A prosecution that is likely to go down in the record books as one of the great abuses of the American legal process ended with a mistrial this week in Dallas, Texas.
The politicized case against the Holy Land Foundation (HLF), an American charity providing aid to needy families in Palestine, alleged material support for a terrorist organization.
This was so even while the government conceded that HLF only provided assistance to real charitable organizations and persons.
Yet the prosecution’s “Alice in Wonderland” theory postulates that in so doing, HLF freed Hamas from its burden to fund charitable activities in Palestine, thus having more resources to direct toward terrorist activities.
The government could only build its case on overstretched assumptions and associations. It failed to prove any credible conspiratorial linkage between the Americans who operated HLF in Texas and those who operate Hamas in Palestine.
As far-fetched as the theory itself was, the evidence presented by the government to support that theory failed to connect the dots. And on Thursday, October 18, the jury returned a sealed verdict that — not surprisingly — did not include a single guilty verdict on any of the 197 charges.
However, the judge was out of town and the verdict could not be read until Monday, October 22. By then, some members of the jury apparently had misgivings, and after the verdict was read and the jury polled, three jurors contested the unanimous nature of the verdict.
The judged ordered further deliberations after which 11 of the 12 jurors concurred with the original verdict and one did not, thus causing the judge to declare a mistrial.
What is additionally outrageous in this case is the fact that the Department of Justice named 306 individuals and organizations as un-indicted co-conspirators in the case. The exhaustive list includes several major American Muslim organizations in this country.
Such intimidation and harassment leveled against American Muslims and their religious, civic and charitable organizations by this administration is yet another manifestation of the recent erosion of American constitutional freedoms.
The fear-mongering campaign opted for by many in this administration — and supported by avowedly anti-Muslim groups — has created a climate of Islamophobia that is contrary to the basic values of this otherwise tolerant country.
But it is the assault upon constitutional freedoms under the guise of terrorist-related prosecutions that is most shocking.
Since 2002, an estimated 500 cases have been brought against Muslims in America. Half of these have been dismissed as being without merit. The rest have all resulted in either acquittals or negotiated pleas on minor charges which are unrelated to the original indictment. Of the 500 cases, it is estimated that some 30 of them may have had some reasonable foundation in law.
In no other area of prosecution has the Department of Justice produced such an extraordinarily high percentage of dismissed cases and cases resulting in guilty pleas on unrelated charges. This, in itself, raises concerns that these prosecutions were informed by the fear-mongering claims of the current administration that terrorism à-la 9/11 may become an indigenous product and that American Muslims may be a new clear and present danger.
Not only is this outrageously wrong, it is un-American in every respect.
These overreaches and abuses by the Department of Justice, not the least of which is the case of Dr. Sami Al-Arian — who continues to linger in jail because of a vindictive prosecutorial approach against someone who was never proven to have been guilty of any terrorist-related charges — weakens our democracy rather than protects it.
The inclusion of 306 un-indicted co-conspirators as mentioned above is intended to put these organizations and individuals on notice that they should not stand up for their rights under the Constitution.
Obviously, these charges are also intended to dry up contributions and support for these organizations and eventually open them up to frivolous lawsuits for damages by those who have been victims of terrorism elsewhere.
The perverse nature of the un-indicted co-conspirator designation made public in the HLF case is that those so-designated cannot challenge the designation in a court of law and thus have no way to restore their reputation to its earlier standing. This is a unique situation where any person or organization can be designated “guilty by association” and stigmatized as such without legal redress.
There is no doubt that the Department of Justice in selecting that list of 306 organizations and individuals intended to accomplish such results, especially for three of the largest and most effective American Muslim organizations: the Islamic Society of North America, the North American Islamic Trust and the Council on American-Islamic Relations.
The situation described above requires action by Congress and by those American organizations and individuals who cherish their Constitution and who believe in the American way of democracy and freedom for all.
If the present tactics of the Department of Justice continue, it will not be long before American Muslims suffer the same fate Japanese-Americans did in World War II.
Demonizing an entire minority group based on suspicion and fear-mongering was wrong then, and it is wrong now. We cannot allow such a blot on our history to be repeated.
I am confident that America’s sense of decency and fair play will ultimately prevail.
The writer is distinguished research professor of law at DePaul University and president emeritus of the International Human Rights Law Institute.