Inconsistencies in Peter King Letter on Holy Land Unindicted Co-Conspirators List
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Date:
April 22, 2011
On April 15, 2011 Rep. Peter King (R-NY), chair of the House Homeland Security Committee, sent a letter to Attorney General Eric Holder, Jr. accusing him of failing to prosecute unindicted co-conspirators in the Holy Land Foundation (HLF) case for political, rather than legal, reasons. He asked the Department of Justice (DOJ) to respond to questions about its decision making process by April 25. A DOJ spokesman said such decisions are based on the evidence, a claim consistent with findings in two related court opinions. On April 18 Politico and the Washington Post reported that the Bush administration also declined to prosecute. King’s letter re-ignites a debate about what conclusions can be drawn from the list and how it was published, a move two federal courts said violated due process rights.
King’s letter said he was “reliably informed that the decision not to seek indictments” of CAIR, ISNA and NAIT “was usurped by high-ranking officials” at DOJ “over the vehement and stated objections of special agents and supervisors of the Federal Bureau of Investigation, as well as the prosecutors at the U.S. Attorney’s Office in Dallas….” This, he says, “raises serious doubt that the decision not to prosecute was a valid exercise of prosecutorial discretion.”
The King letter appears to have relied on an April 14 article in Pajama Media that quoted an anonymous
"high-ranking source" within DOJ as saying "a number of leaders of Islamic organizations…were about to be indicted on terror finance support charges" last year when "top-level political appointees" decided against prosecuting Omar Ahmed, a co-founder of the Council on American-Islamic Relations (CAIR). Both were included on the list of unindicted co-conspirators. Pajamas Media also said its DOJ source claimed, "It was always the plan to initially go after the [HLF] leaders first, and then go after the rest of the accomplices in a second round of prosecutions."
This directly contradicts representations government attorneys made to the Federal District Court for the Northern Division of Texas, Dallas Division, which tried the case, and the Fifth Circuit Court of Appeals. The opinions make it clear that the list was a legal maneuver. By naming co-conspirators, the government could use out-of-court statements as evidence that would normally be inadmissible as hearsay. The rule, Federal Rule of Evidence 801(d)(2)(E), specifically states that such statements "are not alone sufficient to establish…..the existence of a conspiracy and the participation therein" of either the person the statement is attributed to or the defendants.
The Fifth Circuit's opinion summarized the government's explanation for listing NAIT and others as co-conspirators, saying:
"The government explains that the inclusion of NAIT and other entities was intended to lay the groundwork for the possible admission of statements pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence, which permits the admission of out-of-court statements by coconspirators and joint venturers of a party opponent.” [p. 3]
The District Court’s opinion came to the same conclusion, saying:
“The Government has not cited any legitimate interest for publicly naming INSA and NAIT as unindicted co-conspirators. The Government originally included them on the List in order to use their statements under Fed.R.E. 801(d)(2)(E). (Mot. At 6-7) The Court finds that no legitimate interest existed to justify publicly naming ISNA and NAIT as unindicted co-conspirators…The Government had available less injurious means to accomplish its purpose.” [p. 12]
The ACLU, which represented ISNA and NAIT, issued a Press Release dated June 18, 2008, saying the prosecution told them it did not intend to pursue charges against either group. It said:
"The government conceded, however, that it had absolutely no evidence proving that either ISNA or NAIT had engaged in a criminal conspiracy. The lead prosecutor in the case told lawyers for the two organizations "that ISNA and NAIT were not subjects or targets in the HLF prosecution or in any other pending investigation." The prosecutor also acknowledged that the public labeling was simply a "legal tactic" intended to allow the government to introduce hearsay evidence against HLF later at trial."
The King letter also quotes the District Court’ summary of the evidence, but does not refer to the Fifth Circuit’s clear explanation of the limited conclusions to be drawn from it. The Fifth Circuit said “the district court's findings do not amount to a ruling that NAIT took part in a criminal conspiracy to support Hamas. In fact, the Government has gone so far as to argue that it never, in the course of this litigation, labeled NAIT a criminal conspirator.” [p. 12]
As the Washington Post Fact Checker notes, “The repeated references to CAIR being an ‘unindicted co-conspirator’ is one of those true facts that ultimately gives a false impression.”
