Oral arguments begin in Holy Land Five's case for appeal

As we approach the tenth anniversary of [11 September 2001], and my father remains incarcerated in a modern-day internment camp, the time in which we live begins to feel less like 2011 and more like 1942. But this week could determine whether today’s justice system is capable of rewriting the sad chapters of our history.

Noor Elashi penned these words in an op-ed published today on Counterpunch, anticipating a round of oral arguments to be heard on 1 September by the Fifth Circuit Court of Appeals in New Orleans in the ongoing and seemingly-interminable case of the Holy Land Five.

Elashi’s father, Ghassan Elashi, is the co-founder of the Holy Land Foundation — once the largest Muslim charity organization in the US — and has been sentenced to 65 years behind bars on charges brought by the Federal government under the guise of the George W. Bush-era Patriot Act. That act strengthened a Clinton-era “anti-terrorism” legal caveat called the Material Support law which has been used to dismantle Muslim organizations and individuals in this country for the last ten years.

In 2009, sentences were handed down to the Holy Land Five after a jury returned guilty verdicts. Elashi has been held in a prison facility in southern Illinois, inside a Communications Management Unit (CMU), a block within some prisons that are nicknamed “little Guantanamos” due to the overwhelming majority of Muslims and persons of Arab and Middle Eastern descent being held in them and the draconian detention conditions that are applied.

I asked John Cline, Elashi’s lawyer, about the treatment that Elashi and his colleagues have been put under during their imprisonment at these CMUs, and whether any of that is going to be brought up in the oral arguments. Cline responded,

[t]he appeal is limited to errors in the trial process (including sentencing). Events since sentencing aren’t in the Fifth Circuit’s power to correct as part of this appeal.

In October 2010, the legal team for the Holy Land Five (the five defendants, including Ghassan Elashi, who founded and ran the Holy Land Foundation) submitted the 149-page appeal which included several important facts that should lead to major critique by the judge’s panel.

In a press release from the Muslim Legal Fund of America (MLFA), it is pointed out that the Federal government violated significant amendments of the US Constitution and basic legalities during this ten-year effort to prosecute the Holy Land Five. Those violations include:

- The fact that the court barred the defense from learning the names of two government witnesses, one of which was the government’s key witness in the trial. According to the brief, this action violated the defendants’ Fifth Amendment right to due process and Sixth Amendment right to confront witnesses against them.
- The fact that the court admitted unfairly prejudicial evidence with little or no relevance to the charges in the case. This evidence included exhibits about Hamas suicide bombings, testimony about Hamas killing collaborators with Israel, a video of demonstrators stomping on and burning the American flag and other such imagery — none of which had any connection to the defendants.
- The fact that the court denied the defense access to evidence the prosecution had access to. Instead, prosecutors were allowed to cherry-pick what evidence the defense could review.

The Electronic Intifada interviewed Noor Elashi last weekend as the families and legal teams for the Holy Land Five were preparing to head to the appelate court, in the hopes that the judges would determine that these Constitutional violations took place and therefore move to exonerate the men.

Nora Barrows-Friedman (NBF): Let’s talk about what’s happening this week, something that has been buried in the mainstream press completely — the oral arguments in the Holy Land Five case begin on 1 September. This is nearly ten months after the defense team submitted an appeal for the reversals of the convictions. Can you talk about the appeals process and what the defense team — and your father — are hoping for when the oral arguments begin?

Noor Elashi (NE): The appeals process takes a very long time, as demonstrated throughout different cases in history. We’re hoping it doesn’t take decades for the HLF case. My father was sentenced in 2009, and my father’s attorneys moved to appeal immediately after the convictions in 2008. This has been happening for quite some time.

[Submitting the appeals] was a lengthy process because there’s a lot of back and forth as far as the motions go. Once we submitted our initial briefs, the government had some time to respond, they got an extension, and then we responded to their response. The oral arguments don’t happen in every case, but what it does is it gives the attorneys an opportunity to argue the case in front of a panel of three judges.

The most ideal thing that would happen is that the judges would ask questions and would be curious about what’s happened. Usually the entire thing doesn’t last more than 45 minutes, but we’ve requested more time, which is about a couple of hours. I’ll be there to observe as I’ve been doing from the very beginning, and I’m hoping that our attorneys are able to argue and present the arguments in the best possible way, and then the prosecutors will argue against what our attorneys are saying, but our legal team is very courageous, a very bright group of people. The brief itself for appeal is very well-written and very comprehensive.

NBF: This week the trial begins for the Irvine 11, the Muslim students in southern California who have been under attack by the Orange County District Attorney’s office for speaking out and nonviolently disrupting a speech by the Israeli ambassador to the US. We still see what’s happening with Dr. Sami al-Arian, who has been on house arrest for more than three years in a similar case to the one your father has been dealing with. And the federal assaults on Palestine and Colombia solidarity activists in the Midwest has been completely out of control. What are your thoughts on how the Muslim-American communities and peace activist groups in this country are being attacked, maligned, and scapegoated, nearing ten years since 11 September 2001?

NE: I feel like things are going to get much worse before they get better, and it’s an uphill battle. A lot of people within the families of the Holy Land Five believe that the appeal is going to be the end of it, while I — not as a cynical person but someone who knows about the history of this country, and our very heinous past — probably acknowledge that it’s going to be a little bit of time before these men are exonerated and freed, and vindicated through the court system or through a presidential pardon.

While the most ideal situation would be that this happen immediately, I think there’s a lot of work to be done — especially against the Patriot Act, which the Bush administration brought in and which has strengthened the Material Support Law.

One can only do what they can, which is to hear these stories and raise consciousness about what’s happening.

NBF: How is your father’s condition right now as he sits behind bars at this CMU? And how is your family doing throughout this process?

NE: Well, actually we just went and saw my father in July. It was difficult then, just as it was last year. We saw him behind a plexiglass wall, which is part of the cruel nature of this CMU system. My five siblings and I, our mother and our grandmother, had to cram ourselves in this 5-foot by 7-foot visitation room, which meant that we had to sit on each others’ laps. We had four hours on the first day and four hours on the second day, and that’s all we had for the entire month. It was a 12-hour drive back and forth each way.

There were so many things that we wanted to talk about as a family; things that you could typically iron out in months or years, but we only had those few hours where we could speak face to face. And during those moments, that physical contact is so important — to be able to wrap my arms around my father was so important during this last visit, but of course I was not allowed to do so.

He’s been telling me that during Ramadan, he feels that he’s amongst the community — most of the inmates with him are fasting. They get up in the morning before sunrise to eat together, and eat together again at night. They’re rarely allowed to congregate, but they’ve been allowed to pray together a few times a day. But it still doesn’t change the fact that we only get to hear from him just once every couple of weeks, and he’s still sentenced to 65 years in prison.

For more information on the Holy Land Five case: www.freedomtogive.org

An essay on Ghassan Elashi is also featured in the book Patriot Acts: Narratives of Post-9/11 Injustice, edited by Alia Malek and published by Voice of Witness/McSweeney’s Books.