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

Journal of Palestine Studies

Volumn 38, Issue 1, 2008, Pages 25-53

  Deutsch, Michael E ^a   Thompson, Erica ^a  

^a People's Law Office   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CRIME; POLITICAL CONFLICT; TERRORISM;

ASIA; EURASIA; ISRAEL; MIDDLE EAST; PALESTINE;

ARIA;

EID: 57449117347     PISSN: 0377919X     EISSN: None     Source Type: Journal    
DOI: 10.1525/jps.2008.38.1.25     Document Type: Article

References (70)

1. Remarks by the President, Secretary of the Treasury O'Neill, and Secretary of State Powell on Executive Order, the White House, Office of the Press Secretary, 24 September 2001, quoted in "Collateral Damage, How the War on Terror Hurts Charities, Foundations, and the People They Serve," Washington, DC: OMB Watch (July 2008), p. 9.
2. "Collateral Damage," p. 19 n. 54.
3. Indeed, even the Boim civil suit had been languishing before 9/11. The defendant organizations' lawyers appealed the case on constitutional grounds in the hopes of having it thrown out of court, but 9/11 occurred two weeks before the scheduled hearing. The Justice Department immediately filed an amicus brief supporting the Boim lawyers' theory that these organizations should be considered "aiders and abettors" of terrorism, and on 5 June 2002 the Seventh Circuit Court of Appeals agreed, allowing the lawyers to proceed full force in their attempt to crush the defendant organizations.
4. See Michael E. Deutsch and Erica Thompson, "Secrets and Lies: The Persecution of Muhammad Salah (Part I)" [henceforth referred to as "part I"], JPS 37, no. 4 (Sum. 2008), p. 53.
5. In May of 1999, the High Court ruled that most of Shin Bet interrogation methods, including sleep deprivation, hooding, and the use of small, uneven chairs during "waiting" (all practices used in Salah's interrogation) exceeded their lawful authority. The Court concluded that a "reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment, and free of any degrading treatment whatsoever ... these prohibitions are absolute." In re: Public Committee Against Torture, H.C. 5100/94 et al., Israel High Court, September 1999.
6. On 1 August 2002, responding to a request from White House Counsel (then-Judge) Alberto R. Gonzales for guidance on the legality of interrogation methods that do not violate U.S. prohibitions on torture, Deputy Assistant Attorney General John Yoo wrote what came to be known as the "torture memo." Yoo's 5-page memo emphasized that to constitute torture, acts must be "specifically intended to inflict severe physical or mental pain or suffering" (emphasis in original) and that the infliction of such pain must be the "precise objective" of the exercise, thereby giving interpretive leeway to all but "rogue prosecutors" of torture defendants.
7. The government was unable to bring Abu Marzuq, who was living in Damascus, to trial, but Ashqar, as noted in the introduction, was Salah's codefendant at trial. Despite Abu Marzuq's absence, all the court documents are headed "United States of America, Plaintiff, v. Mousa Mohammed Marzook, et al., Defendants." The case number is 1:03-cr-00978, U.S. District Court for Northern District of Illinois (7th District), where transcripts of active hearings and jury trials are filed.
8. See part I, p. 41.
9. United States v. Sablotny, 21 F.3d 747, 750 (7th Cir. 1994).
10. Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944).
11. Pre-Hearing Memorandum in Support of Muhammad Salah's Motion to Suppress, 17 October 2005.
12. Affidavit of Muhammad Salah filed in support of Muhammad Salah's Motion to Suppress, 17 October 2005.
13. Defendant Muhammad Salah's Motion for Material Discovery Necessary for Evidentiary Hearing on Motion to Suppress, 12 December 2005.
14. Transcript of 1993 military tribunal in Israel, turned over during the discovery process and in the possession of defense counsel.
15. The Landau commission, an official Israeli government body convened to look into systematic lying by Shin Bet agents before military tribunals, authorized moderate coercion in interrogations. The theory was that since the perjury had been committed in order to cover up the widespread use of torture, allowing some coercion would enable interrogators to testify truthfully in the secret military proceedings.
16. See part I, p. 44.
17. The "bird exercise" refers to Salah's ten-day incarceration incommunicado in an unmonitored cell with more than a dozen hardened Palestinian prisoner-collaborators (known as "birds") who had been coached by Shin Bet to extract a made-to-order confession in writing. See part I, pp. 46-49.
18. See Defendant Muhammad Salah's Post-Hearing Brief in Support of His Motion to Suppress Statements, March 2006 [no specific date given].
19. Transcript of the 1993 military tribunal, in the possession of defense counsel.
20. Gov't Response to Salah's Motion for Material Discovery Necessary for Evidentiary Hearing on Motion to Suppress, 5 Janury 2006.
21. Gov't Motion to Conduct Certain Portions of the Evidentiary Hearing on Defendant Salah's Motion to Suppress Pursuant to Classified Information Procedures Act (CIPA) and for Application of Other Measures to Ensure Witness Safety, 5 January 2006, p. 2.
22. Gov't Motion to Conduct Certain Portions of the Evidentiary Hearing on Defendant Salah's Motion to Suppress Pursuant to Classified Information Procedures Act (CIPA), p. 3 (emphasis added).
23. Gov't Motion to Conduct Certain Portions of the Evidentiary Hearing on Defendant Salah's Motion to Suppress Pursuant to Classified Information Procedures Act (CIPA), pp. 5-6.
24. Gov't Motion to Conduct Certain Portions of the Evidentiary Hearing on Defendant Salah's Motion to Suppress Pursuant to Classified Information Procedures Act (CIPA), p. 24.
25. Gov't Motion to Conduct Certain Portions of the Evidentiary Hearing on Defendant Salah's Motion to Suppress Pursuant to Classified Information Procedures Act (CIPA), p. 5.
26. The section on Israel in the State Department's 1993 Country Report on Human Rights notes that "As in 1992, international, Israeli, and Palestinian human rights groups and diplomats continued to provide detailed and credible accounts of widespread abuse... of Palestinian and Palestinian-American detainees, both immediately after arrest and during interrogation. According to credible reports, hooding, forced standing or tying up in contorted positions, prolonged exposure to extreme temperatures, blows and beatings, confinement in small space, sleep and food deprivation, threats against the detainee's family, and threats of death were common practice in interrogation facilities. The apparent intent of these practices was to disorient and intimidate prisoners, often with the goal of obtaining confessions or information about third parties." The 1994 report repeated some of the same allegations, noting "credible reports indicating that Israeli security forces are responsible for widespread abuse, and in some cases torture, of Palestinian detainees, including those who possess U.S. citizenship."
27. The open-ended use of classification laws to keep secret government documents is a mainstay of the Bush administration. According to civil liberties group OpenTheGovernment.org's 2003 Secrecy Report Card, in 2003 alone 14 million new documents were classified "secret," 60 percent more than in 2001, the biggest jump in a decade. A stunning example of the classification policy was the May 2004 Defense Department memorandum barring Pentagon staff from reading the "Taguba Report" about the "systematic and illegal abuse of detainees" by U.S. forces at Abu Ghraib which had already been posted on major media Web sites around the country.
28. Gov't Motion to Conduct Certain Portions of the Evidentiary Hearing on Defendant Salah's Motion to Suppress Pursuant to Classified Information Procedures Act (CIPA), p. 3.
29. Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982).
30. Gov't Motion to Conduct Certain Portions of the Evidentiary Hearing on Defendant Salah's Motion to Suppress Pursuant to Classified Information Procedures Act (CIPA), pp. 3-4.
31. Don Wycliff, "Secrecy's Corrosive Effect in Terrorism Case," Chicago Tribune, 2 February 2006. The Tribune's brief stated that "Secrecy can destroy the legitimacy of government institutions, including our criminal courts in particular ...Secrecy can cripple... public trust in the judicial process. Secrecy can hide abuses of fundamental rights of citizens."
32. United States v. Inadi, 475 U.S. 387, 406 (1986).
33. Defendant Muhammad Salah's Post-Hearing Brief in Support of His Motion to Suppress Statements, March 2006. [n.d.]
34. See Stipulation 1 under CIPA for suppression hearing.
35. B'Tselem issued two reports, in 1991 and 1992, which documented practices used at the Ramallah and Hebron interrogation centers and specific abuses committed on detainees by interrogator "Haim." Both reports outlined the same interrogation practices Salah was subject to, including the "bird" exercise, and found them to be "routine techniques of interrogation" and "commonplace." Al-Haq likewise conducted an exhaustive study and found that the interrogation methods used on Salah were "systematic" and "standardized... in the interrogation of Palestinians."
36. Defendant Salah's Motion for Evidentiary Hearing to Establish the Joint Venture, Cooperation, and Partnership between the United States and Israel in the Prosecution of Muhammad Salah, 29 August 2006.
37. The estimated number of trips is based on the defense's analysis of FBI reports turned over to the defense in the discovery process.
38. Shin Bet interrogation logs turned over during the discovery process, in the possession of defense counsel.
39. State Department Documents, 23 March 1995, Gov't Bates Stamp No. 09697-09699; 3 May 1995, Gov't Bates Stamp No. 09700-09702; 26 May 1995, Gov't Bates Stamp No. 09419 (emphasis in original); 29 May 1995, Gov't Bates Stamp No. 09420.
40. See part I, p. 40.
41. See part I, p. 47.
42. These questions were unexpectedly declassified and turned over to the defense by the government in the midst of the suppression hearing, apparently in response to earlier requests from the defense for information about FBI-Shin Bet cooperation.
43. See amicus curiae brief of the Anti-Defamation League filed in Humanitarian Law Project v. Janet Reno, Nos. 98-56062, 98-56280. Subsequent investigations revealed that the doctor, who was named in the brief, had been tortured by Shin Bet and sent to the "birds" to produce a manuscript the month before Salah's arrest.
44. See part I, p. 48.
45. When Robert Wright, the driving force behind the terrorism funding probe of Salah and others in the 1990s, was removed from the investigation in 1999, one of the reasons for his dismissal was apparently his over-reliance on informants such as Jack Mustafa. See part I, p. 57, n. 56.
46. FBI memo, September 2003, Gov't Bates Stamp No. 13439-13443.
47. See part I, pp 52-53.
48. In April 2007, two months after Salah was acquitted on terrorism-related charges, Mustafa was arrested by FBI agents for impersonating an FBI agent while in possession of a handgun, in a months-long scheme to extort $500,000. With Salah's sentencing on the obstruction conviction still pending, however, the case against Mustafa was abruptly dismissed by the U.S. attorney's office.
49. Redacted FBI report on "confidential informant" made available to the defense.
50. Levitt had earlier been with the FBI and with the Washington Institute for Near East Policy (WINEP), an organization which defines its "central policy objective" as "keep[ing] the strategic relationship of Israel at the center of U.S. Middle East policy."
51. In cross-examination, Levitt revealed that much of his knowledge derives from intelligence reports provided to him from Israeli and U.S. security agencies and from the internet.
52. He also testified at the Boim v. Quranic Literacy Institute, et al. civil case.
53. See part I, pp. 50-51.
54. See under "Salah's Suppression Hearing," above.
55. The "shabeh" position involves the bending or contortion of a prisoner (over a chair or pipe, e.g.) for an extended period of time. See B'Tselem, "Routine Torture: Interrogation Methods of the General Security Service," February 1998, available at http://www.btselem.org/English/ Publications/Summaries/199802_Routine_Torture.asp.
56. A State of Israel Comptroller report in 1992 found that despite the authorizations in the secret Landau protocol, Shin Bet was still systematically lying about their use of force and coercion.
57. See part I, pp. 49-50.
58. See part I, p. 48.
59. See part I, pp. 46-47.
60. Metin Basoǧlu et al., "Torture vs. Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent?" Archives of General Psychiatry 64, no. 3 (March 2007), pp. 277-85.
61. Salah was the only individual actually served in the case, but three other individuals were named: Abu Marzuq and the two men who allegedly carried out the killing.
62. See part I, pp. 53-54.
63. The interrogatories and responses were turned over to the defense during the discovery process.
64. Given that interrogatory answers in civil cases are not publically filed, Salah's prosecution almost certainly would have obtained them from the Boim lawyers.
65. Testimony of Nathan Lewin, U.S. Senate Judiciary Committee, on the subject of the tools needed to fight terrorism financing, 20 November 2002, available at http://judiciary.senate.gov/hearings/ testimony.cfm?id=519&wit_id=1421.
66. Nathan Lewin, "Deterring Suicide Killers," May 2002, available at www.shma.com/may02/nathan.htm.
67. See Nathan Lewin, "A Promise the U.S. Makes, but Does Not Keep," Jewish World Review, 27 August 2002.
68. The prosecution had specifically argued that Salah's negative answer to the question of whether Salah had ever met any of the other defendants was a lie because he had surely, according to the government, "met" Abu Marzuq. Salah never denied that he had deposited checks from him in his bank account, so it is unlikely that he would have lied about meeting him in person.
69. Ashqar was also convicted of criminal contempt for his refusal to collaborate with U.S. grand juries convened in New York and Chicago to investigate the Palestinian resistance movement. He received a draconian, unprecedented sentence of eleven years and is currently in federal prison. His case is presently on appeal.
70. In its August 2006 motion for an evidentiary hearing to establish joint venture in Salah's prosecution, the defense, pursuant to the principles of due process, fair trial, Brady v. Maryland 373 U.S. 83 (1963), and the CIPA, argued for dismissal of count I on grounds of double jeopardy.