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
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
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
Independence Day: Justice in America," The Wisdom Fund, July 4, 2009
"Muslims Didn't Do It," The
Wisdom Fund, September 11, 2011
Trevor Aaronson, "How the FBI's
Network of Informants Actually Created Most of the Terrorist Plots 'Foiled'
in the US Since 9/11," Mother Jones, October 9, 2011