By Downs, Stephen; Manley, Kathy
Washington Report on Middle East Affairs , Vol. 32, No. 1
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 terrorism.
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 offthe 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 opposed it.
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. …