Peter King’s omitted citation

Rep. Peter King (R-N.Y.), the chairman of the House’s Homeland Security Committee, wants to know why the feds aren’t prosecuting an alphabet soup of Muslim umbrella groups:

His argument, to U.S. Attorney-General Eric Holder, is that cops and prosecutors were somehow pressured by high-ups not to bring indictments against the groups, which were named as unindicted co-conspirators in the successful government case against the Holy Land Foundation, which fund-raised for Hamas:

I request that you provide answers to the following questions:

• What are the reasons for the Department’s decisions not to prosecute CAIR, ISNA, NAIT and Mr. [Omar] Ahmad, who is a CAIR co-founder and former head of the Palestine Committee of the Muslim Brotherhood in the United States?

• Who made the final decision not to prosecute?  Who, if anyone, from the Executive Office of the President, consulted with, advised, or otherwise communicated with the Department of Justice, in electronic, oral or written form, regarding the Department’s decision to not seek indictments of CAIR, ISNA, NAIT and Mr. Ahmad?

• How does and will the Department and the Federal Bureau of Investigation address the potential for CAIR, ISNA, or NAIT to engage in terrorism financing?  What policies with regard to those organizations have you implemented to address that threat?

I could tell him why by pointing to a judge’s decision saying that publicly naming the three groups did them an injustice — except, whaddya know, he quotes that very decision, but omits the injustice part:

As you are aware, in a previously sealed Memorandum Opinion Order of July 1, 2009, United States District Judge Jorge A. Solis declined CAIR, ISNA and NAIT’s August 14, 2007 and June 18, 2008 requests to strike their names from the United States Attorney’s list of unindicted co-conspirators in the Holy Land Foundation case.  Judge Solis found that the “Government has produced ample evidence to establish the associations of CAIR, ISNA and NAIT with [the Holy Land Foundation, “HLF”], the Islamic Association for Palestine (“IAP”), and with Hamas.”  The Court found that the evidence was “sufficient to show the association of these entities with HLF, IAP, and Hamas.  Thus, maintaining the names of the entities on the List is appropriate in light of the evidence proffered by the Government” (citation omitted).

Funny how that citation is "omitted" — reading the actual document, you’d realize King was pretending the judge drew one conclusion when he drew the opposite one.

I explain why at length, here, but here’s the short version:

–Prosecutors name "unindicted co-conspirators" to expand the range of evidence available to a prosecution. Naming someone an unindicted co-conspirator allows in evidence that the accused might otherwise seek dismissed as hearsay.

–That said, there are two kinds of unindicted co-conspirators: The kind the government thinks it worthwhile shaming for their association with the accused; and the kind that the government names simply to expand evidence and otherwise works hard to protect, precisely because the "co-conspirator" remains "unindicted" because he or she or it is innocent.

Solis clearly rules that the three are in the latter category, which is why he sealed the list of unindicted co-conspirators and his decision. He would not remove the three groups from the indictment, ruling that they were correctly identified as unindicted co-conspirators, but he admonishes the government for naming them because they should not have been smeared:

Here are three passages from Solis’ 2009 decision (the paragraphs on CAIR he applies to the other two groups elsewhere):

The Government has not argued or established any legitimate government interest that warrants publicly identifying CAIR and 245 other individuals and entities as unindicted co- conspirators. 

(snip)

The Government had available less injurious means than those employed in this case—it could have anonymously designated the unindicted co-conspirators as “other persons,” it could have asked the Court to file the document under seal, or it could have disclosed the information to Defendants pursuant to a protective order. See, e.g, Smith, 776 F.2d at 1105-06;Briggs, 514 F.2d at 805.This invasion of privacy far outweighs the interest in publicly naming CAIR and others as coconspirators.Anderson, 55 F. Supp. 2d at 1168.Therefore, the Court grants CAIR’s motion to seal the list.

(snip)

Evidence presented in a public trial is inherently different from the Government publishing a list of persons alleged to be co-conspirators. The public may make its own judgment from evidence presented at trial. The evidence may be examined and conclusions can be drawn as to whether the evidence establishes what the government claims it does. But a published list from the Government naming individuals or entities as co-conspirators without any supporting evidence is not subject to such scrutiny. Therefore, the Court finds it appropriate to seal the entire list of unindicted co- conspirators but stops short of ordering CAIR, ISNA and NAIT’s names expunged from any documents or files produced by the government.

This doesn’t get any clearer: Solis is saying the prosecution provided enough evidence of relationships between the three groups and the indicted to establish the need to include them as unindicted co-conspirators — but nowhere near enough to harm them by suggesting that they had engaged in criminal activity.

NAIT alone appealed Solis’ decision — CAIR and ISNA accepted Solis’ compromise of sealing the list. And a year later, an appelate court ruled. But b then the government was saying it never meant to impute any sort of criminality to the groups:

In fact, the Government has gone so far as to argue that it never, in the course of this litigation, labeled NAIT a criminal co-conspirator. The government argues it only asserted that NAIT was at least a "joint venturer" with the defendants. 

Josh Gerstein at Politico, who knows much more about these things than I do, describes that designation as "a weaker tie which does not imply knowledge of criminality."

The appeals court unsealed Solis’ ruling, mostly in the public interest of keeping judicial decisions out in the open.

It also reprimands Solis for his disquisition considering whether there was enough evidence to establish any links between the three groups and Hamas and Holy Land — the very passage cited by King — saying that decision was out of his purview.

I’m not defending CAIR, or ISNA or NAIT. I’m defending the rights of interest groups not to be smeared and persecuted by powerful government officials with vivid imaginations.

That’s exactly what happened in the AIPAC officials’ spying case, when manipulations employed by powerful interests within the U.S. government thought it was OK to criminalize AIPAC without regard for the constitution or First and Sixth Amendment protections.

These extend to all.