Federal prosecutors violated the rights of a major American Islamic organization by including it in a list of unindicted co-conspirators in a terrorism-support case, a federal judge ruled in an opinion ordered disclosed Wednesday by a federal appeals court.
However, the North American Islamic Trust’s decision to appeal aspects of that ruling delivered a muddled result for the organization since the U.S. Court of Appeals for the Fifth Circuit ordered the disclosure of a court opinion which found “ample evidence” linking NAIT to Hamas and an American charity convicted of aiding Hamas, the Holy Land Foundation.
U.S. District Court Judge Jorge Solis found that the Justice Department violated the Fifth Amendment rights of the North American Islamic Trust in 2007 by including it on the publicly filed co-conspirator list in a criminal case accusing the Holy Land Foundation and five of its officers of conspiring to support Hamas. Solis’s decision, issued in July 2009 and first reported in broad strokes on this blog last October, was confirmed in an opinion issued Wednesday by the U.S. Court of Appeals for the Fifth Circuit.
Solis also found that the government should not have included the other names on the list, including those of the Council on American-Islamic Relations and the Islamic Society of North America. The groups were never charged with any crime and they loudly complained in public that the federal government had unfaily tarnished their reputations.
“The [district] court held that NAIT’s motion was properly filed and its Fifth Amendment right had been violated by its public naming,” Appeals Court Judge Emilio Garza wrote for a unanimous panel including Judges Fortunato Benavides and Marcia Crone. “The Court held that the Government did not argue or establish any legitimate government interest that warranted publicly identifying NAIT and 245 other individuals and entities as unindicted coconspirators or joint venturers, and that the Government had less injurious means than those employed, such as anonymously designating the unindicted co-conspirators as ‘other persons,’ asking the court to file the document under seal, or disclosing the information to the defendants pursuant to a protective order.”
Garza said that the Justice Department called the failure to seal the filing an“unfortunate oversight” and that the government did not dispute the finding of a Fifth Amendment violation. The public naming also appears to have violated Justice Department policy, but that issue was not discussed by the appeals court.
The appeals court said Solis erred by sealing his opinion finding the Constitutional violation, which appears to involve the inability of the groups and individuals on the list to defend themselves formally against the government’s accusation since they were not defendants in the case.
“Both NAIT and the Government suggest that the district court may have been trying to shield NAIT from further reputational harm related to its public naming in this case,” Garza wrote. “Regardless of the intention behind the district court’s decision, however, its effect was to leave NAIT hamstrung in its ability to mitigate the damage done by its public identification as a possible co-conspirator in the activities of the HLF Defendants. NAIT was publicly identified in Attachment A for over two years, and the public took note.”
NAIT asked the appeals court to unseal Solis’s opinion and to strike the part linking NAIT to HLF and Hamas. However, the appeals court declined to erase or vacate that part of Solis’s opinion, which found there was “ample evidence to establish the association of … NAIT with HLF, the Islamic Association of Palestine (‘IAP’) and Hamas.” The appeals court said the judge’s determination was unnecessary but that, given the posture of the case, it was not the appellate court’s role to approve or reject Solis’s findings. However, the appeals court stressed that Solis’s “findings do not amount to a ruling that NAIT took part in a criminal conspiracy to support Hamas.”
During the appeal, the Justice Department took the position that it never actually labeled NAIT and the others on the list as definite “co-conspirators,” since the heading they appeared under included the alternate desgination “joint venturers” — a weaker tie which does not imply knowledge of criminality.
CAIR and ISNA did not appeal Solis’s ruling, the full text of which remains under seal pending implementation of the appeals court’s opinion.
“We’re reviewing the court’s decision,” a Justice Department spokeswoman, Laura Sweeney, said. The prosecutor who filed the co-conspirator list, James Jacks, is now serving in an interim capacity as the U.S. Attorney for the Northern District of Texas. A call to that office after working hours reached voice mail.
NAIT serves as owner of a number of mosques across the U.S.
(Full disclosure: I submitted a letter to the Fifth Circuit objecting to its decision to seal the oral arguments and all of the substantive filings with the appeals court. The court agreed to entertain the request and then summarily rejected it.)
UPDATE: This post has been updated with brief comment from the Justice Department.