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The U.S. Supreme Court has rejected an effort by a U.S.-based Muslim charity — shut down as a supporter of terrorism — to lay evidence of its innocence before a court. The case involved the designation two years ago of the Holy Land Foundation as a “specially designated terrorist.” The government seized the assets of the group, one of the largest Muslim charities in America, effectively shutting it down. Holy Land went to court to challenge the government’s case, but it was thwarted at the district and circuit court levels. The U.S. Supreme Court denied certiorari on March 1. Several civil rights and constitutional lawyers following the case criticized the process, arguing not that the charity was necessarily innocent but that it should have received what the American system generally considers due even to the most obviously guilty: the right to a meaningful day in court. In the aftermath of Sept. 11, attorneys for the government declared that the foundation presented a security threat to the United States because it was associated with Hamas, the main Palestinian group behind the suicide bombings in Israel. The foundation denied that it is affiliated with Hamas but couldn’t convince a federal judge or an appellate panel that its right to a fair trial was denied by what it called a hasty and one-sided Treasury Department administrative hearing. It also maintained that due process violations occurred as a result of the government’s use of secret evidence and the breach of a federal evidentiary rule on summary judgment. Holy Land’s lawyer, John W. Boyd, a partner at Freedman Boyd Daniels Hollander Goldberg & Cline, said the Supreme Court sent a clear message with its refusal to hear the case. “This administration basically has a free hand with whatever it wants to do insofar as administrative claims it relates to the war on terrorism,” he said. “The courts are simply not going to check the executive.” Jonathan Turley, a professor at George Washington University Law School who has been following the case, characterized it as a failure of the courts on every level. “It’s very difficult to see how the Holy Land Foundation was given due process,” he said. “It’s hard to see how the Holy Land Foundation could have defended itself under these restrictive rulings.” David Cole, a Georgetown Law Center professor, said, “We will see expanded use of this administrative mechanism precisely because it allows the government to short-circuit the processes that would ordinarily be required in a criminal proceeding.” On the other side, Douglas Kmiec, a constitutional law professor at Pepperdine University, noted that Holy Land had made its objections clear in its petition to the Supreme Court. The outcome, he said, indicates that the court was satisfied with the process. “While a denial of certiorari is certainly not a determination on the merits,” he said, “I think it is a fair supposition that four justices were unable to see any significant reason to believe that the case below wasn’t decided on regular and fully constitutional grounds.” The Justice Department declined to comment for this story. In bringing the action against the charity, the Treasury Department used the International Emergency Economic Powers Act of 1977. It permits the president to declare a national emergency when an extraordinary threat to the United States arises. Holy Land was one of three U.S.-based charities shut down. The others were the Benevolence International Foundation and the Global Relief Foundation. Both lost subsequent court battles. Holy Land was founded as the Occupied Land Fund in 1989 to aid Palestinians during the first uprising, or Intifada. In the 1990s, it changed its name, moved to the Dallas area and extended its reach. It helped refugees in Kosovo and victims of the Oklahoma City bombings and the 2001 World Trade Center attacks. In 2000, it received $13 million in donations. The government had been investigating the foundation for nine years. On Dec. 3, 2001, the Treasury Department’s office of foreign asset control declared that the group was linked to Hamas, which was designated a terrorist organization by President Clinton in 1995. The charity was served the following day, bankrupting it. In support of the action was a memo of more than 3,000 pages, some of it blacked-out classified material. HOLY LAND’S SUIT Holy Land sued in federal court in March 2002, charging that its constitutional rights had been violated. The following month, the Treasury Department told Holy Land that it intended to redesignate it a terrorist organization. The group had two weeks to submit material challenging the allegations in the government’s voluminous memo. “We said that’s not right. It’s not enough time,” said Boyd, Holy Land’s lawyer. The government rejected the charity’s request for additional time, though it added Holy Land’s federal court complaint to the record. In May 2002, the government redesignated the foundation as a terrorist organization. “And that was our hearing,” said Boyd. The government’s evidence, along with Holy Land’s motions, formed the administrative record of the case, upon which the federal courts were required to rely in reviewing the case. “Most administrative records arrive in court after the parties have been litigating through the administrative level,” Boyd said. “It was presented in court at the conclusion of a process in which the Holy Land Foundation had never been allowed to participate and it didn’t involve any neutral person evaluating any aspect of these poisonous misrepresentations and falsehoods.” Melanie B. Abbott, who teaches administrative law at Quinnipiac University, criticized the procedure. “The agency not only makes the record and acts as prosecutor, but prevents the opportunity to challenge the record,” she said. However, she said she doubted that the administrative process was technically in error. THE GOVERNMENT CASE Much of the unclassified part of the government’s case is based on hearsay evidence, anonymous foreign government intelligence reports, summaries of allegations by anonymous informants, newspaper articles and unsworn declarations. Claiming that, given a chance, he could prove the charity’s innocence, Boyd points to the following: The government says Holy Land leaders were in contact with Hamas leaders, notably in 1993 at a Philadelphia conference attended by North American-based Hamas activists. Holy Land doesn’t deny this. It does deny that it supported Hamas. Boyd noted that Hamas wasn’t officially designated a terrorist organization until 1995. The government says Holy Land paid for at least six trips to the United States in 1990 and 1991 by Sheikh Jamil Hamami, a Hamas founder. Boyd said that proves nothing and noted that in 1997 the government itself sponsored Hamami on an American tour to promote peace in the Middle East. Holy Land was accused of sending money to institutions controlled by Hamas, including a hospital, and of giving money to the wives and children of suicide bombers. Boyd denied that the charity supported the family of suicide bombers and said the hospital, Al Razi in Jenin, also received aid from the Red Cross, Britain and, in 2002, the U.S. Agency for International Development. Boyd said the government’s only open claim of direct evidence is an anonymously translated summary of a statement by Mohammed Anati, Holy Land’s West Bank manager, supposedly saying that the group gave money to Hamas. The government claimed that the statement, given to Israeli police, was taken from a Hebrew document. Boyd had the Hebrew statement translated independently. He said the government’s version was wrong. The government withdrew the statement claiming it could be found in another document, which it didn’t produce, Boyd said. Holy Land obtained authenticated copies of all of Anati’s statements to Israeli authorities, including sworn testimony, and Anati said there was no connection between the foundation and Hamas, Boyd said. “What you really have is an undifferentiated mass of false accusations, innuendo, spin and outright false statements,” Boyd said. “But the bottom line is if the question is: Is there evidence to show that the Holy Land Foundation provided support to Hamas, the answer is no, there isn’t.” Justice Department lawyers declined to comment on the case. In a brief, the government dismissed the importance of such arguments. Whether the government provided aid to Sheikh Hamami and the Hamas-affiliated hospital is irrelevant to the case against Holy Land, it said. The government said Holy Land had its chance to submit rebuttal evidence in 2002, but chose not to do so. In U.S. District Court in Washington, Judge Gladys Kessler upheld the government. Judges of the U.S. Court of Appeals for the D.C. Circuit affirmed that decision. In refusing to consider Holy Land’s additional evidence, Kessler noted that the Administrative Proceedings Act limits a judge’s review power to finding whether an action was arbitrary and capricious. The court cannot substitute its judgment for that of the agency. Holy Land was dealt a critical blow when the judge converted the government’s motion to dismiss to a summary judgment motion but denied the charity the right to present evidence, as the federal rules seem to require. The issue arose when Kessler threw out Holy Land’s First Amendment and equal protection claims. Granting a Rule 12(b)(6) motion to dismiss, she said that Holy Land had failed to state a claim and noted that there is “no constitutional right to facilitate terrorism.” The rule lays out a different procedure. It says that in deciding on a motion to dismiss, a judge may consider only whether the plaintiff has stated a legally sufficient claim in its complaint. If the judge considers information or evidence outside the complaint, the motion to dismiss must be converted to a motion for summary judgment under Rule 56. This rule provides the parties with an opportunity to present all pertinent material, including additional evidence, and to conduct discovery. ‘INCONTROVERTIBLE’ Kessler took into account the government’s evidence against Holy Land. She cited it in her ruling in Holy Land Found. v. Ashcroft. Yet she refused to allow the charity to present any additional evidence or obtain discovery. When Holy Land raised this point before the D.C. Circuit panel, it agreed that the district court had erred by relying on the administrative record and not just Holy Land’s statement of a claim. The circuit judges, however, found it a harmless error, ruling that Holy Land could not have produced convincing evidence because the government’s case was “incontrovertible.” “In a general case, perhaps the opportunity for discovery might have produced precisely that which was lacking,” the panel said in an opinion written by Judge David Sentelle. “However, this is not a general case. This is a specific case involving sensitive issues of national security and foreign policy.” Also troubling to the lawyers sympathetic to Holy Land’s side of the case is the government’s reliance on secret evidence. Boyd’s firm helped defend scientist Wen Ho Lee, who was accused of passing nuclear information to China. In that case, Boyd said, his partners were permitted to review the secret evidence even though “it contained the crown jewels of our nation’s nuclear secrets.” When he moved to get access to the blacked-out secret evidence, Kessler said it wasn’t necessary to consider it in making a ruling. The D.C. Circuit, however, said that it particularly took into account the classified information presented in camera, a procedure permitted by the USA Patriot Act. Cole, who has successfully fought secret-evidence cases involving immigrants, said federal judges’ attitude toward secret evidence has changed drastically. “There wasn’t a federal judge who did not express serious concerns about secret evidence prior to 9/11,” he said. “It’s like two different worlds now.” This article originally appeared in The National Law Journal , a publication of American Lawyer Media.

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