November/December 2006 Featured Story Criminalizing Compassion in the War on Terror: by Katherine Hughes In May 2005, David Cole, professor of law at Georgetown University, testified before the U.S. Senate Committee on the Judiciary about the constitutional implications of a series of “anti-terrorism” laws rushed through Congress after 9/11. Cole said [emphasis mine]: The statutes described above prohibit virtually all associational support to selected political organizations, while granting executive branch officials effectively unreviewable discretion to target disfavored groups. These laws make it a crime to write an op-ed, provide legal advice, volunteer one’s time, or distribute a magazine of any “designated” group, even if there is no connection whatsoever between the individual’s support and any illegal activity of the proscribed group. Under these statutes, an American citizen who sends a treatise on nonviolence to the Kurdistan Workers’ Party to encourage it to forgo violence for peace can be sent to prison for 15 years. This is so even if he proves that he intended the treatise to be used only for peaceful ends, and that it was in fact used solely for that purpose. Such a moral innocent can be said to be “guilty” by association. 1 If you think this is an exaggeration and couldn’t happen, think again. This is precisely the situation in which Dr. Rafil A. Dhafir found himself. The T-word
According to United Nations statistics, every month throughout the 1990s almost 6,000 children under the age of five in Iraq were dying from lack of food and access to simple medicines.2 Three senior U.N. officials resigned because of what they considered a “genocidal” policy against Iraq.3 The United States led the effort to place restrictive sanctions on Iraq, and when Madeleine Albright, then-U.S. Ambassador to the United Nations, was asked in a CBS interview if the deaths of half a million children was a price worth paying to punish Saddam Hussein, she infamously replied, “I think this is a very hard choice, but the price – we think the price is worth it.”4 When the deaths of children over the age of five and adults are added, the number killed as a direct result of the sanctions rises to between 1.5 and 2 million dead civilians.5 In response to the humanitarian catastrophe created by these brutal sanctions, Dhafir, a man of Iraqi descent and Muslim faith, and an American citizen for almost 30 years, started the charity Help the Needy (HTN). Dr. Dhafir is a pillar of the Muslim community in Central New York. He was a founding member of the local mosque, and he served as the imam at Syracuse University until it hired a full-time imam. He paid a substantial amount of the running costs of the mosque and provided free medical consultation to those at the mosque without health insurance. His medical practice was in Rome, New York, an underserved area in which he was the sole oncologist. In his practice he provided free health care to people without insurance, and he paid for their expensive chemotherapy medicine out of his own pocket.6 For 13 years, Dhafir worked tirelessly to help publicize the plight of the Iraqi people and to raise funds to help them.7 According to the government, Dhafir donated $1.25 million of his own money over the years.8 As an oncologist, he was also concerned about the effects of depleted uranium on the Iraqi population, which was experiencing skyrocketing cancer rates.9 For the crime of breaking the U.S. and U.K.-sponsored U.N. sanctions on Iraq and sending humanitarian aid to sick and starving civilians, Dhafir was held without bail for 31 months and then sentenced to 22 years in prison.10 By implication, his were terrorist acts. The legal background Since the events of 9/11, the government has implemented powerful new prosecutorial tools to gain convictions in its War on Terror. In an article entitled “Terrorist Financing,” Jeff Breinholt, deputy chief of the Department of Justice’s Counterterrorism Section, explains these tools and how they are being used.11 On page 31 of the article he lists the statutes employed in the criminal prosecution of terrorist financing. Among these statutes is the International Emergency Economic Powers Act (IEEPA), which Breinholt also labels as “United States economic sanctions.”12 IEEPA provides the president of the United States with authority to deal with any “unusual and extraordinary threat” that has its source in whole or substantial part outside the United States; this includes threat to “national security, foreign policy, and the economy.”13
Prosecutors armed with the statutes listed in Breinholt’s paper are further empowered by using them in conjunction with the “material support of terrorism” laws, Executive Order (EO) 13224, and civil asset forfeiture laws – particularly those under IEEPA, which were amended by the PATRIOT Act. Under the IEEPA civil asset forfeiture provisions, the government can close down an organization and seize its assets while an investigation is ongoing, without probable cause of criminal activity and without any charges ever being brought against anyone.14 EO 13224 was issued on September 23, 2001. It introduced a blacklist of organizations and individuals suspected of terrorism, materially aiding terrorism, or associating with terrorists. IEEPA and international law permit humanitarian assistance for these suspects, including food, clothing and medicine, but this humanitarian aid is outlawed under EO 13224.15 The penalty for an IEEPA violation for organizations that knowingly engage in terrorist financing already carried a sentence of 20 years to life in prison. What this new provision did was “drastically increase the penalties for knowing violations of non-terrorism-related IEEPA offenses.”16 People with a concern for civil liberties are troubled by the fact that the government provides no legal definition of what they consider a “specially designated terrorist” and by the broad manner in which the government is interpreting the new rules.17 The effect on Muslim charity In a March 2006 article in the Washington Post, Laila al-Marayati and Basil Abdelkarim, board members of Kinder USA, a Muslim-American nonprofit humanitarian organization, wrote: We are among those American Muslims who decided that because it is our right as Americans to fulfill our religious obligation to help the needy both here and abroad, we would start a new charity. We did so in 2002 and have experienced our fair share of government harassment as a result. None of us is interested in engaging in illegal activity; it is immoral, unethical, and un-Islamic, and it serves no useful purpose whatever. Our crime is that we care about what happens to the children of Palestine. Who knows what price we will have to pay for our hot-breakfast program for hungry kids in Gaza, for our playground project in the West Bank, for our psychological trauma center in Hebron.18 It is Muslim charities and individuals connected with these charities who are bearing the brunt of EO 13224.19 Since September 11, 2001, six major U.S. Muslim charities and several smaller Muslim charities have been shut down.20 The U.S. government closed the three largest Muslim charities in the country in December 2001, accusing each of supporting terror.21 Yet working in close collaboration with the U.S. government does not provide protection from this fate. In 2002 a new charity, KindHearts (KH), was established, determined to work together with government agencies to ensure compliance with all the new rules. KH has nonetheless suffered the same consequences as its sister organizations. In February 2006, KH’s assets were seized and its operations frozen because of dubious allegations of financing terror.22 In a report titled “Muslim Charities and the War on Terror,” OMB Watch23 documented its concerns about the treatment of Muslim charities and the people involved with them.24 Among the many concerns OMB voiced were the use of questionable evidence to shut down the largest U.S.-based charities, resulting in much-needed humanitarian assistance not reaching people who desperately need it; use of anti-terrorist financing policies that deny Muslim charities the right of due process and are unequally enforced; and holding of organizations and individuals associated with humanitarian work “guilty until proven innocent.” They concluded that despite the new investigative powers, the authorities have failed to produce evidence of terror financing by U.S.-based charities.25 Nudge nudge, wink wink: the Help the Needy case Since the day of Dhafir’s arrest, February 26, 2003, when 85 (!) agents went to his home, government officials at national and state levels have portrayed Dhafir’s humanitarian work as support of terrorism.26 Simultaneous to Dhafir’s arrest, between the hours of 6 a.m. and 10 a.m., others associated with HTN were arrested in Syracuse, New York; Boise, Idaho; and Amman, Jordan. At the same time, about 150 mainly Muslim families who had donated to HTN were interrogated by government agents.27 On the same day, Attorney General John Ashcroft announced that “supporters of terrorism” had been apprehended – a completely unfounded assertion that was reiterated by New York Governor George Pataki in August 2004, just prior to the start of Dhafir’s trial.28 At the same time, and throughout the trial, local government officials – the prosecutors and the District Attorney – denied that the case had any connection to terrorism. Instead they portrayed Dhafir as a common thief.29 District Attorney Glenn Suddaby said, “[T]here’s no evidence that any of the Help the Needy money went to al Qaida, the Iraqi government, or to buy arms and bullets that could be used against U.S. soldiers.”30 The inconsistencies in the government’s position were a startling feature of this case fromits inception. They suggested two possibilities: either one hand of the government didn’t know what the other was doing, or the government was aiming deliberately to deceive. No media outlet challenged the government directly and demanded that it provide an explanation for its contradictory assertions. However, Michael Powell of the Washington Post drew attention to them shortly before the trial began: There is a shadow-boxing quality to the terror allegations lodged against Dhafir. In August, Gov. George E. Pataki (R) described Dhafir’s as a “money laundering case to help terrorist organizations ... conduct horrible acts.” Prosecutors hinted at national security reasons for holding Dhafir without bail. But no evidence was offered to support the allegations.31 Despite Pataki’s pre-trial announcement, which was perfectly timed to reach potential jurors, the prosecution successfully petitioned Judge Norman Mordue not to allow the charge of terrorism to be part of the trial.32 Not surprisingly, the specter of terrorism hung over the trial throughout the proceedings, and prosecutors could hint at more serious charges but the defense lawyers were never allowed to follow this line of questioning.33 Dhafir’s 17-week court case was conducted as a 60-count case of white-collar crime with no charges of terrorism. As a direct result of this, only the local Syracuse newspaper, the Post Standard, covered the proceedings. The paper proved to be little more than a mouthpiece for the government; on the rare occasion that it did provide coverage of cross-examination, it immediately followed with a restatement of the charges in the indictment.34 During the 17 weeks of daily coverage of the proceedings, the paper failed to give more than a passing mention to an ecumenical group that met every morning outside the federal building to worship for half an hour before the trial commenced at 8:30 a.m., or to the American Civil Liberties Union (ACLU) court watchers who were present in court every day.35 Concerns have been expressed about reporters being embedded in war zones; there should be equal concern about them being embedded in federal buildings. Avoiding the issues Of the 60 counts in the Dhafir indictment, most were related to breaking the sanctions: conspiracy, mail and wire-fraud, money laundering, and tax evasion. These charges are easily explained when viewed in the context of the sanctions. The government, however, did everything it could to prevent the condition of Iraq during the sanctions from being referred to at the trial.
According to the government, the investigation of HTN began with a Suspicious Activity Report (SAR) from a bank. The government encourages financial institutions to report “suspicious activity” by watching out for money transfers between related accounts of related entities. But many nonprofit organizations that have nothing to do with supporting terrorism make these kinds of transfers on a regular basis.36 Because of the SAR report, seven government agencies investigated Dhafir and HTN for five years. They intercepted mail, e-mail, and faxes; bugged his office and hotel rooms; and conducted physical surveillance. Because the government was unwilling to prosecute Dhafir for sanctions-related charges alone, the last 25 counts of the indictment were related to Medicare fraud. The government evidence for this part of the case was extremely weak.37 For example, a bar chart that supposedly compared the dollar amount of Dhafir’s billing of Medicare with other doctors’ billing was completely meaningless. It showed Dhafir’s bar as being very tall and the other doctors’ bars being much smaller – but when the witness was asked by the defense to say what types of doctors the other doctors were, or what their geographic location was, she could not answer.38 The whole of the Medicare case revolved around a single rule called “incident to,” meaning any treatment performed by someone other than the doctor. The government claimed that Dhafir had filled out the forms incorrectly, and was therefore entitled to no reimbursement from Medicare, despite the fact that patients had received treatment and chemotherapy drugs. The defense contended that even if Dhafir’s office had filled the forms wrongly (which they did not believe he had), Medicare had only overpaid 15% of $1,102.80 – the difference between what they pay for a doctor’s time as opposed to a nurse practitioner’s time – for a total overpayment of $166.00. This was not fraud, merely incorrect billing. Medicare fraud usually involves fictitious patients and made-up illnesses. Dhafir’s case had none of this. The government presented the Medicare evidence in the same way it presented the evidence related to the sanctions. After weeks of testimony following checks from bank to bank, the prosecution turned to day after day of testimony regarding Medicare forms, asking individuals from Dhafir's office to validate their signatures on the forms – thus proving that they had indeed signed the forms, but nothing else.39 The defense presented one witness, for 15 minutes. He was Dr. Edward Cox, head of the carrier organization that processes claims for Medicare.40 Reading from The New York State Handbook, Cox confirmed the defense’s contention that in order to bill Medicare under the “incident to” rule, a non-physician was required to have a license or training.41 Thus, according to the Handbook, Dhafir’s billing of Medicare was proper. The Post Standard reported this testimony correctly on the day after it was given. On the following day, however, the paper had a front-page correction, with a picture of the witness apparently contradicting his testimony of the day before.42 And despite the testimony of this witness, the judge in his charge to the jury instructed them that under New York law a laboratory technician required a license; in other words, training alone was not sufficient.43 On the day of her sentencing, Mrs. Dhafir, Dr. Dhafir’s wife and bookkeeper, was ordered to pay back $62,000 to Medicare. Asked on the same day how much of that money had actually been spent on chemotherapy medicine that was administered to patients, Michael Olmstead, the head prosecutor, was unable to say. When Dr. Dhafir was asked the same question, he said that 90% of this money had been spent on medicine.44 This leaves 10% of the money for the doctor’s time, the nurse’s time, and blood work. Dhafir also said that in 2002, Medicare reimbursed him less than he had spent on medicine alone. A look at the records would confirm or refute this, but Dr. Dhafir has been continually denied access to his own records that were taken from his house and office on the day of the arrest. Jennifer Van Bergen, a journalist with a law degree and author of The Twilight of Democracy45 has written a two-part article on Dhafir’s case entitled “New American Law: The Case of Dr. Dhafir” and “New American Law: Legal Strategies and Precedents in the Dhafir Case.”46 In this article and other writings, Van Bergen warns about the danger of civil liberties being undermined when the government uses parallel legal tracks not intended to be mixed.47 She notes that, as happened in Dhafir’s case, conspiracy laws and money laundering laws used “creatively” with the PATRIOT Act and IEEPA can be used to construct a vast distorted picture. Dhafir’s case sets a legal precedent and means that others who provide humanitarian and medical assistance to those in need could, like Dhafir, end up being put away for the rest of their lives. The government’s strategy revealed In November 2005, just weeks after Dhafir was sentenced to 22 years in prison for white-collar crimes, the government presented a lecture to a group of faculty and third-year law students at Syracuse University Law School in which Dhafir and the HTN case were highlighted. Jeff Breinholt, author of the article on terrorist financing mentioned above, and Greg West, one of the Dhafir prosecutors, presented the lecture, “A Law Enforcement Approach to Terrorist Financing.”48 The other two Dhafir prosecutors were also present, along with representatives from the Institute for National Security and Counterterrorism (INSCT), a sponsor of the lecture.49
The slant of this lecture, along with Breinholt’s 2003 “Terrorist Financing” article and the fact that Dhafir and the other HTN defendants are listed on the FBI’s list of “terrorism convictions since September 11, 2001,” give credence to the idea that the government’s creative use of parallel legal tracks was a strategy from the outset.50 Breinholt stated that Dhafir’s case had been under-prosecuted. In the context of the lecture’s title, the implication was clear. He discussed the statutes being used as powerful tools for prosecution of terrorist financing, and explained that these tools were not widely known even among prosecutors. He voiced a hope that law schools could serve as a kind of farm system educating students in this new field of law, and that this in turn would create lawyers who would be familiar with and who could use these new prosecution tools.51 He explained that because the “American public won’t tolerate anything less than the rule of law,” creative ways had to be figured out to draft laws that can be used to prosecute what they are trying to prevent.52 According to Breinholt, this task was addressed by a Department of Justice Terrorist Financing Task Force that came together to craft ways to apply white-collar expertise to the problem of terrorism. In his article, Breinholt says: Persons cannot be convicted of the federal crime of terrorism because there is no such crime. Instead, terrorism crimes have developed in the same manner as other crimes, policymakers determine what evil (or “mischief”) should be prevented, and then craft criminal laws that take into account how such mischief is generally achieved. On occasion, acts that are criminalized are not ones that should necessarily be discouraged, if committed by persons not otherwise involved in the targeted conduct. In such cases, laws are crafted to criminalize such conduct only when in particular circumstances.53 A major tool that emerged from the work of this task force, said Breinholt, is the use of IEEPA violations to gain convictions in terrorist financing cases. He added that to convict under IEEPA, all that is necessary is to build a chain of inferences from available circumstantial evidence.54 In Breinholt’s article, Dhafir and other HTN defendants are listed under the heading “Examples of ‘clean money’ cases.”55 Listed under this same heading are Enaam Arnaout of Benevolence International Foundation (BIF); Sami Al-Hussayen, a graduate student at the University of Idaho, associated with Islamic Assembly of North America (IANA);56 and Sami Al-Arian, a Palestinian professor from Florida.57 Further on, under the heading “crimes of terrorist financing,” Breinholt lists the statutes being used in prosecution of these cases.58 Statutes under this heading that were used in Dhafir’s case are 50 U.S.C. ss 1701,1702 (IEEPA) and U.S.C. ss 1956(a)(2)(A), “operating an unlicensed money transmitting business.”59 One of the Dhafir prosecutors, Mr. West, explained to the class that one of the biggest frustrations of his career was having access to intelligence and not being able to share it. Neither Breinholt nor West stated that these “powerful prosecution tools” are being used mostly against Muslim charities and individuals associated with those charities, while violations by large corporations like Halliburton, which did billions of dollars worth of business in defiance of IEEPA, go largely unpunished. At the most these corporations have gotten a slap on the wrist and a fine, but no individual board member or officer has ever faced prosecution. 60 And although many non-Muslim charities work in the same troubled regions of the world as Muslim charities, not a single non-Muslim charity has been closed.61 None of this was mentioned at the lecture. By hosting this lecture, Syracuse University Law School gave credence to a charge never brought against Dhafir, and in doing so they became an accomplice in the government’s subterfuge. After the lecture, a request was made that the ACLU court watchers who attended the trial be provided with “equal time” to speak to the students.62 Syracuse Law School Dean Hannah Arterian denied this request. In testimony given on Capitol Hill by the U.S. Treasury Department, prosecution of Muslim charity cases is being used as a model of success in efforts to disrupt terrorism.63 However the testimony often contradicts the actual rulings in the cases, and the testimony fails to acknowledge that there are no terrorist convictions among any of the cases. At a 2004 Pace University Law School symposium, Dr. Laila al-Marayati addressed the way this Treasury Department targeting of Muslim charities threatens civil liberties, constitutional rights, and the rule of law not just for Muslims, but for every American, regardless of creed: The ever-present threat of a “terrorist designation” by the Treasury Department functions based on the principle of “guilty until proven innocent.” The use of secret evidence, hearsay, erroneous translations, guilt by association and press reports in recent court cases further erodes the ability of charities to rely on basic assumptions regarding their constitutional rights, especially when the courts ultimately favor the government when “national security” is allegedly at stake. Overzealous surveillance tactics of the intelligence community such as wiretapping, infiltrating organizations by bribing employees to work as spies (thereby disrupting normal and lawful humanitarian activities), and engaging in other forms of harassment – when added to the above bleak picture – will not only chill, but will freeze completely American Muslim charitable giving overseas. Perhaps this is the goal of the U.S. government. However, no one should be fooled into thinking that America or the American people will be much safer as a result.64 History watches
Writing during the McCarthy era, Judge Irving R. Kaufman warned, “Once we embark on shortcuts by creating a category of ‘obviously guilty’ whose rights are denied, we run the risk that the circle of the unprotected will grow.”65 We appear once again to have entered a dark time in which the civil liberties of a select group of people are being denied. The message being sent to Muslims across the country is that pillars of their community can be knocked down without any call for equal justice from the non-Muslim community. It is incumbent upon each of us to defend civil liberties for all, not least because “injustice anywhere is a threat to justice everywhere.”66 Donations can be made to Dhafir Appeal Fund, c/o Peter Goldberger, Esq., Attorney at Law, 50 Rittenhouse Place, Ardmore, PA 19003. Write “Dr. Dhafir Appeal Fund” in the memo line and please note that donations are not tax-deductible. Katherine Hughes began attending the 17-week trial as a court watcher for the ACLU but quickly found that she could not in good conscience be the uninvolved observer their organization required. Since then she has worked to achieve justice for Dr. Dhafir. More information can be found at her Web site: www.dhafirtrial.net. A version of this article with detailed footnotes may be accessed online at www.forusa.org/fellowship.
©2006 Fellowship of Reconciliation |
