Dr Sarah Marusek
middleeastmonitor.com
November 29, 2013

It has now been five years since the sentencing of the Holy Land Five: Muslim-American humanitarians who were falsely convicted of providing “material support for terrorism” because of their charitable work in Palestine. To mark the occasion, the daughters of the Holy Land Five have produced a powerful video message featuring the families of those imprisoned, as well as people around the world, expressing solidarity with the innocent men.

Alas the overtly politicised case against the Holy Land Five is only one among many. Since 11 September 2001, there have been numerous legal efforts to criminalise compassion in the US, ultimately denying Muslim-Americans of the right to freely practice their religion.

Founded in 1989, the Holy Land Foundation was once the largest Islamic charity in the US. The Texas-based foundation helped to raise funds for people misplaced by both natural and man-made disasters, focusing primarily on Palestinian refugees living in the Occupied Palestinian Territories as well as in the neighbouring countries, but also helping both American and international victims of tornadoes, earthquakes and floods. The Foundation even assisted the victims of the Oklahoma City bombing in 1995.

However three months after the 9/11 attacks, the US government suddenly designated the Holy Land Foundation as a terrorist organisation, closing down the charity and seizing all its assets. Federal prosecutors accused the foundation and its members of providing financial assistance to individuals and organisations linked to Hamas, claiming that this constituted “material support for terrorism” as stipulated in the USA PATRIOT Act. The government based its case on the twisted logic that the money the foundation was sending to zakat associations in Gaza to build hospitals and feed the poor relieved the social organisations affiliated with Hamas of carrying out this responsibility.

None of the zakat associations were listed as “Specially Designated Nationals” (SDNs) at the time of the alleged offence. The US Treasury Department considers SDNs to be criminal actors and thus “their assets are blocked and US persons are generally prohibited from dealing with them.” But it did not matter because the government has consistently adopted a loose interpretation of the material support clause to target Muslim-Americans, often using ex post facto relationships to prove that suspects are, according to President George W. Bush’s Executive Order 13224 of September 24, 2001, “otherwise associated with” terrorists.

While the US government does indeed classify Hamas as an SDN, the Islamist movement is not at all connected to Al-Qaeda or the attacks on 9/11 which precipitated the closure of the Holy Land Foundation. After all, the Foundation had been operating since 1989, so why else would the government wait twelve years to target the charity except to conflate all Muslims with terrorism after 9/11, creating a climate of fear that would lead Americans to support the so-called war on terror and the US-led invasions of Iraq and Afghanistan. President Bush even called the closure of the Foundation “another step in the war on terrorism”.

Leading up to the trial, the government amassed an amazing 197 counts against six members of the Holy Land Foundation, many of them trumped up criminal charges. However, in 2007 the case ended in mistrial for five of the defendants, with one defendant being found not guilty of all but one charge against him, for which the jury was deadlocked.

Nevertheless, the government refused to drop its case, and a retrial was ordered in late 2008 against the Holy Land Five: Ghassan Elashi, co-founder and chairman of the board; Shukri Abu-Baker, president and CEO; Mohammad El-Mezain, co-founder and the California office representative; Mufid Abdulqader, volunteer fundraiser and Abdulrahman Odeh, the New Jersey office representative.

For the 2008 retrial, the government dropped almost half of the original charges and called an anonymous Israeli intelligence expert as a witness, who according to Mondoweiss testified that he knew the defendants had ties to Hamas because he “could smell Hamas”. Several lawyers have noted that the use of an anonymous witness was a legal first, and clearly violates the defendants’ sixth amendment right to face their accusers in court.

Needless to say, in the second trial the Holy Land Five were found guilty of every criminal charge that was brought against them. They were given draconian sentences of between 15 and 65 years in prison, a devastating punishment for them and their families.

In addition to putting the Holy Land Five in jail for what could possibly be the rest of their lives, according to the New York Times the government also “publicly named more than 300 individuals and American Muslim organisations as ‘unindicted co-conspirators’, without allowing them to hear the evidence against them or defend themselves in court.”

So much for innocent until proven guilty.

The Holy Land Five tried to appeal their convictions, but the US Supreme Court declined their final appeal in 2012. They have now exhausted all their legal options. Four of the five men are currently imprisoned in a severely restricted facility for prisoners deemed to be “security threats” known as the Communications Management Unit (CMU). After 9/11 two CMUs were built, one in Indiana and the other in Illinois, and the vast majority of prisoners in both are Muslims. Most prisoners have extremely limited contact with the outside world, including their families. American public radio station NPR has called the CMUs “Guantanamo North” and the Nation magazine describes them as “Gitmo in the Heartland.”

To date, the US government still has not published a list of approved Islamic charities, probably because the current ambiguity allows federal officials to selectively pursue politically motivated cases. This has had a chilling effect on charitable giving.

The Holy Land Foundation case did inspire one Washington-based group called the American Task Force on Palestine to come up with a list of acceptable projects for individuals and charities to support in Palestine, which have all been vetted by the US Agency for International Development. Unsurprisingly, the American Task Force on Palestine has been described by one Palestinian-American writing for Al-Jazeera as “a Washington organisation designed to promote a particular line on Palestine. The group is tasked with feeding the State Department palatable fictions – like, ‘two states for two peoples’. In return, organisation heads are invited to dinners with important people.”

The overt politicisation of the American judiciary to deny Muslims in America of their rights is not exclusive to individuals and charities working in Palestine. Since 9/11, thousands of Muslim-Americans have been detained, deported or profiled, even though very few are ever prosecuted in the courts, and dozens of Islamic charities have been either closed down or financially disabled, creating a climate of fear that denies Muslim-Americans of the right to give to charity, rendering them unable to practice zakat, one of the Five Pillars of Islam.

Similar to the Holy Land Foundation, many of the individuals and charities that have been targeted were singled out to justify foreign invasions. When President Bush addressed a joint session of Congress on 20 September 2001 to declare, “Either you are with us, or you are with the terrorists,” the “us” he was referring to was not the American people, but American empire. He was saying that you must support our foreign invasion and occupation, otherwise you will be criminalised. And in fact, Muslims in America were never even given a choice, because the government had already started to reproduce a particular typology of Muslims-as-terrorists. As scholar Mustafa Bayoumi has argued, immigrant males from targeted countries were obliged to “misidentify from the Muslim-as-terrorist figure” or else face the consequences, a typology repeatedly emphasized in the media.

For example, in February 2003, Dr Rafil Dhafir, a prominent Iraqi-American oncologist and respected imam living in Central New York, was arrested because his charity Help the Needy was sending humanitarian aid to Iraq, including money to build mosques, parcels of food and medical supplies, all of which allegedly violated the UN sanctions, measures which Dennis Halliday, the former UN Humanitarian Coordinator in Iraq, says killed around one million Iraqis. Although the FBI had kept Dhafir under surveillance since at least 1997, Help the Needy was never prevented from delivering the supposedly illegal aid to Iraq. Instead, the charity openly carried out its operations until 85 agents went to Dhafir’s home to arrest him only weeks before the launch of the US-led invasion of Iraq. The same morning he was arrested, around 150 Muslim contributors to the charity living in Central New York were also questioned by various government agencies.

To dispel any doubts about this case being linked to the invasion of Iraq, former Attorney General John D. Ashcroft referred to Dhafir as a terrorist when he was apprehended, a charge repeated by former New York Governor George Pataki. The Washington Post called Dhafir a “high profile suspect” and reported that: “A federal prosecutor suggested that an Arab engineer who was a friend of Dhafir’s might be proficient in fashioning ‘dirty bombs’.”

However when Dhafir finally went to trial, he was only accused of white-collar crimes, with the most serious counts being related to money-laundering. He did not face any charges of terrorism. Nevertheless, by then the US had already invaded Iraq in the name of fighting the war on terror. The reason for Dhafir’s “high profile” arrest was already a moot point, and the alleged terrorist was only found guilty of criminal activity. However, we was given a harsh sentence of 22 years in prison and was initially placed in the CMU prison in Indiana. He has since been transferred to a lower security facility.

Although it was not mentioned at all during the trial because the information was sealed, during the sentencing the prosecution suggested that the government had evidence that while volunteering with Doctors Without Borders in Afghanistan during the 1980s, Dhafir had met with a member of the mujahedin who later became a supporter of Al-Qaeda, leaving out the context of Washington’s financial and military support for the mujahedin at that time.

Indeed the National Security Division of the Department of Justice subsequently listed the case against Dhafir and his charity as a successful terrorist prosecution. He too has lost every judicial appeal, exhausting all his legal options for seeking justice.

Numerous other Islamic charities have also been targeted since 9/11. These include Benevolence International Foundation, Global Relief Foundation, Kind Hearts USA and Islamic American Relief Agency. The witch hunt even led the American Civil Liberties Union to release a report in 2009 entitled “Blocking Faith, Freezing Charity“.

In 2006 the FBI raided the Michigan offices of Life for Relief and Development, a large and highly regarded Islamic charity, on the eve of Ramadan, the holy month when Muslims fast and make considerable charitable contributions. The charity was reportedly under investigation in connection with its activities in Iraq. Despite having its property seized, the case against the charity was ultimately closed and it was allowed to remain open. Nevertheless, the timing of the raid had already achieved a wider purpose.

In another timely coincidence, on the first day of the 2007 trial against the Holy Land Foundation, federal agents raided the offices of the Michigan-based branch of the Al-Mabarrat Association, a charity affiliated with the late Ayatollah Mohammad Hussein Fadlallah in Lebanon, as well as the offices of the Goodwill Charitable Organization, also connected to Lebanon. The US Treasury Department accused the latter of having ties to Hizbullah’s Martyr’s Foundation, an organisation already on the SDN list. The same day, the FBI searched a number of local businesses and homes, again traumatising the community. Subsequently the Goodwill Charitable Organization was shut down and also listed as an SDN. However the FBI allowed Al-Mabarrat Association’s Michigan offices to remain open.

It is important to note that while each case is uniquely tragic, non are unusual. There have been many other domestic victims of the US war on terror, including many Islamic charities. Indeed these coordinated and well-publicised actions against both Muslims and Islamic charities have successfully created a climate of fear that makes it extremely difficult for Muslims in America to give or perform charity, thus criminalising compassion and denying.


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