The New York Jewish Week ran an article that included my thoughts on the Holy Land Foundation mistrial.

As it happens, years ago I debated Ed Abingdon (a key witness for the defendants) at a pair of events in Las Vegas and Reno on the Israeli-Palestinian conflict. After his diplomatic service he was a consultant to the Palestinian Authority. He was always cordial and very smooth. No doubt the jury found him impressive.

No Convictions in Hamas Terror Case
Trial linking U.S. Arabs to terrorists ends with acquittals and mistrial.

by Jonathan Mark
Associate Editor

The Bush administration is losing “the war on terror,” at least in the courtroom.
For the third time in less than two years, the Justice Department couldn’t convince a jury on even one of 197 charges attempting to link radical American Moslems to Hamas, resulting in acquittals and a mistrial last week for leaders of a Texas-based charity that has been openly sympathetic to the Gaza-based terrorists.

The government was attempting to prove that the Holy Land Foundation for Relief and Development—at one time the largest Islamic charity in the United States — had been funneling $12 million to Hamas-controlled Palestinian agencies. The defense claimed Holy Land was simply supporting humanitarian causes in the face of Israeli “oppression.”

On Monday, in a Dallas court, Holy Land’s former chair, Mohammed El-Mezain was acquitted on 31 counts and the jury stalemated, resulting in a mistrial, on one count – the key charge of whether El-Mezain provided material support to a foreign terrorist organization. After deliberating for 19 days, the divided jury couldn’t reach a verdict for the Holy Land’s former chief executive Shukri Abu Baker, former chair Ghassan Elashi, operatives Abdulrahman Odeh, Mufid Abdulqader and the Holy Land Foundation as its own entity.

The government plans to retry the case.
Mark Briskman, the Dallas-based regional director of the Anti-Defamation League said, “I think the jury was overwhelmed” by the complexity of the government’s case. “I’ve looked at virtually all the evidence” — wiretaps, money transfers, documents — “and at times I was nearly overwhelmed, it was difficult to sort out, and I’ve been following [Holy Land] for ten or twelve years; imagine a jury made up of people who are totally unfamiliar [with Palestinian and international financial, political and military networks].”

Daniel Pipes, of the Middle East Peace Forum, said, “It seems to me that asking jurors to decide on 197 counts — complex counts — may be just too much. At a certain point you can be overwhelming the jury,” a complaint echoed by numerous other observers of this trial and the other recent anti-terror cases that failed to convict.

Adding to the haze in the Holy Land case, said terrorist expert Steven Emerson, was the fact that “some of the documentary evidence was in foreign languages.” He also noted the success by defendants, in this and other trials, to convince American juries that the Palestinian terrorist war against Israel is one of “liberation,” simply a “dispute between only Israelis and Palestinians, rather than seeing it as part of the radical Islamic fundamentalist war against the west.”

Aaron Mannes, a terrorism expert at the University of Maryland, told The Jewish Week that, by and large, juries seem to be more receptive “when the United States itself is directly targeted,” such as cases relating to the two World Trade Center attacks; with juries more reluctant to decipher the ambiguities of the financial trail of a West Bank infirmary or Gaza social center that might also be a terrorist front.

Robert Chesney, a professor at Wake Forest University law school, whose specialty is national security law regarding the threat posed by terrorism, told The Jewish Week that the case did not indicate anything faulty with the basic statute prohibiting financial support for terrorist groups. Rather, the government presented “a mountain of evidence of some kind, but having a huge amount of evidence isn’t always the issue if it doesn’t directly tie into these specific defendants, which I assume was the jury’s sense, from the way the jury was having trouble.”

This mistrial was the third consecutive high-profile terrorist case in which juries seemed to have that same problem. In 2005, after a six-month trial, Florida college professor Sami Al-Arian, Islamic Jihad’s top man in America, pleaded guilty to a lesser terrorist charge, with acquittal or mistrial on the major terrorism charges. He is now being jailed for refusing to testify before a Virginia grand jury investigating Islamic charities, similar to Holy Land. In a second case, in Chicago this February, the government failed to convict two alleged Hamas activists on terrorist charges, convicting them only on obstruction of justice.

Chesney pointed out that the Justice Department is having some success with non-Palestinian cases that are lower profile: “The same day [of the Holy Land verdict] they got a guilty plea from someone accused of supplying material support for a Columbian terrorist organization.”

Ironically, the Holy Land defendants’ best witness for rebutting the government came from the government: Edward Abingdon, U.S. consul general to Jerusalem from 1993 to 1999. Abingdon testified that Holy Land monies did indeed go to humanitarian relief.

The prime witness for the prosecution was an Israeli agent, only identified as “Avi” who testified that many of the Holy Land beneficiaries were Palestinian schools and institutions controlled by Hamas.

But Abingdon told the jury that he found Israeli agents to be unreliable, they had an “agenda” to provide “selective information to try to influence U.S. thinking.” He questioned the legitimacy of evidence linking Holy Land to Hamas that was seized by Israel in West Bank raids in 2002.

Holy Land was founded in California in the 1980s, moved to the Dallas area in 1992, and FBI surveillance began in 1993, when a wiretap revealed the group was supporting Hamas attempts to derail the Oslo accords. It became illegal to financially support Hamas in 1997. Holy Land was shut down by the government in the wake of 9-11.

Although the Council on American-Islamic Relations (CAIR), named as an unindicted co-conspirator in the Holy Land case, has frequently charged that American Muslims are targets of suspicion and even hatred, what is clear from the three recent federal cases is that juries are not automatically siding with the government.