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Holy Land Conviction Demonstrates Fed Cts Can Prosecute Terror

Whatever you think of the prosecution and conviction yesterday of the Holy Land Foundation following a 7-week trial, it does seem to prove that federal courts are capable of handling the prosecution of suspected terrorists.

Holy Land former chairman Ghassan Elashi and Shukri Abu-Baker, the group’s chief executive, were convicted of a combined 69 counts, including supporting a specially designated terrorist, money laundering and tax fraud.

Mufid Abdulqader and Abdulrahman Odeh were convicted of three counts of conspiracy, and Mohammed El-Mezain was convicted of one count of conspiracy to support a terrorist organization. Holy Land itself, accused of giving more than $12 million to support Hamas, was convicted of all 32 counts charged.

Critics of using the federal courts to try suspected terrorists often claim that military commissions or special national security courts are needed to handle sensitive classified evidence or testimony of informants who cannot be identified.

In the Holy Land case, however, the federal court had no problem allowing the federal prosecutors to introduce and rely upon the testimony of an anonymous Israeli witness who testified as an expert on funding for terrorism. Although critics have denounced that tactic, the defendants’ lawyers were allowed to cross-examine the witness and were given the basis of his credentials as an expert, apparently solving the potential Sixth Amendment Confrontation Clause problems.

“Witness anonymity to some extent raises concerns, but the court has to weigh the national security interest against the defendant’s right,” explains Peter Margulies, a law professor at Roger Williams University and expert on national security law.

Although I didn’t watch the Holy Land trial and won’t venture to comment on its fairness, it does counter the argument made by people like Benjamin Wittes, Jack Goldsmith and Neal Katyal, which I’ve reported on before, in favor of creating special national security courts to handle classified evidence and testimony from important witnesses who need to remain anonymous for national security purposes.

As Human Rights First demonstrated in a report released in May, federal court trials of suspected terrorists have actually been far more successful than any military commissions have shown themselves to be.

Since September 2001, about 150 suspected terrorists have been convicted in US federal courts. By contrast, only three have been convicted by the Bush administration’s military commissions – one in a plea deal, another in a trial boycotted by the defendant, and the third –Salim Hamdan, Osama bin Laden’s driver, originally accused of being one of the masterminds of the 9/11 attacks — resulting in a conviction of just a few months more than time served. I heard today that he’s already on a plane back to his home country of Yemen.

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