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Attorneys for a Muslim charity and five men accused of sending money to a Palestinian group allegedly tied to terrorists have access to evidence that could be vital in defending their clients. But they have two problems: The materials are in Arabic or Hebrew, and the attorneys can’t discuss the classified evidence with the defendants. That’s the reason the defendants in United States v. Holy Land Foundation for Relief and Development, et al. asked Chief U.S. District Judge A. Joe Fish of the Northern District in Dallas to delay their February 2007 trial. In a Sept. 1 motion and again in a Sept. 20 reply to the government’s response, the defendants also want federal prosecutors to submit for declassification documents that stem from several years of electronic surveillance of the defendants’ telephone conversations, faxes and e-mails intercepted under the Foreign Intelligence Surveillance Act (FISA). But prosecutors argue in their Sept. 11 response that it could take years for defense attorneys to have all the surveillance materials translated and to look them over, and that it’s not necessary for the defense lawyers to do it. Prosecutors also raise national security concerns with regard to the defendants’ request that all the documents be declassified. According to the prosecutors’ response, the defense attorneys are complaining about a situation to which they agreed last year. The federal court’s April 2005 protective order authorizes only defense attorneys and paralegals with the proper security clearances to see the classified materials. “The order specifically states that no one else, including defendants, can view classified material,” prosecutors note in the response. But now the defense lawyers seek to declassify the materials precisely so they can show them to and discuss them with their clients. A federal grand jury in Dallas originally indicted the Richardson-based Holy Land Foundation for Relief and Development (HLF) and seven men linked to the charity in July 2004. [See "Indictment Triggers Scramble to Find Counsel for HLF Defendants," Texas Lawyer, Aug. 2, 2004, page 1.] In a 42-count superseding indictment, filed in the U.S. District Court in Dallas in November 2005, federal prosecutors alleged that, over a six-year period, the defendants funneled at least $12.4 million to Hamas, a Palestinian group that the U.S. government has designated as a terrorist organization. Among other things, defendants Shukri Abu Baker, Ghassan Elashi, Mohammad El-Mezain, Mufid Abdulqader, Abdulraham Odeh, Haitham Maghawri and Akram Mishal are charged with engaging in prohibited financial transactions with a specially designated terrorist, money laundering and conspiracy. Abu Baker, HLF’s president, and Elashi, chairman of the charity, also face charges that they filed false income tax returns. Five of the individual defendants have pleaded not guilty to the allegations. James T. Jacks, first assistant U.S. attorney for the Northern District, says Maghawri and Mishal remain fugitives. According to the indictment, Maghawri was the HLF’s executive director. The indictment identifies Mishal as the HLF’s project and grants director and as a cousin to Hamas leader Khalid Mishal, designated as a terrorist by the U.S. government. In their joint motion, HLF and five of the defendants ask Fish to vacate the Feb. 5, 2007, trial date and continue the case for at least seven months to allow them more time to translate the surveillance materials and identify statements they could use to prepare for trial and support their theory of the case. As noted in the Sept. 1 motion, the materials involve the defendants’ own recorded statements and documents from the government of Israel that, according to prosecutors, form the basis of the prosecution’s experts’ opinions regarding the defendants’ allegedly unlawful conduct. “It’s a huge, huge job,” Fort Worth solo Greg Westfall, Odeh’s attorney, says of the translation effort. “It’s just such a massive amount of material, a decade of surveillance.” With the volume of documents to be translated, scheduling the trial earlier than September 2007 will deprive defendants of their Fifth and Sixth Amendment rights to have counsel adequately prepared for trial, the defendants argue in their Sept. 1 motion. “If you can’t look at the documents, you can’t prepare,” says Dallas solo Marlo P. Cadeddu, Abdulqader’s attorney. While federal prosecutors provided defense counsel with summaries of the intercepted calls in English, a majority of the intercepts are not translated. The defendants also claim in their motion and response that their inability to review the FISA intercepts hampers their attorneys’ ability to prepare for trial. Under Federal Rule of Civil Procedure 16, a defendant has a right to see the defendant’s statements that the prosecution could use against him in order to prepare a defense, Westfall says. Westfall says the only thing he can do now is show the English summary of a conversation to his client. “It’s just a total disconnect,” he says. “It’s like trying to describe a painting to my client when I can’t tell him what the painting looks like.” Jacks declines comment on the defense’s motion. “Our response speaks for itself,” he says. It’s the government’s position that the defense attorneys don’t have to review everything from the surveillance materials to defend their clients. Prosecutors argue in their Sept. 11 response to the defense’s motion that the defense attorneys’ intention to translate and review every FISA intercept in the case is impractical and unrealistic. “[G]iven the volume of the FISAs, one would need several uninterrupted years to complete the task,” prosecutors contend in their response. According to the prosecutors’ response, the government has provided English summaries � called “tech cuts” � of the surveillance materials. But Westfall says things can get lost in translation. “Broad English translations are not that helpful,” he says. Linda Moreno, a Tampa, Fla., solo who represents Elashi, questions how she could know whether there is no need for her to read all the documents. “Do I accept the government’s word for that?” Moreno asks. “I would not be a good lawyer if I were relying on the government to tell me what is relevant and what is not.” Although Cadeddu says it would cost a great deal to translate every document and conversation, she doesn’t know an exact cost. Defense lawyers also don’t know how long it will take to do the translations. “We’re trying to guesstimate how long it will take to get through all the material,” she says. Unequal Access? Prosecutors also note in their response that they have not declassified all of the FISA intercepts, as requested by the defense, because the government has not reviewed all of the intercepts. According to the response, while the government continues the process of declassifying intercepts, the principal reason that certain reviewed materials have not been declassified is such declassifications could have an adverse impact upon other national security investigations. The defendants could alert other individuals with whom they had conversations, prosecutors contend. “There are many other parties on the captured calls, who, if alerted to the existence of these national intercepts, may take steps to thwart ongoing and future investigations,” according to the government’s response. Cadeddu says the defendants know who they talked to and are not going to review anything that all the parties involved in the case don’t already know. John W. Boyd and Nancy Hollander, partners in Freedman Boyd Daniels Hollander Goldberg & Ives in Albuquerque, N.M., attorneys for HLF and Abu Baker, and New York City solo Joshua Dratel, El-Mezain’s attorney, did not return telephone calls to their offices for comment. Dallas attorney Charles W. Blau, a partner in Meadows, Owens, Collier, Reed, Cousins & Blau who defends persons and entities accused of white-collar crimes, says he sees “little likelihood” that the defendants will be successful in their motion to declassify the surveillance materials. “The reality is the court has to balance the defendants’ need for the information and the time frame it’s going to take to provide that information,” says Blau, a former assistant U.S. attorney for the Southern District of Indiana and a former associate deputy U.S. attorney general. Robert E. Davis, a former deputy assistant U.S. attorney general who oversaw criminal prosecutions in the tax division of the U.S. Department of Justice, says he doesn’t blame the defense attorneys for not wanting to depend on translations done by the prosecution’s translators. Davis, now a criminal-defense attorney and a partner in Hughes & Luce in Dallas, says the case poses problems, created in part by the government’s prolonged surveillance of the defendants. Without translations of all the surveillance materials, Davis questions how defense attorneys know whether the state is using only intercepted communications prejudicial to the defendants as evidence. Davis questions how a defense attorney, who doesn’t have full translations, can know whether the communications implicate the attorney’s client or whether some of the communications indicate the client withdrew from participation in the alleged activities. Asks Davis, “If only one side has access to the truth and they’re in control of its production, how does the defense provide an effective response?”

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