10:24 AM CST on Friday, November 21, 2008

By JASON TRAHAN / The Dallas Morning News
jtrahan@dallasnews.com

As jurors continue to deliberate in the Holy Land Foundation terrorism financing retrial, supporters on both side of the aisle appear to be preparing to claim a moral victory – whatever the verdict is.
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Today marks the jurors’ seventh day of deliberations, which follow nearly two months of testimony. Last year’s panel deliberated 19 days before a judge declared them deadlocked and called for a mistrial.
For the defense, the goal is acquittals for the five defendants charged with funneling more than $12 million to the Palestinian militant group Hamas after the U.S. declared it a terrorist organization in 1995.
But critics of the government case argue that even convictions would carry an asterisk noting that it took untold millions of taxpayer dollars, 15 years of investigation and two long, high-profile trials to finally convince a jury of the defendants’ guilt.
“I suspect that they will be viewed much the same way that Mandela was viewed by the black South African population – as freedom fighters who have dedicated their lives to the liberation of Palestine,” said William Moffitt, the Virginia defense attorney who represented two former university professors, Abdelhaleem Ashqar and Sami Al-Arian. They were acquitted in trials in Chicago and Florida on similar charges that they steered support to Palestinian terrorists.
Mr. Ashqar was sentenced to 11 years in prison last year for refusing to testify for a grand jury about his Hamas ties. Dr. Al-Arian pleaded guilty in 2006 to a charge of supporting Palestinian Islamic Jihad and is being held on contempt charges for refusing to co-operate in another terrorism support investigation. But both are viewed as folk heroes by some in the Muslim community.
Mr. Moffitt said Holy Land and the other cases are “show trials” where the government attempted to use “events that happened over 10 years ago” as evidence of crimes well before statutes specifically outlawing terrorism support were enacted.
“I think that the purpose of these trials was to further, in the minds of the public, the so-called ‘war on terrorism,’ ” he said. “There are legitimate terrorist organizations out there. But we’ve tried to make every group that doesn’t agree with us like al-Qaeda.”

Beyond the verdict

Justice Department brass undoubtedly will claim victory if jurors convict the defendants on any of the dozens of counts against them, which include not only support of Hamas, but also money laundering and tax fraud.
But some ex-Justice officials say that even a deadlocked panel or acquittals would not be a total loss for the government. The two high-profile Holy Land trials highlighted what prosecutors say was a robust and unsettling American network of terrorist funding.
More importantly, they say, the investigations that lead to the indictments effectively shut down Holy Land – once the largest U.S. financier of Hamas – and interrupted other international terrorism financing pipelines.
“Regardless of the jury outcome, the government has achieved an awful lot of success here,” said Dennis Lormel, who created the FBI’s Terrorist Financing Operations Section after the Sept. 11 terrorist attacks and is now a security consultant.
“A lot of people will only look at the win/lose of the jury verdict,” said Mr. Lormel, of IPSA International Inc. “I’m looking at it from the perspective of the flow of funding through charities to terrorists. There’s been an incredible amount written and attention put out on this. That’s a deterrent to those who want to fund terrorism.”
Nathan Garrett, a former federal prosecutor on last year’s Holy Land prosecution team, says “the government must be willing to say by its actions that it is willing to take on difficult, layered and controversial cases.
“Prospective offenders measure their confidence, in part, by what they believe the government is capable of,” he said. “The government is well stocked with agents and prosecutors unmotivated by wins and losses, and it serves the government well to get that message out.”
Still, failure to secure convictions would be a blow to the Justice Department, given the mountain of evidence assembled and the rare benefit of a “do-over” by the case’s seasoned prosecution team.
The difficulty in such a trial, said Matthew Orwig, former U.S. attorney for the Eastern District of Texas, now in private practice, is that proving that humanitarian aid benefited a terrorist group.
“It’s natural for people to understand the source of terrorist funding should be interrupted,” Mr. Orwig said. “It’s not natural for people to think that folks ought to go to jail for pursuing a charitable activity.”
But he added, “Many people have made pretty compelling arguments that the focus should be on interrupting the flow of terrorist money, and criminal convictions are of secondary importance.”
Holy Land “got further than many cases, and it’s stronger by virtue of the good and experienced prosecutors on the case,” he said.

Long-term effects

Whatever the outcome, the effects of the Holy Land investigation will be felt for some time.
The Council on American-Islamic Relations, the Islamic Society of North America and the North American Islamic Trust still have pending legal requests to be removed from the prosecution’s list of some 300 unindicted co-conspirators. While inclusion on the list does not mean anyone committed a crime, it has a similar negative effect, the groups say.
“Regardless of the outcome of the trial, the government’s case is tainted by the due process violation it committed when it publicly stigmatized mainstream American-Muslim organizations without providing them a forum to defend themselves,” said Hina Shamsi, an American Civil Liberties Union attorney in New York who represents ISNA and NAIT.
The government’s co-conspirator list incites “fear among American Muslims of discriminatory and unmerited government-imposed stigma,” she said. Worse, she adds, “it alienates the very community whose cooperation the government needs for effective counterterrorism efforts.”
Local Democratic activist Hadi Jawad said that the Holy Land case has disrupted Muslims’ ability to give zakat, charitable alms required of Islam.
“We have to be really careful and not disallow 6 million Muslims in American to practice without fear of retribution,” said Mr. Jawad, a Pakistani native who co-hosts a local radio show featuring Muslim viewpoints. His first guest last week was a CAIR spokesman.
“Having said that, we have to make sure that money goes to the people it’s intended to help and that it does not finance terrorism,” he said. “I think with Al-Arian and HLF, there was a rush to judgment. It was a highly politicized atmosphere after 9/11. People’s emotions were running amok.
“Someone’s head had to roll, and HLF was one of them.”