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  • Resources | Charity & Security Network
    for withdrawal of these guidelines Read more about Side by Side Comparison of December 2005 and September 2006 Treasury Anti Terrorist Financing Guidelines for U S Charities Treasury Posts Risk Matrix for Charities Date April 20 2006 External Link From OMB Watch In March 2007 without public announcement or comment the U S Department of the Treasury s Office of Foreign Assets Control OFAC published a Risk Matrix for the Charitable Sector on its website The Introduction of the publication says the matrix is meant to help charities comply with U S sanctions programs that prohibit transactions with designated terrorists or certain countries Read more about Treasury Posts Risk Matrix for Charities International Center for Not for Profit Law Global Trends in NGO Law External Link GlobalTrends in NGO Law This quarterly publication of the International Center for Not for Profit Law synthesizes key developments relating to the legal and regulatory issues that affect non governmental organizations NGOs It complements their quarterly journal the International Journal of Not for Profit Law Read more about International Center for Not for Profit Law Global Trends in NGO Law Webinar Building Peace in Permanent War Event Date June 24 2015 Audio Recording Now Available Click on the link above to access the audio file with slides for this webinar Building Peace in Permanent War Counterterrorism Laws and Constraints on Peacebuilding Five Years after Holder v Humanitarian Law Project Read more about Webinar Building Peace in Permanent War International Journal of Not for Profit Law External Link International Journal of Not for Profit Law The International Journal of Not for Profit Law IJNL is the quarterly journal of the International Center for Not for Profit Law It provides analysis on global civil society information on legal topics and more It has been published since

    Original URL path: http://www.charityandsecurity.org/resources?type=All&tid=All&page=22 (2016-02-16)
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  • First Unitarian Church of Los Angeles v. National Security Agency: Nonprofit Lawsuit Against the NSA | Charity & Security Network
    judgment with each side claiming that as a matter of law the court must rule in their favor The court can only find for a party if a reasonable trier of fact would find that there is no question of material fact If there is a question of material fact then the question must proceed to trial Complaints The NPOs have brought five claims against the federal government Count I Violation of First Amendment Freedom of Association The NSA s acts are violating the NPOs freedom of speech and freedom of association by chilling individual participation and action The Supreme Court has recognized the vital relationship between freedom to associate and privacy in one s associations particularly where a group espouses dissident beliefs NAACP v Alabama ex rel Patterson 357 U S 449 462 1964 Freedom of association protects against all government interference that may induce members to withdraw from the association or dissuade others from joining Id at 462 63 The government can only curb the freedom of association if the restriction is content neutral and is the least restrictive means of furthering a compelling governmental interest Roberts v U S Jaycees 468 U S 609 623 1984 The NSA s Associational Tracking Program has infringed upon a diverse group of organization s freedom of association All of the NPOs make and receive phone calls in furtherance of their mission and opinions including advancing their political beliefs There can be a chilling impact on groups if they know thier communication can be tracked by the government Count II Violation of Fourth Amendment Illegal Search and Seizure Defendants are violating NPOs reasonable expectation of privacy in their telephone communications information The government argues that according to the Supreme Court in Smith v Maryland there is no expectation of privacy for the telephone metadata Smith v Maryland 443 U S 735 1979 The NPOs argue that the scope of Smith which allowed for two weeks of phone records collections is vastly different then the five years of data allowed by the ATP The NPOs also argue that subsequent legislation has since recognized such metadata as inherently private and requires phone companies to not provide the government with communication records without legal process or consent from the customer Count III Violation of Fifth Amendment Lack of Due Process Defendants are violating plaintiffs due process rights by collecting this information secretly and providing no process in which to seek redress to adequately protect the NPO s interests Due Process protects the right to information privacy includes avoiding disclosure of personal matters Whalen v Roe 429 U S 589 591 93 1977 The NPOs also argue that Section 215 which allows the government to collect bulk phone record data is unconstitutionally vague since it does not provide any clear standards for collection Violation of 50 U S C 1861 Foreign Intelligence Surveillance Act The Foreign Intelligence Surveillance Act provides for collection of business records and tangible things as part of an authorized investigation as

    Original URL path: http://www.charityandsecurity.org/litigation/First_Unitarian_NSA_One_Stop (2016-02-16)
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  • Nonprofit Groups’ Lawsuit Challenging NSA Spying Set for April 2014 Hearing | Charity & Security Network
    nonprofits brief argues that the mass collection of phone metadata called the Associational Tracking Program infringes on First Amendment rights of association and expression and that the government has failed to show it uses the least restrictive means of achieving its investigative objectives It also argues that the program is beyond what Congress authorized in the Patriot Act The government argued that the nonprofits have not been sufficiently harmed to have standing to sue The brief responds that they have ample evidence to support the allegation that government has collected all domestic phone records including plaintiffs records It also points out that the First Amendment may be violated even when the government may not intend to suppress those rights In a Jan 27 2014 blog about the case EFF explains the history of freedom of association under the First Amendment citing the Supreme Court s 1956 ruling in NAACP v Alabama where it ruled that the state could not force the NAACP to turn over its membership list The court said Effective advocacy of both public and private points of view particularly controversial ones is undeniably enhanced by group association as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment which embraces freedom of speech This Court has recognized the vital relationship between freedom to associate and privacy in one s associations Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association particularly where a group espouses dissident beliefs More information on the case can be found

    Original URL path: http://www.charityandsecurity.org/news/Nonprofit_NSA_Lawsuit_April_Hearing (2016-02-16)
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  • Holy Land Foundation (HLF) Leaders Ask Court to Vacate Sentences, HLF Not Included in Motion | Charity & Security Network
    as a Foreign Terrorist Organization the material support prohibition applies to any entity it controls The motion points out that the defense attorneys Did not challenge the government s expert witnesses who made conclusions about Hamas control but did not offer factual basis for them Did not call a key witness in the second trial which resulted in convictions that was called in the first trial which resulted in a hung jury This was Prof Nathan Brown of George Washington University s Political Science and International Affairs Department who had conducted extensive research on zakat committees and had visited one of those at issue in the case In the first trial he testified he found nothing to indicate it was controlled by Hamas Did not call officials of the zakat committees to provide evidence The motion included several affidavits from such officials stating that Hamas does not control them The motion said in the trial that neither side called any witnesses who were on the Zakat Committees worked at the Committees or had any personal business transactions with the Committees Thus there was no evidence at all as to how the Zakat Committees operated how decisions were made how they received and distributed aid or who actually controlled or directed the activities of the Committees p 31 The motion reviews some of the expert witness statements that some members of the Zakat committees were members of Hamas In response the motion notes An examination of the evidence with a proper application of the law will show that Hamas did not control these committees any more than the fact that a person is a member of the Republican party and is an officer of Walmart means that the Republican party controls Walmart The evidence simply shows that Zakat Committees were composed of community leaders some of whom were Hamas sympathizers and some of whom were not p 36 Entrapment Zakat Committees Not on Terrorist List The defendants motion argues that the defense attorneys should have pursued an entrapment defense because the Treasury Department rejected the defendants request for guidance after Hamas was listed and the Zakat committees they funded were never put on the terrorist list Citing case law that says entrapment occurs when the government causes an offense by someone not ready or having intent to commit a crime the motion provides details of the defendants various attempts to communicate with the government about their work after Hamas was put on the terrorist list in 1995 This includes a phone call between two defendants that was taped by the government p 18 20 The motion says The facts establish that the HLF defendants were attempting to comply with the law and that the government deliberately misled them into thinking they were doing so This demonstrates that no offense would have been committed except for the government s conduct p 20 Prosecution Failure to Turn Over Exculpatory Evidence After noting the long standing legal principle that the government must turn over

    Original URL path: http://www.charityandsecurity.org/litigation/Motion_To_Vacate_Senteces_HLF (2016-02-16)
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  • Al Haramain v. Treasury: Successful Constitutional Challenge to Unlimited Treasury Power to Shut Down Charities | Charity & Security Network
    the Fifth Amendment s guarantee of due process requires Treasury to give adequate notice of the reasons it puts a group on the terrorist list as well as a meaningful opportunity to respond In addition the court ruled that freezing the groups assets amounts to a seizure under the Fourth Amendment Judge Garr King also ruled that the term material support of terrorism in Bush s Executive Order 13224 which grants the Secretary of Treasury power to designate SDGTs is unconstitutionally vague In addition to pursuing charges against the charity the government also pursued money laundering and tax evasion charges against Pete Seda the head of AHIF OR He was convicted in late 2010 and began his 33 month prison sentence in February 2012 On Feb 1 2004 Treasury s Office of Foreign Assets Control OFAC designated Al Haramain charities in six countries to its list of Specially Designated Global Terrorists SDGT Other AHIF organizations remained unlisted including those based in Oregon and Saudi Arabia After raiding AHIF OR and seizing its assets in February 2012 OFAC issued a press release announcing the freeze but did not state the reasons for it or obtain a court order authorizing it The Fifth Amendment s due process clause requires the government to provide notice and an opportunity to be heard before depriving a person or organization of their property The Court determined there was a violation of AHIF Oregon s due process rights because Treasury failed to provide notice for eight months between the time it froze AHIF s assets pending investigation in February 2004 and the designation of the organization as an SDGT in September 2004 Additionally the Court found a potential violation of AHIF Oregon s Fourth Amendment protection against unreasonable seizures The judge ruled that the freezing order against

    Original URL path: http://www.charityandsecurity.org/litigation/Al_Haramain_v_Treasury_Summary (2016-02-16)
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  • U.S. Will Not Seek Supreme Court Review of Due Process Ruling in Al Haramain Case | Charity & Security Network
    ruling that procedures used by the Department of Treasury to shut down the Al Haramain Islamic Foundation of Oregon AHIF OR in 2004 are unconstitutional On Feb 27 2012 the Ninth Circuit denied a Department of Justice petition for re hearing After getting a thirty day extension to make a decision the Solicitor General who represents the government in Supreme Court proceedings declined to file for review by the June 29 2012 deadline This leaves the Ninth Circuit s decision in place as the last word on the constitutional issues putting Treasury in the position of changing its regulations to comply with the ruling or continuing with a process that the courts have found to be constitutionally deficient A similar court opinion stands after settlement of the KindHearts case Issues Humanitarian Access Material Support Financial Action Task Force FATF Financial Access Peacebuilding Countering Violent Extremism Click Here For More Issues Solutions Principles to Guide Solutions Models to Draw On Proposed Solutions News The latest headlines Resources Litigation Analysis Background Legislation Studies Reports Experts Blog About Us Staff Contact Search form Search Stay Up To Date Subscribe Publications The Latest News C SN Joins More Than 50 Orgs in Raising Concerns

    Original URL path: http://www.charityandsecurity.org/news/UNo_Supreme_Court_Review_of_Due_Process_Ruling_AlHaramain_Case (2016-02-16)
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  • The Kadi Case: Court Decisions on Due Process for Terrorist Listing Differ in EU, U.S. | Charity & Security Network
    based on denial of fundamental due process Dec 21 2001 U S Dept of Treasury OFAC Kadi petitions OFAC for reconsideration of listing and asset freeze March 12 2004 U S Dept of Treasury OFAC OFAC denies Kadi delisting request in 20 page memorandum Dec 2005 Switzerland Swiss investigation results in Kadi being taken of the Swiss list Switzerland not a member of EU Sept 2005 EU Court of First Instance General Court Dismisses Kadi appeal saying compliance with EU law not considered because UN Security Council has primacy Kadi appeals to EU Court of Justice Sept 3 2008 EU Court of Justice higher court0 EU Court of Justice rules in favor of Kadi saying UN agreements cannot have the effect of prejudicing constitutional principles agreed to in the treaty establishing the European Community The court found the EU regulation allowing listing and asset freezes to breach fundamental human rights since no evidence was communicated to Kadi and the right of defense and effective judicial review were prejudiced It gave EU authorities three months to remedy these defects leaving the sanctions in place during that time Oct Nov 2008 EU Commission sanctions agency EU Commission sends brief summary of UN reasons for the Kadi listing giving Kadi opportunity to comment Nov 28 2008 EU Commission EU Commission renews listing and asset freeze against Kadi Jan 16 2009 U S District Court for the District of Columbia Kadi files suit against OFAC challenging designation and asset freeze based on evidence and raising constitutional claims regarding due process free speech and protection from unreasonable seizure of assets Feb 2009 EU General Court formerly First Instance Kadi files new challenge to second listing and asset freeze in EU Sept 30 2010 EU General Court Court ruled in favor of Kadi noting that the

    Original URL path: http://www.charityandsecurity.org/litigation/Kadi_Timeline (2016-02-16)
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  • Summary: The Fifth Circuit’s Holy Land Foundation Decision | Charity & Security Network
    for the Fifth Circuit The defendants filed an appeal with the U S Court of Appeals for the Fifth Circuit which issued its decision on December 7 2011 after oral argument in early September 2011 United States v El Mezain et al No 09 10560 F 3d 2011 WL 6058592 5th Cir Dec 7 2011 On appeal the Fifth Circuit noted that despite raising a myriad of issues including numerous claims of erroneous evidentiary rulings the defendants do not challenge the sufficiency of the evidence to support their convictions El Mezian Op at 15 What this means from a layman s viewpoint is that the defendants did not argue that the evidence presented by the government was inadequate to justify the guilty verdicts Instead the defendants argued that some of the evidence should not have been admitted at trial and the jury s verdict had to be set aside because the inadmissible evidence improperly caused the jury to decide that the defendants were guilty Without that inadmissible evidence defendants argued that the jury would have acquitted them The overall thrust of the Fifth Circuit s decision is that despite evidentiary errors that were made during the trial the Fifth Circuit concluded that there was sufficient other evidence including wiretap evidence showing that HLF knowingly supported Hamas by funneling money to zakat committees in Palestine both the West Bank and Gaza which the individual defendants knew were controlled by Hamas Thus the Fifth Circuit concluded after Hamas was designated in 1995 HLF concealed its continuing support of Hamas by working with the zakat committees in order to circumvent the ban on supporting Hamas Some 12 4 million was sent outside the U S from 1995 to 2001 to support Hamas of which nearly 4 million was specifically sent to 6 zakat committees controlled by Hamas El Mezian Op at 10 HLF was Not Represented on Appeal Prior to the first trial HLF was initially represented by Nancy Hollander of the Freedman Boyd law firm Id at 159 Since OFAC would not authorize the release of HLF s blocked funds OFAC only authorized her to represent HLF on a pro bono basis Id However since another attorney from the Freedman Boyd law firm represented defendant Baker the first trial judge had to examine whether all the defendants had waived any conflict of interest Id at 160 61 Ultimately the conflict waiver issue could not be resolved as no one could authorize a waiver on behalf of HLF itself Hence Ms Hollander then withdrew as counsel for HLF at the first trial and HLF was unrepresented at the first trial Id at 161 62 At the second trial HLF was again unrepresented and was convicted and sentenced without counsel Id at 162 After the convictions Ranjana Natarajan Director of the National Security Clinic at the University of Texas Law School filed both an entry of appearance and a notice of appeal on behalf of HLF Id at 162 The prosecutors moved to strike these filings arguing that HLF had not authorized and could not authorize her participation Id The district court after an evidentiary hearing held that even though HLF was not officially represented at the first trial it was effectively represented by the attorneys who represented the individual defendants since they had the same defense and defense strategy Id at 164 The district court recognized that while HLF had not authorized Ms Natarajan to act on its behalf in the interests of farness and ensuring justice for HLF the Court hereby exercises its inherent authority to appoint Ms Natarajan as HLF s pro bon counsel Id On appeal HLF argued that its Sixth Amendment right to counsel was violated at the second trial and that the presence of the attorneys for the individual defendants did not solve that problem given the potential conflict of interests Id at 165 However the Fifth Circuit did not reach those issues instead agreeing with the government that the appellate filings on HLF s behalf was unauthorized and thus invalid thereby depriving us of jurisdiction Id at 166 Critically the decision to appeal rests with the defendant not with an outside person Id at 167 A defendant is not required to pursue an appeal at all Because the decision to appeal belongs exclusively to the defendant the defendant s counsel may not prosecute an appeal even if counsel believes it to be in the defendant s best interest if the defendant chooses to forgo an appeal Id The Fifth Circuit did credit the district court for its laudable intent to appoint Natarajan as pro bono counsel for appeal but the absence of authorization from HLF to do an appeal should have been the end of the road Id at 168 Therefore the Fifth Circuit had to dismiss HLF s appeal for lack of jurisdiction Id at 169 The Knowledge Scienter Requirement A number of amici organizations submitted an amicus brief to the Fifth Circuit The amicus brief separately challenged the jury charge on the substantive violations of the Anti Terrorism Act 18 U S C 2339B arguing that the jury charge violated the Due Process Clause of the Fifth Amendment by not requiring a sufficient knowledge scienter requirement on defendants part In other words defendants could not be convicted unless they knew and intended that the donations they were raising were going to support Hamas through the zakat committees More generally the amicus brief argued that under 18 U S C 2339B a person cannot be convicted for violating a prohibition on knowingly providing material support to designated foreign terrorist organizations without proof that he or she knowingly provided aid to any designated group See United States v El Mezian Amicus Brief of Charities Foundations Conflict Resolution Groups and Constitutional Rights Organizations in Support of Defendants and Urging Reversal of Convictions of Counts 2 10 at 1 5th Cir Oct 26 2010 The amicus brief further argued that the erroneous and dangerously expansive interpretation of the material support statute would jeopardize the legitimate charitable work of countless foundations and charities throughout the United States Id at 1 Amici further argued that a conviction under Section 2339B should be limited to support for recipients who are designated and where the donors know that the recipient has been designated or has engaged in terrorist acts that would render it subject to designation Id at 2 However the Fifth Circuit did not address this argument because none of the defendants have raised this issue so that it is not properly before us El Mezian Op at 101 n 22 It remains to be seen whether defendants elsewhere will be able to use the arguments advanced by this amicus brief in challenging their own prosecutions The First Amendment Challenge Four of the individual defendants challenged the trial court s jury charge on the First Amendment arguing that speeches that they made about political issues in the Middle East were protected under the First Amendment so that the government could not use the videotapes of their speeches as evidence at trial Id at 94 95 As a threshold matter although each of these defendants separately brought this challenge three of them merely adopted the argument made by one defendant Abdulqader instead of explaining how their own conduct was protected under the First Amendment so those three defendants had waived their argument Id at 94 As to Abdulqader the Fifth Circuit held that the jury charge properly instructed the jury as to the text of the First Amendment and the Anti Terrorism Act 18 U S C 2339 B i which specifically provides that nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States Abdulqader argued that his speech on the video recordings either pre dated the 1995 designation of Hamas or did not incite imminent lawless action Id at 96 97 However the Fifth Circuit cited the Supreme Court s decision in Holder v Humanitarian Law Project 130 S Ct 2705 2724 2010 which upheld the criminalization of speech that provided material support to terrorism Id at 97 Moreover Abdulqader s speech could not be considered in isolation but had to be considered in context of the defendants other conduct Id at 101 Search of HLF s Offices The defendants also challenged the searches of HLF s offices as violating the Fourth Amendment s restrictions on searches and seizures and they sought to have the seized evidence suppressed since OFAC did not have a warrant at the time of the seizure of the documents Several months later the FBI obtained a warrant to search the seized documents The district court upheld the searches under the legal doctrine that the search was analogous to administrative searches Id at 101 02 The Fifth Circuit upheld the searches but for different reasons primarily because the defendants had not challenged OFAC s initial blocking order that prevented HLF from continuing its operations under the Fourth Amendment and because money is fungible there is a need to immediately prevent asset flight Id at 102 The Fifth Circuit expressly distinguished the Ninth Circuit s recent decision in Al Haramain Islamic Foundation Inc v U S Dept of the Treasury 660 F 3d 1019 9th Cir 2011 which had held that a warrant was required before OFAC could issue the blocking order Id at 106 The Fifth Circuit also rejected the application of Al Haramain since the HLF defendants had not challenged the presumptively valid blocking order which eliminated any possessory and privacy interests that defendants had in HLF s property Id at 108 And the government later obtained a warrant so that the FBI agents could review the seized documents Id at 111 Evidentiary Issues Although the Fifth Circuit upheld the convictions its rulings on several evidentiary issues are of broader significance Here the Fifth Circuit concluded that even though the district court had erred in allowing the government to present certain witnesses and testimony that error was harmless i e did not affect the outcome since there was sufficient other evidence to support the jury s verdict The following paragraphs discuss the defendants evidentiary challenges Production of the Defendants Intercepted Statements One of the most significant evidentiary rulings that the defendants lost was their demand that they be allowed to review the recordings and transcripts of all of the wiretapped communications not just a limited set that the government turned over Over more than a decade the Government intercepted tens of thousands of telephone calls and facsimile transmissions pursuant to the FISA warrants Id at 65 Prior to trial FBI translators identified which calls were pertinent to the intelligence investigation and prepared approximately 9 600 English language summaries as well as a smaller number of verbatim transcripts Id The government initially classified all the intercepted calls and later declassified some of the intercepts and English summaries Id However the remaining materials remained classified and while defendants counsel who had security clearances could review them counsel could not read Arabic or understand Arabic conversations and could not discuss them with their clients Id at 65 66 Thus defense counsel were significantly hampered in their ability to do anything with the classified intercepts The Fifth Circuit agreed with the district court and the government that even though the defendants were a party to these communications and so the existence of the communications was not a secret to the defendants the Government may have an interest in protecting the source and means of surveillance that goes beyond protection of the actual contents of an intercepted conversation particularly when other individuals who were not defendants were also participants in those conversations Id at 72 The Fifth Circuit perhaps naively noted that this would not lead to the government classifying all intercepted communications because the asserted privilege will not succeed when the information is helpful to the defense or essential to a fair determination of the cause yet the court did not explain how the defense would find out about helpful information if the government was the sole arbiter of which information would be declassified Id at 73 Even more naively the Fifth Circuit somehow expected defendants to assist their counsel in identifying any exculpatory calls based on their own recollection and their ability to review the declassified summaries and other information provided to them Id at 76 Again since there were tens of thousands of calls and faxes over more than a decade it would not be possible for anyone to remember the date and time of each call and fax that is relevant to the defenses Refusal to Disclose FISA Applications and Intercepts The Fifth Circuit rejected defendants arguments that they should have been allowed to receive the warrant applications submitted to the Foreign Intelligence Surveillance Court FISC or the orders issued by the FISC No other court has allowed such disclosures of the warrant applications or FISC orders Id at 143 147 Even though the defendants learned of the FISA materials when the government inadvertently disclosed some of the FISA materials to the defendants id at 146 that did not open the door for defendants to have access to all those materials Id at 147 49 The Fifth Circuit further rejected defendants arguments that the trial court should have suppressed the intercepted communications Id at 151 Although defendants creatively argued that FISA warrants should be limited to the gathering of foreign intelligence or to targets who are foreign powers or agents thereof the Fifth Circuit held that FISA warrants should be presumed valid id even if the primary purpose was a criminal investigation Id at 153 Witnesses Testifying Under a Pseudonym Defendants argued that the trial court improperly allowed two witnesses Avi a legal advisor for the Israel Security Agency and Major Lior an officer with the Israeli Defense Forces to testify under a pseudonym as to their knowledge about Hamas financing and control of the zakat committees Avi and to authenticate documents seized by the Israeli military Major Lior El Mezian Op at 16 The defendants argued that these pseudonyms violated their rights under Sixth Amendment s Confrontation Clause since they could not effectively research the backgrounds of the witnesses in order to cross examine them The district court held and the Fifth Circuit agreed that it was necessary to use pseudonyms to protect the safety of these witnesses Id at 16 18 The Fifth Circuit also held that the defendants were able to engage in meaningful cross examination of the witnesses and the district judge had instructed the jury that they could consider the use of pseudonyms in assessing the witnesses credibility Id at 20 22 Hearsay Evidence that Hamas Controlled the Zakat Committees The defendants then challenged the admission of evidence allegedly showing that defendants knew that Hamas was linked to the zakat committees or otherwise controlled them The Fifth Circuit held that one witness Mohamed Shorbagi a former HLF employee did properly testify about HLF s acts in raising money to support Hamas after it was designated in 1995 Id at 25 26 However Shorbagi lacked first hand knowledge that Hamas controlled the zakat committee since the only basis for his knowledge were newspapers leaflets the Internet and friends which is inadmissible hearsay that should not have been admitted Id at 26 27 Defendants also challenged the admission of three documents seized by the Israeli military from the headquarters of the Palestinian Authority Those documents allegedly discussed the financing of Hamas and that one of the zakat committees was controlled by Hamas Id at 27 28 The Fifth Circuit agreed with defendants that these documents should not have been admitted since even though they were obtained from a government office they were not official public records created by that government entity Id at 29 34 Defendants challenged several other documents that the FBI had seized from the homes of two unindicted co conspirators which allegedly showed that HLF supported Hamas through another zakat committee Id at 34 36 However the Fifth Circuit held that those documents were admissible under the co conspirator exception to the hearsay rules i e Rule 801 d 2 E Federal Rules of Evidence Id at 36 39 It was of no matter that the government had not proven conspiracy as a crime with respect to the unindicted co conspirators or the subject matter of those documents since conspiracy as an evidentiary rule is broader than proof of conspiracy as a crime Id at 38 Also some of the documents contained language showing that HLF regarded the zakat committees and Hamas as one and the same Id at 44 And many of the documents had internal records that were unlikely to be found outside the organization Id at 45 Prejudicial Evidence about Hamas Violence The defendants then challenged the district court s allowing the prosecutors to present evidence about Hamas violence including photos videos posters and witness testimony about suicide bombings and violent protests Id at 46 47 Defendants argued that this evidence was inflammatory and unfairly prejudicial particularly given that they were not charged with planning or carrying out terrorist activity or with directly supporting such activity Id at 47 The Fifth Circuit recognized that this defense was correct but nonetheless concluded that evidence of Hamas violence served the probative purpose of providing context and explanation in the case and to rebut defensive theories that the defendants intended to support only charitable endeavors Id For example after the defendants presented evidence that the U S Agency for International Development USAID also provided humanitarian aid to the Palestinians after clashes with the Israel military the government was allowed to explain that the clashes were in response to terrorist attacks Id at 49 And evidence of Hamas violence that was seized from HLF s own computers and from the zakat committees was probative of the motive or intent of the committees and HLF

    Original URL path: http://www.charityandsecurity.org/litigation/Summary_Fifth_Circuit_HLF_Decision (2016-02-16)
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