FBI Informer’s Credibility Attacked in Federal Court in Chicago
Prosecutors on Friday, September 22, dropped one of three charges against a Chicago-area man whose false confession under torture in Israel may be largely admitted against him in a Federal trial next month.
Muhammad Salah, a U.S. citizen of Palestinian birth, and husband and father, will stand trial with a codefendant beginning October 12, in a prosecution that until now has been portrayed as “the Hamas money-laundering case.”
But the U.S. attorney’s office dropped the charge of providing material support to a foreign terrorist organization, apparently in direct response to successful questioning of an FBI informer’s credibility by the defense.
The dismissed count relied heavily on the informer, about whom the FBI itself expressed doubts in a 2003 document, and Mr. Salah’s lawyers moved the court last year to dismiss it. They were turned down.
The government’s use of paid informers with dubious reliability in high-profile “terrorism” cases is under increasing criticism nationally, including in pending “Green Scare” cases in Oregon and California.
The remaining two counts against Mr. Salah are racketeering and making a false statement.
Mr. Salah denies aiding Hamas.
Until now, the mainstream media had habitually referred to Mr. Salah’s prosecution as the “Hamas money-laundering case.” With the main charge dismissed, the description preferred by civil libertarians and human rights advocates, “Israeli torture trial,” may gain mainstream acceptance.
In January, 2003, Israeli soldiers seized Mr. Salah, a Chicago-area businessman and U.S. citizen who was born in East Jerusalem, at a Gaza checkpoint. Mr. Salah stated his mission was to bring humanitarian aid to the families of more than 400 alleged Hamas activists who had been detained or deported to Lebanon without trial.
At the time, the detentions and deportations had come under international criticism as illegal.
According to an affidavit of Mr. Salah, Israeli soldiers blindfolded and handcuffed him, and beat, kicked, and struck him with rifle butts during an hours-long jeep drive to an interrogation center in Ramallah, West Bank.
Over the next 74 days, according to a defense pleading, Mr. Salah was “hooded, bound, deprived of sleep, housed in a refrigerator cell, threatened, physically abused, held incommunicado, and denied access to a lawyer until he made oral statements and signed written statements in Hebrew, a language he did not speak or understand.”
“The interrogation practices of Israel’s GSS [security service] have been well-documented and condemned by both Israeli and Palestinian human rights organizations, Human Rights Watch, the Israeli Supreme Court, and even the U.S. State Department,” Mr. Salah’s lawyers stated in a motion earlier this year to suppress the statements extracted under torture.
That motion was denied, and the false confessions were to be admitted against Mr. Salah. What effect the dismissal of the terrorism charge will have is not yet clear.
An Israeli military court sentenced Mr. Salah to five years in prison on secret evidence. Avigdor Feldman, a well-known Israeli human rights lawyer, represented him.
Mr. Feldman and other Israeli and Palestinian human rights advocates have stated that the kind of torture Mr. Salah endured under the Israeli security service was systematic during the time of his interrogation.
In two reports in the two years before Mr. Salah’s arrest in Israel, the Israeli human rights group B’Tselem found that Israeli security service torture of Palestinians was “routine.”
During more than two weeks in March 2006, the Federal trial court in Chicago held a hearing on Mr. Salah’s motion to keep the tortured statements out.
In a move that drew disapproval of civil liberties groups and even the mainstream media, the court granted the government’s motion to close parts of the hearing under the Classified Information Procedures Act. Two Israeli agents testified in closed court, under false names, to deny that Mr. Salah had been tortured.
The public version of the court’s order admitting the false confessions contains omissions, or “redactions,” pursuant to the law, known as CIPA. The redactions appear to protect information about Israeli military and secret service actions.
Mr. Salah’s lawyers have criticized the current prosecution as “politically-motivated,” and pointed out that the U.S. indictment came 13 years after his arrest in Israel. When the trial begins in Chicago on October 12, almost nine years will have passed since Mr. Salah finished serving that foreign sentence.
In connection with the current prosecution, Mr. Salah is the first — and so far only — U.S. citizen named a “specially-designated terrorist,” a legal disability that places restrictions on his ability to associate, earn a living, and provide for his family.
According to mainstream media reporters present at the September 22 hearing, the government’s motion to dismiss count two of the indictment came after the defense renewed arguments that the government should disclose information about the informer, known as Jack Mustafa.
Defense attorney Michael E. Deutsch told the court that the defense was entitled to know whether Jack Mustafa had ever been arrested, had met with the Israeli Mossad, and had been paid by the FBI.
In response, government lawyers asked the court to dismiss the charge that relied on the informer’s testimony.
The material Mr. Salah’s lawyers sought is sometimes called “Jencks material,” after a landmark case involving two paid snitches in a McCarthy-era FBI investigation into alleged communist influence in a labor union.
A union organizer was accused of making a false statement when he signed a “non-communist affidavit,” then required under Federal labor law. The government planned on using the testimony of paid informers, and the trial court denied defense discovery motions for documents related to the informers.
In 1957, in a famous opinion by Justice William J. Brennan, the U.S. Supreme Court found Mr. Jencks’s conviction unconstitutional. The combined effect of that and similar decisions was to put a stop to political “Smith Act” prosecutions of alleged communists.
Mr. Salah’s defense team in the pending Federal trial includes long-time National Lawyers Guild member Michael E. Deutsch of the People’s Law Office in Chicago.
Mr. Deutsch’s colleagues will honor him at the NLG Chicago annual dinner, Saturday, November 11, for his “years of service as a people’s lawyer, and for consistently demonstrating the highest level of zealous advocacy and professional skill,” according an NLG Chicago statement.
Tickets for the dinner honoring Mr. Deutsch are available from NLG Chicago at 312-913-0039 and contact@nlgchicago.org.
*National Lawyers Guild, Chicago chapter: http://www.nlgchicago.org/index.shtml
*People’s Law Office: http://www.peopleslawoffice.com/
*18 U.S.C. 2339B: “Providing material support or resources to designated foreign terrorist organizations” – read the statute for yourself: http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/113b/sections/section_2339b.html
*Case No. 03 CR 978: Read the indictment for yourself:
http://www.usdoj.gov/usao/iln/indict/2004/marzook_et_al.pdf#search=%22%2203%20cr%20978%22%22
*Shady informers also used in “Green Scare” prosecutions: http://greenscare.org/
*Israeli human rights group B’Tselem: http://www.btselem.org/English/index.asp
*18 U.S.C. Appendix III: “Classified Information Procedures Act” – read the statute for yourself:
http://www.fas.org/irp/offdocs/laws/pl096456.htm
*Mainstream media story on use of CIPA in white-collar crime trial:
http://www.cbsnews.com/stories/2006/08/25/ap/business/mainD8JN9K7G0.shtml
*Jenks v. U.S., 353 U.S. 657 (1957): Read the decision for yourself:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=353&invol=657
*John T. McTernan, NLG Luminary (argued Jencks in the Supreme Court):
http://www.nlgchicago.org/mcternan-about.shtml
*NLG Chicago “Current Local Litigation”: http://www.nlgchicago.org/litgat-node.shtml
