The October 20, 2010, decision of the United States Court of Appeals for the 5th Circuit in United States v. Holy Land Foundation et al. (No. 09-10875) [1], involving what is reportedly the biggest terrorism funding criminal conviction in the history of the United States, is a Pyrrhic victory for the North American Islamic Trust (“NAIT”) and for its fellow Holy Land Foundation (“HLF”) co-conspirators and/or joint-venturers, the Council on American-Islamic Relations (“CAIR”), and the Islamic Society of North America (“ISNA”). In November 2008, a federal trial court in Texas found that the Holy Land Foundation was a front for Hamas, which is on the State Department’s list of “Foreign Terrorist Organizations,” described as, “an outgrowth of the Palestinian branch of the Muslim Brotherhood.”
The new opinion of the U.S. Court of Appeals for the 5th Circuit, as explained below, suggests the need for the Department of Defense to review its list of “Ecclesiastical Endorsing Agents” which currently includes the same ISNA that the Court of Appeals just acknowledged — and the District Court acknowledged in its now unsealed July 2007 Order [2] — is on the “list of Unindicted Coconspirators and/or Joint Venturers.” ISNA is still listed by the Department of Defense as one of its two Endorsing Agents for Muslim chaplains serving in the United States Armed Forces.
Although the recent ruling of the Court of Appeals in the Holy Land Foundation case means that the “list of Unindicted Coconspirators and/or Joint Venturers” will remained sealed by the District Court, both the District Court’s July 1, 2007, Memorandum Opinion Order and the 5th Circuit’s October 20, 2010, Memorandum Opinion, memorialize publicly that:
- The United States Government had “produced ample evidence to establish the associations of CAIR, ISNA and NAIT with HLF, the Islamic Association for Palestine (‘IAP’), and with Hamas”;
- One of the Government’s trial exhibits, “‘An Explanatory Memorandum on the General Strategic Goal for the Group in North America,’ authored by Mohamed Akram of the Shura Council of the Muslim Brotherhood and dated May 22, 1991[,] includes a section titled ‘Understanding the role of the Muslim Brother in North America,’ which states that the work of the Ikhwan [i.e., the Muslim Brotherhood] in the United States is ‘a kind of grand Jihad in eliminating and destroying the Western civilization from within and sabotaging its miserable house by their hands and the hands of the believers so that it is eliminated and God’s religion is made victorious over all other religions'”;
- “The Muslim Brotherhood supervised the creation of the ‘Palestine Committee,’ which was put in charge of other organizations, such as HLF . . . and ISNA”; and
- “During the [1993 Philadelphia] conference, [‘where leaders of the organizations under the Muslim Brotherhood umbrella met to discuss the future of the Brotherhood in the United States.,’] Palestine Committee members discussed using ISNA as official cover for their activities.”
The Court of Appeals, “REVERSE[D] the district court’s order only insofar as it requires that the opinion and order be sealed. All other requests for relief are DENIED” (Circuit Slip Opinion at page 13). Among the requests for relief that the 5th Circuit DENIED were NAIT’s requests that the 5th Circuit:
- direct the District Court to “expunge its name from inclusion in Attachment A.” i.e., from what the 5th Circuit identified as the “List of Unindicted Coconspirators and/or Joint Venturers” that the Government had attached to its May 2007 “pre-trial brief for the purpose of setting forth ‘an overview of the case, the scope of the conspiracy, and the different kinds of evidence that the government will seek to admit at trial and the evidentiary bases for the admission of that evidence'”;
- “‘vacate’ the analysis of the [District Court] opinion and order”; and
- “‘publicly affirm’ the district court’s conclusion that its [Fifth Amendment] rights were violated” and “order that the district court make a public declaration that NAIT’s rights were violated.”
The Court of Appeals, by finding that, “the district court’s decision to seal its opinion and order finding that NAIT’s rights were violated constituted an abuse of its discretion” while denying all other relief, left standing the following analyses and holdings of the District Court:
- “the Court grants CAIR’s motion to seal the list [‘of Unindicted Coconspirators’]”;
- “While it is clear from the Briggs line of cases that the Government should have originally filed the unindicted co-conspirators’ names under seal, the Court declines to strike CAIR, ISNA and NAIT’s names from those documents”;
- “The Government has produced ample evidence to establish the associations of CAIR, ISNA and NAIT with HLF, the Islamic Association for Palestine (‘IAP’), and with Hamas. While the Court recognizes that the evidence produced by the Government largely predates the HLF designation date, the evidence is nonetheless sufficient to show the association of these entities with HLF, IAP, and Hamas. See U.S. v. Ladd, 218 F.3d [ 701,] 704-05 [(7th Cir. 2000)] (‘the Government must prove by a preponderance of the evidence that a conspiracy existed’). Thus, maintaining the names of the entities on the List is appropriate in light of the evidence proffered by the Government”;
- In the “Explanatory Memorandum on the General Strategic Goal for the Group in North America” described above, which the District Court indicated was “authored by Mohamed Akram of the Shura Council of the Muslim Brotherhood and dated May 22, 1991 . . . is a list of the Muslim Brotherhood’s ‘organizations and the organizations of our friends,’ which includes ISNA, NAIT, the Occupied Land Fund (‘OLF’) (HLF’s former name), and the United Association for Studies and Research (‘UASR’). Government Exhibit 3-64, titled ‘Preliminary vision for preparing future leadership’ and dated December 18, 1988, further ties ISNA to the Muslim Brotherhood by listing it as an ‘apparatus’ of the Brotherhood” (internal citations omitted); and
- “the Court finds it appropriate to seal the entire list of unindicted coconspirators but stops short of ordering CAIR, ISNA and NAIT’s names expunged from any documents filed or produced by the government.”
While ISNA may be entitled to notice and an opportunity to be heard under the Fifth Amendment, now that the U.S. Court of Appeals in the Holy Land Foundation terrorist financing case has publicly acknowledged ISNA’s ties to Hamas through the Muslim Brotherhood, the American People are entitled to know why their Department of Defense continues to rely on a “co-conspirator and/or joint-venturer” in support of the Muslim Brotherhood, whose stated goal is “destroying the Western civilization,” and Hamas, a designated foreign terrorist organization.
[1] 2010-10-20 United States v. Holy Land Foundation et al. (No. 09-10875)
2010-10-20 United States v. Holy Land Foundation et al. _5th Circuit_ –
[2] 2009-07-01 United States v. Holy Land Foundation et al. (D.N.Tx.)
2009-07-01 United States v. Holy Land Foundation et al. _D.N.Tx._ –
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