In case you happen to think that the “war on terror” is no more because the Obama administration won’t use that Bushian phrase, think again. The legal and policy structures that made the war on terror so objectionable are still in place, and they are still trampling on Arab and Muslim rights. In this most recent case, an unfair government prosecution was enabled by the USA PATRIOT Act.
The recently handed down decision of the court toward the founders of the Texas-based Holy Land Foundation for Relief and Development shocks the conscience. Even worse, it suggests that the vilification of Palestinians in this country is still going strong.
Federal prosecutors have been targeting Arab and Muslim charities to the undeserved advantage and privilege of Israel even as it openly violates international law. The legal tools they use call into question basic rights as enshrined in the United States Constitution and the Geneva Convention.
Two of the heads of the once largest Muslim charity were sentenced to 65 years in prison. Three others were sentenced to between 10 and 15 years in prison each. That is nothing short of preposterous.
Even if you take the inherently anti-Muslim law underlying their prosecution for granted, how can 65 years be a just sentence? The prosecution failed to connect even one HLF dollar to causing one act of terror. The court needed only to connect them to Hamas, which is no problem since the group dominates Islamic charity to the Palestinians. Without being able to link them directly to one act of violence, these sentences are extreme and disproportionate.
More important, the basis for the case rests on an inherently discriminatory legal structure – one that really puts Palestinians in a position of inferiority in this country.
Under the law passed as part of the PATRIOT Act, the government criminalizes “material support” to groups deemed terrorist by the State Department. Yet, the groups are deemed terrorist by the State Department as an expression of American foreign policy rather than a universal definition of unjust violence. International law, for instance, offers legal justification for the occupied to violently resist their occupiers – yet American law criminalizes just that.
The legal theory they were prosecuted on is that giving money to an orphanage affiliated with Hamas frees up money for Hamas to spend on weaponry. The government alleged that the Holy Land Foundation money was also diverted to the families of suicide bombers, as if those checks, and not the crushing Israeli occupation, were the reason for the suicides.
It is absurd to say that giving money to Palestinian charities affiliated with one of the largest political parties, the one that won the most recent parliamentary elections (which the United States pushed for) and operates as a quasi-government in Gaza, is a criminal act. For one thing, more than a third of the Palestinians would be “affiliated” with the party, making this law overbroad. If anything, the law should be narrowly construed to criminalize donations to support acts of violence against civilians.
Hamas has and does commit acts of violence. That is true, and it has often been cruel and directed at Israeli civilians. But, like every other country, they have also done good with their social organizations and humanitarian work. Hamas has functioned as a government in Gaza. It makes no sense that all the money spent on good is negated by their State Department designation, especially when their work is so widespread throughout the Palestinian territories.
American law is on the whole unfair because it privileges Jewish groups that give money to Israeli settlers by letting their donors claim tax exemptions for their donations. The settlements run directly against American foreign policy and are illegal under international law.
Settlers are armed to the teeth and frequently beat and kill unarmed Palestinians. A U.N. report documented 222 attacks in the first half of 2008. That was more than one attack per day. Yet, they are not deemed terrorists by the State Department, so tax write-offs can be given.
Despite what federal prosecutors think and the State Department designates, Palestinian groups emerge in a context of violence – the Israeli military occupation of the Palestinian territories has endured for more than 4 decades. Every military occupation in history has spawned a resistance. In the Holy Land Foundation case, it has been shown that American law turns a blind eye to the crimes of occupation – the collective punishment, the closures, checkpoints, curfews, the imprisonments without trial, the torture and extrajudicial assassinations.
This legal imbalance essentially validates the kinds of crimes we have seen Israel perpetrate in Gaza, and is therefore morally baseless. And it could be argued that Israel’s crimes are as or even more damaging to American interests than are Hamas’s. But that is beside the point.
The “material support” laws also should raise constitutional questions.
Since American law privileges the Israeli Jewish narrative and gives benefits to those violating international law, there should be equal protection issues. The Constitution demands that classes of people not be unfairly discriminated against by the law, yet anti-terror legislation has overwhelmingly punished Arab Muslims. There is undoubtedly a disparate impact. And since almost all of the State Department designations are of Muslim groups (there is one Jewish one), one could argue there is discriminatory intent. A fair law would criminalize all contributions to support acts of violence or contravene international law, no matter the race or ethnicity of the contributor.
I know this sounds absurd since American foreign policy is not really subject to constitutional scrutiny in practice, and the Constitution only really protects people in the country. The problem is when foreign policy is domesticated, it reflects with bias against citizens and non-citizens of countries not aligned with the United States.
Thus, it also raises a First Amendment problem. The freedom of association is provided for in the Constitution. What this Holy Land Foundation ruling says is that Americans cannot associate with hospitals serving their families abroad because other certain parties may benefit. Why should anti-terror law trump the Constitution here?
One may argue there is a compelling government interest. What is the interest in denying donations to social charities and to medical services? How does that imperil the United States? Even if it empowers Hamas, it may be in American interests since a legitimate Hamas may prove to be more in America’s interests than an illegitimate Palestinian Authority.
These laws result in absurd cases. Several years ago, a Dearborn man was deported for giving money to an orphanage. It was run by Hizbullah. But he gave it to the orphanage because his nephews and nieces were forced to live there after Israel killed their parents. How does this make sense?
A few weeks ago, government prosecutors dropped the case against two former AIPAC officials who received and transmitted classified information. The judge’s leniency on this espionage case manifested in a series of early decisions that made the case harder to prosecute. They were treated with kid gloves for one of the highest offenses in the land – one with centuries of precedent.
In the Holy Land Foundation case, they threw the book at them for crimes that did not even harm the United States, for a statute that is a leftover of the unpopular Bush administration. The State Department designations only go as far back as Clinton. Yet, the court will ruin the lives of these men. I recognize this is a moral argument and not a legal one. But Arab Americans and American Muslims will only feel alienated by such systematic hypocrisy.
Had the AIPAC officials actually been CAIR employees, and the Holy Land Foundation instead been a Jewish group funding night vision goggles to settler extremists, the outcomes would have been reversed.
The discrepancy is intolerable. It shows the inherently prejudicial nature of American law during the war on terror. If the Obama administration was wise, it would seek to introduce sanity and fairness into the law.