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Fairness and Justice? Post-9/11 Muslim Charity Prosecution

Saturday, 20 September 2014 09:57 By Katherine Hughes, Truthout | Op-Ed
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2014 920 justice st(Image: EL / TO; Adapted: JMT Images, Rana Ossama)My passion for the protection of civil liberties was sparked at the age of 14 when I saw a documentary on the Allies' liberation of Bergen-Belsen. For the past 40 years, in an effort to understand how something like that could happen, I've been reading first-hand accounts of 1930s and 1940s Europe and the former Soviet Union. Over the last 25 years I began noticing similar circumstances in both Europe and the United States: wars creating millions of refugees, financial crises, erosions of workers' rights and sharpening income inequality, along with national and individual poverty and debt, a xenophobic and racist climate, and attacks on civil liberties, including freedom of speech.

My alarm grew as I witnessed the post-9/11 demonization of Muslims. I have always known that if anything like this happened in my lifetime, not only did I not want any part of it; I did not want to be a bystander. It was for this reason that I decided to attend the trial of Rafil Dhafir, a respected oncologist from upstate New York. I knew virtually nothing about Dhafir before attending almost all of the 17-week trial in 2004. I took copious notes during the proceedings. Because of the injustice I witnessed, I've spent the last 10 years trying to let others know about the case: I started a website and have published articles and given interviews. I'm currently working on a documentary.

After publishing my last article, "Anatomy of a 'Terrorism' Prosecution: Dr. Rafil Dhafir and the Help the Needy Muslim Charity Case," in January 2012, I thought I had finally written everything I needed to about this case. A recent incident, however, has made stunningly clear the pattern of US government tactics that have made it impossible, for 12 long years, for Dhafir to mount an effective defense.

The latest incident occurred on June 18, 2014, when, for no given reason, Dhafir was taken out of the general population in the prison where he is serving his sentence and placed in the special housing unit (SHU). This happened in the midst of his last chance at a legal remedy, a 2255 habeas corpus motion. Since Dhafir has no money for an attorney, he has been working on the motion by himself, and conditions within the SHU (at one point he was denied writing material) have made such efforts extremely difficult. The deadline for the 2255 is November 4, 2014. It cannot be extended.

Though government failed to come up with anything that would stand up as such in a court of law, it clearly viewed his case as a terrorism trial.

Preparing the 2255 includes reviewing six of the requested 37 Freedom of Information Act (FOIA) discs that he finally received after a two-year delay. (He recently received an additional two discs, but has had no chance to review them.) The six discs that he has reviewed have a total of 2,056 pages delivered (95 percent redacted) and 4,029 deleted pages. Even with so many pages missing and so much redacted, these pages clearly show the government's aim in this case: to connect Dhafir - no matter how tenuously - with Islamic terror and use his conviction as an example of the government's zeal in protecting the public.

Seven government agencies investigated Dhafir and his charity, Help the Needy (HTN), for many years. They intercepted his mail, email, faxes and telephone calls, bugged his office and hotel rooms, went through his trash and conducted physical surveillance. The FOIA request has revealed that there were many full-time agents working on the case, often doing overtime and working holidays. Many agencies across the country and around the world, in places as widespread as Detroit, St. Louis, Tampa, San Francisco, Chicago, Tel Aviv, Sydney, Canberra, Amman, Cairo and London, were involved. Though government failed to come up with anything that would stand up as such in a court of law, it clearly viewed his case as a terrorism trial.

From the day of the arrest, the government insinuated that Dhafir was a money launderer for terrorists. Long before he went on trial, he was pilloried in the court of public opinion.

A motion granted by Judge Mordue before the trial began meant that the defense could address the government's actual charges only and could not challenge its insinuations of support of terrorism. Although prosecutors could hint at more serious charges throughout the trial, the defense team couldn't respond to these inflammatory innuendos head-on. This strategy had devastating consequences not only for Dhafir's defense at trial, but also for his appeals, which were limited to the district court record.

One of the most exciting things about the 2255 is that, unlike appeals, it gives the defendant a chance to present new evidence to the court, for example, evidence gleaned from the FOIA request, which clearly shows the government's true intent in this case and that, as late as 2010, it was still fishing for a connection to terrorism.

A letter writing campaign and call-in day was organized to find out the reason Dhafir had been placed in the SHU and to request that he be released back into the general population. The offices of Sen. Elizabeth Warren (D-Massachusetts) and Sen. Kirsten Gillibrand (D-New York) also contacted the prison for information about why Dhafir was placed in the SHU. Dhafir, a deeply religious Muslim, spent the whole of Ramadan in the SHU, including Eid al-Fitr (comparable to a combined Easter and Christmas in the Christian tradition). After 73 days in the SHU, he was released without charge on August 29. We are still none the wiser as to why he was put there in the first place.

Background to the Case

Born in Iraq in 1948, Dhafir completed medical school before immigrating to the United States in 1972; he has been a US citizen for almost 40 years. He was a founding member of the Islamic Society of Central New York (ISCNY) and served as its spiritual leader for about seven years. He was an oncologist in an underserved area of Rome, New York, until his arrest, well-known for both his medical skill and his way of giving hope and courage to his patients. Both he and his African-American wife, Priscilla, were very active in Syracuse civic affairs. At trial, Priscilla Dhafir testified that she sat on the board of the YWCA, was a charter member of the Women's Fund, past director of the CNY Business and Professional Women's Club, and current treasurer of Syracuse Links, a group of professional women who reached out to youth in the area. Dhafir often spoke at events and on local TV and radio about health and cancer care.

Throughout these years, Dhafir asked US officials if this humanitarian aid was legal and was assured it was - that is, until the morning of his arrest.

On August 1, 1990, Saddam Hussein, then president of Iraq, invaded Kuwait and on August 2, US and UK-sponsored UN sanctions (also known as the International Emergency Economic Powers Act, or IEEPA here in the United States) against Iraq were put in place. On January 17, 1991, the first bombs of the Gulf War were dropped on Baghdad. Before this war, Iraq, a wealthy country, had a First World standard of living. Although organized as a brutal dictatorship, the government provided universal health care and education - including college - for all its citizens. There was virtually no illiteracy and the education system and health system were the best in the region. Women enjoyed equal rights and religious minorities were respected.

The result of the war was total devastation: More bombs were dropped on Iraq in a six-week period than were dropped by all parties together in the whole of World War II. Many types of bombs were used including ones containing depleted uranium (DU), the waste matter from nuclear plants. DU dust has entered the food chain through the soil and the water, and as a result many formerly unknown diseases became prevalent in Iraq. Cancer and birth defects increased dramatically.

According to the United Nations' own statistics, every month throughout the 1990s, 6,000 children under the age of five in Iraq were dying from malnutrition and lack of access to simple medicines. Three senior UN officials resigned in protest, including Denis Halliday, the UN assistant secretary general. At the time, Halliday was serving as the humanitarian coordinator in Baghdad. In his words, he "had been instructed to implement a policy that satisfies the definition of genocide: a deliberate policy that has effectively killed well over a million individuals, children and adults."

No charges of funding terrorism, nor charges of any other aspect of terrorism, were ever brought against Dhafir.

As a direct response to this catastrophe, Dhafir founded his charity, HTN, and openly sent humanitarian aid to Iraqi civilians during the long embargo. As an oncologist, Dhafir was particularly concerned about the effects of depleted uranium. Between 1990 and 2003, he worked tirelessly to shed light on the plight of the Iraqi people and raise funds to help them. According to the government, Dhafir donated $1.4 million of his own money. Throughout these years, Dhafir asked US officials if this humanitarian aid was legal and was assured it was - that is, until the morning of his arrest.

At trial, Susan Hutner of the Department of the Treasury in the Office of Foreign Asset Control (OFAC) testified that she was involved in the drafting and implementation of the sanctions, and worked on them for 12 years. She said that OFAC did seek to notify targeted populations, but this did not include Iraqis living in this country, mosques or Muslim charities. The target populations were mainly banks, oil companies and other big businesses: Hutner gave presentations to some of these groups.

On February 26, 2003, just weeks before the US invasion of Iraq, Dhafir and other HTN associates were subjected to high-profile arrests. Then-Attorney General John Ashcroft called them "funders of terrorism." No charges of funding terrorism, nor charges of any other aspect of terrorism, were ever brought against Dhafir.

Since the events of 9/11, Muslim charities have been among the biggest targets of the US government in its "war on terror," and the government has implemented some powerful new tools for prosecution of these cases. Among the list of statutes being used is the International Emergency Economic Powers Act (IEEPA), also known as "United States economic sanctions." IEEPA provides the president of the United States with authority to deal with any "unusual and extraordinary threat" that has its source in whole or substantial part outside the United States; this includes a threat to "national security, foreign policy, and the economy."

Prosecutors armed with the statutes are further empowered by using them in conjunction with the "material support of terrorism" laws, Executive Order 13224, and civil asset forfeiture laws, particularly those under IEEPA, which were amended by the Patriot Act. Under the IEEPA civil asset forfeiture provisions, the government can close down an organization and seize its assets while an investigation is ongoing, without probable cause of criminal activity and without any charges ever being brought against anyone.

[Jeffrey Breinholt] told students that a major tool that emerged to gain convictions in terrorist financing cases is the use of International Emergency Economic Powers Act violations, and that in order to convict under IEEPA all that was necessary was to build a chain of inferences from available circumstantial evidence.

EO 13224 was issued on September 23, 2001, and introduced a blacklist of organizations and individuals suspected of terrorism, materially aiding terrorism or associating with terrorists. IEEPA and international law permit humanitarian assistance for these suspects, including food, clothing and medicine, but this humanitarian aid is outlawed under the EO 13224. The penalty, for an IEEPA violation, for organizations that knowingly engage in terrorist financing already carries a sentence of 20 years to life in prison. What this new provision does is "drastically increase the penalties for knowing violations of non-terrorism-related IEEPA offenses." People with a concern for civil liberties are troubled by the fact that the government provides no legal definition of what they consider a "specially designated terrorist" and by the broad manner in which the government is interpreting the new rules.

Muslim charities and individuals connected with these charities are bearing the brunt of the effects of this new law. Since September 11, 2001, six major US Muslim charities and many smaller Muslim charities have been shut down. Sadly, the government's zeal for prosecuting Muslim charities has not abated with time. Just last year, Iranian-American doctor Hossein Lahiji and his wife, Najmeh Vahid, were prosecuted using many of the same legal tools used in Dhafir's case, including threat of Medicare fraud prosecution.

Before attending this trial, I felt secure that my civil liberties would always be respected; I no longer believe that to be true. I still believe in fairness and justice despite my experience at the trail, and each new injustice that Dhafir suffers only strengthens my commitment to them. It is for this reason that I wish to share some unfair tactics that I witnessed throughout this case. Those who would like more detailed documentation of the government's role in this case can read my most recent article.

Pretrial: Innocent Until Proven Guilty?

  • Dhafir was subject to a high-profile arrest February 26, 2003: News agencies with helicopters hovered over his house as 85 agents spent the day going through the house and carrying out boxes of evidence, while Ashcroft announced the arrest of "funders of terrorism." But Dhafir was never allowed to defend himself of this charge in a court of law. This duplicitous government approach continually hampered the defense, not only at trial, but also on appeals.
  • Dhafir was never released after his arrest and was denied bail six times before his case came to trial 19 months later. This placed many impediments in the way of preparing his defense. (Barry Gewanter of the CNYCLU addressed some of the difficulties Dhafir faced on a WCNY Channel 24 program that aired on the eve of his sentencing.)
  • On March 11, 2003, less than two weeks after Dhafir's arrest, Steve Emerson of "The Investigative Project On Terrorism" (IPT) testified before the House Committee on Financial Services Subcommittee on Oversight and Investigation. Listed on p. 25, HTN is just one of many Muslim charities included in the testimony. None of these charities' principals had been anywhere near a court of law, and many had not even been indicted.
  • In July 2003, Jeffrey Breinholt, then-coordinator of the Department of Justice Terrorist Financing Task Force published a "Terrorist Financing" paper. His paper lists the same cases covered in Emerson's testimony and sets out the game plan for prosecutions of these cases. In the introduction, he says: "Persons cannot be convicted of the federal crime of terrorism because there is no such crime. Instead, terrorism crimes have developed in the same manner as other crimes, policymakers determine what evil (or 'mischief') should be prevented and then craft criminal laws that take into account how such mischief is generally achieved. On occasion, acts that are criminalized are not ones that should necessarily be discouraged, if committed by persons not otherwise involved in the targeted conduct. In such cases, laws are crafted to criminalize such conduct only in particular circumstances" (p. 3). Breinholt, a team member at the International Assessment and Strategy Center (IASC), published a 2008 article on its site, "Islam in American Courts: 2007 Year in Review." In it he says, "Next time someone claims that American prosecutors never win terrorism cases, or that Muslims are not more likely to be terrorists than other ethnic enclaves, recommend that they visit a law library, where they will find several published 2007 opinions in the case books where Muslims were successfully prosecuted for conduct related to religiously-inspired violence." He appears as one of the experts in Emerson's most recent film, Jihad in America: The Grand Deception.
  • Assistant United States Attorney (AUSA) Michael Olmsted, head of the prosecution team, told Dhafir's three trial lawyers (a black Baptist and two secular Jews) that Dhafir was anti-Semitic. It was patently false, so why did he tell them that?
  • Dhafir was initially held at the Justice Center in downtown Syracuse where he could meet with his trial lawyers fact-to-face, but after some demonstrations in support of him, he was moved to the Onondaga County Jamesville Correctional Facility. At Jamesville, prisoners were strip searched before they could meet with anyone from the outside and, as a devout Muslim, Dhafir refused to do this. (One of his lawyers, Joel Cohen, offered to be strip searched so that he could meet face to face with Dhafir, but this request was denied.) As a consequence, he now had to meet with his three lawyers through glass; only two could be in the visiting cubicle at any one time, and only one lawyer at a time could talk with him on the phone that connected them with Dhafir. The lawyers had to hold up bits of evidence to the window and ask Dhafir questions.
  • Because Dhafir couldn't leave Jamesville prison without a strip search, he had a friend go to the federal building to look through the hundreds of boxes of evidence that had been taken from his house. Mohamed Khater spent 12 days going through the boxes looking for things that Dhafir needed for his defense.
  • While state and national government officials tarred Dhafir with the "terrorism" brush, District Attorney Glenn Suddaby and the three local prosecutors insisted Dhafir was nothing more than a common white-collar criminal. Yet just before Dhafir's trial began in October 2004, then-New York Governor Pataki described the case as a "money laundering case to help terrorist organizations … conduct horrible acts," and described Dhafir and HTN supporters as "terrorists living here in New York State among us ... who are supporting and aiding and abetting those who would destroy our way of life and kill our friends and neighbors." It was an announcement perfectly timed to reach potential jurors.

Trial

  • The first indictment against Dhafir contained 14 charges related only to the Iraq sanctions. When he refused to accept a plea agreement, the government piled on more charges and he finally faced a 60-count indictment. This made for a very complicated and expensive 17-week trial. The amount of information was overwhelming.
  • The motion that Judge Mordue had granted to the government to keep the government's true motive for pursuing Dhafir out of the courtroom turned into a brick wall for the defense and made the trial surreal at times: Throughout the trial the government could hint at more serious charges pending, but the defense was never allowed to follow this line of questioning. An example of this dynamic can be seen in the testimony of Colleen Williams, a tax preparer Dhafir had hired to help HTN sort out its tax returns and give advice on a 501(c)(3) application for the charity. The government wanted Williams to inform on HTN and she described how FBI Agent Jim Kolbe, IRS Agent Mark Sweeney and US Attorney Brenda Sannes had spent three days, first individually and then together, asking her to wear a recorder in her meetings with HTN defendant Ayman Jarwan. She described them as "waving the flag" and telling her that, "9/11 may not have happened if people were involved." She felt the HTN people "were being pursued" and got rid of them as a client after only three meetings. She never agreed to wear a wire and refused to refer the case to a government attorney. For white-collar crime?
  • Although the government had taken all Dhafir's money (including HTN money and personal money in Amman, Jordan), the court still granted the prosecution's request to deny Dhafir transcripts at the expense of the court (50 cents a page). This meant that one of Dhafir's lawyers typed the proceedings on his laptop, and the defense purchased only those transcripts that it felt it couldn't do without.
  • Because Dhafir would not submit to a strip search, five federal marshals ferried him to and from the prison. Two were always in the courtroom: one sat behind Dhafir and another sat adjacent to the jury. They traded off approximately every 40 minutes in full view of the jury. This changing of the guard was on top of federal building and courtroom security and took place at least 250 times during the proceedings. It was a powerful nonverbal message to the jury.
  • At trial, Osama bin Laden was mentioned with no relevance, and the jury was made aware that Dhafir followed the same Islamic religious tradition, Salafi, as Bin Laden. (Salafi merely means a Muslim who is a strict adherent of the Koran and looks to the ancestors for guidance. It is comparable to someone in the Christian faith who looks to the Scriptures, church fathers and traditions of the early church for guidance.)
  • Three government agents sat directly behind the three prosecutors, and adjacent to the jury, throughout the trial: FBI Agent Jim Kolbe testified for 16 days, eight of them as the sole witness and eight of them as one of only two witnesses; it was his testimony that, essentially, convicted Dhafir; Social Security agent Michael McCole testified for about 20 minutes; the Defense Department agent, a young blonde woman, did not testify. Why were all three of these agents paid to sit there for the whole of a 17-week white-collar criminal trial?
  • The government called more than 50 witnesses to testify, but neglected to call two key people: Kelly Tubbs, Dhafir's office manager of 10 years who was proud of the fact that Dhafir's office had never failed an audit, and Maher Zagha, a co-defendant who was the HTN representative in Jordan. Zagha organized the land and sea delivery of food, clothing and medicine to Iraq. The defense called witness for 15 minutes. Why didn't the government call Tubbs and Zagha? (Sadly the defense didn't call them either, and I imagine that was at least partly due to finance. Also, two of Dhafir's lawyers were solo practitioner lawyers from New York City, and had taken the job believing it would be a six-week trial. In fact, because the final indictment had 60 counts including 25 of Medicare fraud, it ran for 17 weeks.)

Pre-Sentencing

  • After the guilty verdicts came down, District Attorney Glenn Suddaby (now a federal judge) told reporters at a news conference that he didn't want anyone saying anything about terrorism and that, regardless of 9/11, this prosecution would have gone ahead. But six months later, on submitting a sentencing memo that asked for a sentence of not less than 24 years, he announced that Dhafir had links to terrorism. The connection? On several occasions during the 1980s, Dhafir was in Pakistan as a volunteer doctor in mujahedeen refugee camps. On one of these trips, he briefly met and interviewed Abdallah Azzam, who was later known as a teacher and mentor of Osama bin Laden; and Gulbuddin Hekmatyar, future Taliban prime minister of Afghanistan. At the time Dhafir met these two, they were friends of the United States, and the government even noted this in a footnote of its memo. Yet Dhafir and other HTN defendants are now listed on the government's list of successful terrorism prosecutions.

 Post-Sentencing

  • Within weeks of Dhafir's sentencing, Breinholt, author of the July 2003 "Terrorist Financing" paper mentioned above, and a research and practice associate at the Syracuse University (SU) Institute for National Security and Counterterrorism (INSCT), presented a lecture to a group of third-year law students at SU. Entitled, "A Law Enforcement Approach to Terrorist Financing," it contained the essence of his paper and highlighted the Dhafir and HTN case. Greg West, one of the three HTN prosecutors, helped present the lecture, while the other two prosecutors, Michael Olmsted and Steve Green, were in attendance to answer questions. Breinholt told the students that Dhafir's case had been under-prosecuted and in the context of the lecture's title the implication was clear. He explained that because the "American public won't tolerate anything less than the rule of law," creative ways had to be figured out to draft laws that can be used to prosecute what they are trying to prevent. He told students that a major tool that emerged to gain convictions in terrorist financing cases is the use of International Emergency Economic Powers Act (IEEPA) violations, and that in order to convict under IEEPA all that was necessary was to build a chain of inferences from available circumstantial evidence. Why was Dhafir never allowed to address the real reason for the government's prosecution in a court of law?
  • In December 2006, Dhafir was moved to a special new communication management unit (CMU), in Terre Haute, Indiana. It is completely self-contained and houses, almost exclusively, Arab and/or Muslim prisoners. Prisoners are video monitored 24/7, and there are severe restrictions on communication. Contact with family and friends is limited; outgoing and incoming mail is monitored and copied, with a one- to two- week delivery delay; and no contact visits are allowed. Instead of 300 minutes of phone time a month, prisoners may receive only one 15-minute call a week, which the warden has the power to reduce to just three minutes a month. Unlike the usual weekly or biweekly all-day contact visits, visits in the CMU were for two hours, just twice a month, and restricted to non-contact only. Calls and visits had to be conducted in English unless prior arrangement was made. (Since 2006, there have been some slight changes to these regulations, but nothing substantial.)

Appeal

  • It took 18 months to raise the money for two new appeal lawyers. As soon as the appeal team was hired, Olmsted, again, falsely told Dhafir's lawyers (both secular Jews) that Dhafir was anti-Semitic. What purpose did this serve? (In Dhafir's statement before sentencing he says: "When my home was ransacked, one of the government's main targets was my library. They nearly emptied it. What did they take? They took my Islamic books; they came looking for books of certain authors and took all these authors' books. They took Quran recitation tapes even though these books and tapes are available at any bookstore. They didn't touch my Encyclopedia Britannica, my Encyclopedia of the American History, none of the books of Richard Nixon or Henry Kissinger, nor Norman Schwarzkopf, the memoirs of President Bush Sr., James Baker or Colin Powell. Not the history books about the Jewish people, the famous books of Abba Eban, the Israeli foreign minister, certainly not the book about the life of Golda Meir. None of the different versions of the Bible including the Arabic Bible were touched nor the books of the Jewish Laws. None of the books confiscated from my library have been returned. What do these books have to do with Medicare, HTN and taxes? I think the court should know this.")
  • Initially, the appeal court granted Dhafir transcripts at the expense of the court (they are essential for an appeal). But the government challenged this ruling with completely unverifiable insinuations of personal wealth and persuaded the court to place some $15,000 in additional costs on the defense. Challenging this could have been very costly and there was no guarantee of success, so additional funds had to be raised before the appeal could move ahead.
  • A decision handed down by the Second Circuit Court of Appeals in August 2009 upheld Dhafir's conviction, but suggested the district court look again at the sentencing guidelines. The sentencing guidelines range on which his sentence was based was erroneously increased as if he were a third-party (professional) money launderer rather than the reality, which showed that he transmitted funds derived from the very same offenses which he had been convicted for personally committing ("mail fraud" and "tax fraud"). Seventy-five letters were written to Judge Mordue on Dhafir's behalf telling, in large part, of extreme conditions in the CMU that were taxing on Dhafir's health, and asking for clemency. People who wrote to Mordue on Dhafir's behalf include Denis Halliday and Hans Von Sponeck, both of whom resigned from the UN because they were unwilling to implement a genocidal policy of sanctions against Iraq, Nobel Laureate Mairead Maguire, and many including members of Dhafir's family, families of his former patients, people from his faith community and people across the world who greatly appreciate his humanitarian outreach. Resentencing was scheduled for January 5, 2012, and just 12 days before it, Dhafir was suddenly moved out of the CMU into the general population at Terre Haute, and then to the Federal Medical Center in Devens, Massachusetts. At the resentencing on February 3, 2012, Mordue upheld the 22-year sentence.
  • Although Dhafir was moved out of the CMU to a medium security prison, the security is still strict because of the large number of sex offenders held there. There is a camp at this prison, but Dhafir is ineligible for the camp because of an early security designation by the Bureau of Prisons on Dhafir's status. In a 2010 challenge to this designation, Dhafir's appeal attorney Peter Goldberger wrote, "It is submitted that the Bureau of Prisons (BOP) improperly found that Petitioner [Dhafir] 'required monitoring of all communications' based only on the fact that an AUSA [Assistant United States Attorney] had said he was 'regarded as a shiek (sic) and Salafi.' As discussed below, this amounts to classifying Mr. Dhafir as ineligible for a minimum security facility (camp) based only on his religious beliefs.""Sheikh" is an honorific term referring to either an elder or leader, or to an Islamic scholar and, as mentioned above, "Salafi" merely means someone who looks to the early Muslims for guidance (as Christian's look to the original disciples). Dhafir is again challenging this designation in the hope he will become eligible for a camp.

2255 Motion

    • Formerly a wealthy and generous man, Dhafir was left penniless as a result of this prosecution. He has no money for a lawyer to work on his 2255 motion and he has been unable to find a pro bono lawyer. In the best of circumstance, working on this by himself would be no easy task. Being put in the SHU for 73 days placed an added and unnecessary burden on him.

Questions

  • How can this have been due process when Dhafir was clearly never held "innocent until proven guilty?"
  • After more than a decade of investigating Dhafir with, at times, many full-time agents and 24/7 surveillance of both Dhafir and his associates, the government is still unable to find anything that would stand up in a court of law linking Dhafir to terrorists. How much longer will it continue to look?
  • How much has this whole prosecution cost taxpayers? Is it value for money?
  • Is keeping Dhafir in prison for another 10 years on top of the 12 he has already served a good use of taxpayer dollars? Does his imprisonment keep us safe from terrorist attacks?

 Dhafir is in his 60s and has a number of health issues that affect his ability to endure the circumstances in which he is serving his sentence. He developed a heart condition after his arrest and has not always had the medication his condition requires. He has also had two extremely painful episodes of gout that could easily have been prevented if he had been given medication. And he had to wait a long time to have a painful hernia treated, and suffered a recurrence of the hernia which required further surgery. After his August 29 release from the SHU, he was deprived of his medication, including his heart meds, for over a week. If he does not get relief soon, he will almost certainly die in prison.

Is this fairness? Is this justice?

Copyright, Truthout. May not be reprinted without permission.

Katherine Hughes

Katherine Hughes has been passionate about the defense of civil liberties since seeing a documentary of the Allies going into Bergen-Belsen as a teenager 35 years ago. In the post-9/11 period, she became alarmed at the demonization of Muslims and it was this that prompted her to attend Dhafir's 14-week trial. She took notes every day and filled eight notebooks. Her website is http://www.dhafirtrial.net/.


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Fairness and Justice? Post-9/11 Muslim Charity Prosecution

Saturday, 20 September 2014 09:57 By Katherine Hughes, Truthout | Op-Ed
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2014 920 justice st(Image: EL / TO; Adapted: JMT Images, Rana Ossama)My passion for the protection of civil liberties was sparked at the age of 14 when I saw a documentary on the Allies' liberation of Bergen-Belsen. For the past 40 years, in an effort to understand how something like that could happen, I've been reading first-hand accounts of 1930s and 1940s Europe and the former Soviet Union. Over the last 25 years I began noticing similar circumstances in both Europe and the United States: wars creating millions of refugees, financial crises, erosions of workers' rights and sharpening income inequality, along with national and individual poverty and debt, a xenophobic and racist climate, and attacks on civil liberties, including freedom of speech.

My alarm grew as I witnessed the post-9/11 demonization of Muslims. I have always known that if anything like this happened in my lifetime, not only did I not want any part of it; I did not want to be a bystander. It was for this reason that I decided to attend the trial of Rafil Dhafir, a respected oncologist from upstate New York. I knew virtually nothing about Dhafir before attending almost all of the 17-week trial in 2004. I took copious notes during the proceedings. Because of the injustice I witnessed, I've spent the last 10 years trying to let others know about the case: I started a website and have published articles and given interviews. I'm currently working on a documentary.

After publishing my last article, "Anatomy of a 'Terrorism' Prosecution: Dr. Rafil Dhafir and the Help the Needy Muslim Charity Case," in January 2012, I thought I had finally written everything I needed to about this case. A recent incident, however, has made stunningly clear the pattern of US government tactics that have made it impossible, for 12 long years, for Dhafir to mount an effective defense.

The latest incident occurred on June 18, 2014, when, for no given reason, Dhafir was taken out of the general population in the prison where he is serving his sentence and placed in the special housing unit (SHU). This happened in the midst of his last chance at a legal remedy, a 2255 habeas corpus motion. Since Dhafir has no money for an attorney, he has been working on the motion by himself, and conditions within the SHU (at one point he was denied writing material) have made such efforts extremely difficult. The deadline for the 2255 is November 4, 2014. It cannot be extended.

Though government failed to come up with anything that would stand up as such in a court of law, it clearly viewed his case as a terrorism trial.

Preparing the 2255 includes reviewing six of the requested 37 Freedom of Information Act (FOIA) discs that he finally received after a two-year delay. (He recently received an additional two discs, but has had no chance to review them.) The six discs that he has reviewed have a total of 2,056 pages delivered (95 percent redacted) and 4,029 deleted pages. Even with so many pages missing and so much redacted, these pages clearly show the government's aim in this case: to connect Dhafir - no matter how tenuously - with Islamic terror and use his conviction as an example of the government's zeal in protecting the public.

Seven government agencies investigated Dhafir and his charity, Help the Needy (HTN), for many years. They intercepted his mail, email, faxes and telephone calls, bugged his office and hotel rooms, went through his trash and conducted physical surveillance. The FOIA request has revealed that there were many full-time agents working on the case, often doing overtime and working holidays. Many agencies across the country and around the world, in places as widespread as Detroit, St. Louis, Tampa, San Francisco, Chicago, Tel Aviv, Sydney, Canberra, Amman, Cairo and London, were involved. Though government failed to come up with anything that would stand up as such in a court of law, it clearly viewed his case as a terrorism trial.

From the day of the arrest, the government insinuated that Dhafir was a money launderer for terrorists. Long before he went on trial, he was pilloried in the court of public opinion.

A motion granted by Judge Mordue before the trial began meant that the defense could address the government's actual charges only and could not challenge its insinuations of support of terrorism. Although prosecutors could hint at more serious charges throughout the trial, the defense team couldn't respond to these inflammatory innuendos head-on. This strategy had devastating consequences not only for Dhafir's defense at trial, but also for his appeals, which were limited to the district court record.

One of the most exciting things about the 2255 is that, unlike appeals, it gives the defendant a chance to present new evidence to the court, for example, evidence gleaned from the FOIA request, which clearly shows the government's true intent in this case and that, as late as 2010, it was still fishing for a connection to terrorism.

A letter writing campaign and call-in day was organized to find out the reason Dhafir had been placed in the SHU and to request that he be released back into the general population. The offices of Sen. Elizabeth Warren (D-Massachusetts) and Sen. Kirsten Gillibrand (D-New York) also contacted the prison for information about why Dhafir was placed in the SHU. Dhafir, a deeply religious Muslim, spent the whole of Ramadan in the SHU, including Eid al-Fitr (comparable to a combined Easter and Christmas in the Christian tradition). After 73 days in the SHU, he was released without charge on August 29. We are still none the wiser as to why he was put there in the first place.

Background to the Case

Born in Iraq in 1948, Dhafir completed medical school before immigrating to the United States in 1972; he has been a US citizen for almost 40 years. He was a founding member of the Islamic Society of Central New York (ISCNY) and served as its spiritual leader for about seven years. He was an oncologist in an underserved area of Rome, New York, until his arrest, well-known for both his medical skill and his way of giving hope and courage to his patients. Both he and his African-American wife, Priscilla, were very active in Syracuse civic affairs. At trial, Priscilla Dhafir testified that she sat on the board of the YWCA, was a charter member of the Women's Fund, past director of the CNY Business and Professional Women's Club, and current treasurer of Syracuse Links, a group of professional women who reached out to youth in the area. Dhafir often spoke at events and on local TV and radio about health and cancer care.

Throughout these years, Dhafir asked US officials if this humanitarian aid was legal and was assured it was - that is, until the morning of his arrest.

On August 1, 1990, Saddam Hussein, then president of Iraq, invaded Kuwait and on August 2, US and UK-sponsored UN sanctions (also known as the International Emergency Economic Powers Act, or IEEPA here in the United States) against Iraq were put in place. On January 17, 1991, the first bombs of the Gulf War were dropped on Baghdad. Before this war, Iraq, a wealthy country, had a First World standard of living. Although organized as a brutal dictatorship, the government provided universal health care and education - including college - for all its citizens. There was virtually no illiteracy and the education system and health system were the best in the region. Women enjoyed equal rights and religious minorities were respected.

The result of the war was total devastation: More bombs were dropped on Iraq in a six-week period than were dropped by all parties together in the whole of World War II. Many types of bombs were used including ones containing depleted uranium (DU), the waste matter from nuclear plants. DU dust has entered the food chain through the soil and the water, and as a result many formerly unknown diseases became prevalent in Iraq. Cancer and birth defects increased dramatically.

According to the United Nations' own statistics, every month throughout the 1990s, 6,000 children under the age of five in Iraq were dying from malnutrition and lack of access to simple medicines. Three senior UN officials resigned in protest, including Denis Halliday, the UN assistant secretary general. At the time, Halliday was serving as the humanitarian coordinator in Baghdad. In his words, he "had been instructed to implement a policy that satisfies the definition of genocide: a deliberate policy that has effectively killed well over a million individuals, children and adults."

No charges of funding terrorism, nor charges of any other aspect of terrorism, were ever brought against Dhafir.

As a direct response to this catastrophe, Dhafir founded his charity, HTN, and openly sent humanitarian aid to Iraqi civilians during the long embargo. As an oncologist, Dhafir was particularly concerned about the effects of depleted uranium. Between 1990 and 2003, he worked tirelessly to shed light on the plight of the Iraqi people and raise funds to help them. According to the government, Dhafir donated $1.4 million of his own money. Throughout these years, Dhafir asked US officials if this humanitarian aid was legal and was assured it was - that is, until the morning of his arrest.

At trial, Susan Hutner of the Department of the Treasury in the Office of Foreign Asset Control (OFAC) testified that she was involved in the drafting and implementation of the sanctions, and worked on them for 12 years. She said that OFAC did seek to notify targeted populations, but this did not include Iraqis living in this country, mosques or Muslim charities. The target populations were mainly banks, oil companies and other big businesses: Hutner gave presentations to some of these groups.

On February 26, 2003, just weeks before the US invasion of Iraq, Dhafir and other HTN associates were subjected to high-profile arrests. Then-Attorney General John Ashcroft called them "funders of terrorism." No charges of funding terrorism, nor charges of any other aspect of terrorism, were ever brought against Dhafir.

Since the events of 9/11, Muslim charities have been among the biggest targets of the US government in its "war on terror," and the government has implemented some powerful new tools for prosecution of these cases. Among the list of statutes being used is the International Emergency Economic Powers Act (IEEPA), also known as "United States economic sanctions." IEEPA provides the president of the United States with authority to deal with any "unusual and extraordinary threat" that has its source in whole or substantial part outside the United States; this includes a threat to "national security, foreign policy, and the economy."

Prosecutors armed with the statutes are further empowered by using them in conjunction with the "material support of terrorism" laws, Executive Order 13224, and civil asset forfeiture laws, particularly those under IEEPA, which were amended by the Patriot Act. Under the IEEPA civil asset forfeiture provisions, the government can close down an organization and seize its assets while an investigation is ongoing, without probable cause of criminal activity and without any charges ever being brought against anyone.

[Jeffrey Breinholt] told students that a major tool that emerged to gain convictions in terrorist financing cases is the use of International Emergency Economic Powers Act violations, and that in order to convict under IEEPA all that was necessary was to build a chain of inferences from available circumstantial evidence.

EO 13224 was issued on September 23, 2001, and introduced a blacklist of organizations and individuals suspected of terrorism, materially aiding terrorism or associating with terrorists. IEEPA and international law permit humanitarian assistance for these suspects, including food, clothing and medicine, but this humanitarian aid is outlawed under the EO 13224. The penalty, for an IEEPA violation, for organizations that knowingly engage in terrorist financing already carries a sentence of 20 years to life in prison. What this new provision does is "drastically increase the penalties for knowing violations of non-terrorism-related IEEPA offenses." People with a concern for civil liberties are troubled by the fact that the government provides no legal definition of what they consider a "specially designated terrorist" and by the broad manner in which the government is interpreting the new rules.

Muslim charities and individuals connected with these charities are bearing the brunt of the effects of this new law. Since September 11, 2001, six major US Muslim charities and many smaller Muslim charities have been shut down. Sadly, the government's zeal for prosecuting Muslim charities has not abated with time. Just last year, Iranian-American doctor Hossein Lahiji and his wife, Najmeh Vahid, were prosecuted using many of the same legal tools used in Dhafir's case, including threat of Medicare fraud prosecution.

Before attending this trial, I felt secure that my civil liberties would always be respected; I no longer believe that to be true. I still believe in fairness and justice despite my experience at the trail, and each new injustice that Dhafir suffers only strengthens my commitment to them. It is for this reason that I wish to share some unfair tactics that I witnessed throughout this case. Those who would like more detailed documentation of the government's role in this case can read my most recent article.

Pretrial: Innocent Until Proven Guilty?

  • Dhafir was subject to a high-profile arrest February 26, 2003: News agencies with helicopters hovered over his house as 85 agents spent the day going through the house and carrying out boxes of evidence, while Ashcroft announced the arrest of "funders of terrorism." But Dhafir was never allowed to defend himself of this charge in a court of law. This duplicitous government approach continually hampered the defense, not only at trial, but also on appeals.
  • Dhafir was never released after his arrest and was denied bail six times before his case came to trial 19 months later. This placed many impediments in the way of preparing his defense. (Barry Gewanter of the CNYCLU addressed some of the difficulties Dhafir faced on a WCNY Channel 24 program that aired on the eve of his sentencing.)
  • On March 11, 2003, less than two weeks after Dhafir's arrest, Steve Emerson of "The Investigative Project On Terrorism" (IPT) testified before the House Committee on Financial Services Subcommittee on Oversight and Investigation. Listed on p. 25, HTN is just one of many Muslim charities included in the testimony. None of these charities' principals had been anywhere near a court of law, and many had not even been indicted.
  • In July 2003, Jeffrey Breinholt, then-coordinator of the Department of Justice Terrorist Financing Task Force published a "Terrorist Financing" paper. His paper lists the same cases covered in Emerson's testimony and sets out the game plan for prosecutions of these cases. In the introduction, he says: "Persons cannot be convicted of the federal crime of terrorism because there is no such crime. Instead, terrorism crimes have developed in the same manner as other crimes, policymakers determine what evil (or 'mischief') should be prevented and then craft criminal laws that take into account how such mischief is generally achieved. On occasion, acts that are criminalized are not ones that should necessarily be discouraged, if committed by persons not otherwise involved in the targeted conduct. In such cases, laws are crafted to criminalize such conduct only in particular circumstances" (p. 3). Breinholt, a team member at the International Assessment and Strategy Center (IASC), published a 2008 article on its site, "Islam in American Courts: 2007 Year in Review." In it he says, "Next time someone claims that American prosecutors never win terrorism cases, or that Muslims are not more likely to be terrorists than other ethnic enclaves, recommend that they visit a law library, where they will find several published 2007 opinions in the case books where Muslims were successfully prosecuted for conduct related to religiously-inspired violence." He appears as one of the experts in Emerson's most recent film, Jihad in America: The Grand Deception.
  • Assistant United States Attorney (AUSA) Michael Olmsted, head of the prosecution team, told Dhafir's three trial lawyers (a black Baptist and two secular Jews) that Dhafir was anti-Semitic. It was patently false, so why did he tell them that?
  • Dhafir was initially held at the Justice Center in downtown Syracuse where he could meet with his trial lawyers fact-to-face, but after some demonstrations in support of him, he was moved to the Onondaga County Jamesville Correctional Facility. At Jamesville, prisoners were strip searched before they could meet with anyone from the outside and, as a devout Muslim, Dhafir refused to do this. (One of his lawyers, Joel Cohen, offered to be strip searched so that he could meet face to face with Dhafir, but this request was denied.) As a consequence, he now had to meet with his three lawyers through glass; only two could be in the visiting cubicle at any one time, and only one lawyer at a time could talk with him on the phone that connected them with Dhafir. The lawyers had to hold up bits of evidence to the window and ask Dhafir questions.
  • Because Dhafir couldn't leave Jamesville prison without a strip search, he had a friend go to the federal building to look through the hundreds of boxes of evidence that had been taken from his house. Mohamed Khater spent 12 days going through the boxes looking for things that Dhafir needed for his defense.
  • While state and national government officials tarred Dhafir with the "terrorism" brush, District Attorney Glenn Suddaby and the three local prosecutors insisted Dhafir was nothing more than a common white-collar criminal. Yet just before Dhafir's trial began in October 2004, then-New York Governor Pataki described the case as a "money laundering case to help terrorist organizations … conduct horrible acts," and described Dhafir and HTN supporters as "terrorists living here in New York State among us ... who are supporting and aiding and abetting those who would destroy our way of life and kill our friends and neighbors." It was an announcement perfectly timed to reach potential jurors.

Trial

  • The first indictment against Dhafir contained 14 charges related only to the Iraq sanctions. When he refused to accept a plea agreement, the government piled on more charges and he finally faced a 60-count indictment. This made for a very complicated and expensive 17-week trial. The amount of information was overwhelming.
  • The motion that Judge Mordue had granted to the government to keep the government's true motive for pursuing Dhafir out of the courtroom turned into a brick wall for the defense and made the trial surreal at times: Throughout the trial the government could hint at more serious charges pending, but the defense was never allowed to follow this line of questioning. An example of this dynamic can be seen in the testimony of Colleen Williams, a tax preparer Dhafir had hired to help HTN sort out its tax returns and give advice on a 501(c)(3) application for the charity. The government wanted Williams to inform on HTN and she described how FBI Agent Jim Kolbe, IRS Agent Mark Sweeney and US Attorney Brenda Sannes had spent three days, first individually and then together, asking her to wear a recorder in her meetings with HTN defendant Ayman Jarwan. She described them as "waving the flag" and telling her that, "9/11 may not have happened if people were involved." She felt the HTN people "were being pursued" and got rid of them as a client after only three meetings. She never agreed to wear a wire and refused to refer the case to a government attorney. For white-collar crime?
  • Although the government had taken all Dhafir's money (including HTN money and personal money in Amman, Jordan), the court still granted the prosecution's request to deny Dhafir transcripts at the expense of the court (50 cents a page). This meant that one of Dhafir's lawyers typed the proceedings on his laptop, and the defense purchased only those transcripts that it felt it couldn't do without.
  • Because Dhafir would not submit to a strip search, five federal marshals ferried him to and from the prison. Two were always in the courtroom: one sat behind Dhafir and another sat adjacent to the jury. They traded off approximately every 40 minutes in full view of the jury. This changing of the guard was on top of federal building and courtroom security and took place at least 250 times during the proceedings. It was a powerful nonverbal message to the jury.
  • At trial, Osama bin Laden was mentioned with no relevance, and the jury was made aware that Dhafir followed the same Islamic religious tradition, Salafi, as Bin Laden. (Salafi merely means a Muslim who is a strict adherent of the Koran and looks to the ancestors for guidance. It is comparable to someone in the Christian faith who looks to the Scriptures, church fathers and traditions of the early church for guidance.)
  • Three government agents sat directly behind the three prosecutors, and adjacent to the jury, throughout the trial: FBI Agent Jim Kolbe testified for 16 days, eight of them as the sole witness and eight of them as one of only two witnesses; it was his testimony that, essentially, convicted Dhafir; Social Security agent Michael McCole testified for about 20 minutes; the Defense Department agent, a young blonde woman, did not testify. Why were all three of these agents paid to sit there for the whole of a 17-week white-collar criminal trial?
  • The government called more than 50 witnesses to testify, but neglected to call two key people: Kelly Tubbs, Dhafir's office manager of 10 years who was proud of the fact that Dhafir's office had never failed an audit, and Maher Zagha, a co-defendant who was the HTN representative in Jordan. Zagha organized the land and sea delivery of food, clothing and medicine to Iraq. The defense called witness for 15 minutes. Why didn't the government call Tubbs and Zagha? (Sadly the defense didn't call them either, and I imagine that was at least partly due to finance. Also, two of Dhafir's lawyers were solo practitioner lawyers from New York City, and had taken the job believing it would be a six-week trial. In fact, because the final indictment had 60 counts including 25 of Medicare fraud, it ran for 17 weeks.)

Pre-Sentencing

  • After the guilty verdicts came down, District Attorney Glenn Suddaby (now a federal judge) told reporters at a news conference that he didn't want anyone saying anything about terrorism and that, regardless of 9/11, this prosecution would have gone ahead. But six months later, on submitting a sentencing memo that asked for a sentence of not less than 24 years, he announced that Dhafir had links to terrorism. The connection? On several occasions during the 1980s, Dhafir was in Pakistan as a volunteer doctor in mujahedeen refugee camps. On one of these trips, he briefly met and interviewed Abdallah Azzam, who was later known as a teacher and mentor of Osama bin Laden; and Gulbuddin Hekmatyar, future Taliban prime minister of Afghanistan. At the time Dhafir met these two, they were friends of the United States, and the government even noted this in a footnote of its memo. Yet Dhafir and other HTN defendants are now listed on the government's list of successful terrorism prosecutions.

 Post-Sentencing

  • Within weeks of Dhafir's sentencing, Breinholt, author of the July 2003 "Terrorist Financing" paper mentioned above, and a research and practice associate at the Syracuse University (SU) Institute for National Security and Counterterrorism (INSCT), presented a lecture to a group of third-year law students at SU. Entitled, "A Law Enforcement Approach to Terrorist Financing," it contained the essence of his paper and highlighted the Dhafir and HTN case. Greg West, one of the three HTN prosecutors, helped present the lecture, while the other two prosecutors, Michael Olmsted and Steve Green, were in attendance to answer questions. Breinholt told the students that Dhafir's case had been under-prosecuted and in the context of the lecture's title the implication was clear. He explained that because the "American public won't tolerate anything less than the rule of law," creative ways had to be figured out to draft laws that can be used to prosecute what they are trying to prevent. He told students that a major tool that emerged to gain convictions in terrorist financing cases is the use of International Emergency Economic Powers Act (IEEPA) violations, and that in order to convict under IEEPA all that was necessary was to build a chain of inferences from available circumstantial evidence. Why was Dhafir never allowed to address the real reason for the government's prosecution in a court of law?
  • In December 2006, Dhafir was moved to a special new communication management unit (CMU), in Terre Haute, Indiana. It is completely self-contained and houses, almost exclusively, Arab and/or Muslim prisoners. Prisoners are video monitored 24/7, and there are severe restrictions on communication. Contact with family and friends is limited; outgoing and incoming mail is monitored and copied, with a one- to two- week delivery delay; and no contact visits are allowed. Instead of 300 minutes of phone time a month, prisoners may receive only one 15-minute call a week, which the warden has the power to reduce to just three minutes a month. Unlike the usual weekly or biweekly all-day contact visits, visits in the CMU were for two hours, just twice a month, and restricted to non-contact only. Calls and visits had to be conducted in English unless prior arrangement was made. (Since 2006, there have been some slight changes to these regulations, but nothing substantial.)

Appeal

  • It took 18 months to raise the money for two new appeal lawyers. As soon as the appeal team was hired, Olmsted, again, falsely told Dhafir's lawyers (both secular Jews) that Dhafir was anti-Semitic. What purpose did this serve? (In Dhafir's statement before sentencing he says: "When my home was ransacked, one of the government's main targets was my library. They nearly emptied it. What did they take? They took my Islamic books; they came looking for books of certain authors and took all these authors' books. They took Quran recitation tapes even though these books and tapes are available at any bookstore. They didn't touch my Encyclopedia Britannica, my Encyclopedia of the American History, none of the books of Richard Nixon or Henry Kissinger, nor Norman Schwarzkopf, the memoirs of President Bush Sr., James Baker or Colin Powell. Not the history books about the Jewish people, the famous books of Abba Eban, the Israeli foreign minister, certainly not the book about the life of Golda Meir. None of the different versions of the Bible including the Arabic Bible were touched nor the books of the Jewish Laws. None of the books confiscated from my library have been returned. What do these books have to do with Medicare, HTN and taxes? I think the court should know this.")
  • Initially, the appeal court granted Dhafir transcripts at the expense of the court (they are essential for an appeal). But the government challenged this ruling with completely unverifiable insinuations of personal wealth and persuaded the court to place some $15,000 in additional costs on the defense. Challenging this could have been very costly and there was no guarantee of success, so additional funds had to be raised before the appeal could move ahead.
  • A decision handed down by the Second Circuit Court of Appeals in August 2009 upheld Dhafir's conviction, but suggested the district court look again at the sentencing guidelines. The sentencing guidelines range on which his sentence was based was erroneously increased as if he were a third-party (professional) money launderer rather than the reality, which showed that he transmitted funds derived from the very same offenses which he had been convicted for personally committing ("mail fraud" and "tax fraud"). Seventy-five letters were written to Judge Mordue on Dhafir's behalf telling, in large part, of extreme conditions in the CMU that were taxing on Dhafir's health, and asking for clemency. People who wrote to Mordue on Dhafir's behalf include Denis Halliday and Hans Von Sponeck, both of whom resigned from the UN because they were unwilling to implement a genocidal policy of sanctions against Iraq, Nobel Laureate Mairead Maguire, and many including members of Dhafir's family, families of his former patients, people from his faith community and people across the world who greatly appreciate his humanitarian outreach. Resentencing was scheduled for January 5, 2012, and just 12 days before it, Dhafir was suddenly moved out of the CMU into the general population at Terre Haute, and then to the Federal Medical Center in Devens, Massachusetts. At the resentencing on February 3, 2012, Mordue upheld the 22-year sentence.
  • Although Dhafir was moved out of the CMU to a medium security prison, the security is still strict because of the large number of sex offenders held there. There is a camp at this prison, but Dhafir is ineligible for the camp because of an early security designation by the Bureau of Prisons on Dhafir's status. In a 2010 challenge to this designation, Dhafir's appeal attorney Peter Goldberger wrote, "It is submitted that the Bureau of Prisons (BOP) improperly found that Petitioner [Dhafir] 'required monitoring of all communications' based only on the fact that an AUSA [Assistant United States Attorney] had said he was 'regarded as a shiek (sic) and Salafi.' As discussed below, this amounts to classifying Mr. Dhafir as ineligible for a minimum security facility (camp) based only on his religious beliefs.""Sheikh" is an honorific term referring to either an elder or leader, or to an Islamic scholar and, as mentioned above, "Salafi" merely means someone who looks to the early Muslims for guidance (as Christian's look to the original disciples). Dhafir is again challenging this designation in the hope he will become eligible for a camp.

2255 Motion

    • Formerly a wealthy and generous man, Dhafir was left penniless as a result of this prosecution. He has no money for a lawyer to work on his 2255 motion and he has been unable to find a pro bono lawyer. In the best of circumstance, working on this by himself would be no easy task. Being put in the SHU for 73 days placed an added and unnecessary burden on him.

Questions

  • How can this have been due process when Dhafir was clearly never held "innocent until proven guilty?"
  • After more than a decade of investigating Dhafir with, at times, many full-time agents and 24/7 surveillance of both Dhafir and his associates, the government is still unable to find anything that would stand up in a court of law linking Dhafir to terrorists. How much longer will it continue to look?
  • How much has this whole prosecution cost taxpayers? Is it value for money?
  • Is keeping Dhafir in prison for another 10 years on top of the 12 he has already served a good use of taxpayer dollars? Does his imprisonment keep us safe from terrorist attacks?

 Dhafir is in his 60s and has a number of health issues that affect his ability to endure the circumstances in which he is serving his sentence. He developed a heart condition after his arrest and has not always had the medication his condition requires. He has also had two extremely painful episodes of gout that could easily have been prevented if he had been given medication. And he had to wait a long time to have a painful hernia treated, and suffered a recurrence of the hernia which required further surgery. After his August 29 release from the SHU, he was deprived of his medication, including his heart meds, for over a week. If he does not get relief soon, he will almost certainly die in prison.

Is this fairness? Is this justice?

Copyright, Truthout. May not be reprinted without permission.

Katherine Hughes

Katherine Hughes has been passionate about the defense of civil liberties since seeing a documentary of the Allies going into Bergen-Belsen as a teenager 35 years ago. In the post-9/11 period, she became alarmed at the demonization of Muslims and it was this that prompted her to attend Dhafir's 14-week trial. She took notes every day and filled eight notebooks. Her website is http://www.dhafirtrial.net/.


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