role in the case was criticized even before the trial opened.
Long before the gag order was imposed, Boyd accused the Justice Department of prosecuting Holy Land “at the behest of Israel.”
Law professor Turley was among legal experts who warned that evidence provided by Israel could be seen as tainted, saying it was “dangerous to rely on intelligence” from a country at the center of a long-standing dispute with Hamas.
In the aftermath of the mistrial, Turley said, it was clear “this case was riddled with highly suspect evidence, some of it derived from Israeli intelligence.”