Repercussions and Recourse for Specially Designated Terrorist Organizations Acquitted of Materially Supporting Terrorism
Nichols, Grant, The Review of Litigation
On October 22, 2007, U.S. District Judge A. Joe Fish declared a mistrial in what had been labeled one of the most important terrorist financing cases the United States had brought since the attacks of September 11, 2001. The charges stemmed from allegations that the Holy Land Foundation for Relief and Development (Holy Land Foundation) had materially supported the Palestinian terrorist group Hamas.2 Before the mistrial in United States v. Holy Land Foundation for Relief & Development, the government was optimistic about its chances of proving that the Holy Land Foundation materially supported Hamas.3 Indeed, up to that point, the number of successes in such cases had far outweighed the defeats.4 With such a dramatically different result, however - and with little indication that most of the 197 charges brought against the Holy Land Foundation and its directors would lead to future convictions - the case not only called the government's ability to prosecute those who materially support terrorist organizations into question, but many critics suggest that it has also raised red flags about the process by which such cases are brought.
The result in the Holy Land Foundation case-along with two other unsuccessful material support prosecutions in Illinois and Florida-begs the question as to what happens next to a charitable organization that was acquitted of materially supporting terrorism, but still has its assets and operations frozen for being a Specially Designated Global Terrorist (SDGT). Such an inquiry is especially relevant because, unlike a more traditional criminal trial where the defendant is simply free to go upon acquittal, an organization like the Holy Land Foundation, after failing to be convicted for materially supporting terrorism, is still shackled by the SDGT label, which precludes it from accessing its assets or engaging in charitable enterprises. Because there are so few cases in which organizations have been acquitted of materially supporting terrorism, there has been virtually no examination of what organizations like the Holy Land Foundation might do if they are cleared of such charges.
If upon retrial the Holy Land Foundation is acquitted, questions about the future of me Holy Land Foundation will certainly be raised.6 For example, after failing to convict the Holy Land Foundation of materially supporting terrorism, may the government continue to hold funds raised by the Holy Land Foundation for charitable causes? Can me Holy Land Foundation bring suit against the United States for damages, including financial losses associated with having its assets frozen, it sustained as a result of being labeled an SDGT? Even if the Holy Land Foundation cannot recover damages for its losses, does the Holy Land Foundation have any recourse to reacquire the funds that were previously frozen? Finally, if the Holy Land Foundation, or another similar organization, is acquitted of charges of materially supporting terrorism, may it seek to be removed from the SDGT list so that it may engage in future lawful charitable giving? Given the recent difficulty the government has had in prosecuting material support cases and the importance of charitable giving to the Muslim community,7 the answers to these questions have important consequences to Muslim charitable organizations and the United States' effort to curb terrorist financing.
This Note addresses these questions and determines what possible outcomes might result if an organization in the Holy Land Foundation's situation sought to recoup losses, by various methods, as a result of being acquitted of materially supporting terrorism charges. In Part II, this Note will examine the legal and factual background related to the Holy Land Foundation's case, including the process of designating an organization as an SDGT, the implications of such a designation, and how the designation relates to the criminal charge of materially supporting terrorism. …