The US Supreme Court announced today that it had decided not to hear the appeal of the Holy Land Five, despite the obvious violations of the Sixth Amendment of the Constitution that led to the convictions of the five men who headed the HLF and provided humanitarian aid to Palestinians.
“Their decision marks the end of the judicial process and the beginning of a massive effort to free the Holy Land Five,” stated a post on the Holy Land Five solidarity website on Monday morning.
The Holy Land Foundation was once the largest Islamic charity organization in the US. The HLF provided disaster relief aid across the US in addition to providing essential humanitarian aid to Palestinians under Israel’s military occupation. In 2001, under the emboldened Patriot Act, the Bush administration shut down the Holy Land Foundation and charged its founders with working through charity, or zakat, committees “on behalf of Hamas.” The prosecution’s witness was an anonymous Israeli intelligence officer who was allowed to testify under a pseudonym — the first time in US history that a court allowed this, in a clear violation of the Sixth Amendment which allows the accused to confront their accuser.
In a press release from the Muslim Legal Fund of America, representatives of the organization stated that they were “deeply troubled” at the Supreme Court’s dismissal of the importance of the case. “Attorneys for the five defendants and representatives from MLFA are evaluating all remaining options and will announce a decision on how they will proceed soon,” the press release added.
Khalil Meek, executive director of the MLFA, stated in the press release:
It is a dark day for America when our nation’s highest court refuses to hear a case that is affecting everyone’s ability to get a fair trial in America … If judges are allowed to prevent defenders from challenging the credibility of expert witnesses, then our Sixth Amendment loses its teeth and our civil liberties suffer further erosion.
Last week, Michael Ratner, a leading civil rights attorney and president emeritus of the Center for Constitutional Rights in New York City, and Noor Elashi, the daughter of Ghassan Elashi, co-founder of the Holy Land Foundation who was sentenced to 65 years in prison, held a press conference together on the national day of action for the Holy Land Five.
Earlier today, I interviewed Michael Ratner by phone.
Nora Barrows-Friedman: Tell us your reaction to the decision that the Supreme Court announced this morning.
Michael Ratner: This morning, they made it public that they had decided not to hear the case of the Holy Land Five. And look, it’s not that we were optimistic — because any case involving Muslims and Palestinians, and Muslim charities, certainly since 9/11, but in terms of this particular Holy Land Foundation, before 9/11 — you don’t have the highest expectations of justice in the courts, but because the conviction is so outrageous, and so outside the law, that even I harbored some hope that they would say, “hey, what are we doing here?”
Because in this case you’ve got Ghassan Elashi, who’s head of the Foundation, getting a 65-year sentence, and you understand what it’s for — it’s for giving charity to zakat committees, which are not even designated as terrorist, in the theory that they’re somehow controlled by Hamas. And of course if they are, then they would designate them as terrorist — but they didn’t do that. USAID has given money to these committees. So you would think that a guy getting 65 years for that, they would at least say, “maybe we should wake up and look at this case.”
And maybe some of them did, but you need four out of the nine [judges] to say we’ll hear the case, and we didn’t get that. And of course the case had a huge, very important legal issue just from my point of view and a justice point of view, which is — there are two trials here — the first trial they tried the Five, for materially aiding terrorism, and there was a hung jury. And the hung jury was because I think the jury didn’t believe that the zakat committees were controlled by Hamas, or if there was any way that they were, that no one in the Holy Land Foundation had any idea that that was the case. Particularly as US agencies gave to those committees. And these are committees that provide humanitarian aid in the occupied territories.
So you get the first hung jury, and in the second [trial] they [the US government] bring in an Israeli intelligence official as a key witness on the nature of zakat committees and the illusion that they’re controlled by Hamas. And that was probably the key testimony on that issue, and he does so anonymously, as an expert witness on zakat committees, a guy working for Israeli intelligence.
There are a few issues here. One, you have a guy working for Israeli intelligence, giving the key evidence in a case against someone giving humanitarian aid to Palestinians, and secondly, you have his identity kept secret, which means you can’t learn anything about him, what his job was, really, what he did or who he is, how truthful he can be so you can effectively cross-examine him once you know his name. So you can’t really cross-examine him — your constitutional right under the Sixth Amendment is a nullity. So the trial had that core violation of law in it, apart from the political nature of the case.
Disappointing would be a very mild word compared to the devastation that I think we should all feel about the Holy Land Foundation being shut down, and then its five leaders being convicted and given very long sentences. And then of course understanding that in the case of Ghassan Elashi, he’s in Marion, Illinois, in a Communications Management Unit which is a prison essentially set up for Muslims.
NBF: Michael, what does this say about the nature of where this country is in terms of the ongoing attacks against Muslims and Arabs and anyone who has to do with helping Palestinians live these days?
MR: I think that we have to look at particularly this case as … pre- 9/11, they [the US government] were already going after the Holy Land Foundation, the biggest Muslim charity in the US, the biggest humanitarian donor to Palestinians. As much as Zionists and others were trying to shut it down, there wasn’t the milieu to shut it down. After 9/11, they then had two facts — HLF was aiding Palestinians, and then it’s a Muslim foundation. After 9/11, they shut down six of the main Muslim foundations, by December 2001. The president signed an executive order without due process.
That tells you a lot — that we were starting to attack Muslims not just in Bush’s crusade speech on September 18th, 2001, but shutting down charities, rounding up young men between certain ages, registration, and of course Guantanamo by January 2002.
So what we see is a broad-spectrum attack on Muslims after 9/11. I know from a legal point of view, from surveillance here in New York of every mosque, of every eatery, of the gushing over a film like The Third Jihad, I know it in Los Angeles, from the invasion by informants of mosques, we know it from entrapment, we know it from Guantanamo, from drones, from shutting down Muslim charities. It’s really a broad-spectrum attack of which the legal attack is certainly a key element.
And when I talk about it, I talk about it as we’re in the midst of a plague against Muslims, and we’re only in the midst of it. We’re not necessarily winning, and it’s really serious. People just have to understand that, and have to stand up. We’re not coming out of it yet. The Holy Land Five case just shows how deeply into a plague against Muslims we are … it really is a a plague of Islamophobia, and it is sweeping the country.
That’s only the legal aspects, that’s not all the discrimination, from being kicked off an airplane, from being yelled at in the street, from being physically attacked, all the non-legal ways in which Muslims are discriminated against. And of course it’s very hard for Muslims — it’s hard for them to stand up for cases like the Holy Land Five, or Guantanamo people, without themselves being labeled in society, or watched or surveilled.
I consider this to be a very serious moment, and this case of the Holy Land Five is to me one of the most incredible outrages. [There is] not only my disappointment, but my anger and my feeling that justice has just fled this country when it comes to Muslims.
NBF: What’s the next step? This was the last legal recourse, so what can be done if anything can be done at this point?
MR: One of the leaders of the Holy Land Five case has been Noor Elashi, who was 16 at the time he was first prosecuted for the Holy Land Five. She’s 27 now. And of course, the choices are stark, but the choice you know is that you have to keep fighting. In her case, for her father’s release and exoneration … but in all our cases. Because Muslim charity has essentially been cut off at the knees by this case and others.
You give money as a Muslim to a foreign entity of any sort, even to total humanitarian aid, and this government is going to look at you. There’s been a huge chilling effect, I think on both the First Amendment rights of Muslims in this country, on their right to give charity, and of course, on any relationship to Palestine or Palestinian rights. Because that was the heart of the Holy Land Foundation — giving humanitarian aid to poor and needy Palestinians.
It just says how much Muslims have been cut down, how much Palestine has … and how in these recent presidential debates, in this upcoming election, it’s as if they’re ostriches with their heads in the ground. Not a word about Guantanamo, a lot of people piling on about how wonderful drones are, and of course nothing about how we’re continuing a “war on terror” — which is really a war on Muslims and a particular sub-group of that, Muslims and Christians and others who are involved in Palestine.