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New American Law

The Case of Dr. Dhafir

by JENNIFER VAN BERGEN

[Part One of a two-part series. The first part discusses the trial and conviction of Dr. Rafil Dhafir of Syracuse, NY, for having provided aide to Iraqis in violation of the Iraqi Sanctions. The second part places his case in a larger context, discussing DOJ tactics under Bush and illustrating why these tactics should concern us.]

"We now live in a society where the law of the land asserts that delivering aspirin and antibiotics to a pediatrics ward where children are dying from diarrhea is a criminal offense. Likewise handing a plastic harmonica to a child suffering from leukemia. And there are federal judges who will bring the gavel down and sign on the dotted line."[1]


Dr. Rafil Dhafir, an American citizen of Muslim faith and Iraqi descent, had a charity that gave money to help the children in Iraq. Now he faces a twenty plus year sentence for it. Prosecutors say this is justice. The defense says it was a deliberate attempt to intimidate and shut down a tight-knit Muslim community that was not dependent upon American money systems.

The case raises troubling questions about Department of Justice tactics under Bush. Such tactics have long been the subject of concern for civics-minded citizens, although prosecutors will tell you that their work is rather mundane. But since 9/11, the DOJ has adopted new and disturbing variations of prosecutorial overzealousness, targeting disfavored individuals and groups for engaging in First Amendment protected activities.

Although Dhafir was tried only for ordinary white collar crimes, not for terrorism, both Attorney General Ashcroft and Governor Pataki publicly referred to Dhafir as a terrorist. At the outset of the trial, the prosecution requested the judge to rule that attorneys for both sides be prohibited from raising the issue of terrorism.

Now, however, the prosecution has asked that Dhafir’s sentence be based on post-trial judicial recognition that Dhafir is a national security threat. According to the prosecution, asking the judge to consider this factor is simply a logical extension of the charges upon which Dhafir’s conviction was won. The defense is crying foul, however, claiming that the prosecution is trying to get the judge to sentence Dhafir on charges the DOJ was unable to bring at trial.

Dr. Dhafir was once a practicing oncologist in Syracuse, New York who was known for the kind assistance he gave to his patients–and the many occasions he forgave debts for those who were unable to pay. In the mid-1990′s, Dhafir started a charity called Help the Needy to provide funds for medical relief to children in Iraq. His good deeds raised the ire of Saddam Hussein, who, reports go, had him on a "hit list."

One would think that such deeds would make him doubly a hero in the eyes of the American government. Not only did he do good deeds, which formerly was a hallmark of American identity, but he was an enemy of an enemy of ours–so great an enemy purportedly that we waged pre-emptive war against him.

Instead, the DOJ states that they always viewed Dhafir as a common criminal and prosecuted him as such. The monies Dhafir obtained from donors, prosecutors state, went to proselytizing a strict form of Islam in Iraq and towards supporting those who opposed U.S. intervention, not to providing help to the needy.

Is Dr. Dhafir a common white collar criminal or a new type of casualty in the war on terror?

The prosecution’s tactics, along with others in this and other recent indictments and trials, raises deep constitutional issues that should concern Americans.


The Charges: How did Dhafir get from being tried as an ordinary white collar criminal to being called a national security threat?

Dhafir was arrested in February 2003 and charged with a veritable laundry list of crimes: tax fraud, violating the sanctions against Iraq, money laundering, providing false information to immigration, health care and medicare fraud, mail and wire fraud, as well as separate charges of conspiracy to commit some of these acts. He has been held without bail ever since his arrest. The trial began in Syracuse on October 17, 2004 and lasted 17 weeks, ending on February 10, 2005 with a conviction on 59 out of 60 counts. Dhafir’s sentencing hearing is scheduled for October 18, 2005.

According to lead prosecutor Michael Olmsted, the investigation of Dhafir was triggered when a local New York bank noticed suspicious activity in one of his accounts: several hundred checks deposited for just under $10,000. Under federal banking laws, deposits for over $10,000 must be reported to the government, so some people try to avoid the intrusive requirement by moving amounts just under $10,000. But repeated transactions just under $10,000 can also create suspicion.

To the DOJ, the deposits initially suggested money laundering, but further investigation pointed to what they believed was a mail and/or wire fraud scheme. The DOJ believed that Dhafir was using donations he received for medical relief to instead promote a political and religious agenda in Iraq. Not only was this fraud and money laundering, in the DOJ’s opinion, but it violated the Iraqi Sanctions.

Olmsted says that although the Iraqi Sanctions violations constitute the first count, they were the last to be added.

However, according to Katherine Hughes, who sat in court as a New York Civil Liberties Union Court Watcher throughout the better part of 17 weeks of trial, "Dr. Dhafir did not use any of the money in ways other than he had told people how it would be used. The defense went to great lengths to show that money collected in this country was only used in the way that people were told it would be used, for food, medicine etc. (This was done mainly by showing emails, and receipts for food, rice, oil, flour, by the ton.) Some Muslims in this country gave money specifically for things like buying Korans or building mosques and their money would be used for that purpose."

Another Court Watcher, Madis Senner, a CPA and former Wall Street businessman, declares: "The fraud claim is bogus." According to Senner, over 150 Muslims in the Syracuse area were questioned about Dhafir. Senner elaborates: "If [the government] wanted to question the donors about Fraud, then why did they ask questions about the mosque, religious practices, family in the middle east, etc…..Because they were shaking the tree in search of information."

In a move that supports Senner’s suspicions, federal authorities added new terrorism-related counts last week in a separate case against two members of an Albany mosque, apparently attempting to bolster their case by alleging ties to Dhafir.[2]

In any case, in order to prove a fraud case, the DOJ would have to interview donors, which would alert Dhafir to the investigation. Prosecutors felt that once Dhafir found out he was being investigated, he would flee, so they had him arrested on the Iraqi Sanctions violations first and requested that he not be released on bail. The violations of the sanctions against Iraq, according to Olmsted, were merely incidental to the money laundering and it was the mail and wire fraud crimes that the DOJ felt were the core of their case.

The Iraqi Sanctions violations, however, make up the first count of the indictment and it is because of these violations that the prosecution says it is now asking the sentencing court to consider Dhafir as a national security threat, which could be used to increase his overall sentence.

The Iraqi Sanctions violations must therefore be considered as a central feature of the case against Dhafir. It is the prosecution’s use of the national security threat label under the Iraqi Sanctions violations that has caused Dhafir’s supporters to claim that he never had a chance to properly defend himself — since the defense was prohibited from showing what the case was really about or from defending against what supporters claim were repeated insinuations the prosecution made of terrorism during the trial.


The Iraqi Sanctions Violations

The Iraqi Sanctions Regulations fall under the International Emergency Economic Powers Act of 1977 (IEEPA). This is the source of the national security issue in Dhafir’s sentencing.

Under IEEPA, the president may determine that there are conditions of "unusual and extraordinary threat" and make a declaration of national emergency. The threat must be a threat "to the national security, foreign policy, or economy of the United States," and have "its source in whole or substantial part outside the United States."

President George H.W. Bush (Bush I) issued two Executive Orders in 1990 which found that "the policies and actions of the Government of Iraq constitute an unusual and extraordinary threat to the national security and foreign policy of the United States." The Orders prohibited certain activities relating to Iraq, including "any commitment or transfer, direct or indirect, of funds, or other financial or economic resources by any United States person to the Government of Iraq or any other person in Iraq."

Subsequent presidents continued these sanctions through July 2004, when Bush Jr. terminated the emergency with respect to Iraq. Regulations tracking the Executive Orders declared that no United States individual or organization could, except as authorized, "commit or transfer, directly or indirectly, funds or other financial or economic resources to the Government of Iraq or any person in Iraq." These regulations, published January 18, 1991 (the day after U.S. forces launched the Gulf War) by the Office of Foreign Assets Control (OFAC), are known as the "Iraqi Sanctions Regulations." They prohibited export of "goods, services, or technology to Iraq," making exceptions on a case by case basis for "donated medical supplies" if approved and licensed in advance.

IEEPA, as originally written, provided that a violation was subject to a civil penalty not greater than $10,000. A willful violation was subject to a penalty of not greater than $50,000 and ten years in prison, or both.[3] While most IEEPA cases are civil, they may also be criminal, but there have only been a handful of criminal IEEPA convictions other than Dhafir’s in the nearly 30 years since the statute was enacted.

In Dhafir’s case, the original indictment charged him with two conspiracy counts: one to violate the Iraqi Sanctions and the other to launder money. According to the government’s sentencing memo, "The money laundering charges were predicated upon the delivery of money from the United States to Jordan, for the purpose of promoting the IEEPA violation." (Subsequent superseding indictments added the fraud, tax evasion, and other charges.)

Dhafir claims that he made repeated attempts to comply with rules and regulations involving his relief work but was unable to. In one instance, according to court watchers, the defense showed that one of his attempts to comply was actually prevented by actions of the FBI and DOJ. But in any event, others have intentionally violated the Iraqi Sanctions, considering them immoral and unjust, and they have not been criminally indicted. For example, Voices in the Wilderness was recently fined but never prosecuted for violating the Sanctions.

The defense sentencing memo describes the "devastating impact on the Iraqi civilian population" of the bombings by U.S. forces:

"In a period of six weeks, U.S. air power systematically destroyed Iraq’s infrastructure–including its vital life support systems, such as water and food processing plants which included such structures as baby milk powder producing plants and civilian hospitals. By the end of the war, 110,000 aircraft sorties had dropped 88,500 tons of bombs on Iraq, the equivalent of seven and a half atomic bombs of the size that incinerated Hiroshima. In all, twenty-eight civilian hospitals, fifty-two community health centers, six hundred-seventy-six schools, twenty-five mosques and three churches were hit. Along with the toll on the infrastructures, the war came at the price of 150,000 Iraqi and 148 U.S. lives."

The U.S. continued further bombings and its embargo following these attacks. It was against this backdrop, the defense states, "that Dr. Dhafir was moved to render aid to the Iraqi people."

While other individuals who have been prosecuted for protesting against the present invasion of Iraq have argued that their actions were authorized by the Nuremberg Principles of international law, which provide that "individuals have international rights and duties to prevent crimes against humanity which transcend the national obligations of obedience imposed by the individual state,"[4] it does not appear that Dr. Dhafir’s attorneys offered such arguments at trial. Nor does it appear that they argued the defense of necessity, which provides that the harm caused by the defendant, if any (in Dhafir’s case: the IEEPA violation), was far smaller than the harm he was trying to prevent (the suffering and death of millions of Iraqi civilians).

The prosecution’s request for an enhanced sentence on the grounds that Dhafir presents a national security threat — because IEEPA by definition involves a national security threat–makes sense when you look at it from the prosecution’s point of view. It is simple logic. IEEPA = declaration of national security threat; conviction of IEEPA = enhanced sentencing as national security threat. And the case law cited in the sentencing memo appear to support this deduction.

The defense, however, claims that the DOJ is trying to win a case at sentencing that they could not win at trial. Defense claims that Olmsted requested that terrorism not be raised at trial because he did not want the defense to be able to delve into what they believe is the real reason why the DOJ went after Dhafir: the DOJ believed (but could not prove) he was a terrorist. The DOJ could not win a terrorism case, so they won the easier IEEPA/money laundering/ fraud case, but they are still trying to have Dhafir punished as a terrorist.

Punishing an individual for a crime for which he was not tried and against which he did not have an opportunity to defend himself, violates the Sixth Amendment right to "be informed of the nature and cause of the accusation; to be confronted with the witnesses against him" and to "call witnesses in his favor." In other words, the right to defend oneself against accusations.

Some believe that the prosecution’s post-trial "national security threat" argument punishes Dhafir by in essence rewriting history. They say that the prosecution wants to punish Dhafir for having allegedly met with persons who only later became enemies of the U.S. Although not raised during the trial, the prosecution made mention in their sentencing memo of alleged meetings in Pakistan in the 1980′s between Dhafir and members of the mujihadin who at that time was supported and funded by the U.S. The defense claims that the prosecution improperly raised this during sentencing in order to raise the specter of terrorism that they could not raise at trial.

Because of this move by the prosecution, the defense filed requests for prosecutors to provide proof of their claims that Dhafir posed a national security concern.

Consequently, the judge put off Dhafir’s sentencing, which was scheduled for Monday, August 28, until October 18.


Terrorism or National Security Threat: Ex Post Facto Law & Rewriting History

The prosecution’s tactic of raising this issue post-trial resembles two constitutionally prohibited legislative practices. It is worth looking briefly at these practices for what they reveal about the true underlying nature of these tactics.

The first is called "ex post facto" law. Article 1 of the U.S. Constitution forbids the enactment of "ex post facto" ("after the fact") laws. According to one court, an ex post facto law is: "every law that makes an action done before the passing of the law and which was innocent when done to become criminal and punishable as such; every law that aggravates a crime or makes it greater than when it was committed; every law that changes and inflicts a greater punishment; and every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." (Hill v. State, 171 S.W.2d 880 (Court of Criminal Appeals of Texas, 1943); quoted in Barron’s Law Dictionary (ed. Steven H. Gifis), 3d Ed., 1991.)

The Justice Department is engaging in a quasi-legislative practice that resembles ex post facto law. It is as though the prosecution is suggesting (without saying) that, even though Dhafir’s meetings with the mujihadin were innocent and lawful at the time he had them, because those meetings would not be innocent and lawful now (because he met with future terrorists), he should be viewed as a terrorist himself. In other words, although the specific action of meeting with those individuals was legal then, the fact that it would be illegal now should apply "ex post facto."

Thus, while the defense argues that this prosecution tactic is improper innuendo, is it in fact far more than that: it is tantamount to a quasi-legislative unconstitutional ex post facto enactment.

The second constitutionally prohibited practice that the Olmsted post-trial tactic bears a small but ominous resemblance to is the so-called "bill of attainder." A bill of attainder, also prohibited in Article I of the Constitution, is a legislative act, in any form, that applies to a specific named individual in such a way as to inflict punishment on him, and him alone, without a judicial trial.

The Department of Justice has, by its history rewriting method, created something resembling a bill of attainder against Dhafir. Although Dhafir had a full trial (which the prosecution would be quick to point out), he was not tried for (nor could he defend against) the "bill" the prosecution proposes now against him at sentencing.

The DOJ has committed quasi-legislative acts and made new law out of a mixing of existing laws, a series of executive orders and regulations, misinterpreted religious practices (as we show below), a topsy-turvey retelling of history, and a disjointed arrangement of time. They have applied this new unnamed prohibition to a single man long after the acts took place.

Of course, such arguments would probably not have helped the defense, primarily because they apply to legislative not prosecutorial acts, but the comparisons serve to remind us all of some crucial American principles of justice. The Sixth Amendment promises each and every one of us an opportunity to defend ourselves at trial. The Olmsted method of post-trial prosecution violates this tenet. Facts that are not raised at trial should not be raised later to deprive a man of his liberty, or no man or woman will be safe from tyranny.


A Tapestry of American Misinterpretation

In order to make their Iraqi Sanctions case against Dhafir, the prosecution wove together Muslim practices of giving into a tapestry of American misinterpretation and misconstruction. These acts of giving are bedrock principles of the Muslim religion.

Islam requires Muslims to perform each of the Five Pillars of Islam. Zakah (variously transliterated as Zakat or Zagat), one of the Five Pillars of Islam, is obligatory charity. It is an act of worship and spiritual investment and has a deep humanitarian and social-political value. "The recipients of Zakah are: the poor, the needy, the new Muslim converts, the Muslim prisoners of war (to liberate them), Muslims in debt, employees appointed to collect Zakah, Muslims in service of research or study or propagation of Islam, and wayfarers who are foreigners in need of help."[5] Dawaa is a form of Zakah that literally means "an invitation." Most often it means to invite people to understand Islam. The Quran says: "Invite all to the way of your Lord with Wisdom and beautiful advice." (Quran 16:125)
The prosecutors in Dhafir’s trial argued that his dawaa was a form of religious proselytizing, not a form of providing relief to the needy. But for Muslims, providing relief to the needy and helping them to understand Islam are part of the same act. Much was made by the prosecution of Dhafir’s words, recorded during a wire tap, that religious teaching, not providing relief, was the primary purpose of his fund-raising. But, to Muslims the act of religious teaching IS the higher purpose of providing relief. Relief itself without the religious motive is inadequate. And providing relief is part of the religious act.

Thus, Dhafir’s relief work was twisted by the prosecution into an American definition of support of a political and religious agenda in Iraq in order to fit the crime under IEEPA.

Further, the prosecution has argued that Dhafir should have known that the religious and political agenda that he was supporting was opposed to the future interests of the U.S. Good behavior of a model citizen for a good cause is now a national security crime.

However, more important even than these details–which in themselves point to troubling violations of constitutional guarantees–are the larger trial strategies increasingly being used by the Department of Justice to take people off the streets who are not criminals. These tactics have been used against Greenpeace, Lynne Stewart, and peaceful street activists. Most recently they have been used against animal rights activists, and several groups of anti-war protestors: "St. Pete’s for Peace, and "The St. Patrick Four."[6] These tactics point to an increasing executive tendency to disregard any rights and laws that do not promote its unilateral agenda of executive dominance and power.

[End Part One. See Part Two tomorrow.]

JENNIFER VAN BERGEN, J.D. is author of "The Twilight of Democracy: The Bush Plan for America," a constitutional analysis for the general public of the PATRIOT Act and other legislation and executive orders. She writes commentary frequently for Counterpunch and is a reporter for Raw Story . She can be reached at jvbxyz@earthlink.net.

[1] David Smith-Ferri, "The Law of the Land: Judge John Bates upholds $20,000 fine against Voices in the Wilderness" .

[2] http://timesunion.com/

[3] This is the language in the original legislation. OFAC subsequently informed at least one organization that "Criminal penalties of violating the Regulations range up to 12 years in prison and $1 million in fines. Civil penalties of up to $250,000 per violation may be imposed administratively by OFAC." See Smith-Ferri’s article cited in footnote 1 above.

[4] See Bill Quigley, "The St. Patrick’s Four and Resistance to the War in Iraq" (March 17, 2005).

[5] http://www.usc.edu/dept/MSA/fundamentals/pillars/intropillars.html

[6] After acquittals in state court jury trial, the DOJ charged the St. Patrick’s Four with a federal conspiracy charge punishable by up to six years in federal prison and a $250,000 fine. After a rousing closing statement by human rights attorney Bill Quigley, the jury acquitted the Four of the federal conspiracy charge and convicted them of only the misdemeanor charges. See http://rawstory.com/ .


























CLARIFICATION

ALEXANDER COCKBURN, JEFFREY ST CLAIR, BECKY GRANT AND THE INSTITUTE FOR THE ADVANCEMENT OF JOURNALISTIC CLARITY, COUNTERPUNCH

We published an article entitled "A Saudiless Arabia" by Wayne Madsen dated October 22, 2002 (the "Article"), on the website of the Institute for the Advancement of Journalistic Clarity, CounterPunch, www.counterpunch.org (the "Website").

Although it was not our intention, counsel for Mohammed Hussein Al Amoudi has advised us the Article suggests, or could be read as suggesting, that Mr Al Amoudi has funded, supported, or is in some way associated with, the terrorist activities of Osama bin Laden and the Al Qaeda terrorist network.

We do not have any evidence connecting Mr Al Amoudi with terrorism.

As a result of an exchange of communications with Mr Al Amoudi’s lawyers, we have removed the Article from the Website.

We are pleased to clarify the position.

August 17, 2005