WASHINGTON (JTA) — A U.S. appeals court ordered that a lower court’s reference to a group’s association with Hamas be partially expunged.
The New Orleans-based U.S. Court of Appeals for the 5th Circuit released its decision Oct. 20 an appeal from the North American Islamic Trust. It was first reported that day by Politico’s Josh Gerstein.
A U.S. District Court judge in Dallas had ruled last year that the North American Islamic Trust and 245 other entities and individuals had their Fifth Amendment right to avoid self-incrimination violated when prosecutors publicly listed them as unindicted co-conspirators in the federal case against the Holy Land Foundation, which had been charged with providing material assistance to Hamas.
The North American Islamic Trust, which owns a number of mosques, wanted the decision by Judge Jorge Solis unsealed and its references to the group’s associations with Hamas expunged — the United States designates Hamas as a terrorist group. The appeals court ordered the decision unsealed and one reference to a NAIT-Hamas association expunged, but left in another.
In its decision, the three-judge appeals panel wrote that the government’s error was to make public the list. It noted that Solis said the government had less harmful options at its disposal.
Among the other groups on the list were the Council on American Islamic Relations and the Islamic Society of North America, but they did not join the North American Islamic Trust in its appeal.
According to the appeals ruling, the government acknowledged that not sealing the list was an oversight, and further said that by titling the list with the double designation "co-conspirator/joint venturer" it was not necessarily ascribing involvement in criminal activity to the listed groups.
"Joint venturers" suggests a weaker association than "unindicted co-conspirator," the appeals court noted. An entity qualifies as a joint venturer "merely by engaging in a joint plan — distinct from the criminal conspiracy charged — that was non-criminal in nature," the appeals court wrote. "Therefore, even if NAIT could have been accurately characterized as a joint venturer, that characterization does not carry an inherently criminal connotation."
Solis’ ruling that the groups were unduly harmed by publication of the co-conspirator designation, along with the prosecution’s emphasis that some groups on the list were merely joint venturers, complicates arguments by some conservative and pro-Israel groups that the Council on American Islamic Relations and the Islamic Society of North America have been tainted by the co-conspirator label.
After a 2007 trial ended in a mistrial, a jury in 2008 convicted the Holy Land Foundation and five of its officers of violating U.S. laws banning funding for designated terrorist groups.