One of the most significant terrorism prosecutions brought by the government since 9/11 commenced trial last month in federal district court in Dallas. The government’s 42-count indictment charges seven individuals and the Holy Land Foundation — the biggest Islamic charity in the United States — with offenses including conspiracy to provide material support to a foreign terrorist organization, namely, Hamas. Two of the seven individual defendants have not been arrested and are fugitives.
The charges are dramatic. According to the indictment, U.S. based members of the Muslim Brotherhood established a Palestine Committee that was ultimately charged with the task of raising funds supporting Hamas’s efforts to eliminate the state of Israel. After the signing of the Oslo Accords in 1993, the Palestine Committee swung into high gear. At a secret three-day meeting in Philadelphia in October, 1993 (monitored by the FBI), those in attendance discussed how best to continue to support Hamas without being viewed as terrorists.
The Holy Land Foundation appears to have been the answer. Between 1995 and 2001, the foundation delivered millions of dollars to support Hamas in the West Bank and Gaza. The government charges that the foundation was a vital member of an international network of organizations that finances Hamas activities. Furthermore, the government charges that the Foundation and the individual defendants provided financial support to the families of Hamas terrorists, detainees, and activists knowing that the assistance would support Hamas ultimately contending that the story of the Holy Land Foundation is part of “the story of Hamas in the United States.”
In June, the government filed its brief outlining the types of evidence it intends to introduce during trial. One such type of evidence is the out-of-court statements of co-conspirators that it will seek to introduce under a traditional exception to the rule against hearsay. The government has identified more than 300 unindicted co-conspirators whose out-of-court statements it may seek to introduce at trial. As the government explains, “the defendants were operating in concert with a host of individuals and organizations dedicated to sustaining and furthering the Hamas movement.” Under the Federal Rules of Evidence, the out-of-court statements of a defendant’s co-conspirators are admissible against the defendant.
Although few outside the Islamic community are aware of the Holy Land Foundation, everyone, so to speak, knows of the Council on American-Islamic Relations (CAIR). CAIR holds itself out as a civil rights group and has insinuated itself into programs sponsored by government agencies as a bona fide spokesman for America’s Islamic community. Knowledgeable observers have nevertheless long had their doubts about CAIR. Daniel Pipes and Sharon Chadha, for example, are the authors of a groundbreaking essay calling CAIR “Islamists fooling the establishment.”
CAIR is, in fact, among the more than 300 unindicted co-conspirators of the Holy Land Foundation named by the government in the Holy Land Foundation prosecution. The trial has already produced evidentiary bombshells detonating along a path leading to CAIR. It has introduced evidence placing CAIR executive director Nihad Awad at the 1993 Philadelphia meeting of the Muslim Brotherhood’s Palestine Committee. FBI agent Lara Burns has testified that CAIR was listed as a member of the Palestine Committee. The evidence introduced at trial is conspicuously missing from the New York Times; the Times isn’t covering the trial. I found reports of the evidence introduced at trial posted on the invaluable Counterterrorism Blog by Steve Emerson’s Investigative Project on Terrorism.
Although the Times has not stirred itself to cover the trial, it did cover last week’s filing of a motion by CAIR to strike the government’s pretrial list of unindicted co-conspirators. Neil MacFarquhar’s story dutifully recited CAIR’s charge that the government’s naming of unindicted co-conspirators constituted “the demonization of all things Muslim.” Such stuff is the grist for CAIR’s daily mill. If MacFarquhar read CAIR’s brief, he missed its newsworthy elements; CAIR is in full panic mode.
CAIR’s brief verges on hysteria in asserting that the government has harmed it by identifying it as an unindicted co-conspirator. It repeatedly asserts that the government’s identification of CAIR has reduced its membership and donations. CAIR asserts without reference to any facts that, since it was named an unindicted co-conspirator (this past June) its donations have “dwindled well below [its] monthly budget.” CAIR states over and over again:
[T]he mere publication of CAIR being named as an unindicted co-conspirator impresses upon the typical member of the American public that CAIR is involved in criminal activity. This is pure guilt by association. [The] negative reaction by the American public can be seen in the decline of membership rates and donations resulting from the government’s publicizing of CAIR as an unindicted coconspirator.
In footnotes supporting this statement CAIR cites Audrey Hudson’s June 11, 2007 Washington Times story on CAIR’s membership decline. At the time of the publication of Hudson’s story this past June, however, CAIR vociferously disputed its accuracy. In a June 12 press release, CAIR assserted:
CAIR today accused a right-wing Washington, D.C., newspaper of “agenda-driven reporting” for falsely suggesting there has been a drop in its grassroots support. According to CAIR, an article in today’s Washington Times newspaper misrepresented figures on its tax filings to falsely indicate a drop in membership.
On the one hand, CAIR’s brief in the Holy Land Foundation trial confirms Hudson’s story. Indeed, it cites Hudson’s story to support its argument. CAIR’s brief also shows CAIR’s contemporaneous statement disputing the accuracy of Hudson’s story to be false. On the other hand, however, CAIR’s brief misleads when it suggests that Hudson’s story supports its argument in the Holy Land Foundation case. The government named CAIR as an unindicted co-conspirator of the Holy Land Foundation this year during the first week of June. Hudson’s Washington Times story was based on data covering the period 2000-2006, before CAIR was named as an unindicted co-conspirator. CAIR’s citation of Hudson’s story in support of the argument made in its brief piles one convenient falsehood on top of another.
The legal argument supporting CAIR’s motion seems thin as well. CAIR objects to the government’s pretrial identification of it as an unindicted co-conspirator, but acknowledges that the government can identify it as such during trial in order to lay the foundation for the admission of co-conspirator hearsay. Trial is now underway and CAIR’s motion will likely be overtaken by events. By the last paragraph of its brief, CAIR seems to be suggesting that it is unconstitutional for the government ever to name an unindicted co-conspirator.
One cannot dispute that CAIR has reason to worry. It has long been known that it first opened for business in 1994 with the assistance of a $5,000 donation from the Holy Land Foundation. Evidence introduced at trial continues to shed new light on CAIR’s origins. CAIR is understandably concerned that its association with the Holy Land Foundation might give people an idea about the organization. As CAIR explains in its brief:
[T]he public “outing” of CAIR as an unindicted co-conspirator fundamentally undercuts their [sic] central mission to protect Muslim-Americans’ civil rights and foster an atmosphere of acceptance of Muslims in American society. Any message that CAIR tries to deliver to the American public, will be undercut by the insinuation that they are a criminal terrorist organization. The American public and the media which CAIR uses to deliver its message will no longer believe in the veracity of such message because CAIR will be perceived as a terrorist front organization.
One can only hope.
– Scott W. Johnson is a Minneapolis attorney and contributor to Power Line.