Terrorism in our courts

By Tom Durkin
Published February 8, 2007

Something very, very important happened in this town last week.

A federal jury acquitted two Muslims of the most serious charges in an alleged "terrorism" case that at one time in the government's heralded "war on terror" was so important that none other than then-Atty. Gen. John Ashcroft himself saw fit to hold a news conference in Washington with Chicago U.S. Atty. Patrick Fitzgerald announcing the indictment's return in 2004. At the time, Ashcroft said that these two men "played a substantial role in financing and supporting international terrorism ... [and] took advantage of the freedoms of an open society to foster and finance acts of terror. "

Fitzgerald's office then promptly proceeded to announce that it would prove its case by attempting to introduce a purported confession that defendant Muhammad Salah gave in Israel to Israeli authorities after 80 days of interrogation in an Israeli prison in 1993.

When Salah's lawyers challenged the use of this purported confession as the byproduct of Israeli torture tactics, Fitzgerald's office promptly asked U.S. District Judge Amy St. Eve to close her courtroom to the public so that it could present the testimony of some of the Israeli agents in a secret proceeding. Not only would the courtroom be closed, but the Israeli agents would be permitted to testify in disguises with code names. St. Eve granted the government's request and conducted weeks of testimony in her courtroom that was completely shut off from the public. Black crepe paper was used to cover the windows in her courtroom doors and federal agents, along with a bomb-sniffing dog, barricaded the hall outside her courtroom. Two CIA-looking types in suits and headphones sat in the corner of her courtroom with a table full of electronic equipment, supposedly scrambling any attempt by the participants in the hearing to filter information out of the courtroom.

St. Eve also had no problem at the end of the hearing permitting the government to introduce the confession at trial notwithstanding considerable evidence presented in the hearing with respect to torture tactics that were in place and regularly used by the Israeli secret police. She accepted the government's argument that the Israeli secret police decided not to use their torture tactics against Salah because he was an American.

So much for the "freedoms of an open society" Ashcroft was so concerned about.

Fortunately, and to the surprise of many, the jury had the courage to preserve what is left of the freedoms of an open society Ashcroft and his cronies in the Justice Department and the White House have left us with since Sept. 11, 2001. This jury had the courage and integrity not to fall for the government's much abused "terrorism" rhetoric and call this case for what it was worth--which was virtually nothing. The government was left with minor perjury and obstruction charges that Fitzgerald's office is now trying to claim with a straight face is a victory. This verdict is, indeed, a victory but it is a victory for all of us, not the government. It is a victory for anyone who cares about the freedoms of an open society that Ashcroft attempted to dismantle--from the expansive use of the USA Patriot Act, the National Security Agency illegal wiretapping, Guantanamo Bay, foreign extraordinary renditions, and a virtual disregard of civil liberties in this country in the name of the "war on terror."

What should also not be lost on anyone is the extraordinary effort of the Muslim-American communities in Chicago and Virginia that rallied around the Salah family and his co-defendant, Abdelhaleem Ashqar. To fight the government in the face of potential life sentences is no small effort unto itself. It's even more daunting to raise the money it takes to bring in lawyers who are talented enough to attempt to level the uneven playing field the government gets in its federal courts these days. If it takes a village to raise a child these days, it truly takes a community to stand up to the government. We should all take note as a community and pay attention before it is too late.

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Tom Durkin, an assistant U.S. attorney in Chicago from 1978 to 1984, is a federal criminal defense lawyer.. He was at one time an attorney for Abdelhaleem Ashqar. He did not participate in the trial.

DAILY SOUTHTOWN

The Accused

February 1, 2007

Mohammed Salah

Born in Jerusalem, Mohammed Salah eventually settled in Bridgeview and has held jobs including car salesman, store owner, college teacher and van driver.

Mohammed Salah
(Daily Southtown file photo)

Abdelhaleem Ashqar

He's also held the distinction of being the only U.S. citizen designated an international terrorist by the U.S. government. In a confession to Israeli agents, revelations he claims were coerced, Salah said he was recruited into the Muslim Brotherhood ” widely viewed as a precursor to Hamas ” by the Imam of the Bridgeview mosque, Jamal Said, in the 1980s. In a matter of years, he allegedly rose to a top rank as the U.S.-based military leader of Hamas. His 1993 arrest in the West Bank, where he was accused of delivering large sums of cash to Hamas fighters, thrust his name into headlines around the globe, and it's been in and out ever since. He pleaded guilty to charges in Israel and returned to Bridgeview after spending more than four years in prison there.

Salah, 53, and a collection of other alleged south suburban Hamas fundraisers were targeted in a federal lawsuit that ultimately led to a $156 million judgment in favor of the parents of a Jewish teen killed in a 1996 West Bank terrorist attack.

In 1998, federal prosecutors went to court to seize $1.4 million in assets they claimed Salah meant to funnel to Hamas. Newly revealed court documents show prosecutors were prepared to settle the case in July 2001 under an agreement that would have let the government keep the cash and Salah keep his Thomas Street house.

But the Sept. 11 terrorist attacks two months later changed the playing field and the long-running federal probe into Salah's past, dubbed Vulgar Betrayal, was reincarnated.

In August 2004, then-U.S. Attorney General John Ashcroft held a Washington news conference to announce terrorism charges against Salah.

Free on bond, Salah has remained essentially under house arrest in a modest home that prosecutors have noted is just a stone's throw from the mosque where he allegedly was first drawn into Palestinian militancy.

His defense has had ups and downs a crushing blow when a judge ruled a series of confessions Salah gave to the Israelis can be used against him here; later a victory when prosecutors abruptly dropped charges he provided support to a terrorist organization.

But he still canâ't escape his alleged doings of more than a decade ago: The allegations of Hamas activity remain couched in a more mundane charge of racketeering. Just as he did last week as his jury was selected, Salah has sat silently through the dozens of court hearings leading up to this week's trial ” always wearing simple, workingman clothes and an expressionless gaze.

Abdelhaleem Ashqar

By far the more urbane of the two defendants, former Howard University professor Ashqar dresses impeccably and moves like a subdued politician through the courtroom prior to each hearing ” politely greeting lawyers, reporters and well-wishers.

The Alexandria, Va., resident long has been a prominent Palestinian activist; earlier this month, it was revealed Ashqar at one point was described as an asset by FBI agents, and was also once the subject of a CIA recruitment effort. But since at least 1991 Ashqar has rejected demands he cooperate with federal authorites probing Hamas, proclaiming he would rather die than betray my beliefs and commitment to freedom and democracy for Palestine.

Indeed, the mild-mannered intellectual has waged two high-profile hunger strikes ” in New York in 1998 and Chicago in summer 2003 ” while locked up for refusing to testify before federal grand juries about Hamas activities despite grants of immunity. Judges ordered him force-fed liquids through the jugular vein in his neck, and later through a tube snaked through his nose and into his throat.

He was charged in this case in October 2003, and Salah was added as a defendant a year later. The racketeering indictment alleges Ashqar served as a U.S.-based information clearinghouse for Hamas, meticulously tracking the group's terrorist operations overseas and alleged money-raising efforts here.

He's portrayed by the goverment as a behind-the-scenes Hamas guru: In a warrantless search of Ashqar's home in 1993, agents found debriefing reports of local operatives returning from missions in the Middle East. One summary lamented Salah's capture in the West Bank, and concluded he is not as strong mentally as he is physically. ... He is naive, and lacks the ability to take the right steps.