Under President George W. Bush, the Justice Department considered and rejected criminal charges against the Council on American-Islamic Relations for alleged support of Hamas, a knowledgeable source told POLITICO Monday.
The decision not to indict CAIR came in 2004 as prosecutors in Dallas were preparing to seek an indictment of the Holy Land Foundation and five of its officials, the source said. Some prosecutors wanted to include CAIR and others in the case at that time. However, senior Justice Department officials elected not to, the source said. (The attorney general at the time was John Ashcroft.)
The disclosure of a Bush-era decision not to indict CAIR is noteworthy because some conservatives have alleged in recent days that a Justice Department decision last year to decline to prosecute CAIR, the group’s co-founder Omar Ahmad and others was motivated by politics and a desire to preserve outreach efforts to U.S. Muslim groups.
Pajamas Media, which broke news of the 2010 decision last week, said the “indictments were scuttled last year at the direction of top-level political appointees within the Department of Justice (DOJ) — and possibly even the White House.”
“This was a political decision from the get-go,” the source told Pajamas’ Patrick Poole. “It was always the plan to initially go after the [Holy Land Foundation] leaders first and then go after the rest of the accomplices in a second round of prosecutions. ... We tried to do what we could during the Bush administration. ... To say things are different under Obama and Holder would be an understatement.”
There is, obviously, a factual disagreement between the anonymous sources here that is impossible for the general public to resolve at present. However, House Homeland Security Committee Chairman Peter King (R-N.Y.) weighed in Monday with a formal request to Attorney General Eric Holder for information on the decision not to prosecute Ahmad and others. So, in due course, we may find out precisely who decided not to proceed against CAIR at each time and what the stated reasons were.
Poole told me Monday night that he was aware of discussion of prosecuting a broader case in 2004 and saw no conflict between what he reported and what my source told me.
“I have no doubt there was some discussion about whether we were going to try everybody” in 2004, Poole said. “I don’t think that at all contradicts what my source said. They decided to get the bigger fish after they convicted the smaller fish.”
“‘Not now’ is quite different than what the Obama Justice Department said, which is ‘Not ever,’” Poole added.
I asked Andy McCarthy, a former federal terrorism prosecutor who writes at the National Review and called the Pajamas report “explosive” and “scary” and highlighted the fact that “political appointees” made the recent decision, what he made of my source indicating that the Bush administration made a similar decision not to proceed against CAIR and others in 2004. McCarthy said that was quite plausible and deserved criticism similar to that of the recent Obama-era decision.
“Would it surprise me? No,” McCarthy said Monday. “That was the time to do the case, then and there. They had the proof and when you have the proof you should do the case. Cases don’t get better as they get more stale.”
McCarthy noted, accurately, that he has unleashed withering criticism in his columns and books on the Bush, Obama and even Clinton administrations for allegedly coddling what he calls “Islamists.”
“I’ve been screaming that they should bring these cases. I have not gone easy on the Bush administration. I’m not absolving the Bush administration of anything,” McCarthy added, noting that elements in the Bush White House also wanted to pursue robust outreach efforts to U.S. Muslim groups that prosecutors believe have ties to the Muslim Brotherhood and Hamas. “These cases should have been done eons ago. This is a bipartisan problem.”
McCarthy said it’s possible that officials had legitimate strategic reasons for not indicting CAIR and others as part of the Holy Land Foundation case, which led to a hung jury on most charges in 2007 and a conviction of all five charged officials in 2008. But the former prosecutor said desires to preserve relationships with groups in the Muslim community often color decisions about the scope of cases. So, too, do concerns about photos and stories emerging about government officials who held outreach or political meetings with the defendants, he said.
“There is a current of thought in government that you can sculpt cases and you’re ostensibly doing it for strategic reasons, but people frequently have an agenda not to embarrass themselves,” McCarthy said.
CAIR has repeatedly denied any connection to Hamas or terrorism. Ahmad could not be reached for comment. Federal prosecutors, however, have introduced evidence in court of Ahmad’s attendance at a 1993 meeting in Philadelphia that the FBI contends was a gathering of Hamas supporters seeking to undermine the Middle East peace process. Prosecutors have also presented documents that appear to show CAIR as part of a network of Muslim Brotherhood organizations in the U.S.
CAIR defenders note that the 1993 meeting was two years before Hamas was designated a terrorist group by the U.S. They also say the provenance and import of the lists of various Muslim groups is uncertain.
It’s unclear how much more information about CAIR and Ahmad the Justice Department had at the time of the 2010 decision not to prosecute versus what was in prosecutors’ hands in 2004. Most if not all of the evidence they cited in court during the Holy Land case was already in the government’s hands by 2004. The FBI and prosecutors did get a trove of internal CAIR records in 2009 via a grand jury subpoena delivered to an author who led an undercover sting of the group.
McCarthy also points out that the 2008 conviction of the Holy Land defendants was an indication that jurors accepted the general thrust of the government’s case. And Poole notes that by 2010 prosecutors also had a judge’s ruling that there was “ample evidence” linking CAIR and two other major U.S. Muslim organizations to Hamas.