The Holy Land Foundation Case

Defending My Father ... and the Constitution

By NOOR ELASHI Counterpunch.org

The case perhaps most notably authorized by the Material Support Law, which was upheld by the Supreme Court on Monday, was that of the Holy Land Foundation, once the largest Muslim charity in the United States. My father, Ghassan Elashi, co-founded this charity, and after two lengthy, expensive trials, he’s now serving a 65-year prison sentence.

The panel was split 6-3, the valiant minority being Chief Justices Stephen G. Breyer, Ruth B. Ginsburg and Sonia Sotomayor. Writing the majority opinion, Chief Justice John G. Roberts concluded that the Material Support Law is not too vague and does not violate the First Amendment, opposing the extensive arguments of constitutional law expert David Cole who, along with the Center for Constitutional Rights, challenged the law in the Supreme Court. Chief Justice Breyer wrote the dissenting opinion, stating that the law could criminalize speech and association “only when the defendant knows or intends that those activities will assist the organization's unlawful terrorist actions.”

The Patriot Act, which expanded a provision in the Material Support Law to include those who provide “assistance,” essentially made it illegal to send charity to the U.S. Treasury Department lists of desig nated terrorists. The Holy Land Foundation, or HLF, was never found guilty of giving charity to a desig nated terrorist organization. Rather, they were convicted of conspiring to give material support in the form of humanitarian aid to Palestinian charities called “zakat committees” that prosecutors alleged were fronts for Hamas, which was designated in 1995.

A Texas jury deadlocked in the first trial in 2007, defending the defense’s main argument: that USAID, Red Cross, the UN, CARE and many international NGOs sent money to the same zakat committees listed on the HLF indictment. But in the 2008 retrial, after essentially the same arguments, the jury returned all guilty verdicts. My father is currently being held in a Communications Management Unit in Marion, Illinois, a prison that's been called "Little Guantanamo" since two-thirds of the inmate population is of Middle Eastern descent.

The Supreme Court decision is not the most optimistic news regarding the HLF case, which is now under appeal. Nevertheless, defense attorneys assert they still have strong grounds for appeal, including the prosecution’s evidentiary errors and anonymous expert from Israel who claimed he could smell Hamas and testified under a fictitious name, thereby preventing defense attorneys from effectively cross-examining him.

According to the ACLU, the Material Support Law is “in desperate need of re-evaluation and reform.” The Supreme Court didn’t see that need, but hopefully, Congress will see that the law is shredding our Constitution in the name of national security and undermining bona fide humanitarian efforts, thus, causing an economic chokehold on Occupied Palestine.

Noor Elashi is a writer based in New York City.