If you have followed this blog for any time or if you know me personally, you will know the significance and importance of the following story. I am re-posting Politico's Josh Gerstein's August 30th article on the actions of the 5th Circuit Court of Appeals down in New Orleans. The implications of this court decision are huge and clear if you follow this issue. Please read.
August 30, 2010Secret showdown set for Islamic charity (re-posting of Josh Gerstein article)
One of the nation’s most prominent Muslim organizations, the North American Islamic Trust, is set to face off with the U.S. government in a federal appeals court Monday.
The reputation of the group, known as NAIT, may well hang in the balance, but don’t bother trying to attend the court session this afternoon before the 5th Circuit Court of Appeals in New Orleans. In a highly unusual move, judges have — without explanation — ordered the arguments closed to the public. The jurists have also put under wraps all of the briefs the two sides filed in the appeal.
The legal battle stems from federal prosecutors’ decision in 2007 to place NAIT and two other prominent Islamic organizations, the Council on American-Islamic Relations and Islamic Society of North America, on a publicly filed list of about 300 unindicted co-conspirators in a Dallas trial of a defunct Islamic charity accused of being a front for Hamas, the Holy Land Foundation.
NAIT, CAIR and ISNA rejected any suggestion of ties to terrorism or other crimes and denounced the list as a smear tactic. In public legal briefs filed with the district court, they also contended that the public designation violated Justice Department regulations.
Prosecutors responded in kind, arguing that the designations were justified because of evidence showing ties between the Islamic groups and an international political movement known as the Muslim Brotherhood, which gave rise to Hamas. The American groups and some individuals on the list have suggested that the evidence of such ties is flimsy and dates to an era before Hamas was first designated as a terrorist group by the U.S. in 1995. NAIT, CAIR and ISNA also noted that since they were never charged with any crime, they had no obvious way to clear their names.
The groups’ request to have the co-conspirator list formally renounced by the district court seems to have languished through a trial and retrial for the Holy Land Foundation and five of its top officers. However, after they were convicted on terrorism-support charges in 2008, Judge Jorge Solis issued a secret ruling in July 2009 on the groups’ demands to strike the Justice Department filing.
I reported exclusively on this blog last year that Solis had, to some degree, split the baby in his decision. “The ruling was ambiguous,” a knowledgeable source told me. “The judge acknowledged the way the whole thing was handled by the prosecutors was not appropriate. On the other hand, he did not really go ahead and reverse the decisions.”
Of the three major Islamic groups, NAIT, which holds title to the land used by a series of American mosques, is the only one that appealed Solis’s ruling.
The appeal to the New Orleans-based 5th Circuit has ground on in nearly total secrecy, though, in a strange twist, neither of the parties to the appeal appears to favor its being sealed. For that matter, though, neither seems to have done much to stop the secrecy in the case from metastasizing. In court filings, NAIT has said it opposes the secrecy but feels compelled to respect Solis’s decision to put his order and some filings related to it under seal. The Justice Department appears to have been silent on the secrecy issue, but the secrecy itself makes that impossible to know for sure.
It’s unclear what precisely is behind Solis’s decision to keep his opinion secret. Perhaps he was concerned that more attention to the unindicted co-conspirator designation could further harm the groups’ reputations. Or perhaps the sealed filings and ruling discuss sensitive information — such as indications that CAIR has been the subject of an FBI investigation relating to international sanctions laws.
But the secrecy applied in the middle of the process, after briefs on the issue were filed publicly by both sides, seems like an effort to close the barn door after the horse has escaped. The closed-door proceedings are also likely to fuel both the widespread suspicion about Islam that many Americans have expressed in recent polls triggered by the New York mosque controversy and the perception among many Muslims that they aren't being dealt with fairly or forthrightly by the justice system.
The zeal for secrecy in the case has produced a series of procedural irregularities. When Solis issued his ruling in July 2009 on the request from NAIT and the other Islamic groups, the decision was not noted at all in the district court’s public docket — a procedure frowned upon or prohibited by many courts. The fact that a ruling took place became apparent only after NAIT appealed. When I inquired with the court last October about the decision, an entry describing the ruling in vague terms suddenly appeared, but the judge’s opinion remained under seal.
In addition, the first order placing briefs under seal in the appeals court was issued by a single judge of that court — in apparent violation of court rules that don’t give a single judge such power.
Full disclosure: I sent a letter to the appeals court in May outlining these issues and asking for the veil of secrecy surrounding the case to be lifted. The court initially said it would take the request under consideration, but last month it issued an order summarily rejecting the request and ordering that oral arguments take place in a closed courtroom. The order doesn’t say explicitly which judges made the decision to persist in and expand the secrecy, but it appears to be the panel set to hear arguments Monday afternoon: Judges Emilio Garza, Fortunato Benavides and Marcia Crone.
Garza was appointed to the bench by President George H.W. Bush; Benavides, by President Bill Clinton. And Crone — who sits on a district court in eastern Texas and was drafted for the appellate panel — was nominated by President George W. Bush. (Solis was named by Bush 41.)
Expected to be on hand for today's closed-door arguments are Vijay Shanker and Elizabeth Shapiro of the Justice Department's Criminal Division, NAIT counsel Tim Maggio and Kevin Wisniewski, NAIT Executive Director Mujeeb Cheema and trustee Bassam Osman. Maggio and Wisniewski are from Locke Lord Bissell & Liddell, the law firm that is home to former White House counsel and Supreme Court nominee Harriet Miers.
CORRECTION: The initial version of this post mistakenly referred to ISNA as the only group to appeal Solis’s ruling. NAIT was the group that appealed.
UPDATE: I've updated to make clear that the government seems to have taken no position on the secrecy of the briefs or the closure of Monday's arguments.
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