Five defendants accused of channeling at least $12 million to Hamas after the organization went on America’s list of terrorist groups in 1995 have been convicted by a federal jury in Dallas on all 108 counts named in the indictment.  The Dallas Morning News provides a good summary of the history of the federal prosecution, the key elements of the case, reactions from a crowd of 150 well-wishers, and dozens of conflicting comments from interested readers.  Bob Ray Sanders, a columnist with the Fort Worth Star-Telegram, has interviewed Greg Westfall, one of the attorneys representing the Holy Land defendants.  Sanders’ conclusion is reflected in his column’s title: “Holy Land Five convictions mark sad day for American justice system.”

I have been following the “Holy land Foundation for Relief and Development” case for several weeks because it raises fundamental questions about the American system of justice.  I don’t know enough about the guilt-inncence issues to comment intelligently, but it appears the government has made a strong case that the Holy Land Foundation channeled money to Hamas in the full knowledge that the organization had been declared a terrorist organization by the United States government.

Unresolved is the question of intent. 

All five defendants grew up in the West Bank and were well acquainted with the crushing poverty and squalid living conditions for which Palestine refugee camps are infamous. 

In addition, these men were intimately related to a variety of Hamas-friendly clerics and aid workers in Palestine.  The Holyland Foundation was clearly pro-Palestinian and anti-Israeli, to the point that they may have supported the terror campaign Hamas has been waging against Israel for decades.   

Although most of the money donated through the auspices of the Foundation was used to provide food, schools and hospitals, it appears that a portion of the donated money went to support the families of suicide bombers and may have supported the terrorist campaign in more direct ways. 

Finally, it is entirely possible that the five defendants are every bit the kind-hearted, gentle, family-oriented people their supporters make them out to be.

Much depends on who is allowed to tell the story.

Told from the government’s perspective, the facts are damning.  Giving money to Hamas has been a crime in the United States since 1995.  According to the Clinton and Bush administrations, every dollar donated to Hamas, regardless of the intent of the donor, was legally considered to have supported terrorism. 

In post-9-11 America no one wants to stand up for accused terrorists. 

The government’s first bite at this apple ended in a mistrial, but that was largely because prosecutors confused jurors by inserting too much weak evidence into the prosecutorial mix and by indicting too many defendants with only peripheral involvement.  This time, prosecutors went with their strongest evidence and prosecuted only the central players.

I approach this case with extreme caution.  Although I write in my own name, I am also the primary mouthpiece for Friends of Justice.  I have pro-Palestinian activists on my board and I also have Jewish members who are pro-Israel without being anti-Palestinian.  These people understand the issues far better than I do, and I don’t want to place them in a difficult position by speaking hastily and in ignorance.  As an evangelical Christian, I have my own baggage and biases.  For the record, I have been heavily influenced by Jimmy Carter’s take on the issue. 

Simple justice demands that we look at criminal cases from the perspective of the prosecution and the accused.  We need good prosecutors and reform activists should be thankful for the good men and women who protect society by holding bad guys accountable. 

But what do we do when convicted defendants are good people guided by a worldview that diverges widely from the American mainstream?

It appears that the Holyland Foundation folks were sincerely distressed by the poverty and despair in which they were raised.  Their desire to help the suffering was genuine.  If you want to help poor Palestinians in the West Bank, Hamas is pretty much the only game in town–who else ya gonna call? 

When Hamas was placed on the American list of terrorist organizations, the Holyland people faced a moral dilemma: do we stop giving aid to our people (thus abiding by the law), or do we continue chanelling money to the Palestinians (thus breaking the law)?

This case is riddeled with moral ambiguity.  According to the New York Times account, the first witness to reveal the link between the Holy Land Foundation and Hamas had been tortured by Israeli officials.  Fortunately, the government’s case wasn’t built on the testimony of a single witness with severe credibility issues (as in the Alvin Clay case); still, does torture have a legitimate role in the war on terrorism?  The Bush administration thinks it does; I strongly disagree.

Nancy Hollander, one of the defense attorneys representing the defendants, told the New York Times that the convictions will be aggressively appealed. 

“Our clients were not even allowed to review their own statements because they were classified – statements that they made over the course of many years that the government wiretapped,” Ms. Hollander said. “They were not allowed to go back and review them. There were statements from alleged co-conspirators that included handwritten notes. Nobody knew who wrote them; nobody knew when they were written. There are a plethora of issues.”

 The Holyland Foundation case has been hailed as one of the few success stories in the American government’s legal war on terrorism.  We need to follow this case carefully as it moves through the appeal stage; it could well end up before the Supreme Court.

I am also curious to see how the court handles sentencing issues.  Most of the defendants could die behind bars if maximum sentences are handed down.  Is this just? 

That depends on whether  or not you are sympathetic with the defendants.  If national security is the only issue, we should lock up every person accused of terrorism, no matter how weak the evidence, just to be on the safe side.  In fact, it wouldn’t hurt to lock up people like me who take issue with the criminal justice system.  And while we’re at it, we might as well lock up every Muslim in America–after all, you never know.

But, in America, public safety is never the only issue.  Some people belong behind bars.  Do these defendants fit the profile?  If so, how much prison time is appropriate?  Should the federal judge take the intentions of the defendants into consideration, or should the matter be settled on the basis of simple guilt-innocence determinations? 

I will be re-visiting this case as the appeals process unfolds.