As Americans watched arch nemeses Israeli Prime Minister Yitzchak Rabin and Palestinian President Yasser Arafat shake hands in September 1993, they hailed what they thought was the end of a bitterly long and bloody war between Israel and the Palestinians.

Nearly two weeks later, however, handshakes of a more sinister design were exchanged in an unsuspecting Philadelphia hotel. There, the FBI watched and listened with a judicial warrant as approximately twenty men assembled in an emergency planning conference. They comprised the leadership of a well established and growing support network for Hamas, the Palestinian terrorist group dedicated to Israel’s destruction. To these men, the Oslo Accords represented the most basic betrayal of that mission.

But with the world talking peace process, the assembled leaders understood that they had to adjust their tactics to continue assisting Hamas. They could no longer fight through open militancy, so the new rhetoric of the peace process would become their weapon. “War is deception,” conference participant Shukri Abu-Baker intoned. “Politics–like war–is a deception.”

Deception would follow Shukri Abu-Baker all the way into a Dallas, Texas federal courtroom some fourteen years later.

***

In July 2007, Abu-Baker stood trial alongside Ghassan Elashi, Mufid Abdulqader, Abdulrahman Odeh, and Mohammad El-Mezain charged with raising nearly $12 million for Hamas, designated by U.S. executive order in 1995 as a terrorist organization. Abu-Baker and his co-defendants were leaders of the Holy Land Foundation for Relief and Development (HLF), the largest Islamic charity organization in the U.S. before the Treasury Department froze its assets in December 2001. The men collectively faced 197 criminal counts of providing financial and material support to Hamas.

Federal prosecutors felt confident entering the trial. With over fifteen years of investigation–including wiretaps and confiscated documents–they believed they enjoyed a distinct advantage. The trial would take place in Dallas, where the jury would hail from a relatively conservative populace. More importantly, HLF had already suffered significant legal setbacks that appeared to establish its connection with Hamas.

Despite this confidence, federal prosecutors faced several challenges from the outset. In the interest of minimizing bias, the jury selection process focused on drafting participants with little background in Middle East history. To convince such a jury, the government needed to weave a clear story out of a slew of Arabic names and hazy familial and organizational ties. Doing so would be especially difficult because prosecutors claimed HLF’s financial assistance to Hamas was indirect–HLF did not cut checks to the entity “Hamas.” Instead, the government contended, HLF ran the money through Zakat committees, charitable organizations in the West Bank and Gaza Strip that many believe are controlled by Hamas.

Most significantly, because this was a criminal case, the government had to prove HLF’s connection to Hamas “beyond a reasonable doubt,” meaning its evidence had to constitute proof of such convincing character that a reasonable person would not hesitate to act on it in life or death situations.

The government’s optimism came to naught. On October 22, 2007, after months of trial and 19 days of deliberation, the jury failed to reach a verdict on many of the 197 counts against the defendants. Judge Joe Fish declared a mistrial.

The trial was, by all accounts, an utter embarrassment for the government. Dallas civil rights attorney Michael Linz argued that “all evidence pointed to the fact that HLF was just trying to help poor people,” through donating to the Zakat committees. David Cole, a law professor at Georgetown University, even questioned the government’s initial shutdown of HLF in 2001. “If the government can shut them down and then not convince a jury the group is guilty of any wrongdoing, then there is something wrong with the process” Cole said. He asserted that the government engaged in blatant “guilt by association” in attempting to link HLF and Hamas. “We’ve seen this kind of regime before,” he said, “in the McCarthy era.”

How did the prosecution case end up in tatters? Were these men innocent civilians simply trying to assist Palestinians in need, or were they funneling money to a terrorist organization?

***

On a wintry Kansas City day in December 1989, a masked man, introduced as a representative from Hamas’ military wing, stepped on the stage of a conference sponsored by the Islamic Association for Palestine (IAP). According to footage entered as evidence in trial, he described in Arabic the ”oceans of blood’ spilled in Hamas’ armed attacks on Israeli soldiers and civilians, to the raucous cheers of the audience. He then thanked two nonprofit organizations for their early support–IAP, and the Occupied Land Fund, the original name of the Holy Land Foundation.

Six years later, in 1995, President Clinton issued an executive order designating Hamas a terrorist organization, and thus making it a felony to raise or transfer funds to the group.

Thus, it comes as no surprise that in April 1996, HLF’s Shukri Abu-Baker vehemently denied any connections to Hamas. Sharing a stage seven years earlier with Hamas fighters did not mean that IAP and HLF approved of Hamas terrorism or provided support for it. “I can speak very comfortably for the Holy Land Foundation,” he said to the Dallas Morning News. “We have never raised money for Hamas.”

Yet Chicago resident and HLF activist Mohammed Salah had told a different story in 1993. Salah, arrested in Israel for funding Hamas activities, alerted Israeli and US authorities to HLF while in prison. Though Salah would later say he was tortured into confession, he told Israeli authorities that Mousa Abu Marzook, a Palestinian immigrant residing in the US, had designated HLF as the chief fundraising arm of Hamas. Indeed, as federal investigators soon learned, Marzook was no ordinary immigrant. According to the FBI, he became the political chief of Hamas in 1989 and used his position in the US to build an overseas network of funding and support for his organization. Marzook wrote checks directly to HLF in amounts of over $200,000. Currently, Marzook resides in Damascus, Syria and operates as Hamas’ Deputy Political Director.

Marzook maintained a close relationship with HLF until his arrest by US authorities in 1995 on suspicion of terrorist activities. When detained, Marzook was carrying Abu-Baker’s home phone number and the number to HLF’s offices in Los Angeles.

HLF’s link to Marzook and Hamas did not end there. As the investigation of HLF unfolded, the Dallas Morning News and federal investigators uncovered a complex, often incestuous relationship between three organizations with alleged Hamas ties: the Holy Land Foundation, the Islamic Association for Palestine, and Infocom, a Richardson, Texas-based computer company that hosted HLF’s website and was shut down for illegally attempting to sell computer equipment to Syria, Libya, and Iraq.

Ghassan Elashi served as the glue between these organizations. He maintained three simultaneous jobs: HLF Chairman, IAP co-founder, and Vice President of Infocom. Shukri Abu-Baker also served on IAP’s advisory board, and used that position, as he said, to “[advocate] for the Holy Land Foundation wherever he [went].”

Mark Briskman, Dallas chair of the Anti-Defamation League, which has tracked HLF since the mid 1990’s, said: “What I found amazing was that [HLF, IAP and Infocom] were right across the street from each other. If you were outside on any given day, you could see employees from Infocom and HLF walking across the street to each other’s offices.” Briskman added that “any claim on the surface that HLF had nothing to do with Infocom falls flat. Just any person standing on the street could watch the back and forth between their employees.”

Briskman noted that the HLF trial was not the first concerning the Elashis–in 2004, Ghassan Elashi and his four brothers who co-ran Infocom were convicted in a criminal court for violating trade sanctions by attempting to sell equipment to Libya. In 2005, Ghassan was further convicted in a criminal court for engaging in prohibited financial transactions with a designated terrorist–none other than Hamas leader Mousa Abu Marzook. Marzook had donated $250,000 to Infocom through his wife, Ghassan’s cousin Nadia. “You have two prior trials that the government has won, and because of the documents that came out of those trials, you can see the involvement of Marzook, beyond the family relationship, with investment money,” Briskman said.

Documentary evidence seized from a three-day raid of Infocom’s offices in September 2001 supports Briskman’s claim. Infocom maintained the websites for both HLF and IAP. Court records show that HLF paid Infocom $409,000 between 1990 and 2001. HLF also transferred nearly $250,000 to IAP between 1989 and 2001. And for all these transactions, the authorizing payer was co-defendant Ghassan Elashi.

There is little doubt about how these charities feel about Hamas and Israel. At the IAP’s Third Intifada Festival–an event recorded on videotape–Mufid Abdulqader got on stage and sang “I am Hamas, O dear ones... I swear to wipe out the name of the Zionist... G-d willing, Hamas will be victorious.” Shukri Abu-Baker, meanwhile, once published an ode to Hamas in an IAP newsletter that declared, “we will not accept any other than Hamas.”

Though the personal and legal connections involved are complex, a thread weaves its way between HLF, IAP, and Infocom. The same core group of people ran the three charities, and all three shared deep financial ties. HLF and Infocom enjoyed early and lasting relationships with Hamas leader Abu Mousa Marzook. And the hub of this tripartite relationship was Ghassan Elashi, the Chairman of HLF, co-founder of IAP, and Vice President of Infocom.

***

Even before he claimed “war is deception” at the Philadelphia conference, Shukri Abu-Baker instructed his peers in the fine art of concealment. As the conference commenced, FBI wiretaps recorded Abu-Baker asking fellow attendees not to “mention the name ‘Samah’ in an explicit manner. We agree on saying it as ‘sister Samah’ ” “Samah,” of course, is “Hamas” spelled backwards.

This would not be the last time Abu-Baker employed the word “Samah” in discussions seemingly centered on Hamas. There is no direct record of “Samah” being instated as a code word for “Hamas.” Though the government argued that “Samah” served as a codeword based on the context of its usage, Abu-Baker countered in a 2004 deposition that “the use of the word ‘Samah’ was a whimsical play on words. ‘Samah’ means ‘forgiveness’ in Arabic... those who used the term were making ironic fun of Hamas, not adopting a secret term.”

This defense demonstrates the challenge that prosecutors encountered in attempting to prove their case beyond a reasonable doubt. According to Jason Trahan, the Dallas Morning News reporter who covered the HLF trial, the government “needed to prove that the defendants knowingly conspired to send millions of dollars to the Palestinian territories in support of Hamas.” But the case was not as simple as connecting point A, HLF, to point B, Hamas. Instead, Trahan explained, “The government was required to prove that the recipients of HLF’s charity money were actually agents of Hamas.” In other words, the government’s case hinged on whether it could persuade the jury beyond a reasonable doubt that the Zakat Committees, to which HLF donated, were controlled by Hamas.

***

As the courtroom cleared for break one month into the trial on August 20th, Ghassan Elashi rose from his seat, screaming, “This trial is an extension of the Zionist conspiracy!” Pandemonium ensued as security guards escorted Elashi out of the courtroom.

Elashi’s outburst likely resulted from weeks of listening to two anonymous Israeli security agents testify to the connections between Hamas, the Zakat Committees, and HLF. Judge Fish had allowed an Israeli intelligence agent, “Major Lior,” and a Shin Bet (Israel’s FBI) agent, “Avi,” to testify anonymously as expert witnesses, allowing them to opine on the evidence presented. Judge Fish took the rare step of clearing the courtroom of spectators when the agents were on the witness stand.

The government relied on the two Israeli agents to establish the Hamas-Zakat link. “Major Lior” testified about documents, videos, and posters that his commando unit seized during raids on several Zakat committees between 2002 and 2004. He described the sources of Hamas funding and presented links between Hamas and the Zakat committees. Judge Fish allowed nearly 40 items into evidence, including posters and key-chains praising Hamas suicide bombers that “Major Lior” had discovered at Zakat committee offices.

Days later, “Avi” testified that HLF played a central role in Hamas’ funding operations, acting as part of a global network that funneled money to Hamas. He told prosecutors on August 15th that this network was built “by design” it wasn’t created out of the blue.” In his view, HLF and like-minded foundations invented strategic means to send the funds through the Zakat committees, ostensibly but not overtly run by Hamas.

Alongside the Israeli agents’ testimony, federal prosecutors presented dozens of checks to establish that HLF had donated to specific Zakat committees across the Palestinian territories. Among the many additional links demonstrated by the government, all of which cannot be discussed here, one of the most compelling pieces of evidence came from a letter written to Abu-Baker that detailed the Zakat committees’ leadership. In the letter, the author stated that “all of” the Ramallah Zakat committee was “ours”–in their control, in other words. The letter also described the Qualqilya and Jenin Zakat committees as “guaranteed.” In contrast, Abu-Baker’s ally had “nobody in” the Hebron or Jerusalem Zakat committees. In another example, the government produced a letter from Ahmad Mohamed Bahr, head of the Islamic Society in Gaza, thanking HLF for its support. A report by the IAP (the organization so intricately connected to HLF) identified Bahr as a Hamas leader in the Gaza strip. Between 1992 and 1996, HLF sent Bahr over $80,000.

The defense questioned the reliability of the Israeli agents. According to the Dallas Morning News, “defense attorneys portrayed ‘Avi’ as biased, having relied on politically-motivated raids on committee offices to reach his conclusion that the Zakat committees were run by Hamas.” By emphasizing that the Israeli operatives were agents of Israel, which had an agenda in combating Hamas, the defense impugned the agents’ credibility.

In a key showdown, the defense sought to counter “Avi’s” claims with an expert witness of its own: former high-ranking American diplomat and CIA analyst Edward Abington. Abington claimed that in his years as American consul general in Jerusalem from 1993-1997, he never once read a report suggesting that Hamas controlled any of the Zakat committees. Abington blasted the reliability of the Zakat-related documents seized by Israel, arguing that any American analyst “[could not] rely on those documents as showing a true picture.”

Abington also had credibility issues. In 1999, he became a paid representative of the Palestinian Authority and was paid $650,000 per year until 2005. Trahan noted, however, that Abington still “lent an air of credibility to the defense’s arguments,” and, despite his bias, “helped provide some of that crucial reasonable doubt they needed to derail the case.”

Defense attorneys used Abington’s testimony to pose a larger question: if the Zakat committees were definitively operated by Hamas, why did the US not designate the Zakat committees as terrorist organizations? This question, paired with the unusual nature of the Israelis’ testimony, planted important seeds of doubt within the jury.

***

One would assume that after billing the HLF trial as the most significant anti-terrorism prosecution since 9-11, the government would prepare a superlatively lucid prosecution. Yet jurors and observers found the government’s performance weak and unclear.

Trahan, the Dallas Morning News reporter, commented that he himself “had quite a bit of trouble following what appeared” to be a government case heavy on detail but short on explainers and narrative focus.” Without the resources of the Internet at his fingertips during the trial to map the “hundreds of players in the case,” and how they related to each other, Trahan said it would have taken him “two months of deliberations to decide the case.”

Jurors echoed Trahan’s observation, mentioning the difficulty of working through 197 counts individually and of comprehending the intricate web of Arab and Muslim organizations. “Part of the challenge in any of these cases is keeping these players straight and telling the story in a clear narrative,” said Michael Fechter of the Investigative Terrorism Project. Since most of the conversations intercepted by the FBI were in Arabic, “the only way to present such evidence to the jury is to transcribe it and read it aloud.”

Of course, this was hardly the first trial to include such complexities. But as one writer noted, the prosecutors’ presentation was akin to “expecting their grandmother from a tiny country town to sit through a graduate-level seminar in modern Mideast politics, and to make sense of it.”

Ultimately, Trahan asserted, “the government didn’t do much to make their case easily digestible to their supporters on the jury, such that they could argue down those siding with the defense on any issue.”

***

Several days after the trial ended, one charismatic member of the jury began drawing attention–and scrutiny–to himself. William Neal, an art director from Dallas, was outspoken about the case he had been asked to judge. In particular, he thought that there were disqualifying gaps in the prosecution’s evidence.

When asked by a reporter whether he thought the government should retry the case, Neal began shaking his head immediately. “The government might retry this in a year or two, but unless they find the magical mystery check with the word ‘Hamas’ on it, I don’t know how it will help.”

In other words, William Neal wanted a smoking gun.

Neal’s insistence on a “magical mystery check” underscores several critical factors in the trial’s unexpected outcome and its wider implications. Disagreement over the definition of and need for a “smoking gun” played a central role in the government’s inability to prove its case beyond a reasonable doubt.

The absence of the smoking gun led Neal to say that “there were so many gaps in the evidence, I could drive a truck through it.” Neal would push this view very hard in the jury room.

Yet according to Investigative Terrorism Project editor Michael Fechter, the government had a major resource it mysteriously decided not to use: the testimony of one Mohammed Shorbagi.

A Palestinian citizen living in the US, Shorbagi was charged in August 2006 with providing aid to Hamas–through donations he made to none other than HLF. Shorbargi had been the Georgia representative for HLF and participated in high-level conference calls with Hamas leadership. He pled guilty in early 2007 to providing material support for Hamas through HLF, and agreed to cooperate with the government in return for a reduced sentence.

Shorbagi appeared on the government’s pre-trial official witness list, and prosecutors announced in opening remarks that they intended to call him. Why, then, was he not called? “I can only theorize that [the government] felt concerned that maybe he would be unreliable,” Fechter said. “But here’s a guy who in court says that he violated this law through his work through HLF, and knew when he did it that it would benefit Hamas.” In his plea agreement, Shorbagi admitted that he “made regular monetary contributions to [HLF] on behalf of himself and others, knowing that HLF then supplied some or all of that money to Hamas.” Indeed, Shorbagi’s testimony seems like it could have been the smoking gun that Neal and other jurors desired.

The government’s decision not to call Shorbagi is indicative of its incoherent tactics, and the difficulties of such a high stakes trial. In perhaps one of its most fateful decisions, the government did not hire a jury consultant for this case. This decision might have spelled the prosecution’s doom.

***

The jury forewoman read the verdicts on the morning of October 22nd. Mufid Abdulqader had been found not guilty on all counts. Abdulrahman Odeh, HLF’s New Jersey representative, was acquitted on most charges. This did not bode well for the government.

In a bizarre twist, the forewoman also announced that the jury was unable to reach a decision on all the other counts. As is customary, Judge Fish polled the jury. Two jurors, Kristine Williams and a juror named Gail, shocked the court by declaring that they did not agree with the verdicts. William Neal joined them, saying he wanted deliberations to continue.

Judge Fish ordered the jury back into deliberations to come to a verdict. While in conference, one of the jurors refused to commit to any of the previous verdicts that had been read. Upon learning of this refusal, Judge Fish declared a mistrial.

It was a fitting end for a jury which had suffered from disorganization, personal agendas, and intimidation. According to Trahan, only four days into deliberations, the forewoman wrote to Judge Fish that “the jury is having trouble staying on task,” and that “attacks on each other happen often. Some are closed to deliberations, which shuts off conversations that are meaningful.” The problems were only beginning.

At the center of the turmoil, it seems, was William Neal.

Three jurors interviewed by Fechter for the Investigative Terrorism Project suggested that William Neal’s “stridency may have changed the trial’s outcome.” To them, Fechter wrote, “it [seemed] clear that Neal made up his mind going into the jury room and refused to consider any argument in favor of guilt.” Kristine Williams, one of the dissenting jurors, said she was bullied by Neal, who once responded to a contribution of hers by snapping “Go back to sleep, you’re not important.”

The effect Neal appeared to have on this case is disturbing in light of his post-trial interviews. He had resolved from the outset that the trial was simply a fear-driven political stunt, and he would not be convinced otherwise. “All the testimony from the prosecution witnesses didn’t make a big deal to me,” Neal told reporters. “Part of [Hamas] does terrorist acts, but it’s a political movement. It’s an uprising.” Comparing Hamas suicide bombers and American revolutionaries, Neal asserted that “our country was founded on a terrorist act. The Boston Tea Party wasn’t a tea party, dude.”

That logic leads Mark Briskman to believe that despite the government’s flawed presentation, William Neal ultimately proved to be its downfall. “It appears the government’s decision not to hire a jury consultant came back to haunt it,” Briskman said. “Jury nullification happens when a jury makes a decision not based upon the law, but based up on what it views justice to be.” In asserting his view that Hamas is not a terrorist organization, Neal put himself above the law–ignoring official U.S. law going back a decade.

***

Though the government’s failure to earn any convictions was a setback, it is important to keep in mind the difference between a mistrial and an acquittal. Mistrials do not exonerate defendants; they are aberrations that result from extraordinary circumstances of jury deadlock. And cases like William Neal’s–of individual jurors having undue sway over deliberations–commonly lead to mistrials.

It seems inappropriate, then, to declare the HLF case McCarthyite, as if it were some defamatory pursuit of innocents; the government revealed serious evidence of HLF’s deception, radical agenda, and sentimental and political attachment to high-ranking Hamas terrorists.

But it remains to be seen whether HLF is criminally responsible for materially supporting Hamas. We do not yet know how the reasonable doubt standard relates to HLF. In their murky trail of charitable contributions, what could be a smoking gun? More fundamentally, is one necessary?

***

Amazingly, Palestinian Authority President Mahmoud Abbas seems to have provided a relevant smoking gun in December 2007. That month, just weeks after the mistrial, Abbas shut down all 92 Zakat committees in the West Bank–because, he said, they were run by Hamas!

Hamas, for its part, pronounced the closure of the committees “an attempt to weaken Hamas.” Point A, meet Point B.

On August 18th, 2008, the US government will begin its retrial of Holy Land Foundation defendants Ghasan Elashi, Shukri Abu-Baker, Mohammed El-Mezain, Mufid Abdulqader, and Abdulrahman Odeh. Though the government must vastly improve its presentation, those who fear Hamas and the ability of terrorists to capitalize on our country’s openness can hope that this time around, the jury will recognize HLF’s deception.

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JORDAN CHANDLER HIRSCH, is a Columbia College sophomore majoring in history and a Junior Editor of The Current. A proud Texan, he was born and raised in Dallas, where the Holy Land Foundation trial took place. Jordan can be reached at jch2134@columbia.edu.