One of the most widely circulated documents from Dallas’ Holy Land Foundation terrorism financing case should never have been released publicly and violated the Fifth Amendment due process rights of a prominent Islamic organization, according to a federal judge’s ruling recently ordered unsealed by an appeals court.
The finding by U.S. District Judge Jorge Solis is a bittersweet victory for the North American Islamic Trust.
The trust, along with the Council on American Islamic Relations and the Islamic Society of North America, have for years said that their inclusion among Holy Land’s unindicted co-conspirators – a list of 246 individuals and groups – amounts to guilt by association.
Despite the Fifth Amendment violation, Solis denied NAIT’s request to have its name taken off the government’s list, finding “ample evidence” linking it to Holy Land.
He also ordered the list sealed, although, in the three years since it was released by prosecutors, untold copies have circulated on the Internet, particularly on conservative counterterrorism sites that often cite it to link individuals and groups to alleged extremism.
In 2008, a Dallas jury convicted the former Richardson-based Holy Land organization, once the largest Muslim charity in the U.S., of being a fundraising arm of the Palestinian militant group Hamas. On Oct. 19, Holy Land’s defense team filed appeals seeking to overturn the convictions.
Support of Hamas has been illegal since 1995, when U.S. authorities designated it a terrorist group for sponsoring suicide bombings of Israelis.
Solis sealed his 2009 ruling on the matter to shield NAIT from further harm after he enumerated its ties to Holy Land. NAIT asked the 5th U.S. Circuit Court of Appeals to unseal his order, and sought to overturn his ruling that kept the group on the government list. ISNA and CAIR did not join in that appeal.
On Oct. 20, a three-judge appeals panel ordered that Solis’ ruling be made public, but upheld his finding that NAIT remain on the government’s list.
Court officials say it could be weeks before Solis’ ruling is unsealed to allow time for appeals on the unsealing.
Solis recommended no sanctions against the government for the rights violation.
NAIT’s attorney did not return phone calls. A CAIR spokesman did not respond to a request for comment. ISNA’s attorneys said they would not comment until Solis’ ruling is unsealed.
Prosecutors also declined to comment. The government has not appealed Solis’ rights violation finding.
The Holy Land prosecution and investigation team has received praise from the Justice Department for its work. Last month, Attorney General Eric Holder gave the team a distinguished service award.
In legal filings, prosecutors characterized their decision to publicly file the unindicted co-conspirator list before the 2007 trial as an “unfortunate oversight.”
The government has said that the list was a legal tool to identify people and entities involved with Holy Land, but whose actions fell short of criminal behavior.
Without the list, prosecutors would have been barred from introducing certain statements and documents by co-conspirators.
“Because the government intended to immediately introduce evidence at trial in support of the co-conspirator status, which it has done, the government did not seek to file the [list] under seal,” prosecutors wrote. They deny the list was an “attempt to ‘disparage’ or ‘vilify’ ” anyone.
Solis found that the list would have been just as effective filed outside public view. Justice Department rules do not require that unindicted co-conspirators’ names be sealed, but that is a common practice.
“There’s no question that prosecutors were in the wrong to file the co-conspirator list publicly,” said Andrew C. McCarthy, the former New York federal prosecutor in the 1993 World Trade Center bombing case. That case’s unindicted co-conspirator list, which was sealed but eventually leaked, included one of the first public mentions of Osama bin Laden.
“If you file that publicly, what you do is basically prejudice the people who are on it, because some people in the public will assume that if the government is naming them, they must be guilty. And because they’re not indicted, they don’t have a chance to clear their names in court.”
But McCarthy, author of The Grand Jihad: How Islam and the Left Sabotage America, disagrees that the Holy Land prosecutors’ mistake amounts to a constitutional violation.
“The harm is not great, because there was a public trial in which it was shown that these guys were unindicted co-conspirators,” said McCarthy, whose book is based in part on the Holy Land story. “The proof would have come out anyway.”
In the 2007 Holy Land trial, which ended in a hung jury, and the following year’s retrial, which resulted in the convictions, the government presented evidence showing that in the late 1980s and early 1990s, NAIT and ISNA helped the fledgling Holy Land move money on behalf of Hamas. NAIT holds the deed to hundreds of American mosques, and ISNA is a Muslim advocacy group.
Evidence also showed that the founder of CAIR, a Muslim civil rights group, and its current executive director participated in a 1993 meeting of Hamas sympathizers, including Holy Land officials, at a Philadelphia hotel. The FBI bugged the meeting and played excerpts at both trials. All three groups deny any links to terrorism.
Prosecutors also used documents confiscated from other unindicted co-conspirators showing that Holy Land’s formation was part of a strategy by the international Muslim Brotherhood, the parent group of Hamas, to gain support and eventually undermine the American constitutional government.
“It was never about the list,” McCarthy wrote in a recent National Review column about the Holy Land co-conspirator controversy. “It was about what the evidence unmistakably tells us. ... That bell can’t be unrung.”
Defense attorneys and critics of the government’s case have argued that it was based on old evidence and events that took place before it was illegal to support Hamas.
The list, they say, has given conservative commentators, lawmakers and other Islamophobes an easy tool to stereotype Muslims based on often flimsy associations and requiring little additional fact-finding.
“These websites where this shows up are heated, inflammatory,” said John Floyd, a Houston attorney who has represented Muslims in terrorism cases and worked with Islamic advocacy groups.
“To the general public, it appears to be an allegation of criminal wrongdoing. It’s not,” he said. “To have this filed publicly, it may be legal to do, but ethically, it steps across the line. In this climate, post-Sept. 11, these sorts of allegations can get people killed or put out of business at least.”