DALLAS — The Justice Department’s criminal case against officials of the largest U.S.-based Islamic charity relies more heavily than previously known on Israeli intelligence, court records show.
President Bush ordered the charity shut down in December 2001, declaring from the Rose Garden that the Holy Land Foundation was raising money in the U.S. that “pays for murder abroad” by the Palestinian militant group Hamas.
However, the pending criminal case will place a higher burden of proof on the claims than required for the president’s executive action. And questions about the credibility of Israeli intelligence are raising fresh doubts about the Justice Department’s case.
Disputes already have surfaced over assertions of political influence, interrogation methods and allegedly faulty translations.
Federal prosecutors, accusing charity officials of aiding terrorists, have disclosed receiving 21 binders of documents from the Israeli government, according to records originally sealed by the court. The binders contain an estimated 8,000 pages that, in sheer volume, dwarf earlier shared intelligence — including Israeli military and police reports, translated interrogation transcripts and financial analyses.
Previous intelligence from Israel was a factor in 2001 when the White House, with great fanfare, froze assets of the Holy Land Foundation for Relief and Development, based in Richardson, Texas.
Those claims, however, were never subjected to the kind of rigorous legal challenge expected in a criminal trial.
Seven former Holy Land officials, six of them American citizens, are charged with conspiracy to provide material support to terrorists, sending money, goods and services to terrorists through Palestinian organizations controlled by Hamas, a U.S.-designated terrorist group since 1995.
They have denied assisting Hamas.
The case figures to hinge on the government’s ability to prove, largely with Israeli-provided information, that the defendants knowingly supported groups tied to Hamas. Israel’s prominent investigative role appears to be unprecedented in post-Sept. 11 terrorism cases.
Defense lawyers already have argued that allegations against Holy Land are unwarranted and influenced by political pressure from Tel Aviv. Bush’s presidential order closing down the charity came on the eve of a White House visit by then-Israeli Prime Minister Ariel Sharon.
The case also is being questioned by outside lawyers and legal scholars, warning that the government’s heavy reliance on foreign-sourced intelligence could be a problem for prosecutors. Significant legal challenges are predicted over differing evidence-gathering techniques, language barriers and alleged investigative bias.
“What really makes me nervous is the foreign translations,” said Washington lawyer Victoria Toensing, a former deputy attorney general in the Reagan administration. “Nuances are important in languages, so things can get lost in translations.”
Toensing said dependence on another country’s evidence in a criminal case was fraught with potential problems. “I would only want it as frosting on the cake,” said the former prosecutor, who said she had not reviewed the Holy Land case.
George Washington University law professor Jonathan Turley added that long-standing tensions between Israel and Hamas could taint the evidence.
“It is always dangerous to rely on intelligence from [a country] that is at ground zero in a dispute,” he said.
Turley also called the case “one of the most troubling since 9/11,” in part because the original action shutting down the charity required no evidentiary hearings to prove any of the alleged terrorist ties.
Federal prosecutors would not discuss the case.
Israeli Embassy officials declined to comment.
Defense lawyers, who would not discuss evidence in the case, served notice that they intended to challenge the origins and credibility of Israeli information.
“There are going to be serious issues regarding the admissibility of this evidence,” said Nancy Hollander, a lawyer representing Shukri Abu Baker, the charity’s former president and chief executive.
John Boyd, representing the Holy Land Foundation, criticized the role of Israel and said, “American citizens are being prosecuted at the behest of Israel and face many years in prison based on evidence supplied by Israel.”
Contents of the evidence binders provided by Israel have not been disclosed, but court records make clear that they are considered sensitive.
During one hearing, for example, prosecutors revealed that the Israeli government retained control over what specific intelligence materials the U.S. could use publicly. And Justice Department lawyers traveled to Israel this year to negotiate what could be disclosed in court, prosecutors acknowledged.
The case already was complicated by reliance on classified information developed by U.S. intelligence sources. Earlier this year, the government’s case was stung by the unintended release of some of those classified documents to defense lawyers. A bid by prosecutors to compel return of those records was rejected by a federal judge.
The degree of secrecy surrounding prosecution of Holy Land makes it difficult to assess the strength of the government’s case.
Court records available to the public show that Israeli intelligence is central to a claim that the charity specifically earmarked money for the families of suicide bombers. That allegation was based on records seized in an Israeli raid on Holy Land’s Jerusalem offices a decade ago.
U.S. prosecutors allege that Holy Land officials dispensing aid favored the relatives of terrorists. Such a practice “effectively rewarded past, and encouraged future, suicide bombings and terrorist activities” by Hamas, according to the federal indictment.
The Justice Department also accused the charity of supporting terrorists by helping zakat committees, the Muslim equivalent of grass-roots social-welfare programs.
Attorney Boyd said Holy Land was never warned of such terrorist ties.
“Our government maintains a very long list of people and organizations that are affiliated with terrorism, and none of the organizations that the Holy Land Foundation is accused of working with has ever been on that list,” Boyd said.
Holy Land’s charitable gifts, transferred in the form of international wire transactions, records show, are part of the evidence acquired by federal investigators. However, allegations that the recipients have links to Hamas appear to rely heavily on information provided by Israel.
Some of the potential prosecution problems with the Israeli intelligence are reflected in earlier court filings.
For example, an FBI memo noted that a Jerusalem office manager for Holy Land supposedly told Israeli authorities that charity “was channeled to Hamas.”
But defense lawyers countered that the translation from Arabic to Hebrew to English distorted the official’s statement and that he should have been quoted as saying, “We have no connection to Hamas.”
Attorneys have disputed other interrogation translations as well. But the most intriguing disagreement may center on the meaning of a single word: “martyr.”
Among documents cited by the government is an “orphans book” seized by FBI agents from Holy Land’s headquarters here. It includes the photos of about 400 Palestinian youths, most of them in Gaza, who received financial aid from the foundation.
A review by The Times found that 69 of the youths were listed as the sons and daughters of “martyrs.”
In much of the West, the term has come to be synonymous with suicide bombers. But others, including Holy Land defenders and Middle East scholars, say “martyr” can be applied to rather common accidents and incidents.
In a sworn statement, the former head of Holy Land’s Gaza office, Mohammed Abumoharram, said social workers who interviewed all the families of the so-called martyrs found that four died making bombs and a dozen others were killed in clashes with Israeli troops. However, he said in his statement, others included victims of a robbery, a heart attack, a prison fight, a car accident and a stray bullet.
Most strikingly, eight of the so-called martyrs reportedly were suspected Israeli collaborators, killed by fellow Palestinians for helping Israel.
“What I can say without any question is that there are many orphans whose fathers are called ‘martyr’ who were not guilty of any acts of terrorism on behalf of Hamas or anyone else,” he said.
Israel’s involvement in the case was first noted by the original federal judge considering Holy Land’s appeal of its shutdown. In a July 2002 hearing, U.S. District Judge Gladys Kessler asked a federal prosecutor how much of the government’s large administrative record came from the Israeli government.
The government lawyer said it would be “difficult” to quantify, but she acknowledged that “an abundance of intelligence” came from the Israeli government.
Such reliance on a foreign intelligence agency poses other obstacles in U.S. criminal court proceedings.
For example, who is likely to testify to validate the intelligence data as evidence?
“If you are talking about Israeli intelligence officials testifying or providing information, then you have serious hearsay problems, serious bias problems,” said Georgetown University law professor David Cole.
“And I think it could be very questionable as to whether that evidence could be introduced.”