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Today's
Stories
October 7,
2005
Jennifer Van
Bergen
New
American Law: the Case of Dr. Dhafir
October 6,
2005
P. Sainath
"Take
That, Tom Friedman": Indian Masses Reject NYT's Neoliberal
Idol Again
Scott Parkin
When Antiwar Activists Get Mugged
Paul Craig
Roberts
Blundering
into Syria
Andréa Schmidt
Haiti's Biometric Elections: a High-Tech Experiment in Exclusion
Dave Lindorff
Easy
Money in the Big Easy
Joshua Frank
In Defense of Lew Rockwell
M. Junaid Alam
Jackboots at George Mason
Matthew Koehler
Cock and Bull on the Bitterroot
Robert Pollin
Is
the Dollar Still Falling?
October 5,
2005
Heather Gray
Militarization is Not an Answer for
Reconstruction: the Case of the Philippines
Robert Jensen
Is
Bush a Racist?
Ramzy Baroud
Bush's Final Choice: America or
the Empire
Col. Dan Smith
Keeping Promises to Iraq: "Everything
is Bad"
Dave Zirin
Barry
Bonds Laughs Last
Paul Craig Roberts
Liberal Guilt? How the Neocons
Took Over
Alan Maass
Doing
the Right Wing's Dirty Work
October 4, 2005
Nikolas Kozloff
Shocking the Two Party System:
a Political Opportunity for Sheehan and the Antiwar Mvt.
Mike Roselle
Houston,
You've Got a Problem
Joshua Frank
The Scoop on Harriet Miers
John Chuckman
War
Porn: What the Gruesome Images Say
Alan Farago
Storm Warning for Jeb: Developers,
Hurricanes and the Keys
Mickey Z.
An
Interview with Thaddeus Rutkowski
Christine & Ethan Rose
Home Depot Exploits Hurricane Victims
Gary Leupp
An
Earlier Empire's War on Iraq: a Lesson from Roman History
Website of the Day
Rodney
Crowell on Bob Dylan
October 3,
2005
Vijay Prashad
Desperation at Holyoke
Paul Craig
Roberts
Condi
Rice: Gunslinger
Joshua Frank
An Interview with Cindy Sheehan
Seth Sandronsky
The
Hiring Crisis for Black Teens
Jeffrey St. Clair
The Great Green Scare
October
1 / 2, 2005
Cockburn
/ St. Clair
Democrats Sink Deeper into the Ooze
Dave
Marsh
A Direction Home: a Message from Bob Dylan
Ralph
Nader
Gutless, Spineless and Clueless
Flavia
Alaya
Showdown at Sheriff's Plaza
Uri
Avnery
The Gladiators: Sharon's Victory
Chris
Kutalik
The Battle at Northwest Airlines
Greg
Moses
Bill Bennett's Book of Cracker Virtues
Brian
J. Foley
I Gave My Copy of the Constitution to a Pro-War Vet
Nicole
Colson
Hunger Strike at Gitmo
Ray
McGovern
Abu Ghraib is a Command Responsibility
Fred
Gardner
Ricky Williams Takes a Late Hit
Justin
Felux
Save America from Crime: Abort Every White Baby!
Will
Youmans
"Free the P": Hip-Hop for Palestine
Mike
Ferner
What Else Shall We Do?
David
Krieger
The War in Iraq: a Broken Covenant
Agustin
Velloso
Samson Returns to Gaza
Saul
Landau
The Constant Gardener: Serious Cinema
Ben
Tripp
Right Down the Middle
Poets
Basement
Peddibone, Crowell, Engel and Albert
Website
of the Weekend
Holler If Ya Hear Me
September
30, 2005
Mary
Geddry
Why I Marched: They Made My Son Kill
Paul
Craig Roberts
Bush is Cooking Up Two New Wars
Dave
Lindorff
Judith Miller's Strange Voluntary
Jail Time
Gregory
Wilpert
"The Osama Bin Laden of Latin America"
Benjamin
Dangl
"Gringo, Go Home:" an Interview with Orlando Castillo
James
McMurtry
We Can't Make It Here Anymore
T.R.
Johnson
Return to the Ninth Ward
September
29, 2005
Sen.
Russ Feingold
Bush's Iraq War is Weakening America
Carl
G. Estabrook
Obama the Enabler
Ramzy
Baroud
Rhetoric and Reality of War
Dave
Lindorff
What Opposition Party?
Mike
Whitney
Brownie's Comic Opera
Jozef
Hand-Boniakowski
What Noble Cause?
Gary
Handschumacher
Getting Arrested with Cindy Sheehan
Winslow
T. Wheeler
No Leaders in Congress Against This
War: Lame Democrat and Tame Republicans
September
28, 2005
Dr.
Eyad Serraj
Letter from Gaza: What Disengagement
Sounds Like
William
A. Cook
Bush's Security Barrier
Liaquat
Ali Khan
The Invention of Porno Torture
Mike
Whitney
Apartheid Justice in America
Joshua
Frank
Sheehan and the Democrats: Anybody Home?
CounterPunch
Wire
New Orleans Prisoners Abandoned to Floodwaters
Chris
Genovali
Cutting the Bears Out of the Great Bear Rainforest
Linn
Washington, Jr.
White Affirmative Action: How
John Roberts Got to the Top
September
27, 2005
Forrest
Hylton
Political Murder in Puerto Rico: a
Matter for Our Movement
Jason
Leopold
The Decline and Fall of Bill Frist
Jennifer
K. Harbury
Torture is US Policy, Not an Aberration
Ray
McGovern
Torture and Cowardice: Why are American Religious Leaders Silent?
Mike
Ferner
Bringing the War Home: Arrested at the Pentagon
Antony
Loewenstein
When the Truth Comes to Town: What You Can't Say About Israel
in Australia
Harry
Browne
Live from Hollywood: the IRA Disarms
September
26, 2005
Rafael
Rodriguez Cruz
Assassination in Puerto Rico: the FBI
Murders a Legend
Joshua
Frank
Democrats Flee Peace Protests
Lamis
Andoni
The Railroading of Taysir Alony
Mike
Marqusee
Those Pesky "Urban Intellectuals":
Blair, Spiro Agnew and the Antiwar Movement
Rep.
Cynthia McKinney
They Can't Fool Us Anymore
Ron
Jacobs
A Small March for Me, a Giant March
for the Antiwar Movement
Norman
Solomon
The Media and the Antiwar Movement
John
Chuckman
Bush in a Bottle
Paul
Craig Roberts
America is Running Out of Time
September
24 / 25, 2005
Kathy
and Bill Christison
Polluting Palestine: Settlements
& Sewage
Ralph
Nader
Stealing the Moment: How Corporations Cashed in on Katrina
Saul
Landau
The Terrorist Resumé of Luis Posada
Greg
Moses
A Movement Gathers Power on the Sorrow Plateau
Roger
Burbach
Hugo Chavez's Mission
Vijay
Prashad
America's Shame
Laura
Carlsen
After NAFTA
Robert
Fisk
When Man and Nature Conspire to Expose the Lies of the Powerful
Dave
Lindorff
A Gusher Called Katrina: They Fix Oil Prices, Don't They?
Kirkpatrick
Sale / Thomas Naylor
Secession from the Empire: the Middlebury Declaration
Maj.
Anthony Milavic
The US Military and Torture: the View of a Former Interrogator
Brian
Concannon, Jr.
Haiti: the Time for Action is Now
September
23, 2005
CounterPunch
News Service
In Which, Phil Donahue Demolishes
Bill O'Reilly
Diane
Farsetta
Katrina and Right-Wing Think Tanks
Robert
Sandels
Militarizing the Market
Christopher
Brauchli
Bush: the Good Samaritan for Corporations
Alan
Farago
Bird Flu Takes Flight
Dave
Zirin
When Sports & Politics Collided: Redeeming the Olympic Martyrs
of 1968
Maxine
Conant
A Simple Test for Bush
David
Price
Workers Get Hit Twice: Katrina and
Davis-Bacon Profiteering
September
22, 2005
Smith,
Wood, Leas, and Greenfield
Which Way Forward for the Green Party?
a Report from Tulsa
Patrick
Cockburn
Iraqis: This Government has No Authority
Manuel
Garcia, Jr.
Thinking is Religious Freedom
Lucia
Dailey
Trial of the St. Patrick's Four: Day One
Mokhiber
/ Weissman
Are You a Speed Freak?
Russell
D. Hoffman
The Nukes in Rita's Path
Kona
Lowell
God's Hurricane?
Jason
Leopold
GOP Fiscal Policy and Katrina
Website
of the Day
Robert Pollin on the Global Economy
September
21, 2005
Jorge
Mariscal
Military Recruiters: Counselers
or Salesmen?
Linda
S. Heard
Double Standards in Iraq: Basra Brit Jailbreak
Joshua
Frank
NYPD Unplugs Cindy Sheehan
Eric
Ruder
"The Problem in Iraq is the US": an Interview with
Camilo Mejia
Pierre
Tristam
The Struts and Bull Presidency
Dave
Lindorff
The Real Story of the German Elections
Mike
Ferner
Sit Down in DC
Missy
Comley Beattie
Bush's Katrina Bling Bling
Jeffrey
St. Clair
W Marks the Spot
Website
of the Day
New Orleans: Survivor Stories
September
20, 2005
Steve
Breyman
Toxic Gumbo: Katrina and Environmental
Justice
George
Galloway
Et Tu, Greg Palast?
Patrick
Cockburn
What Happened to Iraq's Missing $1 Billion?
M.
Shahid Alam
Gen. Musharraf and Israel: Is Pakistan Selling Out?
Mike
Whitney
The Gitmo Hunger Strikers
Winslow
T. Wheeler
It's Not Rocket Science
Niranjan
Ramakrishnan
Back to the Future: North Korea's Gambit
Paul
Craig Roberts
Will Neocon Fanaticism Destroy America?
|
October 7, 2005
A
CounterPunch Special Investigation
New
American Law
The Case of Dr. Dhafir
By JENNIFER VAN BERGEN
[Part One of a two-part
series. The first part discusses the trial and conviction of
Dr. Rafil Dhafir of Syracuse, NY, for having provided aide to
Iraqis in violation of the Iraqi Sanctions. The second part
places his case in a larger context, discussing DOJ tactics under
Bush and illustrating why these tactics should concern us.]
"We now live in a society
where the law of the land asserts that delivering aspirin and
antibiotics to a pediatrics ward where children are dying from
diarrhea is a criminal offense. Likewise handing a plastic harmonica
to a child suffering from leukemia. And there are federal judges
who will bring the gavel down and sign on the dotted line."[1]
Dr. Rafil Dhafir, an American citizen
of Muslim faith and Iraqi descent, had a charity that gave money
to help the children in Iraq. Now he faces a twenty plus year
sentence for it. Prosecutors say this is justice. The defense
says it was a deliberate attempt to intimidate and shut down
a tight-knit Muslim community that was not dependent upon American
money systems.
The case raises troubling questions about Department of Justice
tactics under Bush. Such tactics have long been the subject
of concern for civics-minded citizens, although prosecutors will
tell you that their work is rather mundane. But since 9/11,
the DOJ has adopted new and disturbing variations of prosecutorial
overzealousness, targeting disfavored individuals and groups
for engaging in First Amendment protected activities.
Although Dhafir was tried only for ordinary white collar crimes,
not for terrorism, both Attorney General Ashcroft and Governor
Pataki publicly referred to Dhafir as a terrorist. At the outset
of the trial, the prosecution requested the judge to rule that
attorneys for both sides be prohibited from raising the issue
of terrorism.
Now, however, the prosecution has asked that Dhafir's sentence
be based on post-trial judicial recognition that Dhafir is a
national security threat. According to the prosecution, asking
the judge to consider this factor is simply a logical extension
of the charges upon which Dhafir's conviction was won. The defense
is crying foul, however, claiming that the  prosecution
is trying to get the judge to sentence Dhafir on charges the
DOJ was unable to bring at trial.
Dr. Dhafir was once a practicing oncologist in Syracuse, New
York who was known for the kind assistance he gave to his patients--and
the many occasions he forgave debts for those who were unable
to pay. In the mid-1990's, Dhafir started a charity called Help
the Needy to provide funds for medical relief to children in
Iraq. His good deeds raised the ire of Saddam Hussein, who,
reports go, had him on a "hit list."
One would think that such deeds would make him doubly a hero
in the eyes of the American government. Not only did he do good
deeds, which formerly was a hallmark of American identity, but
he was an enemy of an enemy of ours--so great an enemy purportedly
that we waged pre-emptive war against him.
Instead, the DOJ states that they always viewed Dhafir as a common
criminal and prosecuted him as such. The monies Dhafir obtained
from donors, prosecutors state, went to proselytizing a strict
form of Islam in Iraq and towards supporting those who opposed
U.S. intervention, not to providing help to the needy.
Is Dr. Dhafir a common white collar criminal or a new type of
casualty in the war on terror?
The prosecution's tactics, along with others in this and other
recent indictments and trials, raises deep constitutional issues
that should concern Americans.
The
Charges: How did Dhafir get from being tried as an ordinary
white collar criminal to being called a national security threat?
Dhafir was arrested in February 2003 and charged with a veritable
laundry list of crimes: tax fraud, violating the sanctions against
Iraq, money laundering, providing false information to immigration,
health care and medicare fraud, mail and wire fraud, as well
as separate charges of conspiracy to commit some of these acts.
He has been held without bail ever since his arrest. The trial
began in Syracuse on October 17, 2004 and lasted 17 weeks, ending
on February 10, 2005 with a conviction on 59 out of 60 counts.
Dhafir's sentencing hearing is scheduled for October 18, 2005.
According to lead prosecutor Michael Olmsted, the investigation
of Dhafir was triggered when a local New York bank noticed suspicious
activity in one of his accounts: several hundred checks deposited
for just under $10,000. Under federal banking laws, deposits
for over $10,000 must be reported to the government, so some
people try to avoid the intrusive requirement by moving amounts
just under $10,000. But repeated transactions just under $10,000
can also create suspicion.
To the DOJ, the deposits initially suggested money laundering,
but further investigation pointed to what they believed was a
mail and/or wire fraud scheme. The DOJ believed that Dhafir
was using donations he received for medical relief to instead
promote a political and religious agenda in Iraq. Not only was
this fraud and money laundering, in the DOJ's opinion, but it
violated the Iraqi Sanctions.
Olmsted says that although the Iraqi Sanctions violations constitute
the first count, they were the last to be added.
However, according to Katherine Hughes, who sat in court as a
New York Civil Liberties Union Court Watcher throughout the better
part of 17 weeks of trial, "Dr. Dhafir did not use any of
the money in ways other than he had told people how it would
be used. The defense went to great lengths to show that money
collected in this country was only used in the way that people
were told it would be used, for food, medicine etc. (This was
done mainly by showing emails, and receipts for food, rice, oil,
flour, by the ton.) Some Muslims in this country gave money
specifically for things like buying Korans or building mosques
and their money would be used for that purpose."
Another Court Watcher, Madis Senner, a CPA and former Wall Street
businessman, declares: "The fraud claim is bogus."
According to Senner, over 150 Muslims in the Syracuse area were
questioned about Dhafir. Senner elaborates: "If [the government]
wanted to question the donors about Fraud, then why did they
ask questions about the mosque, religious practices, family in
the middle east, etc.....Because they were shaking the tree in
search of information."
In a move that supports Senner's suspicions, federal authorities
added new terrorism-related counts last week in a separate case
against two members of an Albany mosque, apparently attempting
to bolster their case by alleging ties to Dhafir.[2]
In any case, in order to prove a fraud case, the DOJ would have
to interview donors, which would alert Dhafir to the investigation.
Prosecutors felt that once Dhafir found out he was being investigated,
he would flee, so they had him arrested on the Iraqi Sanctions
violations first and requested that he not be released on bail.
The violations of the sanctions against Iraq, according to Olmsted,
were merely incidental to the money laundering and it was the
mail and wire fraud crimes that the DOJ felt were the core of
their case.
The Iraqi Sanctions violations, however, make up the first count
of the indictment and it is because of these violations that
the prosecution says it is now asking the sentencing court to
consider Dhafir as a national security threat, which could be
used to increase his overall sentence.
The Iraqi Sanctions violations must therefore be considered as
a central feature of the case against Dhafir. It is the prosecution's
use of the national security threat label under the Iraqi Sanctions
violations that has caused Dhafir's supporters to claim that
he never had a chance to properly defend himself -- since the
defense was prohibited from showing what the case was really
about or from defending against what supporters claim were repeated
insinuations the prosecution made of terrorism during the trial.
The
Iraqi Sanctions Violations
The Iraqi Sanctions Regulations fall under the International
Emergency Economic Powers Act of 1977 (IEEPA). This is the
source of the national security issue in Dhafir's sentencing.
Under IEEPA, the president may determine that there are conditions
of "unusual and extraordinary threat" and make a declaration
of national emergency. The threat must be a threat "to
the national security, foreign policy, or economy of the United
States," and have "its source in whole or substantial
part outside the United States."
President George H.W. Bush (Bush I) issued two Executive Orders
in 1990 which found that "the policies and actions of the
Government of Iraq constitute an unusual and extraordinary threat
to the national security and foreign policy of the United States."
The Orders prohibited certain activities relating to Iraq, including
"any commitment or transfer, direct or indirect, of funds,
or other financial or economic resources by any United States
person to the Government of Iraq or any other person in Iraq."
Subsequent presidents continued these sanctions through July
2004, when Bush Jr. terminated the emergency with respect to
Iraq. Regulations tracking the Executive Orders declared that
no United States individual or organization could, except as
authorized, "commit or transfer, directly or indirectly,
funds or other financial or economic resources to the Government
of Iraq or any person in Iraq." These regulations, published
January 18, 1991 (the day after U.S. forces launched the Gulf
War) by the Office of Foreign Assets Control (OFAC), are known
as the "Iraqi Sanctions Regulations." They prohibited
export of "goods, services, or technology to Iraq,"
making exceptions on a case by case basis for "donated medical
supplies" if approved and licensed in advance.
IEEPA, as originally written, provided that a violation was subject
to a civil penalty not greater than $10,000. A willful violation
was subject to a penalty of not greater than $50,000 and ten
years in prison, or both.[3] While most IEEPA cases are civil,
they may also be criminal, but there have only been a handful
of criminal IEEPA convictions other than Dhafir's in the nearly
30 years since the statute was enacted.
In Dhafir's case, the original indictment charged him with two
conspiracy counts: one to violate the Iraqi Sanctions and the
other to launder money. According to the government's sentencing
memo, "The money laundering charges were predicated upon
the delivery of money from the United States to Jordan, for the
purpose of promoting the IEEPA violation." (Subsequent
superseding indictments added the fraud, tax evasion, and other
charges.)
Dhafir claims that he made repeated attempts to comply with rules
and regulations involving his relief work but was unable to.
In one instance, according to court watchers, the defense showed
that one of his attempts to comply was actually prevented by
actions of the FBI and DOJ. But in any event, others have intentionally
violated the Iraqi Sanctions, considering them immoral and unjust,
and they have not been criminally indicted. For example, Voices
in the Wilderness was recently fined but never prosecuted for
violating the Sanctions.
The defense sentencing memo describes the "devastating impact
on the Iraqi civilian population" of the bombings by U.S.
forces:
"In a period of six weeks,
U.S. air power systematically destroyed Iraq's infrastructure--including
its vital life support systems, such as water and food processing
plants which included such structures as baby milk powder producing
plants and civilian hospitals. By the end of the war, 110,000
aircraft sorties had dropped 88,500 tons of bombs on Iraq, the
equivalent of seven and a half atomic bombs of the size that
incinerated Hiroshima. In all, twenty-eight civilian hospitals,
fifty-two community health centers, six hundred-seventy-six schools,
twenty-five mosques and three churches were hit. Along with
the toll on the infrastructures, the war came at the price of
150,000 Iraqi and 148 U.S. lives."
The U.S. continued further
bombings and its embargo following these attacks. It was against
this backdrop, the defense states, "that Dr. Dhafir was
moved to render aid to the Iraqi people."
While other individuals who have been prosecuted for protesting
against the present invasion of Iraq have argued that their actions
were authorized by the Nuremberg Principles of international
law, which provide that "individuals have international
rights and duties to prevent crimes against humanity which transcend
the national obligations of obedience imposed by the individual
state,"[4] it does not appear that Dr. Dhafir's attorneys
offered such arguments at trial. Nor does it appear that they
argued the defense of necessity, which provides that the harm
caused by the defendant, if any (in Dhafir's case: the IEEPA
violation), was far smaller than the harm he was trying to prevent
(the suffering and death of millions of Iraqi civilians).
The prosecution's request for an enhanced sentence on the grounds
that Dhafir presents a national security threat -- because IEEPA
by definition involves a national security threat--makes sense
when you look at it from the prosecution's point of view. It
is simple logic. IEEPA = declaration of national security threat;
conviction of IEEPA = enhanced sentencing as national security
threat. And the case law cited in the sentencing memo appear
to support this deduction.
The defense, however, claims that the DOJ is trying to win a
case at sentencing that they could not win at trial. Defense
claims that Olmsted requested that terrorism not be raised at
trial because he did not want the defense to be able to delve
into what they believe is the real reason why the DOJ went after
Dhafir: the DOJ believed (but could not prove) he was a terrorist.
The DOJ could not win a terrorism case, so they won the easier
IEEPA/money laundering/ fraud case, but they are still trying
to have Dhafir punished as a terrorist.
Punishing an individual for a crime for which he was not tried
and against which he did not have an opportunity to defend himself,
violates the Sixth Amendment right to "be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him" and to "call witnesses in his
favor." In other words, the right to defend oneself against
accusations.
Some believe that the prosecution's post-trial "national
security threat" argument punishes Dhafir by in essence
rewriting history. They say that the prosecution wants to punish
Dhafir for having allegedly met with persons who only later became
enemies of the U.S. Although not raised during the trial, the
prosecution made mention in their sentencing memo of alleged
meetings in Pakistan in the 1980's between Dhafir and members
of the mujihadin who at that time was supported and funded by
the U.S. The defense claims that the prosecution improperly
raised this during sentencing in order to raise the specter of
terrorism that they could not raise at trial.
Because of this move by the prosecution, the defense filed requests
for prosecutors to provide proof of their claims that Dhafir
posed a national security concern.
Consequently, the judge put off Dhafir's sentencing, which was
scheduled for Monday, August 28, until October 18.
Terrorism
or National Security Threat: Ex Post Facto Law & Rewriting
History
The prosecution's tactic of raising this issue post-trial resembles
two constitutionally prohibited legislative practices. It is
worth looking briefly at these practices for what they reveal
about the true underlying nature of these tactics.
The first is called "ex post facto" law. Article 1
of the U.S. Constitution forbids the enactment of "ex post
facto" ("after the fact") laws. According to
one court, an ex post facto law is: "every law that makes
an action done before the passing of the law and which was innocent
when done to become criminal and punishable as such; every law
that aggravates a crime or makes it greater than when it was
committed; every law that changes and inflicts a greater punishment;
and every law that alters the legal rules of evidence, and receives
less, or different, testimony, than the law required at the time
of the commission of the offense, in order to convict the offender."
(Hill v. State, 171 S.W.2d 880 (Court of Criminal Appeals of
Texas, 1943); quoted in Barron's Law Dictionary (ed. Steven H.
Gifis), 3d Ed., 1991.)
The Justice Department is engaging in a quasi-legislative practice
that resembles ex post facto law. It is as though the prosecution
is suggesting (without saying) that, even though Dhafir's meetings
with the mujihadin were innocent and lawful at the time he had
them, because those meetings would not be innocent and lawful
now (because he met with future terrorists), he should be viewed
as a terrorist himself. In other words, although the specific
action of meeting with those individuals was legal then, the
fact that it would be illegal now should apply "ex post
facto."
Thus, while the defense argues that this prosecution tactic is
improper innuendo, is it in fact far more than that: it is tantamount
to a quasi-legislative unconstitutional ex post facto enactment.
The second constitutionally prohibited practice that the Olmsted
post-trial tactic bears a small but ominous resemblance to is
the so-called "bill of attainder." A bill of attainder,
also prohibited in Article I of the Constitution, is a legislative
act, in any form, that applies to a specific named individual
in such a way as to inflict punishment on him, and him alone,
without a judicial trial.
The Department of Justice has, by its history rewriting method,
created something resembling a bill of attainder against Dhafir.
Although Dhafir had a full trial (which the prosecution would
be quick to point out), he was not tried for (nor could he defend
against) the "bill" the prosecution proposes now against
him at sentencing.
The DOJ has committed quasi-legislative acts and made new law
out of a mixing of existing laws, a series of executive orders
and regulations, misinterpreted religious practices (as we show
below), a topsy-turvey retelling of history, and a disjointed
arrangement of time. They have applied this new unnamed prohibition
to a single man long after the acts took place.
Of course, such arguments would probably not have helped the
defense, primarily because they apply to legislative not prosecutorial
acts, but the comparisons serve to remind us all of some crucial
American principles of justice. The Sixth Amendment promises
each and every one of us an opportunity to defend ourselves at
trial. The Olmsted method of post-trial prosecution violates
this tenet. Facts that are not raised at trial should not be
raised later to deprive a man of his liberty, or no man or woman
will be safe from tyranny.
A Tapestry
of American Misinterpretation
In order to make their Iraqi
Sanctions case against Dhafir, the prosecution wove together
Muslim practices of giving into a tapestry of American misinterpretation
and misconstruction. These acts of giving are bedrock principles
of the Muslim religion.
Islam requires Muslims to perform
each of the Five Pillars of Islam. Zakah (variously transliterated
as Zakat or Zagat), one of the Five Pillars of Islam, is obligatory
charity. It is an act of worship and spiritual investment and
has a deep humanitarian and social-political value. "The
recipients of Zakah are: the poor, the needy, the new Muslim
converts, the Muslim prisoners of war (to liberate them), Muslims
in debt, employees appointed to collect Zakah, Muslims in service
of research or study or propagation of Islam, and wayfarers who
are foreigners in need of help."[5] Dawaa is a form of
Zakah that literally means "an invitation." Most often
it means to invite people to understand Islam. The Quran says:
"Invite all to the way of your Lord with Wisdom and beautiful
advice." (Quran 16:125)
The prosecutors in Dhafir's trial argued that his dawaa was a
form of religious proselytizing, not a form of providing relief
to the needy. But for Muslims, providing relief to the needy
and helping them to understand Islam are part of the same act.
Much was made by the prosecution of Dhafir's words, recorded
during a wire tap, that religious teaching, not providing relief,
was the primary purpose of his fund-raising. But, to Muslims
the act of religious teaching IS the higher purpose of providing
relief. Relief itself without the religious motive is inadequate.
And providing relief is part of the religious act.
Thus, Dhafir's relief work was twisted by the prosecution into
an American definition of support of a political and religious
agenda in Iraq in order to fit the crime under IEEPA.
Further, the prosecution has argued that Dhafir should have known
that the religious and political agenda that he was supporting
was opposed to the future interests of the U.S. Good behavior
of a model citizen for a good cause is now a national security
crime.
However, more important even than these details--which in themselves
point to troubling violations of constitutional guarantees--are
the larger trial strategies increasingly being used by the Department
of Justice to take people off the streets who are not criminals.
These tactics have been used against Greenpeace, Lynne Stewart,
and peaceful street activists. Most recently they have been
used against animal rights activists, and several groups of anti-war
protestors: "St. Pete's for Peace, and "The St. Patrick
Four."[6] These tactics point to an increasing executive
tendency to disregard any rights and laws that do not promote
its unilateral agenda of executive dominance and power.
[End Part One. See Part Two tomorrow.]
Jennifer Van Bergen, J.D. is author of "The Twilight
of Democracy: The Bush Plan for America," a constitutional
analysis for the general public of the PATRIOT Act and other
legislation and executive orders. She writes commentary frequently
for Counterpunch and is a reporter for Raw
Story . She can be reached at jvbxyz@earthlink.net.
[1] David Smith-Ferri, "The
Law of the Land: Judge John Bates upholds $20,000 fine against
Voices in the Wilderness" .
[2] http://timesunion.com/
[3] This is the language in
the original legislation. OFAC subsequently informed at least
one organization that "Criminal penalties of violating the
Regulations range up to 12 years in prison and $1 million in
fines. Civil penalties of up to $250,000 per violation may be
imposed administratively by OFAC." See Smith-Ferri's article
cited in footnote 1 above.
[4] See Bill Quigley, "The St.
Patrick's Four and Resistance to the War in Iraq" (March
17, 2005).
[5] http://www.usc.edu/dept/MSA/fundamentals/pillars/intropillars.html
[6] After acquittals in state
court jury trial, the DOJ charged the St. Patrick's Four with
a federal conspiracy charge punishable by up to six years in
federal prison and a $250,000 fine. After a rousing closing
statement by human rights attorney Bill Quigley, the jury acquitted
the Four of the federal conspiracy charge and convicted them
of only the misdemeanor charges. See http://rawstory.com/
.
CLARIFICATION
ALEXANDER COCKBURN, JEFFREY
ST CLAIR, BECKY GRANT AND THE INSTITUTE FOR THE ADVANCEMENT OF
JOURNALISTIC CLARITY, COUNTERPUNCH
We published an article entitled
"A Saudiless Arabia" by Wayne Madsen dated October
22, 2002 (the "Article"), on the website of the Institute
for the Advancement of Journalistic Clarity, CounterPunch, www.counterpunch.org
(the "Website").
Although it was not our intention,
counsel for Mohammed Hussein Al Amoudi has advised us the Article
suggests, or could be read as suggesting, that Mr Al Amoudi has
funded, supported, or is in some way associated with, the terrorist
activities of Osama bin Laden and the Al Qaeda terrorist network.
We do not have any evidence
connecting Mr Al Amoudi with terrorism.
As a result of an exchange
of communications with Mr Al Amoudi's lawyers, we have removed
the Article from the Website.
We are pleased to clarify the
position.
August 17, 2005
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Coming in the Fall
from CounterPunch Books!
The Case
Against Israel
By Michael Neumann
Click Here to Advance Order Philosopher
Michael Neumann's Devastating Rebuttal of Alan Dershowitz
Coming
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Grand
Theft Pentagon:
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by Jeffrey St. Clair
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