Unindicted Coconspirators
The issue isn’t the coconspirator list, it’s the evidence.


Andrew C. McCarthy

Much has been made of an appeals-court decision to expunge references to several U.S. Muslim groups from a list of unindicted co-conspirators in a terrorism-financing case. Too much, in fact.

It was never about the list. It was about what evidence unmistakably tells us: The Muslim Brotherhood and its American satellites are working to undermine the United States from within and to destroy Israel by any possible means, including terrorism. The Brotherhood can hide the list. After all, we should never have seen it in the first place. They can’t hide the evidence — no matter how much help they get from their friends in and out of government. That bell can’t be unrung.

That is the main takeaway from a federal appeals-court ruling last week that has caused plenty of confusion. Sympathizers of various Islamist groups were quick to claim, falsely, that a Fifth Circuit panel had ordered the expunging of all references to those organizations as “unindicted coconspirators” in an important terrorism-financing case. The label had first been applied to them by the Justice Department, which had placed the groups — including CAIR (the Council on American-Islamic Relations), ISNA (the Islamic Society of North America), and NAIT (the North American Islamic Trust) — on a list of unindicted coconspirators provided to the judge and defense counsel prior to a 2007 trial.

The inaccurate reports about the appeals-court ruling prompted consternation from commentators who, for years, had been citing the Justice Department designation. Though it was useful for attacking the groups — a worthy end — the commentators had obviously done that without really understanding what the list was and, more significant, what the Islamist organizations had done to merit being listed. The label “unindicted coconspirator” had always been good enough for them — but what to say now that it has been purged?

Everyone ought to relax. The ruling didn’t actually expunge anything, and the list — however useful it may have been — was never important. In fact, its contents should never have been disclosed in the first place; CAIR & Co. are actually right about that. But it is the only thing they and their apologists have been right about and, despite what they’d have you think, it is nearly irrelevant at this stage of the game.

A little background is in order. As its charter brays, the terrorist organization Hamas is the Palestinian branch of the Muslim Brotherhood. Like the Brotherhood, Hamas denies Israel’s right to exist and considers the Jewish state’s destruction to be a divine calling. The Brotherhood is a global organization that — with Saudi financial backing — has spent over half a century building an Islamist infrastructure in the United States. Once Hamas was created in 1989, at the start of the Intifada, support for its jihad against Israel became a top Brotherhood priority. Consequently, it mobilized its tentacles in the United States to back Hamas financially and in the court of public opinion.

To make a long story short, the Brotherhood set up an ostensible Muslim charity in Indiana, the Holy Land Foundation for Relief and Development (HLF), to funnel money to Hamas, primarily in Gaza. Over the years, HLF duly channeled millions of dollars. Finally, the Bush Justice Department indicted top HLF officials for a massive conspiracy to provide material support to a terrorist organization.

In conspiracy cases, courts order the government to give the defense a list of unindicted coconspirators. The reasons for this have to do with the rules of evidence and the Justice Department’s guidelines for drafting charges.

Usually, big conspiracies involve many more people and entities than the handful of defendants who are standing trial on the indictment. Sometimes the prosecution does not know who all of the bad actors are, sometimes it knows them but hasn’t gathered enough evidence to charge them yet, and sometimes it has enough evidence but hasn’t charged them publicly for various strategic reasons (e.g., they’re likely to go on the lam if they learn they are suspected). The existence of these unindicted coconspirators is important. Let’s say one of them told an undercover agent that the defendant was involved in the plot. That statement is admissible under evidentiary rules. That is, a defendant can be convicted of conspiracy based on the statements of a coconspirator, even if that coconspirator has not been charged in the case.

But who are the coconspirators? It is often not possible to tell by reading the indictment.