Coming up empty

Years of federal investigation, months of sworn testimony, weeks of jury deliberation, and four days awaiting the release of a sealed verdict culminated in confusion and debacle Oct. 22. The 12-member citizen panel charged with adjudicating the largest terrorism financing case in U.S. history appeared to crumble under stacks of convoluted evidence.

Government attorneys had hoped to establish criminal links between the Palestinian terror group Hamas and the Holy Land Foundation for Relief and Development (HLF), a Dallas-based Muslim charity shut down by authorities in 2001. Instead, prosecutors overwhelmed jurors, frustrated observers, and provoked a mistrial. "They just put too much on us to deal with," juror William Neal told the Dallas Morning News. "It was a waste of my time to go this long and come out empty."

Initially, U.S. District Judge A. Joe Fish read a verdict that seemed only half empty: The ruling acquitted one of the six HLF defendants, found two others innocent of most charges, and deadlocked on the remaining three. But during the judge's subsequent routine polling of the jury, three members balked on their previous positions, apparently unaware of what they had voted for during deliberations. Given an hour to resolve the conflict, the jury failed and left Fish few options but to declare a mistrial.

Celebration ensued from supporters of the HLF and members of several prominent Muslim groups named as unindicted co-conspirators in the case. Nihad Awad, executive director of the Council on American-Islamic Relations (CAIR), compared the trial to McCarthyism in the 1950s. CAIR Board Chairman Parvez Ahmed expressed gratitude to the jury for seeing through charges that he believes were "based on fear, not facts."

But such statements of victory could prove premature. None of the six defendants was exonerated of the charges. And lead prosecutor Jim Jacks told the judge that the Department of Justice intends to retry the case.

Steve Emerson, executive director of the Investigative Project on Terrorism and author of six books on terrorism and national security, is hopeful that convictions may still lie ahead, given the body of evidence presented at trial. He considers distasteful the celebratory reaction from unindicted Muslim groups such as CAIR and the Islamic Society of North America (ISNA). "They're celebrating people that commit murder and that openly proclaim their affiliation with Hamas," he said. "It's like openly celebrating the acquittal of David Duke."

Emerson told WORLD neither side can rightly claim victory, calling the result a draw. But he admitted that the mistrial could carry negative ramifications for the prospect of future terror financing prosecutions: "You always become gun-shy when you don't win."

The justice department has now failed to win several recent high-profile cases against U.S.-based groups and individuals with suspected ties to terrorist organizations. This past February, an Illinois jury acquitted Chicago businessman Muhammad Salah of charges that he funneled money to Hamas for the purchase of weapons. In 2005, University of South Florida professor Sami Al-Arian received a not-guilty verdict on a charge of conspiring to murder people overseas.

Muslim civil-rights groups point to such defeats in accusing the government of conducting witch hunts. But the Justice Department is not without convictions. And the scrutiny of public trials can often expose shady networks enough to halt illegal activity, no matter whether or not jurors convict.

Indeed, government officials achieved much of their aim in the Holy Land case six years ago, when President George W. Bush froze the charity's assets and closed down its operation. Not until 2004 did U.S. attorneys indict the foundation's leaders. In a statement at that time Attorney General John Ashcroft said, "This prosecution sends a clear message: There is no distinction between those who carry out terrorist attacks and those who knowingly finance terrorist attacks. The United States will ensure that both terrorists and their financiers meet the same, certain justice."

Alberto Gonzales maintained that aggressive posture toward terror suspects throughout his tenure atop the justice department. Much of the debate over whether to confirm new attorney general nominee Michael Mukasey centers on his philosophy for conducting terror-related investigations, specifically whether the president can authorize warrantless wiretaps on calls routed through the United States.

Wiretapping, albeit court-sanctioned, played an important role in building a case against HLF. Government attorneys cited hundreds of bugged conversations, internal memos, and banking records in an effort to prove that HLF operated as a front group for Hamas fundraising in the United States. The prosecution alleged that $12 million has flowed from Holy Land to Hamas since 1995, when the government labeled Hamas a terrorist organization.

But defense attorneys argued the money went to various Palestinian charity efforts and never financed terrorist activities. The defense further contended that evidence of Holy Land leaders making statements in support of Hamas does not constitute a crime, falling under free speech protections.

Douglas Farah, author of two books on the financing of terrorism, watched the trial closely and considers the evidence of criminal behavior overwhelming. But he believes the prosecution failed to present a cohesive narrative that jury members could follow, often conflating actions that took place before Hamas was designated a terrorist group with those that took place afterward.

Jurors spent 19 days deliberating over 197 charges, finally reaching a unanimous decision to simply give up. Farah told WORLD that the mistrial underscores the difficulty of trying such complex matters before a jury of uninitiated citizens: "It sounds like the jury had no understanding at the end of what they were supposed to be doing."

Though disappointed with the outcome, Farah believes the flood of evidence made public throughout the trial could exact irreparable damage on the reputations of suspect Islamic groups. CAIR, ISNA, the Muslim American Society (MAS), and others like them have long claimed to speak for mainstream Muslims in the United States, but are now exposed as Islamist organizations bent on the political advance of Islamic law.

The extent to which that exposure gains traction hinges on factors like media coverage. The absence of national news reports on the HLF trial has stunned Farah, who spent two decades as a foreign correspondent and investigative reporter for The Washington Post and considers the story eminently newsworthy.

He also worries that many Americans simply won't believe how dangerous and coordinated these Muslim groups are: "Most people in this country don't like conspiracy theories. When you're talking about groups that want to establish a caliphate, as the documents clearly show, it sounds scary and implausible."

But moderate Muslims in the country might be more willing to believe. In fact, CAIR complained to the court that its inclusion as an unindicted co-conspirator in the case harmed the group's membership rolls (see "A veneer of moderation," Sept. 15, 2007).

M. Zuhdi Jasser, chairman of the American Islamic Forum for Democracy and a strong critic of politicized Islam, hopes that the government's failure to convict Holy Land leaders will not undo the exposure of CAIR and other Islamist groups. Like Farah, he does not view the outcome as an indictment on the prosecution's lack of evidence: "All a mistrial says is that these jurors were profoundly confused."

Still, Jasser is concerned that the failure to convict will provide fodder for CAIR's claims of victimization and civil-rights violations. "I'm not sure that it's going to drive people to join CAIR and MAS," he said of the mistrial, "but it is going to muddy the waters. This is a setback."

Jasser wonders if the setback might press the justice department to reconsider its strategy and challenge Congress to pass more objective anti-terror laws. But ultimately, he doubts the legal sector's ability to stand up to Islamism when so many Islamist groups avoid criminal behavior in favor of perfectly legal propaganda. "This is not a war against a tactic; it's a war against an ideology," Jasser told WORLD. "And you don't defeat ideologies in a courtroom."