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DALLAS-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 U.S. v. Holy Land Foundation for Relief and Development asked Chief U.S. District Judge A. Joe Fish of the Northern District of Texas 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 they agreed to 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, Texas-based Holy Land Foundation for Relief and Development (HLF) and seven men linked to the charity in July 2004. 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 of Texas, said 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. ‘It’s a huge, huge job’ 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, said 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 rights under the Fifth and Sixth amendments 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,” said 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 Rule 16 of the Federal Rules of Civil Procedure, 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 said. Jacks declined comment on the defense’s motion. “Our response speaks for itself,” he said. 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.

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