Wednesday, October 27, 2010

Unindicted Coconspirators

The issue isn’t the coconspirator list, it’s the evidence.

By Andrew C. McCarthy
October 27, 2010 4:00 A.M.

Much has been made of an appeals-court decision to expunge references to several U.S. Muslim groups from a list of unindicted co-conspirators in a terrorism-financing case. Too much, in fact.

It was never about the list. It was about what evidence unmistakably tells us: The Muslim Brotherhood and its American satellites are working to undermine the United States from within and to destroy Israel by any possible means, including terrorism. The Brotherhood can hide the list. After all, we should never have seen it in the first place. They can’t hide the evidence — no matter how much help they get from their friends in and out of government. That bell can’t be unrung.

That is the main takeaway from a federal appeals-court ruling last week that has caused plenty of confusion. Sympathizers of various Islamist groups were quick to claim, falsely, that a Fifth Circuit panel had ordered the expunging of all references to those organizations as “unindicted coconspirators” in an important terrorism-financing case. The label had first been applied to them by the Justice Department, which had placed the groups — including CAIR (the Council on American-Islamic Relations), ISNA (the Islamic Society of North America), and NAIT (the North American Islamic Trust) — on a list of unindicted coconspirators provided to the judge and defense counsel prior to a 2007 trial.

The inaccurate reports about the appeals-court ruling prompted consternation from commentators who, for years, had been citing the Justice Department designation. Though it was useful for attacking the groups — a worthy end — the commentators had obviously done that without really understanding what the list was and, more significant, what the Islamist organizations had done to merit being listed. The label “unindicted coconspirator” had always been good enough for them — but what to say now that it has been purged?

Ghassan Elashi, CEO of the Holy Land Foundation speaks with the media December 5, 2001 during a press conference in Richardson, Texas. The Holy Land Foundation disputes claims made by the U.S. government that it used charitable donations to fund Hamas and their goal to destroy Israel.

Everyone ought to relax. The ruling didn’t actually expunge anything, and the list — however useful it may have been — was never important. In fact, its contents should never have been disclosed in the first place; CAIR & Co. are actually right about that. But it is the only thing they and their apologists have been right about and, despite what they’d have you think, it is nearly irrelevant at this stage of the game.

A little background is in order. As its charter brays, the terrorist organization Hamas is the Palestinian branch of the Muslim Brotherhood. Like the Brotherhood, Hamas denies Israel’s right to exist and considers the Jewish state’s destruction to be a divine calling. The Brotherhood is a global organization that — with Saudi financial backing — has spent over half a century building an Islamist infrastructure in the United States. Once Hamas was created in 1989, at the start of the Intifada, support for its jihad against Israel became a top Brotherhood priority. Consequently, it mobilized its tentacles in the United States to back Hamas financially and in the court of public opinion.

To make a long story short, the Brotherhood set up an ostensible Muslim charity in Indiana, the Holy Land Foundation for Relief and Development (HLF), to funnel money to Hamas, primarily in Gaza. Over the years, HLF duly channeled millions of dollars. Finally, the Bush Justice Department indicted top HLF officials for a massive conspiracy to provide material support to a terrorist organization.

In conspiracy cases, courts order the government to give the defense a list of unindicted coconspirators. The reasons for this have to do with the rules of evidence and the Justice Department’s guidelines for drafting charges.

Usually, big conspiracies involve many more people and entities than the handful of defendants who are standing trial on the indictment. Sometimes the prosecution does not know who all of the bad actors are, sometimes it knows them but hasn’t gathered enough evidence to charge them yet, and sometimes it has enough evidence but hasn’t charged them publicly for various strategic reasons (e.g., they’re likely to go on the lam if they learn they are suspected). The existence of these unindicted coconspirators is important. Let’s say one of them told an undercover agent that the defendant was involved in the plot. That statement is admissible under evidentiary rules. That is, a defendant can be convicted of conspiracy based on the statements of a coconspirator, even if that coconspirator has not been charged in the case.

But who are the coconspirators? It is often not possible to tell by reading the indictment.

To avoid tainting people whom DOJ is not ready to charge with a crime, the department’s guidelines forbid identifying uncharged coconspirators by name in a publicly filed indictment. (That’s why you often see oddities like “coconspirator A” or “company B” in indictments or arrest complaints.)

That’s all well and good, but it does not help a defense lawyer prepare for trial — he must know the names of people whose statements might be used to prove his client’s guilt. To solve this dilemma, the court directs the prosecutor to tell the defense lawyers the names of all the coconspirators about whom the government anticipates offering evidence. It’s called a “coconspirator list,” though that is something of a misnomer, since at least some of the people and entities on it may actually be innocent — because the government hasn’t charged them, they haven’t been formally accused and don’t have an opportunity to clear their names.

That seems awfully unfair, for the same reasons that cause DOJ to refrain from mentioning the names in the indictment. But there’s a salient difference: Indictments must be publicly disclosed once arrests are made; coconspirator lists should not be disclosed. The point of them is not to smear people as evildoers. It is strictly to alert defense counsel about what evidence they may have to confront once the trial starts. So the lists are usually exchanged informally, in a non-public letter from the prosecutor to the defense lawyers or in a sealed court filing.

In the HLF case, the Justice Department goofed — big time. Prosecutors filed the coconspirator list publicly, as an appendix to a pretrial submission that explained the theory of the case to the court and addressed some legal issues. As a result, it became publicly known that the Muslim Brotherhood was the hub of the terrorism-financing scheme and that it claimed as its confederates several well-known Islamist groups — some of which were alleged to have advanced the scheme in various ways. Among the 200-plus names on the list were CAIR, ISNA, and NAIT.

The organizations naturally cried foul, and they had a point. But it was a point of diminishing returns. Due-process principles arguably give one a right not to be tarred by the government in a court filing that could easily be kept under wraps. But a trial is another matter entirely. The trial must be public. That is a big part of why we have trials. A criminal trial is a demonstration of why society should take away a person’s liberty. It must be public so we can be assured of its integrity.

At a trial, a coconspirator is not entitled to be kept anonymous. The jury and the public get to learn the unabridged basis for the government’s accusations. Thus, at the Holy Land Foundation trial, abundant evidence was introduced — much of it in the form of internal documents seized from Muslim Brotherhood officials — proving that the Brotherhood sees its mission in the United States as a “grand jihad” to destroy the West from within by “sabotage.” The Brotherhood formed a Palestine Committee whose mandate was to support Hamas. Palestine Committee members included HLF and, later, the Brotherhood’s new creation, CAIR. Meantime, Brotherhood documents named ISNA and the NAIT as partners in its “grand jihad.” In fact, HLF was housed for a time at ISNA’s Indiana offices, and checks were often routed to Hamas through a joint ISNA/NAIT bank account.

That was what the prosecution’s evidence showed. You can hide the coconspirator list, but the evidence doesn’t go away. That’s why there are diminishing returns for the Islamist groups in grousing about the list. That only calls attention to the fact that the Justice Department cited them in the first place and then, critically, backed it up with evidence.

In that light, the Fifth Circuit’s ruling is mostly a non-event. The court merely pointed out the government’s admission that it was wrong to file the coconspirator list publicly — although, interestingly, the judges did not seem as convinced as the Justice Department that this faux pas rises to the level of a constitutional due-process violation. More significantly, though, the Fifth Circuit declined to expunge names from the list or the trial proof. All it agreed to do was unseal a lower court ruling. That, however, is a double-edged sword for the Brotherhood satellites: Yes, the ruling says their Fifth Amendment rights were violated — a fact they obviously see as a PR coup — but it also reportedly describes the proof of their ties to the Brotherhood. (The lower-court ruling has not yet been unsealed but the Fifth Circuit decision clues us in on what it says.)

CAIR, ISNA, and NAIT do not have a branding problem. They have a substance problem. They may be able to falsely frame people as “Islamophobes.” It’s tough to frame facts.

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