ISNA and NAIT join with ACLU to demand removal of co conspirator label in Holyland Foundation Hamas financing case
June 19, 2008
Groups Want Names Cleared in Holy Land Case
Two major Muslim organizations, the North American Islamic Trust and the Islamic Society of North America, are asking a federal judge to rebuke prosecutors for publicly naming the groups as unindicted co-conspirators in a federal criminal case against officers of an alleged Hamas front, the Holy Land Foundation of Richardson, Texas.
In a motion filed yesterday in federal court in Dallas, lawyers from the American Civil Liberties Union contend that prosecutors violated the constitutional rights of NAIT and ISNA by branding them as conspirators even though they were not indicted in the case and have not been charged with wrongdoing.
"It is an egregious departure from regular practice," an ACLU attorney, Hina Shamsi, said in an interview. "The smear happened and the notoriety of our clients as a result has spread and there's no way they are able to defend themselves."
In court papers, leaders of NAIT and ISNA said the co-conspirator designation has hampered their relations with law enforcement entities, such as the FBI, and stymied interfaith dialogue with Jewish organizations. "There's a blacklisting of mainstream groups at a time when it's so important to have that kind of cooperation," Ms. Shamsi said.
A former attorney for the groups, Daniel Reinberg, alleged in an affidavit that the lead prosecutor on the case, James Jacks, agreed in July 2007 to clarify publicly that the government was not alleging that NAIT or ISNA conspired to violate the law. In an e-mail the groups filed with the court yesterday, Mr. Jacks seemed to apologize both for the delay in resolving the situation and for any harm caused to the groups.
"I am sorry for the problems for your clients. I hope to get something to you or file something with the court as soon as I get some free time," the prosecutor wrote to Mr. Reinberg.
Mr. Reinberg said Mr. Jacks essentially reneged, saying he was concerned about the impact removing the groups from the list would have on the case.
Justice Department guidelines instruct prosecutors to be "sensitive to the privacy and reputation interests of uncharged third-parties" and to file lists of co-conspirators under seal where possible. A spokeswoman for prosecutors declined to comment, citing a gag order in the case.
A former terrorism prosecutor, Andrew McCarthy, called the dispute "a tempest in a teapot," because evidence produced at the Holy Land trial last year supported the placement of the groups on the list. Some exhibits showed $20,000 in payments from NAIT to a man who later became a top Hamas official, Mousa Abu Marzook, and his wife. "You don't have to prove beyond a reasonable doubt someone's a co-conspirator," Mr. McCarthy said.
In October, jurors in the trial deadlocked on most of the charges and issued some acquittals. A retrial is set for September.
During the trial, another Muslim group named as a co-conspirator, the Council on American-Islamic Relations, asked the judge to strike the list. The motion, which prosecutors opposed, is pending.
MIM: The ACLU press release was placed on the ISNA website.
ACLU CHALLENGES GOVERNMENT'S STIGMATIZING OF MAINSTREAM MUSLIM GROUPS IN HOLY LAND CASE
Group Asks Court To Clear Names Of Two Organizations Unconstitutionally Labeled 'Unindicted Co-Conspirators'
DALLAS - The American Civil Liberties Union and the ACLU of Texas filed a legal challenge today to clear the names of two mainstream Muslim organizations labeled by the government as "unindicted co-conspirators" in its criminal case against the Holy Land Foundation (HLF). Government attorneys publicly identified the Islamic Society of North America (ISNA) and the North American Islamic Trust (NAIT) as co-conspirators before the HLF trial, even though neither organization was the subject of a criminal investigation or charged with any crimes.
"By publicly branding these groups as criminals without providing a forum for them to defend themselves or clear their names, the government has acted with blatant disregard for their constitutional rights," said Hina Shamsi, staff attorney with the ACLU National Security Project.
"The government's action is especially shameful because the charge it makes is so inflammatory - it has caused each organization's reputation and good name to be dragged through the mud. The government has a constitutional obligation to correct the record and clear the names of ISNA and NAIT."
In a pre-trial brief in the HLF case - which ended in a mistrial last fall and is scheduled for a retrial in September - government lawyers broke with Department of Justice policy and settled law when they publicly labeled ISNA and NAIT as unindicted co-conspirators in a prosecution alleging that the Holy Land Foundation, a Muslim charity, provided material support for Hamas. The government conceded, however, that it had absolutely no evidence proving that either ISNA or NAIT had engaged in a criminal conspiracy. The lead prosecutor in the case told lawyers for the two organizations "that ISNA and NAIT were not subjects or targets in the HLF prosecution or in any other pending investigation." The prosecutor also acknowledged that the public labeling was simply a "legal tactic" intended to allow the government to introduce hearsay evidence against HLF later at trial.
Both ISNA and NAIT are mainstream charitable organizations that provide valuable services to the Muslim community and beyond. ISNA supports American Muslim communities, develops educational, social and outreach programs and fosters good relations with other religious communities as well as civic and service organizations. NAIT holds in trust titles to mosques, Islamic centers, schools and other real estate belonging to Muslim communities across the U.S., enabling these communities to safeguard and pool their assets in accordance with U.S. law and Islamic principles.
"ISNA's goal is to promote the participation of American Muslims in this country's civil and political life, and in interfaith dialogue," said Ingrid Mattson, President of ISNA. "Our efforts have been severely undermined by a government-imposed stigma and the inflammatory misrepresentation of ISNA in the public sphere. Until now, we've had no way to clear our names and we're asking the court to set the record straight."
In today's motion, the ACLU is asking a federal court to declare the government's public naming of ISNA and NAIT as unindicted co-conspirators a violation of the Fifth Amendment; to order the expunging of the organizations' names from any public record that identifies these groups as unindicted co-conspirators; and to block the government from labeling ISNA and NAIT this way in the future without specific permission from the court.
"The violation of the rights of these groups implicates both their reputations as well as core constitutional principles like the Fifth Amendment's presumption of innocence," said Lisa Graybill, Legal Director of the ACLU of Texas. "The law is clear - the harm ISNA and NAIT have suffered must be remedied."
Innocent Until Proven Guilty - The Problem with Unindicted Co-ConspiratorsThe Constitution of the United States prohibits the government from accusing a person or an organization of being a criminal without a forum for them to defend themselves or clear their names. Individuals and organizations have a Fifth Amendment right to be free of government-imposed stigma against their good names and reputations. The Department of Justice's policy manual specifically warns U.S. Attorneys, that "there is ordinarily ‘no legitimate governmental interest served' by the government's public allegation of wrongdoing by an uncharged party." However, in a 2007 Texas criminal prosecution of the Holy Land Foundation for Relief and Development, a case in which the government alleged the defendants had conspired to provide material support to Hamas, the U.S. attorney named an astonishing 246 people and organizations as "Unindicted Co-conspirators and/or Joint Venturers" and made the list public. Some of the country's largest, mainstream Muslim organizations were listed, including the Islamic Society of North America (ISNA) and the North American Islamic Trust (NAIT). The government's public designation of NAIT and ISNA as unindicted co-conspirators, without a forum to defend themselves, has harmed their reputations and their missions. In June 2008, the ACLU filed a motion in the Holy Land Foundation case requesting that its clients - ISNA and NAIT - be removed from the list of unindicted co-conspirators. The motion argues that the public branding of ISNA and NAIT as participants in a criminal conspiracy violates their Fifth Amendment rights. RESOURCES
> ACLU Challenges Government's Stigmatizing Of Mainstream Muslim Groups In Holy Land Case (6/18/2008)
> Motion For Equitable Relief
Background: Unindicted Co-Conspirators --
statements of support from faith and intelligence community --
documents that show bad faith on the governments part --
report -- MORE
> Court To Hear Arguments Today In Case Testing Material Support Statute (4/18/2008)
> The First And Fifth Amendments Are Not Optional
> Weak Case Seen in Failed Trial of Charity
> Case Against Largest US Muslim Charity for Supporting Terrorism Results in Mistrial (10/22/2007)
> Violating Rights in the Name of Security