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Mistrial in Dallas “Flagship” Terrorism Financing Trial

Holy Land Photo.

A mistrial was declared in Dallas yesterday in the Government’s “flagship” terrorism financing prosecution of a Muslim charity. With 197 counts to choose from and after two months of trial and 19 days of deliberation, there were no convictions on any of the counts for the five alleged leaders of the organization.

The case, involving the Holy Land Foundation for Relief and Development and five of its backers, is the government’s largest and most complex legal effort to shut down what it contends is American financing for terrorist organizations in the Middle East.

President Bush froze the groups’ assets in 2001. He claimed they were a pipeline to Hamas. The indictment, however, didn’t charge the group with financing terror efforts.

Instead, the prosecution said, the foundation supported terrorism by sending more than $12 million to charitable groups, known as zakat committees, which build hospitals and feed the poor.

Prosecutors said the committees were controlled by Hamas and contributed to terrorism by helping Hamas spread its ideology and recruit supporters. The government relied on Israeli intelligence agents, using pseudonyms, to testify in support of this theory.

The jury was having none of it.

In the verdict, the jury said it failed to reach a decision on any of the charges against the charity and two of its main organizers, but acquitted three defendants on almost all counts.

The Government intends to retry the case. Perhaps it should first listen to some of the jurors:

Juror William Neal, 33, who said his father worked in military intelligence, said that the government’s case had “so many gaps” that he regarded the prosecution as “a waste of time.”

What went wrong with the Government’s case?

David D. Cole, a professor of constitutional law at Georgetown University, said the jury’s verdict called into question the government’s tactics in freezing the assets of charities using secret evidence that the charities cannot see, much less rebut. When, at trial, prosecutors “have to put their evidence on the table, they can’t convict anyone of anything,” he said. “It suggests the government is really pushing beyond where the law justifies them going.”

If there was a scintilla of evidence those contributions helped finance a suicide bombing or other terrorist activity, the Government would have provided it. It didn’t because it didn’t exist. Instead, they prosecuted organizations based on their beliefs and associations.

Secret evidence has become a hallmark of the Bush Administration. Foreign nationals are whisked off on Ghost Air to other parts of the world where they are held in secret and subjected to interrogation practices so severe, like waterboarding, that even Attorney General Nominee Mike Mukasey tumbled over his words as he struggled for legal platitudes to distinguish it as an acceptable technique that did not amount to torture.

I’ll admit I’m not the one to sing the Justice Department’s praises, even on a good day. (You’ve all got Jane, Christy, Marcy and Looseheadprop to do that far better than I can.) But at least the Justice Department used to stand up for civil rights and the constitutional principles on which this country was founded. Now, it’s just another shill for the fear-mongerers. Be afraid of the big, bad terror financiers who collect charitable contributions to send to the poor and needy in their homelands.

As for Mukasey, he undoubtedly realizes he’s now jumped to the dark side where the Government conducts both enemy combatant hearings and trials before military tribunal commissions using evidence that has been withheld from the detainees and their lawyers. Where federal defendants in terror trials are prohibited from learning whether the evidence used to prosecute them was obtained by warrantless NSA surveillance.

Once Mukasey refused to say that waterboarding is torture, he lost his way home. I can just picture him leaving the confirmation hearing. He’s got a piece of the waterboard stuck on the sole of his shoe, like you know what, and no matter how many times he tries to scrape it off, it’s still there. The piece won’t leave Muckasey. It’s there to remind him that he’s one of them now. He’s solid with the Administration’s refusal to promise to discontinue waterboarding. Mukasey has no more robes to hide behind as he did in New York as a federal judge. He’s in too deep now. Once he’s confirmed, Mukasey will be front and center at DOJ public hearings and meetings, justifying the Bush party line and policies so many Americans find abhorrent.

Outside the courtroom, things will be no easier for Mukasey. He’ll be meeting with a frustrated Congress through the wall of secrecy the Bush Administration erected when it refused to turn subpoenaed documents over to Congress. Documents that relate to the U.S. Attorney firings, the missing RNC e-mails and voter suppression. Mukasey is stepping into the Lion’s den and by all appearances, seems to accept his fate. I have an uneasy feeling that my future posts about Mukasey will be accompanied by a graphic showing him tethered to a ball and chain.

So if you’re thinking that cooler heads will prevail at the Department of Justice once Mukasey is installed and the Holy Land case may be laid to bed where it belongs, don’t get your hopes up. It’s looking to me like we have another case of “Meet the New Boss, Same as the Old Boss” on our hands.

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Jeralyn Merritt

Jeralyn Merritt

Jeralyn is a Denver-based criminal defense attorney. She writes daily at TalkLeft: the Politics of Crime .