CAIR's Legal Gambit (and another Graph)

By Aaron Mannes

The move by CAIR and several other prominent Muslim organizations to have themselves de-listed as un-indicted co-conspirators in the Holy Land Foundation trials is an interesting, albeit unprecedented, legal maneuver that – if successful – would have a profound impact on the HLF trial and criminal justice in the United States.

First, full disclosure: I am not an attorney, but I did speak with several about the issues at stake.

Slate has a short article defining the unindicted co-conspirators:

A co-conspirator is someone prosecutors believe entered into an agreement with at least one other person to break the law. Being unindicted just means the person hasn't been charged with a criminal offense. Co-conspirators can be unindicted for several reasons: They may be cooperating witnesses for the prosecution, or the government may not have enough evidence to convict them. Or they may be charged in another case.

Osama bin Laden is an unindicted co-conspirator in both the Moussaoui trial and also the WTC 1 trial. The reason for naming a person or organization as an unindicted co-conspirator is because (again quoting Slate):

…the prosecution will want to use out-of-court statements made by the co-conspirators. Normally, out-of-court statements are considered hearsay. But under the federal rules of evidence, a statement is not hearsay if it is made "by a coconspirator of a party during the course and in furtherance of the conspiracy…."

The naming of unindicted co-conspirators is a useful tool for the prosecution. There is also no precedent for being removed from the list of unindicted co-conspirators.

What is interesting is that CAIR’s amicus brief (be warned it is a 57 page document) does not argue the evidence of CAIR – or the other unindicted co-conspirators’ – involvement in the Holy Land Foundation case. The brief focuses, not on their being named unindicted co-conspirators, but in the list of unindicted co-conspirators being released to the public (in violation of the Department of Justice’s own regulations). Their argument is that the government has gratuitously labeled Muslim political and social organizations as unindicted co-conspirators in order to punish them for their political views and that this naming has had a chilling effect on their fundraising and even resulted in hate mail and threats.

The bar for naming unindicted co-conspirators is low (although using it gratuitously would bring consequences in a trial from the judge.) But the issue CAIR is raising is that the list was released to the public. DOJ guidelines call for federal prosecutors to not name unindicted co-conspirators unless there is a compelling government interest. The classic example of a compelling government interest is the naming of President Nixon as an unindicted co-conspirator by the grand jury in the Watergate Trial. It was not possible to indict a sitting president – that’s what impeachment hearings are for – but it was deemed relevant to inform the public of the extent of the conspiracy.

That is one possible argument for the list of (over 300 unindicted co-conspirators) released by the U.S. Attorney in Dallas – to inform the public of the extent of the terrorist fundraising activities in the United States. Another possible argument, which the U.S. Attorney made was that these names would have come out in the trial anyway. Assuming the government introduced evidence involving these organizations (in the case of CAIR this has already occurred - here is one example) then their status as unindicted co-conspirators would have become public anyway.

If CAIR et al succeed in setting a precedent by removing themselves from this list (rather than simply increasing the threshold for public release of the names) it would have major repercussions.

First, it would foul-up the Holy Land Foundation prosecution by excluding substantial evidence presented under the hearsay exclusion. Second, it would complicate future prosecutions – throwing into question a basic tool in the prosecutor’s arsenal. This would make prosecutions of networks of organizations (such as those supporting Hamas fundraising in the U.S.) more difficult. Prosecutors would be less willing to name organizations unindicted co-conspirators and thus be able to bring less evidence to bear. It is worth noting that Hamas and the Muslim Brotherhood have a long history of operating in a network of semi-affiliated organizations (as co-blogger Douglas Farah notes here). Abu Marzuk, Hamas’ number two, who established the Hamas network in the United States in the 1980s also reorganized Hamas after Sheikh Yassin’s 1989 arrest into a flatter organizational structure that could better resist the loss of key leaders.

Finally, being de-listed as an unindicted co-conspirator would be an enormous public relations victory.

Ultimately, the question will come down to the evidence – was the U.S. Attorney wrong in naming CAIR (and the other organizations) as unindicted co-conspirators. The evidence is overwhelming that CAIR was part of a network of Islamist organizations in the United States (see my post with a network graph on CAIR’s founding or here for a quick guide to the CT Blog’s coverage of the HLF trial.)

Since a picture tells a thousand words, here is another graph (for more on the graphs and my work at University of Maryland see here, to view this graph on my live site see here) of the network of Hamas affiliated organizations linked to the Holy Land Foundation and their fundraising. CAIR is obviously well linked in this dubious group. Also, at the center of the graph is the Islamic Association for Palestine (IAP), which was effectively CAIR’s parent organization – illustrated in my earlier network graph. In a civil lawsuit the IAP was found liable in the death of David Boim, an American citizen killed in a Hamas bombing.

CAIR’s legal gambit to set a precedent for its removal from the list of unindicted co-conspirators should be a reminder that CAIR and its Hamas and Muslim Brotherhood sponsors are sophisticated political players that understand politics and democratic principles and intend to employ them to their own advantage.

At the same time, the silver lining is that the American Muslim community’s broader refusal to support CAIR indicates that their worldview is not prevailing in the United States. Non-Muslim U.S. authorities (in government and without) should join the American Muslim community in rejecting the self-proclaimed leadership of CAIR and its ilk.

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