On May 27, 2009, U.S. District Judge Jorge Solis handed out sentences for five Arab Americans associated with Holy Land Foundation for Relief and Development (HLF) who had been convicted in November 2008 on charges ranging from supporting a terrorist organization to money laundering and tax fraud.  Two of the men, Shukri Abu Baker and Ghassan Elashi were each sentenced to 65 years in a federal prison and the others each received between 15 and 20 years.  Two of the defendants filed appeals within hours of the sentencing, and the others are expected to appeal shortly.

Addressing the courtroom, the men maintained that their fundraising was devoted exclusively to humanitarian ends, and denied any relationship with Hamas. Prosecutors did not dispute that the money went to humanitarian projects, but managed to convince the jury of a Hamas connection.  Most of the men will spend the rest of their lives in prison if they serve their full sentences.

The legal standard used by the prosecution and sentences handed down in the HLF trial indicates that the environment for U.S. charities and NGOs operating around the world is legally precarious.   The HLF sentencing could have a chilling effect on U.S. NGOs operating in international hot spots three ways. First, despite international human rights norms that bar aid discrimination based on religion, political affiliation or any factor other than need, the convictions in the HLF trial and the prosecution’s arguments indicate potential association with terrorist organizations is a factor in determining eligibility for aid. Second, the process for determining what foreign organizations that U.S. NGOs are legally authorized to associate with is unclear. During the trial, Robert McBrien from Treasury’s Office of Foreign Assets Control testified that it can be illegal to deal with groups that have not been designated as supporters of terrorism and placed on government watchlists. He said that keeping up with front groups “is a task beyond the wise use of resources.” (The zakat committees HLF was convicted of working with have still never been placed on the U.S. government’s list of organizations supporting terrorism.) Finally, approximately $5 million in HLF funds have been frozen by the government during this investigation and trial and may be forfeited to the government. There is no process for the funds to be released or distributed in a manner that honors the donors’ charitable intent.

The Dallas area Holy Land Foundation was once the largest Muslim charity in the United States. The charity, which had no legal representation and therefore did not present a defense, and five men were originally indicted in 2004and the first trial ended in a hung jury in October 2007. During the retrial, prosecutors reduced the charges from 197 counts to 108 counts of supporting terrorism, money laundering, conspiracy, and tax fraud.

Prosecutors argued the defendants were supporters of Hamas.  The case’s prosecutor, Jim Jacks, argued for the most severe sentences for all five men. “There’s been no acknowledgment by any of these defendants regarding their connection to Hamas,” Jacks said. “They haven’t been deterred. Their entire sentencing presentation is they’re being punished for providing charity. It’s important for the court to impose a sentence that says this is not a case about punishing people for doing nice things.”

The successful prosecution of the HLF leaders on terrorism charges was the first after similar charges in other trials failed. Speaking about the broader implications of this trial on other charities and NGOs, David Kris, assistant attorney general for national security, said, “These sentences should serve as a strong warning to anyone who knowingly provides financial support to terrorists under the guise of humanitarian relief.”  The Charity and Security Network statement on the sentencing said, “The U.S. charitable sector has been doing its best to provide humanitarian aid, economic development, human rights protection around the world, despite national security laws that have made these efforts increasingly difficult. The legal standards used by the prosecution and sentences handed down in the Holy Land Foundation trial indicate that this situation is likely to get worse.”

The defense attorneys presented a different viewpoint telling the judge that their clients provided humanitarian relief to Palestinians and sent donations to some of the same zakat (charity) committees supported by the American agency USAID. “I did it because I cared, not at the behest of Hamas,” Abu Baker told the judge Wednesday during a long address to the court.

Defense attorneys also insisted that the closed courtroom testimony of an anonymous Israeli Shin Bet official, “Avi”, who claimed Hamas’ funding comes from groups like HLF and zakat committees are staffed by known Hamas members, should not have been permitted. A defense witness, George Washington University Professor Nathan Brown, said the testimony provided by “Avi” relied too heavily on press accounts and other documents without any context. Defense attorney Nancy Holland asked why the zakat committees were not listed by the government if they were known supporters of terrorism?