What precisely the jury thought about the government's case against the now-defunct Holy Land Foundation for Relief and Development is hardly clear. But the mistrial today in the government's largest terrorist financing case to date is clearly a setback for the Justice Department.
Jurors came back with a verdict last Friday, but for technical reasons it was not made public until today. Initially the judge announced a near-total acquittal of three of the top charity leaders on the terrorist financing charges. But three jurors said in court that the verdict was incorrect. So the judge sent the jurors back for further deliberation, but after an hour it became clear that they could not reach a consensus. A mistrial for four individuals was declared. The fifth was acquitted on all but one count, where the jury deadlocked.
As one of the government's largest financing cases, the prosecution of the Holy Land Foundation was billed as an example of the government's best efforts to combat terrorist funding inside its borders. But prosecutors' failure to secure a clear victory highlights the difficulty the government has had in winning criminal verdicts in these cases.
"It's a major loss for the government," says Jonathan Turley, a George Washington University law professor who has represented alleged terrorist financers.
The government's case against the foundation—once the largest Muslim charity in the country—has been roiled by controversy since the beginning. The Bush administration first designated the foundation a terrorist sponsor in 2001, freezing and later seizing the organization's assets. Civil libertarians criticized the government for a broad interpretation of material support for terrorism, and the Holy Land fought back in court but was unable to unfreeze its funds. Instead, the government indicted the charity and its top leaders in 2004, accusing the foundation of funneling $12 million to Hamas through local charities in the Gaza Strip and West Bank.
But soon allegations surfaced that a summary of wiretapped conversations attributed inflammatory anti-Jewish statements to members of the charity that were not found in the actual transcripts of the conversations.
More recently the case has drawn fire for the government's long list of unindicted coconspirators, which includes some of the most prominent Muslim organizations still in operation in the country. The broad brush allegations against these groups have prompted some to accuse the government of a smear campaign.
What the mistrial means for the future of terrorist financing cases is still unclear. The government has a handful of pending investigations. It has frozen assets of a few Michigan-based Muslim charities. It has raided several Virginia-based Muslim charities. And in March, it indicted the Islamic American Relief Agency for sending money to Iraq during the 1990s, when the country was under sanctions.
The government could not comment because of a gag order, but it is likely to retry the case. Still, says Judith Lee, an export controls lawyer in Washington, the mistrial—particularly one that appeared to lean in favor of the defendants—"just doesn't bode well for the government's prosecution of the other cases."
While the prosecutors may learn from their mistakes, the mistrial provides the defendants the advantage of knowing the government's evidence, she said.
The government's track record has been mixed: While it has failed with favorable jury verdicts on the central terrorist financing charges, it has convicted the individuals on lesser charges. Sami Al-Arian, a Palestinian-born professor in Florida,was found not guilty in 2005 but pled guilty to a lesser charge last year in exchange for a shorter sentence and deportation. (He is still fighting the government on other legal matters.) And, earlier this year, two Chicago men were acquitted of racketeering charges for funneling money to Hamas but were convicted of obstruction of justice.
Still, says Stuart Newberger, a lawyer who has won court verdicts against foreign governments for state-sponsored terrorism, any generalizations are premature. "You have to take it one case at a time," he says.