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Onward,
Alexander, Jeffrey, Becky and Deva
November
20, 2006
Muslim Charities and the Trial of Dr.
Rafil A. Dhafir
Criminalizing
Compassion in the War on Terror
By KATHERINE HUGHES
"The first question which
the priest and the Levite asked was: 'If I stop to help this
man, what will happen to me?' But ... the good Samaritan reversed
the question: 'If I do not stop to help this man, what will happen
to him?'
Martin Luther King, Jr.[1]
"The truth shall set you
free? Maybe. But first the Truth must be set free."
Wole Soyinka, Nigerian playwright,
educator.[2]
Since the events of 9/11 the government
has implemented powerful new prosecutorial tools to gain convictions
in its War on Terror. In an article entitled, "Terrorist
Financing," Jeff Breinholt, Deputy Chief of the Department
of Justice's Counterterrorism Section, explains these tools and
how they are being used to win convictions.[3]
On page thirty-one of the article
he lists the statutes being used in the criminal prosecution
of terrorist financing and among these statutes is the International
Emergency Economic Powers Act (IEEPA), which Breinholt also labels
as "United States economic sanctions."[4] IEEPA provides
the President of the United States with authority to deal with
any "unusual and extraordinary threat" that has its
source in whole or substantial part outside the United States;
this includes threat to "national security, foreign policy,
and the economy."[5]
Prosecutors armed with the
statutes listed in Breinholt's paper are further empowered by
using them in conjunction with the "material support of
terrorism" laws, Executive Order 13224, and civil asset
forfeiture laws, particularly those under IEEPA, which were amended
by the PATRIOT Act. Under the IEEPA civil asset forfeiture provisions
the government can close down an organization and seize its assets
while an investigation is ongoing, without probable cause of
criminal activity and without any charges ever being brought
against anyone.[6]
E.O. 13224 was issued on September
23, 2001, and introduced a blacklist of organizations and individuals
suspected of terrorism, materially aiding terrorism, or associating
with terrorists. IEEPA and international law permit humanitarian
assistance for these suspects, including food, clothing and medicine,
but this humanitarian aid is outlawed under the E.O. 13224.[7]
The penalty, for an IEEPA violation, for organizations that knowingly
engage in terrorist financing already carries a sentence of twenty
years to life in prison. What this new provision does is "drastically
increase the penalties for knowing violations of non-terrorism-related
IEEPA offenses."[8] People with a concern for civil liberties
are troubled by the fact that the government provides no legal
definition of what they consider a "specially designated
terrorist" and by the broad manner in which the government
is interpreting the new rules.[9]
Muslim charities and individuals
connected with these charities are bearing the brunt of the effects
of this new law.[10] Since September 11, 2001, six major U.S.
Muslim charities and several smaller Muslim charities have been
shut down.[11] And working in close collaboration with the U.S.
government does not provide charities with protection from this
fate. In 2002 a new charity, KindHearts (KH), was established
after the U.S. government had closed the three largest Muslim
charities in the country in December 2001, accusing each of supporting
terror.[12] Despite working closely with government agencies
to ensure it complied with all the new rules, KH has suffered
the same consequences as the other charities. In February 2006,
KH's assets were seized and its operation frozen because of dubious
allegations of financing terror.[13]
In a March 2006 article in
The Washington Post, Laila al-Marayati and Basil Abdelkarim,
board members of Kinder USA, a Muslim-American nonprofit humanitarian
organization said,
"We are among those American
Muslims who decided that because it is our right as Americans
to fulfill our religious obligation to help the needy both here
and abroad, we would start a new charity. We did so in 2002
and have experienced our fair share of government harassment
as a result. None of us is interested in engaging in illegal
activity; it is immoral, unethical and un-Islamic, and it serves
no useful purpose whatever. Our crime is that we care about
what happens to the children of Palestine. Who knows what price
we will have to pay for our hot-breakfast program for hungry
kids in Gaza, for our playground project in the West Bank, for
our psychological trauma center in Hebron."[14] THE EFFECT
ON MUSLIM CHARITY
In a report titled, "Muslim
Charities and the War on Terror," OMB Watch,[15] documented
its concerns about the treatment of Muslim charities and the
people involved with the charities.[16] Among the many concerns
OMB voiced are use of questionable evidence to shut down the
largest U.S.-based charities that has resulted in much needed
humanitarian assistance not reaching people who desperately need
it, use of anti-terrorist financing policies that deny Muslim
charities the right of due process and are unequally enforced,
and holding of organizations and individuals associated with
humanitarian work "guilty until proven innocent."
They conclude that despite the new investigative powers the authorities
have failed to produce evidence of terror financing by U.S.-based
charities.[17]
In May 2005, David Cole, professor
of law at Georgetown University and legal counsel in several
"material support" cases, testified before the U.S.
Senate Committee on the Judiciary about the constitutional implications
of use of these statutes. Speaking about how the statutes impose
"guilt by association" and therefore violate the First
and Fifth Amendments, Cole said,
"The statutes described
above prohibit virtually all associational support to selected
political organizations, while granting executive branch officials
effectively unreviewable discretion to target disfavored groups.
These laws make it a crime to write an op-ed, provide legal advice,
volunteer one's time, or distribute a magazine of any 'designated'
group, even if there is no connection whatsoever between the
individual's support and any illegal activity of the proscribed
group.
"Under these statutes,
an American citizen who sends a treatise on nonviolence to the
Kurdistan Workers' Party to encourage it to forgo violence for
peace can be sent to prison for fifteen years. This is so even
if he proves that he intended the treatise to be used only for
peaceful ends, and that it was in fact used solely for that purpose.
Such a moral innocent can be said to be 'guilty by association."
[18] THE "HELP THE NEEDY" CASE
This is precisely the situation
in which Dr. Rafil A. Dhafir found himself. In direct response
to the humanitarian catastrophe created by brutal sanctions on
Iraq, Dhafir, a man of Iraqi descent and Muslim faith, and an
American citizen for almost thirty years, started the charity
Help the Needy (HTN). According to United Nations (UN) statistics,
every month throughout the 1990s almost 6,000 children under
the age of five in Iraq were dying from lack of food and access
to simple medicines.[19] Three senior UN officials resigned because
of what they considered a "genocidal" policy against
Iraq.[20]
When Madeleine Albright, then
U.S. Ambassador to the U.N., was asked in a CBS interview if
the deaths of half a million children was a price worth paying
to punish Saddam Hussein, she infamously replied, "I think
this is a very hard choice, but the pricewe think the price
is worth it."[21] When the deaths of children over the
age of five and adults are added, the number killed as a direct
result of the sanctions rises to between 1.5 and 2 million dead
civilians.[22]
Dr. Dhafir is a pillar of the
Muslim community in Central New York. He was a founding member
of the local mosque, and he served as the imam at Syracuse University
until they hired a full time imam. He paid a substantial amount
of the running costs of the mosque and provided free medical
consultation to those at the mosque without health insurance.
His medical practice was in Rome, New York, an underserved area
in which he was the sole oncologist. In his practice he provided
free health care to people without insurance, and he paid for
their expensive chemotherapy medicine out of his own pocket.[23]
For thirteen years Dhafir worked
tirelessly to help publicize the plight of the Iraqi people and
to raise funds to help them.[24] According to the government,
Dhafir donated 1.25 million dollars of his own money over the
years.[25] As an oncologist, he was also concerned about the
effects of depleted uranium on the Iraqi population that experienced
skyrocketing cancer rates.[26] For the crime of breaking the
U.S. and U.K. sponsored UN sanctions on Iraq and sending humanitarian
aid to sick and starving civilians, Dhafir was held without bail
for thirty-one months and then sentenced to twenty-two years
in prison.[27]
Since the day of Dhafir's arrest,
February 26th, 2003, when eighty-five agents went to his home,
government officials at national and state levels have portrayed
Dhafir's humanitarian work as support of terrorism.[28] Simultaneous
to Dhafir's arrest, between the hours of 6 a.m. and 10 a.m.,
others associated with HTN were arrested in Syracuse, New York;
Boise, Idaho; and Amman, Jordan. At the same time about 150,
mainly Muslim, families who had donated to HTN were interrogated
by government agents.[29] On the same day, Attorney General John
Ashcroft announced that supporters of terrorism" had been
apprehended, a completely unfounded assertion that was reiterated
by New York Governor George Pataki in August 2004, just prior
to the start of Dhafir's trial.[30]
At the same time, and throughout
the trial, local government officials, the prosecutors and District
Attorney, denied that the case had any connection to terrorism
and instead portrayed Dhafir as a common thief.[31] District
Attorney Glenn Suddaby said: "there's no evidence that any
of the Help the Needy money went to al-Qaida, the Iraqi government,
or to buy arms and bullets that could be used against U.S. soldiers."[32]
The inconsistencies in the
government's position have been a startling feature of this case
from its inception, and they suggest two possibilities: either
one hand of the government doesn't know what the other is doing
or the government is aiming deliberately to deceive. No media
outlet has challenged the government directly and demand that
it provide an explanation for its contradictory assertions, although
Michael Powell of the Washington Post drew attention to them
shortly before the trial began:
"There is a shadow-boxing
quality to the terror allegations lodged against Dhafir. In August,
Gov. George E. Pataki (R) described Dhafir's as a 'money laundering
case to help terrorist organizations . . . conduct horrible acts.'
Prosecutors hinted at national security reasons for holding Dhafir
without bail. But no evidence was offered to support the allegations."[33]
Despite Pataki's pre-trial
announcement, which was perfectly timed to reach potential jurors,
the prosecution successfully petitioned Judge Norman Mordue not
to allow the charge of terrorism to be part of the trial.[34]
Not surprisingly the specter of terrorism hung over the trial
throughout the proceedings, and prosecutors could hint at more
serious charges but the defense lawyers were never allowed to
follow this line of questioning.[35]
Dhafir's seventeen-week court
case was conducted as a sixty-count case of white-collar crime
with no charges of terrorism, and as a direct result of this
only the local Syracuse newspaper, the Post Standard, covered
the proceedings. The paper proved to be little more than a mouthpiece
for the government; on the rare occasion that it did provide
coverage of cross examination, it immediately followed with a
re-statement of the charges in the indictment.[36] During the
seventeen weeks of daily coverage of the proceedings the paper
failed to give more than a passing mention to an ecumenical group
that met every morning outside the federal building to worship
for half an hour before the trial commenced at 8.30 a.m., or
to the ACLU court watchers who were present in court every day.[37]
Concern has been expressed about reporters being embedded in
war zones; there should be equal concern about them being embedded
in federal buildings.
Of the sixty counts in the
indictment, most were related to breaking the sanctions: conspiracy,
mail and wire-fraud, money laundering, and tax evasions. These
charges are easily explained when viewed in the context of the
sanctions, but the government did everything it could to prevent
the condition of Iraq during the sanctions from being referred
to at the trial.
According to the government,
the investigation of HTN began with a Suspicious Activity Report
(SAR) from a bank. The government encourages financial institutions
to report "suspicious activity" by watching out for
money transfers between related accounts of related entities.
But many non-profit organizations that have nothing to do with
supporting terrorism make these kinds of transfers on a regular
basis.[38] Because of the SAR report seven government agencies
investigated Dhafir and HTN for five years. They intercepted
mail, email, and faxes; bugged his office and hotel rooms; and
conducted physical surveillance.
Because the government was
unwilling to prosecute Dhafir for sanctions-related charges alone,
the last twenty-five counts of the indictment are related to
Medicare fraud. The government evidence for this part of the
case was extremely weak. For example, a bar chart that supposedly
compared the dollar amount of Dhafir's billing of Medicare with
other doctors' billing was completely meaningless. It showed
Dhafir's bar as being very tall and the other doctors' bars being
much smaller, but when the witness was asked by the defense to
say what types of doctors the other doctors were, or what their
geographic location was, she could not answer.[39]
The whole of the Medicare case
revolved around a single rule called "incident to,"
meaning any treatment performed by someone other than the doctor.
The government claimed that Dhafir had filled out the forms
incorrectly, and was therefore entitled to no reimbursement from
Medicare, despite the fact that patients had received treatment
and chemotherapy drugs. The defense contended that even if Dhafir's
office had filled out the forms wrongly, which they did not believe
he had; Medicare had only overpaid 15% of $1102.80--the difference
between what they pay for a doctor's time as opposed to a nurse
practitioner's time--a total overpayment of $166.[40] This was
not fraud but merely incorrect billing. Medicare fraud usually
involves fictitious patients and made-up illnesses; Dhafir's
case had none of this.
The government presented the
Medicare evidence in the same way they presented the evidence
related to the sanctions. After weeks of testimony following
checks from bank to bank, they then turned to day after day of
testimony regarding Medicare forms, asking individuals from Dhafir's
office to validate their signatures on the forms, thus proving
that they had indeed signed the forms, but nothing else.[41]
The defense presented one witness for fifteen minutes, Dr. Edward
Cox, head of the carrier organization that processes claims for
Medicare.[42] Reading from the New York State Handbook Cox confirmed
the defense's contention that in order to bill Medicare under
the "incident to" rule, a non-physician was required
to have a license or training.[43] Thus, according to the handbook,
Dhafir's billing of Medicare was proper.
The Post Standard reported
this testimony correctly the day after it was given, but on the
following day the paper had a front-page correction with a picture
of the witness who was apparently contradicting his testimony
of the day before.[44] And despite the testimony of this witness,
the judge in his "charge to the jury" told them that
under New York law a laboratory technician required a license;
in other words, training alone was not sufficient.[45]
On the day of the sentencing
of Mrs. Dhafir, she was ordered to pay back $62,000 to Medicare.
Mrs. Dhafir worked in the billing department of her husband's
practice with several other people. Asked on the same day how
much of that money had actually been spent on chemotherapy medicine
that was administered to patients, Michael Olmstead, the head
prosecutor, was unable to say. When Dhafir was asked the same
question, he said that 90% of this money had been spent on medicine.[46]
This leaves 10% of the money for the doctor's time, the nurse's
time, and blood work. Dhafir also said that in 2002 Medicare
reimbursed him less than he had spent on medicine alone. A look
at the records would confirm or refute this, but Dr. Dhafir has
been continually denied access to his own records that were taken
from his house and office on the day of the arrest.
Jennifer Van Bergen, a journalist
with a law degree and author of The Twilight of Democracy[47]
has written a two-part article on Dhafir's case entitled "New
American Law: The Case of Dr. Dhafir" and "New American
Law: Legal Strategies and Precedents in the Dhafir Case."[48]
In this article and other writings Van Bergen warns about the
danger of civil liberties being undermined when the government
uses parallel legal tracks not intended to be mixed.[49] She
notes that, as happened in Dhafir's case, conspiracy laws and
money laundering laws used "creatively" with the PATRIOT
Act and IEEPA can be used to construct a vast distorted picture.
Dhafir's case sets a legal precedent and means that others who
provide humanitarian and medical assistance to those in need
could, like Dhafir, end up being put away for the rest of their
lives. THE GOVERNMENT STRATEGY REVEALED
In November 2005, just weeks
after Dhafir was sentenced to twenty-two years in prison for
white-collar crimes, the government presented a lecture to a
group of third-year law students at Syracuse University Law School
in which Dhafir and the HTN case were highlighted. Jeff Breinholt,
author of the article on terrorist financing mentioned above,
and Greg West, one of the Dhafir prosecutors, presented the lecture,
which was entitled, "A Law Enforcement Approach to Terrorist
Financing."[50] The other two Dhafir prosecutors, Michael
Olmstead and Steve Green were also present, along with law school
faculty and representatives from the Institute for National Security
and Counterterrorism (INSCT), a sponsor of the lecture.[51]
The slant of this lecture,
along with Breinholt's 2003 "Terrorist Financing" article,
and the fact that Dhafir and the other HTN defendants are listed
on the FBI's list of "terrorism convictions since September
11, 2001," give credence to the idea that the government's
creative use of parallel legal tracks was a strategy from the
outset.[52]
Breinholt told the students
at this lecture that Dhafir's case had been under-prosecuted.
In the context of the lecture title -- "A Law Enforcement
Approach to Terrorist Financing" -- the implication was
clear. He told students about the statutes being used as powerful
tools for prosecution of terrorist financing and explained that
these tools were not widely known even among prosecutors. And
he voiced a hope that law schools could serve as a kind of farm
system educating students in this new field of law and that this
in turn would create lawyers who would be familiar with and who
could use these new prosecution tools.[53]
He explained that because the
"American public won't tolerate anything less than the rule
of law," creative ways had to be figured out to draft laws
that can be used to prosecute what they are trying to prevent.[54]
According to Breinholt, this task was addressed by a Department
of Justice Terrorist Financing Task Force that came together
to craft ways to apply white-collar expertise to the problem
of terrorism. In his article, Breinholt says:
"Persons cannot be convicted
of the federal crime of terrorism because there is no such crime.
Instead, terrorism crimes have developed in the same manner
as other crimes, policymakers determine what evil (or 'mischief')
should be prevented, and then craft criminal laws that take into
account how such mischief is generally achieved. On occasion,
acts that are criminalized are not ones that should necessarily
be discouraged, if committed by persons not otherwise involved
in the targeted conduct. In such cases, laws are crafted to
criminalize such conduct only when in particular circumstances."[55]
A major tool that emerged from
the work of this task force, Breinholt told students, is the
use of IEEPA violations to gain convictions in terrorist financing
cases. Breinholt said that to convict under IEEPA all that was
necessary was to build a chain of inferences from available circumstantial
evidence.[56]
In Breinholt's article, Dhafir
and other HTN defendants are listed under the heading "Examples
of 'clean money' cases."[57] Listed under this same heading
are Enaam Arnaout of Benevolence International Foundation (BIF);
Sami Al-Hussayen, a graduate student at the University of Idaho,
associated with Islamic Assembly of North America (IANA);[58]
and Sami Al-Arian, a Palestinian professor from Florida.[59]
Later in the article, under the heading, "crimes of terrorist
financing," Breinholt lists the statutes being used in prosecution
of these cases.[60] Statutes under this heading that were used
in Dhafir's case are 50 U.S.C. ss 1701,1702 (IEEPA) and U.S.C.
ss 1956(a)(2)(A), "operating an unlicensed money transmitting
business."[61] One of the Dhafir prosecutors, Mr. West,
explained to the class that one of the biggest frustrations of
his career was having access to intelligence and not being able
to share it.
Neither Breinholt nor West
told the class that these "powerful prosecution tools"
are being used mostly against Muslim charities and individuals
associated with those charities, while violations by large corporations
like Halliburton, which did billions of dollars worth of business
in defiance of IEEPA, go largely unpunished. At the most these
corporations have gotten a slap on the wrist and a fine, but
no individual board member or officer has ever faced prosecution.
[62] And although many non-Muslim charities work in the same
troubled regions of the world as Muslim charities, not a single
non-Muslim charity has been closed.[63] None of this was mentioned
at the lecture.
By hosting this lecture on
Dhafir and HTN, Syracuse University Law School gave credence
to a charge never brought against Dhafir, and in doing so they
became an accomplice in the government's subterfuge. After the
lecture a request was made that the American Civil Liberties
Union (ACLU) court watchers who attended the trial be provided
with "equal time" to speak to the students.[64] Syracuse
Law School Dean Hannah Arterian denied this request.
In testimony given on Capitol
Hill by the U.S. Treasury Department, prosecution of Muslim charity
cases is being used as a model of success in efforts to disrupt
terrorism.[65] However, the testimony often contradicts the actual
rulings in the cases and the testimony fails to acknowledge that
there are no terrorist convictions among any of the cases. At
a 2004 Pace University Law School symposium, Dr. Laila al-Marayati
addressed the way this Treasury Department targeting of Muslim
charities threatens civil liberties, constitutional rights, and
the rule of law for not just Muslims, but for every American,
regardless of creed:
"The ever present threat
of a 'terrorist designation' by the Treasury Department functions
based on the principle of 'guilty until proven innocent.' The
use of secret evidence, hearsay, erroneous translations, guilt
by association and press reports in recent court cases further
erodes the ability of charities to rely on basic assumptions
regarding their constitutional rights, especially when the courts
ultimately favor the government when 'national security' is allegedly
at stake. Over-zealous surveillance tactics of the intelligence
community such as wiretapping, infiltrating organizations by
bribing employees to work as spies (thereby disrupting normal
and lawful humanitarian activities), and engaging in other forms
of harassment - when added to the above bleak picture - will
not only chill, but will freeze completely American Muslim charitable
giving overseas. Perhaps this is the goal of the US government.
However, no one should be fooled into thinking that America
or the American people will be much safer as a result."[66]
LESSONS FROM HISTORY
Writing during the McCarthy
era, Judge Irving R. Kaufman warned, "We are not inclined
to dismiss lightly claims of constitutional stature because they
are asserted by one who may appear unworthy of sympathy. Once
we embark on shortcuts by creating a category of 'obviously guilty'
whose rights are denied, we run the risk that the circle of the
unprotected will grow."[67]
Writing after the Holocaust
Pastor Martin Niemoeller said,
"First they came for the
communists, and I did not speak outbecause I was not a communist;
then they came for the socialists, and I did not speak outbecause
I was not a socialist; then they came for the trade unionists,
and I did not speak outbecause I was not a trade unionist;
then they came for the Jews, and I did not speak outbecause
I was not a Jew; then they came for me--and there was no one
left to speak out for me."[68]
We appear once again to have
entered a dark time in which the civil liberties of a select
group of people are being denied. The message being sent to
Muslim communities across the country is that pillars of their
community can be knocked down without any call for equal justice
from the non-Muslim community. It is incumbent upon each of
us to defend civil liberties for all, not least because "injustice
anywhere is a threat to justice everywhere."[69]
Katherine Hughes began attending the seventeen-week
trial as a court watcher for the ACLU but quickly found that
she could not in good conscience be the uninvolved observer their
organization required. For the last two years she has worked
to achieve justice for Dr. Dhafir. More information can be found
at her website: www.dhafirtrial.net
Donations to the Dhafir appeal
fund can be made to Dhafir Appeal Fund, c/o
Peter Goldberger, Esq., Attorney
at Law, 50 Rittenhouse Place, Ardmore, PA 19003. Write "Dr.
Dhafir Appeal Fund" in the memo line and please note that
donations are not tax deductible.
[2] Teishan Latner, The Quotable
Rebel, p. 359 (Common Courage Press, 2005).
[3] Jeff Breinholt, "Terrorist
Financing," U.S. Attorney Bulletin, July 2003, Volume
51, number 4 (hereafter Breinholt). Page 31 lists the United
States Code provisions used to criminalize "terrorist financing."
[7] For a more detailed description
of the effects of these new regulations, see: Dr. Laila Al-Marayati,
"American
Muslim Charities: Easy Targets in the War on Terror,"
presented on December 3, 2004 at Pace University Law Symposium,
Anti-Terrorist Financing Guidelines: The Impact on International
Philanthropy (hereafter Al-Marayati, Easy Targets).
[11] Laila al-Marayati and
Basil Abdelkarim, "The Crime of Being a Muslim Charity"
(hereafter Al-Marayati, Crime), Washington Post, March 12, 2006.
[12] The three charities closed
down in December 2001, Holy Land Foundation (HLF), Global Relief
Foundation (GRF) and Benevolence International Foundation (BIF).
Al-Marayati, Easy Targets, supra footnote 7.
[13] Al-Marayati, Crime, supra
footnote 11.
[14] Id.
[15] OMB
Watch is a nonprofit research and advocacy organization dedicated
to promoting government accountability, citizen participation
in public policy decisions, and the use of fiscal and regulatory
policy to serve the public interest.
[20] Because of his humanitarian
work, Dhafir was named as the sole honorary member of the Brussels Tribunal
Advisory Committee. Two of the UN people who resigned, Denis
Halliday and Hans Von Sponeck are also members of this committee.
[21] "Punishing Saddam,"
60 Minutes, CBS Television, May 12,1996, quoted in John Pilger,
The New Rulers of the World, p. 63 (Verso, 2002).
[24] A video of a fundraising
event at which Dr. Dhafir spoke was shown at his trial. The
file is 120MB and can be viewed here: (Quicktime
version): (Flash
version).
[25] Katherine Hughes, notes
of Dhafir Trial (hereafter Hughes, Notes.)
[26] See also Dhafir's
address commemorating the nuclear bombing of Hiroshima: .
The statement was made from prison on August 6, 2003, and Akira
Tashiro Discounted Casualties: The Human Cost of Depleted Uranium,
(The Chugoku Shimbum, 2001).
[28] See, for example, Michael
Powell, "High-Profile N.Y. Suspect Goes on Trial: Arrest
Was Called Part of War on Terrorism, but Doctor Faces Other Charges"
(hereafter Powell), for a description of the arrest. The Washington
Post, October 19, 2004.
[29] Other HTN defendants accepted
plea bargains by pleading guilty to breaking the sanctions.
Maher Zagha of Amman Jordan, Dhafir's co-defendant, was characterized
during the proceedings as a fugitive by the government. On the
contrary, he was held for two weeks after his arrest, interrogated
by Jordanian authorities acting on behalf of the U.S., and then
released to go about his normal business. Correspondence with
Maher Zagha and Hughes, Notes, supra footnote 25. [30] Powell,
supra footnote 28.
[31] Hughes, Crime of Compassion,
supra footnote 25.
[35] The jury knew that Dhafir
had been held without bail for 20 months and that it was the
presiding judge, Mordue, who had denied him bail on four occasions.
They also witnessed five Federal Marshals trade off every hour,
approximately 240 times, throughout the trial so that two were
always present in the courtroom. (This was done because Dhafir
would not submit to a strip search on religious grounds.) One
Federal Marshal sat directly behind Dhafir and the other sat
adjacent to the jury near the opposite exit at all times. This
marshal presence was over and above the two regular court guards,
one at each exit. The non-verbal message that this sent cannot
be over-estimated and it undoubtedly helped the government gain
conviction in this case.
[36] See, letter
of Joel Cohen (one of Dhafir's trial lawyers) to the newspaper
about the coverage: , November 15, 2004, and other letters.
[37] Despite the bitterly cold
Syracuse winter a group of between seven and twelve people met
every day with clergy members leading the worship in rotation.
People who responded to the request of the ACLU for court watchers
were also present every day at the trial. There was a core group
of about twelve people, several of whom attended almost every
day of the trial. Experience of the author who attended almost
all of the trial.
[38] Odendahl, Patriot Games,
supra footnote 10.
[39] My witness of the proceedings.
[40] Hughes, Notes, supra footnote
25.
[41] A big screen was available
in the courtroom so that the jury and the public gallery could
see each piece of evidence. Here is a link to a letter written
by Dr. Dhafir in 1993 to Medicare complaining about their ever-changing
rules, about which not even Medicare employees can agree: http://www.dhafirtrial.net/?p=18.
Dhafir was put on a pre-payment flag, meaning Medicare checked
all his billing before paying, after he wrote this letter. Judge
Andrew Napolitano speaks about this tactic of the government
overwhelming juries with evidence. He says: "When prosecutors
seek victory through illegal threatsrather than through
fair negotiation or through the slow methodical presentation
of evidence to a jurythey corrupt the cause they seek to
advance." Andrew Napolitan, Constitutional Chaos: What
Happens When the Government Breaks its Own Laws, p. 152 (Nelson
Current, 2004).
[42] The government presented
their case in minute detail over the seventeen-week period.
Due to a lack of finances (the government had frozen all Dhafir's
money) the defense was able to call one witness for fifteen minutes.
[43] Dr. Dhafir's laboratory
technician had been with him for many years and was highly trained
by Dr. Dhafir himself.
[44] Katherine Hughes, "Dr.
Dhafir
s Trial Concluded Today."
A summary of the last day of the proceedings and this witness's
testimony can be seen here:
[46] From conversations the
author had with Olmstead on June 1st, 2005, and with Dhafir approximately
one week later.
[47] Jennifer Van Bergen, The
Twilight of Democracy, The Bush Plan for America (Common Courage
Press, 2004). [48] Jennifer Van Bergen, "New
American Law," Part 1: and Part
2: (October 8 & 9, 2005).
[58] IANA is a not for profit
religious group registered in the U.S. and it's purpose is purely
religious and educational. See Elaine Cassel, The War on Civil
Liberties: How Bush and Ashcroft Have Dismantled the Bill of
Rights (Lawrence Hill Books, 2004). In a chapter called, "Guilt
by Association: The Muslim Charities," p.p. 87-106, Cassel
speaks about the cases of HLF, GRF, BIF, and HTN.
[59] Mr. Arnaout accepted a
plea bargain by pleading guilty to using BIF donations in providing
boots, tents, uniforms, and an ambulance to units of the Bosnian
army at a time when Muslims in Bosnia were attempting to defend
themselves against the genocidal atrocities of the Serbian army.
He was sentenced to 11 years in jail. More
information: . In July 2004, after being cleared of charges,
Sami Al-Hussayen was deported to Saudi Arabi. In December 2005,
Sami Al-Arian was acquitted of the most serious charges against
him and the jury was hung on other charges. Despite agreeing
to deportation he is still being held by the government.
[60] Breinholt, supra footnote
3, at p. 31. [61] Since Dhafir's conviction under IEEPA and for
operation of an unlicensed money transmitting business in February
2005, he and other HTN defendants have been placed on the FBI
list of terrorism-related convictions since Sept. 11, 2001.
On June 12,2005, The Washington Post listed the HTN defendants
as part of the government list of 330 suspects in terrorist related
charges
27, 2006, the New York Jewish
Times listed Dhafir and other HTN defendants in an article entitled:
"Examples of Terrorism Convictions Since September 11,2001:"
the FBI was given as the source. The
indictment of Rafil A. Dhafir is available here
[62] Barrie Gewanter, director
of ACLU-CNY speaking on "Access" with George Kilpatrick,
WCNY Public Television, Wednesday, October 26th, 11pm. 26th,
11p
[63] Al-Marayati, Crime, supra
footnote 11.
[64] Email from the author
to Dean Arterian (11/27/05) available
here.
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