In closing arguments contesting the federal prosecution of the Holy Land Foundation and five of its former officials, a defense attorney representing Holy Land CEO Shukri Abu Baker argued that the government’s prosecution was inherently deceptive and based on selective evidence. “Do you really trust the government?” the defense attorney asked the jury. Given the outcome of the trial, it’s a question that warrants consideration.
On October 22, the trial of the Holy Land Foundation and several of its officers ended in a mistrial with jurors deadlocked on nearly all charges. The mistrial comes on the heels of the government’s failure to secure convictions on major terror offenses in several recent cases surrounding terror financing – that is, convictions for providing “material support” to designated terrorist groups – which has fed the public skepticism on which defense attorneys sought to draw.
Such cases underscore the difficulty of prosecuting individuals for providing support to terrorist groups under the cover of humanitarian or political activity. However convincing the government’s evidence, jurors must balance volumes of dry financial and other data against heart-wrenching images of hungry children. Not only does a picture tell a thousand words, it is also easier to digest than thousands of financial and other documents.
It is far more straightforward to prosecute cases involving participation in an actual attack, plot or training camp. In contrast, prosecuting individuals for providing material support to others engaged in such activity is complicated by the degrees of separation between the two and the need to decipher ambiguously worded, coded conversations that lose further meaning in their English translation. Such cases are built on the totality of the evidence and rarely provide a made-for-TV “Jack Bauer moment” where a single telephone call or document succinctly summarizes the defendants’ ill-intent before the commercial break.
But however difficult it is to prosecute such cases and whatever the conviction rate may be, the unqualified answer to Ms. Hollander’s question should be a definitive “yes” when it comes to the government’s counterterrorism prosecutions. There are many reasons to come to this conclusion, but a particularly relevant one comes from a piece of potentially exculpatory evidence the judge presiding over the Holy Land trial ordered the government to declassify but the defense chose not to use.
I testified as an expert witness for the prosecution at the Holy Land trial, called to describe Hamas and explain the means by which the group raises and transfers funds internationally for its interconnected political, charitable and terrorist activities. I have provided expert testimony in several other terrorism cases across the country, including cases involving Hamas, Palestinian Islamic Jihad, al Qaeda and Hezbollah, but this one was different. That’s because several years ago I provided analytical support to agents investigating the Holy Land Foundation when I served as a counterterrorism intelligence analyst at FBI headquarters.
The fact that I worked on this particular case was classified until the judge ordered declassified a 1999 report I wrote for the FBI’s National Security Division. The report documents apparently mutually discrepant FBI reporting regarding two of the defendants in the Holy Land trial. An informant reported attending two meetings in Chicago with the men from Dallas. But telephone wiretaps placed the two in Dallas when the source reported meeting them in Chicago. My report analyzed the two sets of reports, suggested means of corroborating or refuting contradictory data, and stressed that “FBIHQ considers the need to resolve these conflicting reports as critically important.”
How the discrepant reporting was ultimately resolved was not declassified. But the fact that the discrepancy was documented and reported through formal channels, and that resolving the puzzle was given such high priority, is a telling rejoinder to those who question “Do you really trust the government?” Indeed, the report’s emphasis on vetting sensitive sources to maintain the highest standard of source reporting clearly outweighed whatever exculpatory value it may have had in revealing that FBI sources sometimes contradict each other. Were that not the case, surely one of the multiple defense lawyers who questioned me on cross-examination would have asked me to read the jury my own written word in an effort to raise doubt about the significant volume of FBI reporting presented to the jury over the course of the trial.
To be sure, the mistrial in the Holy Land case is a major setback for the prosecution. Having expended significant time and resources in this case, it now must start over. But when it comes to answering the defense attorney’s question to the jury, the public can judge the facts for itself. The US District Court for the Northern District of Texas posted the evidence presented at the Holy Land trial to its website each day as the trial progressed, enabling scholars and laymen alike to access, study and judge for themselves the extensive body of material placed into evidence. Whatever questions one may have about other aspects of the government’s poorly named “war on terror,” these terrorism prosecutions are transparent and open to public scrutiny. The public need not take my word for it nor blindly subscribe to a defense lawyer’s rhetoric; interested parties can and should go online and draw their own conclusions.