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US Supreme Court casts doubt on ability of Muslims to get a fair trial

Photo credit: Matt Wade

By Victoria Brittain

Guest blogger Victoria Brittain is the author of the forthcoming book Shadow Lives: The Forgotten Women of the War on Terror (Pluto Press).

The United States Supreme Court’s decision on Monday not to hear the final appeal in the case of the Holy Land Foundation (HLF) is a wake-up call for everyone concerned with the issue of fair trials in the US for Muslims.

The decision has a particular resonance now, in the aftermath of the extradition six weeks ago of five Muslim men from Britain to the US.

Some of the five former Holy Land Foundation leaders concerned in the case will now serve 65 years in prison. Pardiss Kebriael, a lawyer with the Center for Constitutional Rights, underlines that “some of the men are incarcerated in conditions that have denied them the consolation of their family's physical touch for years, including this painful hour.”

Ghassan Elaishy, one of the HLF founders in 1989 and its chairman, is in Marion, Illinois, in a Communications Management Unit, described by another lawyer as “a prison essentially set up for Muslims.” Isolation and sensory deprivation are the core of the regime.

The five Palestinian/American men ran the most successful Muslim charity in the United States – until HLF was closed down by President George Bush. Like the men from Britain, who will be tried in October 2013, the accusations against them are of “material support” for terrorism.

None of the HLF men were accused of engaging in or encouraging violence. In the HLF case the issue was the money they gave to Palestinian zakat committees for humanitarian purposes. The government case was that the committees’ funding supported Hamas (a designated terrorist organisation in the US). The fact that official USAID, the UN and various NGO funds went to the same committees was ignored in court.

Michael Ratner, president of the Center for Constitutional Rights, described the Supreme Court decision as “devastating,” questioning how, among the Court’s nine judges, it had not been possible to get the necessary four to think that a rehearing was appropriate.

Khalil Meek, executive director of the Muslim Legal Fund of America, said, “It is a dark day for America when our nation’s highest court refuses to hear a case that is affecting everyone’s ability to get a fair trial in America … If judges are allowed to prevent defenders from challenging the credibility of expert witnesses, then our Sixth Amendment loses its teeth and our civil liberties suffer further erosion.”

There were two trials. At the first trial in Dallas in 2007, not one defendant was convicted on a single count (there were some acquittals and a hung jury).  At the second trial, the government called three new witnesses and presented new documents.  Every defendant was convicted on every count. 

In the second trial a year later, a key anonymous witness was allowed to testify for the prosecution and that changed the outcome. It was the first time a US court has ever approved fully anonymous expert testimony.“This is a case where the government's preference, not need, for an anonymous expert witness was allowed to trump the defendants' right to confront the evidence against them,” Kebriael said yesterday.

Ratner spelled out that the witness was working for Israeli intelligence, while giving the key evidence in a case against people giving humanitarian aid to Palestinians. With the identity of the witness kept secret, it meant, “you can’t learn anything about him, what his job was, what he did or who he is, how truthful he can be … So you can’t really cross-examine him — your constitutional right under the Sixth Amendment is a nullity.” He went on say that ‘the trial had that core violation of law in it, apart from the political nature of the case.”

The court of appeals found error in the testimony of each of the three new witnesses and in the admission of the new documents.  But the court found these errors harmless.  It found, as one lawyer put it: contrary to logic and common sense – that the four key differences between the first and second trials did not affect the second jury’s decision to convict on all counts.

Linda Moreno, counsel for Ghassan Elaishy said today,

There are two moments of great shame for our federal judiciary: the Dred Scott decision which upheld slavery and the Korematsu decision which upheld the internment of Japanese-Americans during World War II.  Both decisions were applauded at the time but came to be seen as abhorrent departures from constitutional standards and basic American notions of fairness and decency.  The Holy Land decision, affirming the unjust and unconstitutional conviction and imprisonment of five innocent men, will come in time to be seen in the same light as Dred Scott and Korematsu. But it will be too late for my client,who will be spending the next 65 years in prison for efforts that he told the court he was the most proud of…It seems that my client and the others fed the wrong children and needy.

Ghassan Elaishy once wrote to his daughter Noor, now a writer living in New York and a tireless campaigner for her father, words which she has held onto through an 11 year ordeal that began when she was 16 years old. “May God bring showers of mercy and comfort onto you and spread carpets of patience and perseverance upon you so you may find it easy to reach your hopes in life.”

© 2021 ACLU of Massachusetts.