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by Peter A. Belmont / 2012-10-31
© 2012 Peter Belmont
The Holy Land Five were prosecuted and convicted for giving zakat (charity) to charitable organizations in Palestine which the US DoJ alleged to have been terrorist organizations—essentially branches of or controlled by Hamas. Read about this case here, here, and here
Read about the legal issues presented to the US Supreme Court (which declined to review the case) here.
Trouble is, the convictions seemed tainted more by anti-Palestinian or anti-Muslim passion than by any real intention by DoJ to punish real supporters of terrorism. Given that taint, it is no surprise that the trial court and appeals court interpreted the law in ways to facilitate what seems to many people vastly unfair convictions (to say nothing of vastly unfair penalties).
The convictions of the Holy Land Five now seem unassailable as the US Supreme Court has declined to grant certiorari (that is, agree to hear an appeal).
The interpretations of law by the trial court were deeply questionable as shown, in part, in the petition for certiorari (petition asking the Supreme Court to hear the case).The petition for certiorari may be read here.
We should — as a peace and justice community — petition the president for pardon for these fine people and a reversal of the dreadful anti-Palestinian and anti-Muslim crusade by DoJ in the name of anti-terrorism.
We should also do what we can to reverse the legal errors which led to these unfair convictions. Abu Baker suggests there were no legal problem in his (essentially political) conviction, but there were two “colorable” legal issues raised by HLF’s petition to the S/C:
[1] The trial court allowed testimony from a witness who was allowed the broad evidentiary privileges of appearing as an “expert witness” but without any proof of his expertise other than his own say-so and without giving his name (“Avi” was a pseudonym), contrary to an interpretation of the right to confront prosecution witnesses as understood by some courts (but not by others). Because the witness did not give his name, there was no way for the defendants to examine his character or credentials as an “expert”, and thus no way to discredit him. This is one of the perils of government secrecy when it enters a court of law. Because the defendants could not do resaearch on this witness, they also could not adequately cross-examined him. [The Supreme Court should have agreed to hear this case in order to clarify the law on this sort of undisclosed witness.]
[2] The trial court allowed (the normally not admissible) out-of-court testimony of a business partner made BEFORE any law was alleged to have been broken under a rule which is intended only to allow out-of-court statements of co-conspirators given or made DURING a criminal conspiracy. Here, there could not have been a criminal conspiracy since the acts alleged as crimes happened after the out-of-court statements were made. The trial court’s ruling would allow any statement made by a partner of any person at any time (and well before the time of any alleged crime) to be used against such person. [The Supreme Court should have agreed to hear this case in order to clarify the law on this sort of non-co-conspirator statement.]
I invented a THIRD legal issue, but it sure feels good (even though I did no legal research to back it up):
[3] The trial court convicted the Holy Land Five of the crime of supporting a listed terrorist organization (a Palestinian zakat or charity distributor) despite the fact that the money was given to zakat organizations that were NOT listed on the USA’s two lists of terrorist organizations at the time of the alleged crime (and, indeed, after HLF folks had asked DoJ if such contributions would be legal).
This feels like conviction of a Constitutionally forbidden “ex post facto” law since entry of organization names on the DoS or DoT lists appears to be PART of the quasi-legislative (that is, administrative) act of specifying the crime. In other words, you do the act, and then the USA specifies (by adding a name to a list) that the prior act was a crime.
It also feels like entrapment (since the HLF folks asked first and were given a “no comment” on the legality of the proposed contributions).
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