The US government's spotty record in obtaining
convictions of people charged with providing "material support" to
terrorist organizations is adding new impetus to the efforts of prominent constitutional
lawyers to seek substantial changes in the law.
The latest failure in a terrorism-financing prosecution came late in 2007,
when a Texas jury failed to render any guilty verdicts in the trial of the Holy
Land Foundation (HLF), once the largest and most prominent charity dedicated
to supporting Palestinian and other Muslim causes. Several HLF officials were
charged with giving money to Hamas, the militant Palestinian organization designated
a terrorist group by the US in 1995. The trial ended with a mix of acquittals
The Federal Bureau of Investigation started looking into HLF in 1993. In December
2001, the US Treasury Department seized and confiscated the charity's assets
and records, effectively putting the organization out of business. Given that
outcome, some legal scholars have questioned why the government pursued a criminal
prosecution at all. The trial did not begin until mid-2007.
William Neal, a juror in the HLF case, told the media that the government's
evidence "was pieced together over the course of a decade a phone call
this year, a message another year." Instead of trying to prove that the
defendants knew they were supporting terrorists, Neal said, prosecutors "danced
around the wire transfers by showing us videos of little kids in bomb belts
and people singing about Hamas, things that didn't directly relate to the case."
Civil liberties groups say the HLF case was just the latest in a line of misguided
prosecutions. One such group, OMB Watch, charges that the USA PATRIOT Act gives
the government "largely unchecked power to designate any group as a terrorist
It says that "once a charitable organization is so designated, all of
its materials and property may be seized and its assets frozen. The charity
is unable to see the government's evidence and thus understand the basis for
the charges. Since its assets are frozen, it lacks resources to mount a defense.
And it has only limited right of appeal to the courts. So the government can
target a charity, seize its assets, shut it down, obtain indictments against
its leaders, but then delay a trial almost indefinitely."
One result, say critics of the government's policy, is that Muslim charities
have experienced a precipitous decline in contributions. Contributions that
do arrive often come in cash from anonymous givers. And donors who happen to
be Muslim are increasingly turning to the large household names like Oxfam and
Save the Children, which may conduct programs in predominantly Muslim areas
One of the United States' foremost constitutional scholars, Prof. David Cole
of the Georgetown University Law Center, argues that the "material support
principle is 'guilt by association' in 21st-century garb, and presents all of
the same problems that criminalizing membership and association did during the
He told IPS that the problem requires fundamental changes in the terrorism-financing
Cole recommends that the Treasury Department be required to permit closed charities
to direct their collected funds to charities mutually approved by the frozen
charity and the government.
He also says that Congress should enact a statutory definition of a "specially
"Right now the Treasury Department makes such designations entirely on
the basis of an executive order, and accordingly Congress has given the president
essentially a blank check," Cole told IPS.
Treasury should allow designated entities to use their own funds to pay for
their own defense, he argues. "Treasury not only shuts down charities in
a secretive one-sided process, but then bars the charities from using any of
their own money to defend themselves against the designation," according
And the criminal material support statutes should be amended to require proof
that an individual supported a proscribed group with the intent to further its
"Today," according to the government, "even aid intended to
discourage terrorist activities is a crime under the material support laws,"
He adds, "There is no requirement that the aid have any connection to
terrorism," and cites a case he is handling with the Humanitarian Law Project
(HLP) at the Center for Constitutional Rights.
He told IPS, "My clients had been providing human rights advocacy training
to the PKK in Turkey, as a way of encouraging them to use peaceful lawful means
to resolve their disputes with the Turkish government over its treatment of
the Kurdish minority. By encouraging lawful outlets for dispute resolution,
such aid would presumably discourage terrorism. Yet under the material support
statute it is a crime even if HLP could prove that both the purpose and the
effect of their support was to decrease the PKK's resort to violence."
OMB Watch says the "material support" effort has resulted in the
government shutting down charities that were not on any government watch list
before their assets were frozen.
The organization says the result is that Muslims have no way of knowing which
groups the government suspects of ties to terrorism. "Organizations and
individuals suspected of supporting terrorism are guilty until proven innocent,"
OMB Watch told IPS, "A group could comply 100 percent and still be shut
down 'pending an investigation'."
Material-support cases are just a small fraction of the Justice Department's
terrorism prosecutions, but some observers believe they represent a shift in
government strategy from punishment to prevention. Earlier prosecutions were
for acts of violence that actually took place. Examples include the first World
Trade Center attack, the 1998 bombings of US embassies in Africa, and conspiracies
that were relatively close to fruition.
Nonetheless, government terror-financing prosecutions have been reasonably
successful. From the Sep. 11 attacks to last July, the government started 108
material-support prosecutions and completed 62. Juries convicted nine defendants,
30 defendants pleaded guilty, and 11 pleaded guilty to other charges. There
were eight acquittals and four dismissals.
In terrorism prosecutions involving a violent act actually committed or near
fruition, the government's record is spottier. According to the Center on Law
and Security at the New York University School of Law, the government has a
29 percent conviction rate in terrorism prosecutions overall, compared with
92 percent for felonies generally.
The latest government setback involves the so-called Liberty City Seven
seven men named for the blighted Miami district where they allegedly operated.
Charged with plotting to join forces with al-Qaeda to blow up Chicago's Sears
Tower, one was acquitted last month and a mistrial was declared for the six
others after the federal jury deadlocked.
Prosecutors acknowledged that no attack was imminent, and then-Attorney General
Alberto Gonzales said after the arrests in mid-2006 that the alleged terror
cell was "more aspirational than operational."
In some cases, defendants are arguably convicted of terror-related offenses
in the court of public opinion rather than in the courts. One example often
cited by lawyers is the case of Dr. Rafil Dhafir, an Iraqi-born US citizen,
who organized and raised money for a charity providing humanitarian relief to
children in Iraq. He was never charged in court with a terror-related offense;
the word "terrorism" was not allowed to be used in his trial, although
prominent politicians such as then-New York Governor George Pataki hailed his
arrest as a victory in the war on terror.
The upstate New York oncologist was sentenced to 22 years in jail in 2005 for
59 felony charges, including violating US sanctions against Iraq.
(Inter Press Service)