Jurors listened closely on Wednesday, Oct. 22, 2008 when prosecutors played the rest of a revealing, honest phone call between defendants Ghassan Elashi and Shukri Abu-Baker as the second testimony of FBI agent Lara Burns continued.

In the 1996 call, the companions and collogues, a U.S. regulation that prevented aid from reaching a Palestinian hospital.

Elashi said, I’m gonna abide by the law because I wont be able to make a transfer. But meanwhile, I’m going to be severely out-spoken. It is enough that Israel is placing a siege on the Palestinian people, then comes America with its might wanting to place a siege on a hospital.

Shukri then said, After they release the lists, it its gonna be clear, crystal clear, that this is racism against the Palestinian people.

For the next 30 minutes or so, Burns and Jonas displayed files showing that the HLF sent money to martyrs and family members of Hamas, like the wives of Hamas founder Ahmad Yasin and Hamas leader Abdel Aziz Rantisi. In addition, defendant Abdulrahman Odeh supported the son of Hamas leader Yahya Ayyash. Burns said the FBI found a tape in the HLF referencing Yahya Ayyash and suicide bombers.

Next, prosecutors played a few videos intended to frighten and confuse the jury. The first was a clip of a man interviewing a boy who received donations from the HLF. The man asked the boy in Arabic, Tell them what happened to your dad. The Jews killed him, isn’t that right? The second video showed raw footage of needy people in the Middle East being asked to thank the Holy Land Foundation. Another excerpt showed a child on a stage singing, Give me a knife. I’m leaving. Pray for me. Hamas is calling me. The last couple of videos depicted youth marching and singing about Hamas while holding up fake weapons.

Burns ended her direct examination by discussing the victims of the 1994 Al-Aqsa massacre, when Jewish-American doctor Baruch Goldstein shot and murdered 29 praying Palestinians. The HLF not only gave money to the families of the victims; Burns argued that the HLF also supported other men who were not listed as victims of the massacre.

The cross-examination of Burns was put on hold as the government called another witness with a busy schedule.

Thirteenth Witness

Bob McBrien with the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC)—a key government witnesses—was next to be called to the stand. His testimony’s purpose was to elaborate on the U.S. designation process. He talked about the 1995 executive order, issued by former president Bill Clinton that designated Hamas as a terrorist organization. Prosecutor Elisabeth Shapiro then attempted to indicate that the zakat committees to which the HLF sent money did not need to be separately designated because they were front organizations for Hamas.

Do the President and the Treasury Department usually designate every single sub-entity of a terrorist organization?

McBrien responded, Not typically. It would be a task beyond the resources.

Is the social wing of Hamas separately designated?

No.

Then how do people know which organizations to send money to?

They’re expected to exercise good faith and due diligence, especially when dealing with high-risk areas such as the Middle East.

Shapiro discussed the 2007 designation of Al-Salah Foundation. She said the Palestinian charity was affiliated with Hamas 10 years before it was designated. She then asked if it would be illegal to send money to charities before they were designated. McBrien replied honestly: If they had no knowledge and no reason to know that they were affiliated with Hamas, it would not be prohibited.

An agitated Shapiro then asked McBrien a couple of back-to-back questions about the Treasury Department’s list: Is the list exclusive? Is it exhaustive? McBrien answered “No” to both questions. Shapiro also addressed the Anti-Terrorism Financing Guidelines. How does one know if the guidelines apply to the charities to which they are supporting? McBrien said the entities must ask themselves, Are you acting as an intermediary for them? Are you their straw man or their go-between?

McBrien then addressed a 1996 OFAC meeting called by Arab and Muslim leaders concerning the 1995 executive order and its implications on charitable giving. McBrien said he saw defendant Ghassan Elashi present at the meeting, which means Elashi heard OFAC say that the lists are not exclusive.

Defense attorney John Cline—who represents Elashi—was the only defense attorney to cross-examine McBrien. He began by saying: Entities can be designated not only through an executive order, but also through OFAC. OFAC can designate groups if it finds that they’re “owned or controlled by or act for or in behalf of terrorist organizations.” All they need is a “reasonable belief” to make that assumption, Cline said, adding that they can use reports from the media, the Internet, the CIA and the FBI to help make their determination. As for OFAC’s Anti-Terrorism Financing Guidelines, they were first issued in November 2002—nearly one year after the government shut down the HLF. So from 1995 to 2001, the guidelines did not exist, Cline asserted after which McBrien said, That’s correct.

Cline then made a vital point: OFAC separately designated numerous charities and individuals as being fronts for Hamas, including Interpal, Sanabel, Al-Aqsa Foundation, Al-Salah Foundation, Ahmad Yasin, Khalid Mishal, Musa Abu-Marzook and Abdel Aziz Rantisi. However, he said, none of the zakat committees listed in the HLF indictment were separately designated; neither were any of their officers and board members. Cline ended: Pass the witness.

During redirect examination, a jumpy Shapiro asked McBrien, With respect to your advice during the meeting in 1996, you didn’t provide a list of organizations to which people can send money, correct? McBrien’s reply: The Treasury Department does not have a white list in this context. Our business is to identify prohibited parties. It is the donor’s responsibility to choose which groups are the right ones to deal with. McBrien concluded: As for the separately designated organizations, OFAC tends to designate umbrella-like organizations.

Greg Westfall—who represents defendant Abdulrahman Odeh—began cross-examining FBI agent Lara Burns whose testimony was put on pause before McBrien testified. He asked Burns if the FBI ever did a financial audit of the HLF. They did a detailed analysis, Burns said. For the next half hour, Westfall displayed numerous HLF financial records to prove that the charity comprehensively documented their work. He then addressed Odeh’s sponsorship of Yahya Ayyash’s youngest of sons who was a few weeks old when his father was assassinated. Westfall showed orphan forms, which proved that Ayyash’s sons received the same amount of donations as other orphans.

For the remainder of the day, Westfall clarified that there was no evidence in the FBI’s search warrant material linking the majority of the zakat committees on the HLF indictment to Hamas. And the FBI used insufficient evidence to link to the others to Hamas. For instance, their board members were among the 1992 deportees who were arrested by Israeli officials and dropped on a deserted mountaintop in southern Lebanon.

The cross-examination of Burns will continue Thursday, Oct. 23, 2008.