Secrets and lies: The persecution of Muhammad Salah (Part I)

Journal of Palestine Studies

Volumn 37, Issue 4, 2008, Pages 38-58

  Deutsch, Michael E ^a   Thompson, Erica ^a  

^a People's Law Office   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; LAW ENFORCEMENT; SOCIAL JUSTICE; TERRORISM; VIOLENCE;

ASIA; EURASIA; MIDDLE EAST; NORTH AMERICA; PALESTINE; UNITED STATES;

EID: 50349092873     PISSN: 0377919X     EISSN: None     Source Type: Journal    
DOI: 10.1525/jps.2008.37.4.38     Document Type: Article

References (72)

1. See President Clinton's Executive Order No. 12947, issued on 23 January 1995, and the Anti-terrorism and Effective Death Penalty Act of 1996 (18 USC 2339 (B)), which criminalized the provision of food and medical supplies to groups designated as "terrorists."
2. Department of Justice, "Chicago and Washington DC Area Men among Three Indicted in Racketeering Conspiracy in U.S. to Finance Hamas Terror Abroad," 20 August 2004, accessed at www.usdoj.gov.
3. The others charged were Musa Abu Marzuq, former head and at the time deputy head of the Hamas political bureau, then living in Damascus and known to be out of reach, and Dr. Abdelhaleem Ashqar, a professor of business administration and an independent candidate for the presidency of the Palestinian Authority in 2006. Dr. Ashqar was codefendant with Salah at the Chicago trial in 2007; in addition to the racketeering charges, Dr. Ashqar was indicted for criminal contempt and obstruction of justice for his refusal to collaborate with U.S. grand juries convened in New York and Chicago to investigate the Palestinian resistance movement. Dr. Ashqar's story, like Salah's, is a tale of great injustice but is regrettably beyond the scope of this article.
4. Press Release, 20 August 2004, "Three Hamas Terrorists Indicted for Racketeering," distributed by the Bureau of International Information Programs, U.S. Department of State, available at www.usinfo.state.gov.
5. Department of Justice, "Chicago and Washington DC Area Men among Three Indicted."
6. Washington Post, 3 February 1993.
7. See newspaper headlines and clippings from such publications as the Boston Globe, Chicago Tribune, New York Times, Washington Post, Washington Times, and Jerusalem Post contained in the State Department's response to Salah Freedom of Information (FOI) request.
8. See, for example, Bruce C. Nelan, "Hamas in the Heartland," Time Magazine, 15 February 1993;
9. David Hoffman in Washington Post, 1 February 1993.
10. See, for example, Roni Shaked in Yedi'ot Aharonot, 1 February 1993. Gov't Bates Stamp No. 15214; State Department Cable, 1 February 1993, Gov't Bates Stamp No. 09535-09536. It was later discovered that Shaked was a former Shin Bet interrogator with continuing close ties to the Israeli security apparatus.
11. See Bruce C. Nelan, "Hamas in the Heartland," Time Magazine, 15 February 1993.
12. The U.S. Supreme Court, in Buckley v. Valeo, 424 U.S. 1 (1976)
13. (quoting in part California Bankers Ass'n v. Shultz, 416 U.S. 21, 78-79 [1974]), ruled as follows: "[The First Amendment] right to join together 'for advancement of beliefs and ideas' is diluted if it does not include the right to pool money through contributions, for funds are often essential if 'advocacy' is to be truly or optimally 'effective.' "
14. See also the 14 May 1993 CRS Report for Congress entitled "Hamas: Freedom Fighters or Terrorists?" published by the Library of Congress's Congressional Research Service (CRS), which states (p. 6): "U.S. law permits persons living in this country to contribute to organizations in foreign countries, even those identified as terrorist, as long as their contributions are not used directly to support the terrorist activities. Hamas carries on an extensive religious program in Palestine and money donated in this country is purportedly used to support those activities."
15. CRS Report for Congress, "Hamas: Freedom Fighters or Terrorists?" 14 May 1993, pp. 5, 7. James P. Wootten, the author of the report, was a National Defense Specialist in CRS's Foreign Affairs and National Defense Division. Khaled Hroub, Hamas: Political Thought and Practice (Washington, DC: Institute for Palestine Studies, 2000 , pp. 96, 150.
16. In addition to acknowledging informal State Department talks with Hamas, the report also alluded to U.S. skepticism about the GOI's allegations in the Salah case, noting that there is "some validity to Hamas' position" that "it is fighting to free the 'Palestinian homeland' under the provisions of Chapter VII of the U.N. Charter" (p. 4). After the report was released, Representative Charles Schumer D-NY) and the Anti-Defamation League of B'nai B'rith demanded that it be rescinded. On 14 October 1993, Schumer presented the "revised" and renamed report ("Hamas: The Organizations, Goals and Tactics of a Militant Palestinian Organization"), explaining that the previous report was misleading and inconsistent with U.S. policy, and he strongly hinted that the report was anti-Semitic. All references to Muhammad Salah's case were eliminated from the substituted report.
17. State Department Cable, 4 February 1993, Gov't Bates Stamp No. 09493-09494.
18. Washington Post, 1 February 1993.
19. Mary Curtius, "State Department Denies Hamas Directs Operations from U.S.," Boston Globe, 26 January 1993.
20. See Bruce C. Nelan, "Hamas in the Heartland," Time Magazine, 15 February 1993; Report of 24 February 1993 meeting with Neil Gallagher, Gov't Bates Stamp ASH073. Virtually all the foreign press reports contained in State Department's response to Salah's FOI request make the same link.
21. Bruce C. Nelan, "Hamas in the Heartland," Time Magazine, 15 February 1993.
22. London Sunday Times, 19 June 1977.
23. See Military Tribunal Testimony of Benny," 11 October 1994, pp. 334-48;
24. see Suppression Hearing Testimony of "Chaim," 7 March 2006, p. 658. The use of "fitness for interrogation" forms was discontinued a year later when Physicians for Human Rights - Israel (PHRI) exposed their use to assess the risk of detainees dying during interrogations where torture was to be used. PHRI concluded that the examinations constituted "collaboration in torture" under the UN's and World Medical Association's international conventions, which ban the use of torture in general and the participation of doctors in torture in particular.
25. See excerpts from "Family Matters" (Doc. C3), a report recently published by the Public Committee against Torture in Israel (PCATI) detailing the use of threats against detainees' family members by Shin Bet interrogators.
26. In May 1999, the Israeli High Court ruled that "[i]f the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or 'breaking' him, it is not part of the scope of a fair and reasonable investigation." However, despite the High Court's ruling, Shin Bet interrogators have continued to use torture and commit human rights abuses during interrogations.
27. Military Tribunal Testimony of "Cohen," 29 August 1994, p. 290;
28. see also Military Tribunal Testimony of "Benny," 1 October 1994, pp. 334, 343.
29. To "stipulate" is a legal term meaning that a party "admits" certain facts in a case in lieu of calling a live witness.
30. Gov't Substitution No. 5 pursuant to Classified Information Procedures Act (CIPA).
31. State Department Cable, 29 January 1993, Gov't Bates Stamp No. 09531-09532; State Department Cable 2 February 1992, Gov't Bates Stamp No. 09517-09522, 09586.
32. Gov't Bates Stamp No. 09489.
33. Memo from Secretary of State to U.S. embassy, Tel Aviv, 2 February 1993, Gov't 09495-09497.
34. State Department Cable, 18 February 1993, Gov't Bates Stamp No. 09507-09510.
35. State Department Cable, 2 February 1993, Gov't Bates Stamp No. 09495-09497; State Department Cable, 5 February 1993, Gov't Bates Stamp No. 09498-09500; State Department Cable, 5 February 1993, Gov't Bates Stamp No. 09392-09394, 09507.
36. State Department Cable, 1 February 1993, Gov't Bates Stamp No. 09535-09536.
37. B'Tselem (The Israeli Information Center for Human Rights in the Occupied Territories), Collaborators in the Occupied Territories: Human Rights Abuses and Violations, January 1994; see also Testimony of Avigdor Feldman, Transcript of Suppression Hearing at 2254.
38. State Department Cable, 4 February 1993, Gov't Bates Stamp No. 09495-09497.
39. State Department Cable, 9 February 1993, Gov't Bates Stamp No. 09501-09502; State Department Cable, 3 May 1993, Gov't Bates Stamp No. 09570-09572.
40. State Department Cable of 11 February 1993, Gov't Bates Stamp No. 09361-09362; 09507-09510.
41. State Department Cable, 18 February 1993, Gov't Bates Stamp No. 09507-09510. After a meeting with GOI officials concerning delayed access to Arab-American detainees in general, embassy officials wrote to Secretary Christopher complaining about the systematic mistreatment of Arab-Americans, the use of "refrigerator cells," and the Shin Bet's use of so-called "moderate physical pressure" during interrogation. U.S. officials also protested the lack of any meaningful investigation by Israeli authorities into complaints of misconduct. The GOI again responded with blanket denials. See State Department Cable, 3 May 1993, Gov't Bates Stamp No. 09570-09572.
42. Suppression Hearing Testimony of "Chaim," 7 March 2006, p. 618.
43. Testimony of Avigdor Feldman, Transcript of Suppression Hearing, p. 2216.
44. Suppression Hearing Testimony of Hezzi Eliyahu, 13 March 2006, p. 1760.
45. Military Tribunal Testimony of "Nadav," pp. 70-76; State Department Cable, 6 April 1994, Gov't Bates Stamp No. 09654-09657, and USSD Cable 25 July 1994, Gov't Bates Stamp 0967-0209672.
46. Dr. Metin Basoǧlu is chief of Trauma Studies at University of London's Institute of Psychiatry and the founder/director of the Istanbul Center for Behavior Research and Therapy.
47. State Department Cable, 6 April 1994, Gov't Bates Stamp No. 09654-09657.
48. State Department Cable, 5 March 1993, Gov't Bates Stamp No. 09526-09528.
49. At the time, Miller stated that Israeli security sources had given her this information, but in her book, God Has Ninety-Nine Names: Reporting from a Militant Middle East (New York: Touchstone Books, 1997), she admitted that she was let into the facility to observe the interrogation personally.
50. Williamson to Secretary Christopher, State Department Cable, 5 March 1993, Gov't Bates Stamp No. 09525.
51. State Department Cable, 11 March 1993, Gov't Bates Stamp No. 09543.
52. State Department Cable, 6 March 1993, Gov't Bates Stamp No. 09529.
53. The use of collaborators to coerce written statements from Palestinian prisoners is a well-documented Shin Bet interrogation "exercise" and one that the government later admitted was used against Salah. These collaborators are called "birds" because they make detainees sing, and when a detainee, who does not know that the men work for Shin Bet but instead believes they are targeting him because of rumors planted about collaborating, later asks his interrogator how he got the statement, the interrogator characteristically responds, "I heard it from a little bird."
54. Gov't Substitution No. 2 pursuant Classified Information Procedures Act CIPA).
55. The recorded Arabic statement was listened to by Dr. Eyad El-Sarraj, a psychiatrist, lifelong Gaza resident, and director of the Gaza Community Mental Health Program who had interviewed hundreds of torture survivors. El-Sarraj testified at Salah's Chicago trial that the person on the tapes was not a military commander of anything, but rather, a "broken and helpless man" who was "desperately trying to please his interrogator," even calling him "brother."
56. Report of "Urgent: Polygraph Test No. 6/21/93: Muhammad Salah - U.S.A."
57. Department Cable, 31 March 1994, Gov't Bates Stamp No. 09644-09645.
58. See CRS brief (revised), 14 October 1993, p. 5. In March 1993, the U.S. State Department announced that it was ending its talks with Hamas representatives in Amman and elsewhere.
59. See Serge Schmemann, "Israel Withdraws Bid to Extradite Chief of Hamas," New York Times, 4 April 1997.
60. Riley "Note to File," 17 January 1996, Gov't Bates Stamp No. 09421.
61. The case is still pending. According court records, in summer 2001 the Justice Department had decided to negotiate with Salah to settle the case, but the attacks of 11 September 2001 intervened, and the government abruptly ended negotiations.
62. Wright was removed from the Vulgar Betrayal investigation in 1999 and later fired as the result of at least six disciplinary charges, including the unauthorized disclosure of nonpublic FBI information. Afterwards, he became a vocal public critic of the FBI counterterrorism effort, suing (along with fellow agent investigating Salah) the FBI 2002 for refusing to allow them to answer questions posed to them by Judith Miller about why Vulgar Betrayal had been closed down, claiming violation of their First Amendment rights. While Wright's disciplinary problems with the FBI are shrouded in secrecy, the circumstances suggest that one of the reasons he was removed from Vulgar Betrayal was his overzealous reliance on questionable sources and informants, including Jack Mustafa. The Bush administration reinstated Wright in 2005.
63. The case named seven organizational defendants, but the principal ones were the Holy Land Foundation for Relief and Development, the Quranic Literacy Institute (a group that translates Islamic texts), and the Islamic Association for Palestine. Besides Salah, the individual defendants were Musa Abu Marzuq and the two men who allegedly carried out the killing, although Salah was the individual actually served in the case.
64. See Jon Weiner, "Warriors for Zion in California: Exaggerated Claims of Campus Anti-Semitism Have Drawn Media and Congressional Attention," The Nation, 7 July 2008, p. 23.
65. Jerusalem Post, 2 June 2008; U.S. v. Rosen and Weissman, Case No. 05 CR 225, Memorandum Opinion of 26 January 2007, Judge T.S. Ellis III.
66. See Nathan Lewin, "A Promise the U.S. Makes, but Does Not Keep," Jewish World Review, 27 August 2002.
67. See also Lewin's controversial 2002 essay calling for the execution of Palestinian suicide bombers' family members, "Deterring Suicide Killers," May 2002, available at www.shma.com/may02/nathan.htm.
68. Testimony of Nathan Lewin, United States Senate Judiciary Committee, on the subject of the tools needed to fight terrorism financing, 20 November 2002.
69. The Boim judge found liability without a trial (in the absence of "material issues of disputed fact") in favor of the Boims against Salah, the Holy Land Foundation, the American Muslim Society, and the Islamic Association for Palestine. (Musa Abu Marzuq and the other individual defendants were never served with the lawsuit and were therefore not part of the case.) A jury trial was then held to set the amount of damages. All the defendants declined to participate the proceeding, and in December 2004 the jury, hearing no evidence from any of the defendants, found liability against them in the amount of $156 million. In December 2007, however, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit reversed the damage award on the grounds that the trial court had erred in not requiring the Boims to show the defendants' "knowledge of and intent to further [Hamas's] violent criminal acts," adding that "giving money to Hamas or a Hamas-affiliated entity would not by itself suffice to establish civil liability... for terrorist acts committed by... Hamas." The opinion was not entirely clear, however: While stating that the Boims would have to show that the defendants knew that the murder of their son "was a reasonably foreseeable result of making the donation," the panel also suggested that the plaintiffs "might" be able to prove liability by showing that donating money to a Hamas-related charity was known by the defendants to "free up" money for violence. The Boim lawyers asked the full court of appeals to rehear the case, and on 16 June 2008, the court granted their request, specifically asking the parties to address the following question: "Whether a donor to an organization that, the donor knows, practices terrorism, can be liable under 18 USC 2333 (a) in the absence of proof that the donor intended to advance the violent component of the recipients' activities."
70. See Nathan Lewin, "A Promise the U.S. Makes, But Does Not Keep," Jewish World Review, 27 August 2002.
71. See Naomi Klein, The Shock Doctrine (New York: Henry Holt, 2007).
72. Department of Justice, "Chicago and Washington DC Area Men among Three Indicted."