In Case Against Holy Land Foundation, Government Says: C'mon, What Sixth Amendment?
Two weeks ago, attorneys representing seven former Holy Land Foundation and Development officials -- who're awaiting trial in federal court here on charges they funded terrorist activities -- asked U.S. District Judge Joe Fish to dismiss the government's charges against their clients. They claimed a November ruling by a federal judge in Los Angeles, who struck down President Bush's authority to designate groups as terrorists, negated those charges. Last week, the U.S. government asked for more time to respond to the motion -- till January 5, to be precise.
But last week, the government did file a motion asking for a particular document, which will be used as an exhibit in the trial, to be kept top secret: "a binder of material...which consists of material related to the expert opinion of Israeli Defense Forces (IDF) Brigadier General (retired) Cooperwasser, the former head of the research branch of the IDF Intelligence Department," reads the motion filed last week by First Assistant U.S. Attorney James Jacks. He wrote that the binder "consists of an expert report and supporting documents assembled by General Cooperwasser for his testimony in a terrorism financing trial conducted in Israeli District Court in Haifa, Israel. The material, which was obtained from the Government of Israel (GOI) pursuant to a Mutual Legal Assistance Treaty between the United States and Israel, is controlled by the GOI and contains sensitive analysis and opinions that the GOI wants to protect."
Fish last week ruled the binder should be kept secret, to the point where the defense attorneys will have to keep a log of who looks at it before turning it over at trial's end. The U.S. Attorney also wants to keep secret the idendity of two Israeli security officials: It has asked Fish to allow them to testify anonymously in a courtroom closed to the public. The governments wants the Israelis' identities kept so secret that not even the defense attorneys would know their identities, which sort of circumvents that part in the Constitution about being able to confront the witnesses testifying against you during a trial.
This morning, The Los Angeles Times has a piece on the government's controversial motion -- a subject on which prosecution and defense attorneys are keeping quiet. But experts on the Sixth Amendment find the government's request -- here and in other cases across the country -- troubling, to say the least.
"It absolutely gives me pause," Jeffrey Fisher, a Stanford University law professor tells the Times. and 6th Amendment expert. "The essence of cross-examination is often being able to do a background investigation on the witness and use that as a lever for questioning their testimony. And if you take that away from a defendant, he is not left with very much. I can safely say the Supreme Court has never had a case about testifying under a pseudonym."
Fish hasn't ruled on the government's request yet. The trial of Shukri Abu Baker, Mohammed El-Mezain, Ghassan Elashi, Haitham Maghawari, Akram Mishal, Mufid Abdulqader and Abdulrahman Odeh -- all indicted by a Dallas grand jury on charges they gave more than $12.4 million to people and organizations linked to Hamas from 1995 to 2001 -- is scheduled to begin in July. --Robert Wilonsky
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