The urge to draw sweeping lessons from Monday’s mistrial in a major terrorism-financing case is understandable but premature.
The media have been quick to portray the hung jury in the two-month trial of five operatives of the Holy Land Foundation for Relief & Development (HLF) — an ostensible Islamic charity — as the latest in a series of defeats for the Bush Justice Department’s counterterrorism efforts. Their narrative also places the trial of University of South Florida professor Sami al-Arian in the administration’s “loss” column. That trial ended with the jury hanging on multiple counts and acquitting on others; yet al-Arian later pled guilty to a terrorism offense and will be deported after serving his sentence. Similarly, it is far from clear that the HLF case will stand as a defeat.
The Bush administration designated HLF a terrorist entity in December 2001, citing its longtime support of Hamas, to which it stands accused of transferring over $12 million between 1995 and 2001. One of the principal defendants, Ghassan Elashi, has already been convicted of terrorism charges related to, among other things, the handling and concealing of an investment by Mousa Abu Marzook — a senior Hamas leader who helped create HLF and established it as Hamas’s American fundraising arm. The defense seems not so much to dispute that extensive financial transfers happened as to question whether the defendants knowingly promoted terrorism, and whether “resistance” to Israel should be considered terrorism at all.
On most of the charges, the jury deadlocked; it did not acquit. The government’s case remains live, and it appears the defendants will be retried. This may prove to be an instance of justice delayed, not justice denied.
That said, the Justice Department should make a careful assessment of what happened here. From a distance, the government’s case looks heavy on accusation and light on explanation. Was it really necessary to bring an indictment that required the jury to follow complex instructions as it rendered 197 verdicts for a handful of defendants? Many of the counts carried very stiff potential sentences. What was served by piling on scores of charges — and extending deliberations, which went on for a month — when conviction on just a few could have put the defendants away for life?
And while we recognize the need for prosecutors to streamline the way in which they make their case in terrorism trials, which typically trundle along endlessly, we wonder if this prosecution did too much streamlining. True, the indictment was exceptionally complicated, and prosecutors shoveled an avalanche of wiretaps and financial records at the jury. But after predicting that its case would take several months to present, the prosecution rested after only five weeks and ten witnesses — none of whom was an accomplice able provide a coherent narrative of the defendant’s activities.
The government left its case to stand or fall on a mysterious Israeli intelligence agent who was permitted to testify under a pseudonym. His testimony was undermined not only by the defense stratagem of putting the Israeli–Palestinian conflict, rather than the defendants’ conduct, on trial; the defense also managed to find a former State Department official — and current paid lobbyist for the Palestinian Authority — who claimed that the Israeli agent’s claims were suspect. Were there no knowledgeable American officials who could have refuted the lobbyist’s points and shored up the Israeli’s testimony?
The trial revealed a great deal of valuable information about the interlocking support networks and catalyzing ideology of radical Islam. Disturbingly, much of that information is more than a decade old. As in the al-Arian case, the HLF jurors were in the uncomfortable position of being urged to condemn activities the government had, to put it mildly, been slow to address. Such tardiness must be avoided going forward, and the Justice Department must find a formula for making the intricate, international web of terrorism financing comprehensible.
Funding is the lifeblood of radical Islam. Organizations such as Hamas cleverly create divisions devoted to social-welfare work, not terrorist attacks. At first blush, supporting such work seems admirable. But contributions are fungible, and there is no policing what the donations subsidize after they are safely in a terrorist organization’s coffers. Even if they were spent on charitable work, they would still serve to increase the prestige and recruiting appeal of organizations that pursue their objectives through mass murder. No good works can redeem a Hamas — and the administration should do a better job of explaining why terror networks must be destroyed, not encouraged.
A final accounting still awaits, then — both for HLF, and for the Bush Justice Department’s counterterrorism efforts, especially in the crucial area of jihadist financing. It’s too early for a verdict that those efforts have failed. But we watch with concern.