By Miko Peled
Miko Peled, the author of The General’s Son: Journey of an Israeli in Palestine, is now working on a book about the plight of the Holy Land Foundation Five. This is the second of three of his early articles about this issue that we’re happy to publish here. The first is here.
In the United States, the campaign to accuse legitimate charity organizations that worked to support needy Palestinians of “funding terrorism” required collusion between the legislative and executive branches of government—but also the abdication by the judicial branch from its performance of its duties. John Boyd, one of the attorneys who represented the case of Holy Land Foundation (HLF) in the early years of this century, told me that he felt that, “all the rules that have been put in place to protect innocent people had been suspended in this case.” When I pressed him as to how this happened, he replied: “They’ve abdicated: the judges abdicated their duties to uphold the law and defend innocent people.”
In the persecution and eventual prosecution of the Holy Land Foundation there were several points at which executive-legislative collusion and judicial abdication were evident. One example was the Boim case, a civil suit that was brought by Stanley and Joyce Boim in May 2000, against HLF and a number of other Muslim organizations. The Boims demanded $600 million in damages and attorney fees related to the 1996 killing of their 17-year-old son, David Boim.
David had been a student in a fundamentalist-religious Jewish high school, or Yeshiva, in the Settlement of Beit-El, in the heart of the Palestinian West Bank. On May 13, 1996 he was sitting at a bus stop outside the settlement when two Palestinians, Khalil Al-Sharif and Amjad Hinawi, drove by and shot him to death. The two were members of the military wing of Hamas. Hinawi was detained by the Palestinian Authority and later killed by Israeli forces. (In a strange confluence of events, while researching this case I learned that in September 1997 Al-Sharif participated and died in the suicide attack in Jerusalem in which my 13-year-old niece, Smadar Elhanan, was killed.)
How was the Boim family able to connect HLF, a humanitarian-aid organization legitimately operating in the United States, to the killing of their son in the occupied West Bank? The tools they used to do so had been constructed over the course of the previous eight years through actions taken by both the legislative and the executive branches. In 1992, Congress passed U.S. Code 2333, the Civil Remedies Law, which enabled victims of terrorism to sue for civil damages against their aggressors. The law says that any national of the United States injured may sue and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. It further allows US citizens to sue any person or organization that is suspected of funding a terrorist group.
In January 1995, President Bill Clinton signed Executive Order 12947, which outlawed conducting any transactions with terrorists who threaten to disrupt the Middle East peace process. In the annex to this executive order Hamas was designated as just such a terrorist organization.
It is worth noting that shortly after this executive order was signed, Ghassan Elashi, the pro-bono chair of HLF, was one of a group of heads of Palestinian-American and Muslim-American organizations that initiated a meeting with top Treasury Department officials to find out precisely with which Palestinian organizations they were still permitted to work. A sheet with the names of all the participants in that meeting proves it to be a high level meeting. It shows the names of high-ranking Treasury Department officials like Richard Newcomb, the head of Treasury’s powerful Office of Foreign Asset Control (OFAC), Bob McBrien (who would later testify about this meeting in the HLF trial,) and Stephen Pinter. Alongside Mr. Elashi, two representatives of the Arab-American Anti Discrimination Committee (ADC), and one representative each from Bir Zeit University and the Arab-American University participated in it. At this meeting the Arab/Muslim organizations proactively reached out to OFAC for guidance—but OFAC refused to provide any. The government representatives would not provide a list of approved organizations and would not say whether or not non-designated persons and entities might be prohibited.
Former member of Congress John Bryant, who was on HLF’s legal team, made further attempts to get information on how HLF could comply with the new laws. He told me he met with officials at the departments of State, Justice, and Treasury. “They were somewhat dispassionate and courteous but would provide no guidance,” he said. He went as far as to meet with the chargé-d’affaires at the Israeli Embassy in Washington, DC to see what HLF could do to make the Israeli government more comfortable with the work that HLF was doing, which Bryant described as “doing a lot of good.” The chargé-d’affaires said he would get back to Bryant but never did. When Bryant called him back, “He told me his government ordered him not to speak to me,” Bryant recalled.
In 1996, congress passed U.S. Code 2339B, “Providing material support or resources to designated foreign terrorist organizations.” This law says that, “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.” But it stipulates that, “To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization,”
Thus, even though no proof was ever found–much less provided–that HLF was funding Hamas, the legal structures put into place in the 1990s by both Congress and the Clinton administration allowed the parents of David Boim to sue HLF based on hearsay, and allowed them to get a judgment against HLF. The case ended up on appeal, where John Boyd argued the case for HLF. He pointed out that there was no evidence in the record that the death of David Boim had anything to do with anything the HLF had ever done. One of the judges who heard the appeal was judge Richard Posner, of the United States Court of Appeals for the Seventh Circuit in Chicago.
Boyd told me that during the hearing, Judge Posner said the following: “I think it’s pretty well known that if you give money to the charitable arm of a terrorist organization that it frees up money to buy guns and bombs.” Boyd responded by asking Judge Posner if he would take judicial notice that for the purpose of this case, if HLF gives money to charity that there is causation for the death of Daniel Boim?”
(For those of us who are not lawyers, a judge can take “judicial notice” of something that everyone knows to be true and that doesn’t require proof.)
“Judge Posner said nothing,” Boyd told me, “he just spun in his chair and turned his back to the court.”
On December 4, 2001, less than three months after 9/11 and while the civil suit brought by the Boims was still making its way through the courts, President George W. Bush issued Executive Order 13224, which designated HLF itself a terrorist organization. (He did this shortly after a meeting he held in Washington with Israeli Prime Minister Ariel Sharon.)
On February 27, 2002, the Wall Street Journal quoted Pres. Bush as having said:
The facts are clear… The terrorists benefit from the Holy Land Foundation, and we’re not going to allow it. […] Money raised by the Holy Land Foundation is used by Hamas to support schools and indoctrinate children to grow up into suicide bombers [and] to recruit suicide bombers and support their families.
None of Bush’s accusations were supported by any evidence. Still, once the President spoke the government had to act. The FBI raided the HLF offices in Dallas and seized their financial records, database, wire transfers, donor lists, and correspondence, freezing all their assets at the same time. Those records had all been meticulously kept, but still the government came up with no evidence linking HLF to Hamas. HLF hired a team of lawyers that included John Boyd, to sue the government and demand that the assets be unfrozen and the designation as a terrorist organization rescinded. What followed was a civil trial run in a manner that attorney Boyd described as: “Completely unheard of in the annals of the law!”
He added:
We were absolutely confident and correctly so, that these people had done nothing wrong. All they did was to deliver aid to Palestinians: Food packages, school supplies, aid in building hospitals and libraries and providing academic scholarships. We were absolutely confident that they could account for every penny. What we didn’t expect is that in the U.S. you can take the most frivolous charges against any Muslim or Arab and the presumption of innocence goes down the garbage.
For example, when a government agency decides to freeze the assets of an organization suspected of funding terrorism, it is required to prepare an Administrative Record explaining why it did so; and the law gives the organization the right to contest this in court. According to Boyd, “In the Administrative Record there was not a single statement under oath, no verifiable translations of documents, and no evidence whatsoever that HLF was the fundraising arm of Hamas.”
Unlike the government, Boyd and his team had a body of evidence that included sworn affidavits and statements under oath that all translations of documents were true and correct. Since the Government of Israel provided much of the prosecution’s evidence, and many of the original documents it provided were in Arabic, translated into Hebrew and then translated into English, the accuracy of the translations provided was a crucial issue. But in the documents provided by the government, such accuracy was lacking and in one case, a statement made by HLF office manager in Jerusalem Mohammad Anati where he swore no HLF money was given to Hamas, the translation the government provided quoted him as saying that HLF did give money to Hamas. But the translation said the exact opposite of the original!
One of the claims made by the government was that HLF had an orphan support program that, the government claimed, supported the children of Hamas terrorists. The government had a list with names and photographs of the orphaned children. Under father’s cause of death in most of the cases was listed the word: “shahid” which means martyr. According to this list the children were orphans of shahids, or martyrs, which the U.S. government (and also the Israeli government) had translated as “suicide bombers”. If this were true, the case would have been a hard one for the HLF lawyers. However, the fact is that except for one case (to my knowledge), Palestinian suicide bombers did not have children. Among Palestinians, the term shahid is used as a term of respect that gives meaning to the life and death of the deceased, and very few people who die are not called a shahid.
“It turned out that out of the entire list of seventy or eighty names, only three had fathers who died as a result of what one would call terrorism,” John Boyd told me. They had apparently died when a bomb they were preparing blew up in their hands. Eleven of the other fathers were killed by Hamas for being collaborators. “And so” John Boyd said, “that claim was ridiculous.”
I asked several of the attorneys who worked on this case and tried to defend the HLF-5 if they think there was a conspiracy. They all said no. John Boyd added this, “They said to themselves, I know that I’ve taken an oath to uphold the Constitution of the United States but I’m not going to do it here because I’m a coward and I am going to do what the government wants me to do. If they say these guys are terrorists, that’s good enough for me.” It was a seamless cooperation between all three branches of government, of a kind rarely seen. Like a well-oiled machine, Congress passed laws, the President signed executive orders, and the Judges convicted.