Washington Report on Middle East Affairs, January/February 2013, Pages 17, 26

Special Report

Why All Americans Should Care About the Holy Land Foundation Case

By Stephen Downs, Esq. and Kathy Manley, Esq.

In 2008, five directors of the Holy Land Foundation, formerly the largest Muslim charity in the U.S., were convicted on charges of material support for terrorism—essentially for feeding the poor and for building schools and hospitals in Palestine. Although none of the defendants were accused of violence or even encouraging violence, some of them received sentences of up to 65 years, and are incarcerated in mostly Muslim isolation prisons.

At their first trial in 2007, the government conceded that no foundation money had gone to any terrorist organizations; rather, some money went to the same zakat (charity) committees in Palestine that the U.S. Agency for International Development (USAID), the U.N., the Red Crescent and many NGOs used to distribute aid to the Palestinian community during the same period. The zakat committees were not designated as terrorist organizations, and no practical way existed to distribute aid except through these committees, which is why other charities and the U.S. government itself used them. The first trial ended with a hung jury, without a single conviction on any count, and with some outright acquittals.

At the second trial, the government called an "anonymous expert" to testify that some of these zakat committees were "controlled" in part by Hamas—a designated terrorist organization but also, since January 2006, Palestine's lawfully elected government. The U.S. government claimed that channeling the foundation's charitable activities through these "controlled" committees helped raise the prestige of Hamas and thus constituted material support for terrorism.

A known expert can be cross-examined by the defense and shown to be ignorant about the subject, but an "anonymous expert" cannot be challenged because he is unknown—he could be a man off the street, or the prosecutor's brother. By definition, an expert must have a public identity that establishes the claimed expertise. The 6th Amendment to the U.S. Constitution guarantees the right to confront (cross-examine) the witnesses against the defendant. Anonymous expert witnesses violate this fundamental principle. Yet on the basis of this anonymous "expert" opinion, all the defendants were convicted at the second trial. On Oct. 29, 2012, the U.S. Supreme Court refused to hear the Holy Land Five's appeals, and let stand the criminalizing of charitable intent using the opinion of an anonymous expert to do so.

Well, one may say, injustices are everywhere. Why should I care about this particular case? The reason goes back to a 2010 Supreme Court case, Holder v. Humanitarian Law Project, which involved two groups that sued the government to determine if merely giving advice to a designated terrorist organization on how to stop engaging in terrorism would constitute material support. The Court held that it would, because even advice on how to live peacefully was material support.

Under this ruling, then, coordinated free speech, peacemaking, charitable activities and social hospitality could all constitute material support, even if the defendant did not intend to engage in terrorism and in fact opposed it.

The plaintiffs in the original Humanitarian case (as opposed to the Supreme Court appeal) argued that the government should have to prove that a person intended to engage in terrorism—otherwise, anyone (like the directors of the Holy Land Foundation) could be convicted of terrorism without even realizing that he or she was doing anything wrong; due process requires that criminal laws give fair notice as to what conduct is prohibited. The Supreme Court disagreed with this argument, saying it was absolutely clear what is prohibited. The secretary of state publishes a list of designated terrorist organizations: just avoid all contact with organizations on the list, and no one will violate the law.

But that is exactly what the Holy Land Foundation directors did: they avoided providing aid to any designated terrorist organization on the list. On their own and through a former congressman, they even repeatedly asked the State Department and the Department of Justice for guidance on where they should and should not send their humanitarian aid. But the government refused to provide any guidance other than to refer them to the State Department list—which did not include the zakat committees. Yet by dealing with these committees, which were not on the list, the directors were found to have violated the law anyway, in direct contradiction to the Supreme Court's holding in the Humanitarian case.

By refusing to review the case, the Supreme Court signaled that due process no longer requires fair notice of prohibited conduct. Legal transactions could now be made criminal by discovering "associations" that were previously unknown to the parties involved. Moreover, the government could establish these "associations" by anonymous experts—mouthpieces for the government—that could not be confronted or cross-examined within the meaning of the 6th Amendment.

The implications are enormous. The government can now criminalize political, religious and social ideology and speech. Donating to peace groups, participating in protests, attending church, mosque or synagogue, entertaining friends, and posting material on the Internet, for example, could later be found to be illegal because of "associations," manufactured by anonymous experts, which in some way supposedly supported designated terrorist organizations one has never heard of.

In this decade during which our civil liberties have steadily eroded, Americans have seen their government claim, under the National Defense Authorization Act (NDAA), the right to hold citizens without charges indefinitely, and we've seen the president of the United States claim the right to assassinate American citizens anywhere in the world without due process by using a presidential "kill list." Now the government can convict any American of terrorism crimes he or she was not even aware of committing—based on information provided by an "anonymous expert" who can be neither challenged nor confronted.

Stephen Downs retired in 2003 as chief attorney with the NY State Commission on Judicial Conduct. In 2006, he volunteered as part of the defense team in U.S. v. Yassin Aref. He is a member of the Muslim Solidarity Committee and Project SALAM, and executive director of the National Coalition to Protect Civil Freedoms (NCPCF). Kathy Manley is an Albany, NY criminal defense attorney and one of Aref's attorneys. She is also a member of the Muslim Solidarity Committee, Project SALAM, the NCPCF and the NY Civil Liberties Union