A procedural boondoggle has been brewing in the appeal of the Holy Land Foundation’s (HLF) November 2008 criminal conviction for providing material support to terrorism. The government, which is seeking to have $5 million in donations intended for humanitarian aid forfeited to it, is also seeking to block HLF’s appeal. HLF was not represented by counsel at the trial. At a Jan. 12, 2010 hearing prosecutors opposed pro bono appeal representation for HLF by University of Texas law professor Ranjana Natarajan, arguing no one was authorized to engage her on behalf of HLF as a result of the government shut down of the organization in 2001. Natarajan asked the court to appoint a trustee to act for HLF. The trial court ordered further briefs filed on the matter by the end of January.
- Holy Land Convicted and Sentenced Without Legal Representation
- Government Opposes Holy Land Attempts to Appeal
- The Trial Court’s Hearing and Possible Outcomes
Holy Land Convicted and Sentenced Without Legal Representation
HLF was shut down by the Department of Treasury in December 2001 pursuant to President George W. Bush’s Executive Order 13224, which allows the government to “block” (seize and freeze) the assets of organizations it lists as Specially Designated Global Terrorists. This made it illegal for any U.S. person to engage in any transactions with the organization, including legal representation or hiring attorneys, without a license from Treasury. In 2004 a federal indictment charged HLF and five of its leaders with providing material support to Hamas, a listed terrorist organization.
On Sept. 29, 2006 HLF board chair Ghassan Elashi filed a written waiver of conflict of interest for HLF to be represented by the same firm as its Executive Director, Shukri Abu Bake, who filed a similar waiver the same day. At the beginning of the criminal proceedings one law firm, Freedman, Boyd, Hollander, Daniels & Goldberg of Albuquerque, NM, represented both HLF and Baker.
Just before the trial began in July 2007 the judge asked both HLF and Baker to state their position on waiver of the conflict of interest for the court record. At this point the “Catch-22” in the law became clear. At a pre-trial hearing the court noted that “it is my understanding that the Holy Land Foundation is a defunct corporate entity, and of course, any corporate entity… must be represented by a natural person, and I’m not sure since this entity I understand is defunct who will be the natural person representative of it.” Counsel for Elashi asked for time to consider the question, and the next day told the court, “Unfortunately, we don’t know either of the current status of the Holy Land Foundation, whether it exists even as an entity or Mr. Elashi’s status, if it does exist. And so although he has no personal objection to the joint representation, I’m afraid he cannot speak for the Holy Land Foundation at this point.” Counsel for Baker told the court “[T]here is no one to answer those questions on behalf of Holy Land…So we can’t represent Holy Land under those circumstances…..we will simply withdraw from representing Holy Land and represent Mr. Baker.” (Transcript, attached as Government Exhibit A to the Government’s Motion for Remand, July 22, 2009.)
When the trial began the judge introduced HLF as a defendant “unrepresented at trial.” (July 20, 2007 Trial Transcript). As a result HLF did not put on a defense. The first trial ended in a hung jury in October 2007 and in Novmeber 2008 the retrial ended with with conviction of all defendants. In May 2009 Baker and Elashi were each sentenced to 65 years in federal prison and the others each received between 15 and 20 years. HLF was unrepresented at sentencing, but the court ordered its assets forfeited to the federal government
Government Opposes Holy Land Attempts to Appeal
On June 5, 2009 Prof. Ranjana Natarajan, Director of the University of Texas School of Law National Security Law Clinic, filed an appeal on behalf of HLF as their pro bono lawyer. On June 12, 2009 Acting United States Attorney James T. Jacks filed a Motion to Strike the appeal, saying “the government is of the belief that there continues to be no authorized representative to speak or act on behalf of the defendant Holy Land Foundation for Relief and Development.” As a result, he said Natarajan’s notice of appearance and appeal must be stricken from the record. He did not mention that HLF’s lack of an authorized representative is the direct result of government action.
Natarajan filed a response opposing the government’s motion on June 22 noting that “The government went forward with the trial and sentencing despite being fully aware that HLF was not present or represented, in part because of the government’s own actions.” She said this in absentia conviction violated HLF’s Sixth Amendment right to confront evidence against it and its Fifth Amendment right to be present at trial and put on a defense. She argued that the issue should be decided by the Fifth Circuit Court of Appeals, not the trial court.
As Natarajan noted, “HLF was unable to make legal arguments in its defense that counsel for the five individual defendants would not have made, including arguments that any arguable illegal activities of the former HLF officers and directors were not engaged in on behalf of or for the benefit of the corporation, and were not within the scope of the employment by the corporation.”
The case went to the Fifth Circuit in July, and on July 22 the government filed a motion to have it sent back to the trial court for a fact finding hearing to determine whether HLF had a representative empowered to appoint legal counsel. The motion summarizes the procedural history and includes sections of the trial transcript that deal with this issue.
On Aug. 4 Natarajan filed a response opposing such a move, and the government responded on Aug. 17, reiterating its arguments and attaching copies of the original waivers of conflict of interest signed by Baker and Elashi. The government filed a reply and on Sept. 24 the Fifth Circuit granted the government’s motion, sending the case back to the trial court to make factual determinations about HLF’s representation at trial.
The Trial Court’s Hearing and Possible Outcomes
On Jan. 12, 2010 the trial court held the hearing, considering four issues:
1) whether HLF was represented at trial
2) what was HLF’s corporate status
3) whether anyone has authorized / can authorize Natarajan to represent HLF on appeal; and
4) whether the court should appoint Natarajan as appellate pro bono counsel for HLF.
According to the Dallas Morning News during the hearing Hon. Jorge Solis, the trial judge, “was at times visibly frustrated by the fact that Holy Land had no lawyer during two trials, which could end up leading to the dismissal of the convictions against the charity.” If that is the result, the government could try HLF again, and the convictions of its leaders would be unaffected. During the hearing Natarajan asked the court to appoint a trustee for HLF, who would be empowered to obtain legal counsel for appeal. The government did not object in principle. The court ordered Natarajan to file another brief by Jan. 20 and the government’s response is due Jan. 29. There is not deadline for the court to rule.