Anatomy of a “Terrorism” Prosecution: Dr. Rafil Dhafir and the Help the Needy Muslim Charity Case

At approximately 6:30 AM on February 26, 2003, upstate New York oncologist Dr. Rafil Dhafir pulled out of his driveway in Fayetteville, heading to his practice in the underserved area of Rome; he has never returned. Just moments later, he was pulled over and arrested by two federal investigators and a New York state trooper on charges that he had violated International Emergency Economic Powers Act (IEEPA) by sending food and medicine for 13 years through his charity Help the Needy (HTN) to sick and starving Iraqi civilians. Back at the house he had just left, Mrs. Dhafir was now standing in her entryway with five guns pointed at her head after government agents broke down the door because she had failed to answer quickly enough.

In this operation code-named Imminent Horizon, four others associated with the charity were simultaneously arrested: two in the Syracuse area, one in Boise, Idaho, and one in Amman, Jordan. From 6 to 10 AM that Wednesday, 150 local Muslim families were interrogated. Immigration agents visited noncitizens, FBI agents visited citizens and IRS agents visited doctors' offices and other businesses.

As Kelly Tubbs, Dhafir's office manager and transcriptionist, pulled into her usual parking spot, government agents in flak jackets with guns immediately surrounded her car. She attempted to introduce herself, but the agents told her there was no need to since they knew exactly who she was. Well trained by Dhafir to take the utmost care of patients, she begged to be allowed to call to tell them not to come to the office. She was not allowed to. (Had the office been raided on a Friday, when staff had their office meeting, no patients would have been present.) Agents seized the office contents – including all the patients' medical records. It took six weeks before patients received their records back.

The arrests were accompanied by a media circus: helicopters hovering over Dhafir's house and all day-reports of the comings and goings of 80 federal agents. Attorney General John Ashcroft announced that “funders of terrorism have been arrested” and Gov. George Pataki claimed the arrests proved the existence of “… terrorists living here in New York state among us … who are supporting or aiding and abetting those who would destroy our way of life and kill our friends and neighbors.”

Initially, local prosecutors also followed the “terrorism” line and Assistant US Attorney Greg West argued that because HTN defendant Ayman Jarwan had degrees in nuclear and radiological engineering, he was capable of making a dirty bomb and therefore shouldn't receive bail. (He did.) A groundswell of public support after the arrests meant that local prosecutors backed away from “terrorism” charges and instead said that Dhafir was a common thief. Dhafir was still held and denied bail on five occasions.

Seven government agencies had been conducting extensive surveillance on Dhafir and HTN for many years. They intercepted his mail, email, faxes and telephone calls; bugged his home, office and hotel rooms; went through his trash; and conducted physical surveillance. On one occasion, a hotel room in Washington, DC, was bugged and the government had seven translators listening in to the conversation (though none of the translators spoke Dhafir's dialect). Nothing related to terrorism was uncovered and no charges of terrorism were ever brought against Dhafir.

The first indictment against Dhafir contained 14 charges related only to the Iraq sanctions. Later, when Dhafir refused to accept a plea agreement, the government piled on more charges and he finally faced an indictment of 60 counts of white-collar crime at trial. State and national level government officials continued to tar Dhafir with the terrorism brush via the media, and just before his trial began – when he had already been held for 19 months – Governor Pataki described the case as a “money laundering case to help terrorist organizations … conduct horrible acts.” It was an announcement perfectly timed to reach potential jurors.

Show Trial

The trial was conducted on the 12th floor of the Syracuse Federal Building, which was reached after passing two security points. Inside the courtroom, there were two court guards who changed regularly, one at each exit. And because Dhafir would not submit to a strip search (on religious grounds) as he was ferried from prison to the trial, two federal marshals were also always present in the courtroom, one sitting adjacent to the jury and one directly behind Dhafir. There were five of these federal marshals who traded off approximately every 40 minutes in full view of the jury. The changing of the guard took place at least 250 times during the proceedings and was a powerful nonverbal message to the jury.

Three prosecutors sat close to the jury, while behind them, at another table, were three government agents who remained there throughout the trial except when they were testifying. FBI Agent Jim Kolbe testified for 16 days, eight of them as the sole witness and eight of them as one of only two witnesses: it was his testimony that, essentially, convicted Dhafir. Social Security agent Michael McCole testified for about 20 minutes. The Defense Department agent, a young, blonde woman who previously worked at the Syracuse Post-Standard, did not testify.

The defense team of Devereaux Cannick, Philip Gaynor and Joel Cohen sat beyond the prosecution further away from the jury at two separate tables, one in front of the other. Dhafir mostly sat at the front table with whichever lawyer was cross-examining a witness and the other two lawyers sat behind them. Cohen typed the proceeding on his laptop because the defense had no money for transcripts (at 50 cents a page) and the court had denied a request for transcripts at the expense of the court.

A motion granted by Judge Mordue before the trial began meant the defense could not challenge the government's real reason for prosecuting Dhafir during proceedings. Such motions are often used in criminal trials by the defense to shield the jury from information that could be prejudicial to a defendant. Its use in this case had the opposite aim and effect: although prosecutors could hint at more serious (terrorism) charges throughout the trial, the defense team couldn't respond to these inflammatory innuendos head on.

Just days into the trial, FBI Agent Jim Kolbe told of items that had been found in the dumpster of an apartment building where HTN defendant Ayman Jarwan had been living. He described Islamic magazines showing military operations and said there was a gun-cleaning kit also in the dumpster (this was later shown to be from a Thanksgiving hunting trip). When Cannick tried to explore this line of questioning, the prosecution objected because a pre-trial motion it had been granted made this line of questioning inadmissible. The objection was upheld.

The defense objected and asked that the jury (and later Kolbe) leave the courtroom. In their absence, Gaynor argued that the defense should be allowed to follow up the line of questioning because it was the government that had introduced it. The defense aired other concerns about what they believed to be insinuation without proof by the government and then requested a mistrial because Kolbe's testimony “left a ringing bell in the ears of jurors” with its powerful suggestion that Dhafir was still under investigation for more serious charges that were still pending. The request was denied.

At another point in the proceedings, the prosecution referred to the religious group of Islam that Osama bin Laden was a member of, Salafi, and made the court aware that Dhafir was also a member of this particular Islamic religious tradition. (Salafi merely means a Muslim who is a strict adherent of the Koran and looks to the ancestors for guidance. It is comparable to someone in the Christian faith who looks to the Scriptures, church fathers and traditions of the early church for guidance.)

Other testimony also hinted at more serious charges pending. Because the defense was not allowed to respond to these insinuations, the proceedings at times were surreal. This was the case in the testimony of Colleen Williams, a tax preparer Dhafir had hired to help HTN sort out its tax returns and give advice on a 501(c)(3) application for the charity. (Up until then HTN had been under the 501(c)(3) umbrella of another charity, a not uncommon practice among charities. During the trial, it became clear that the government had put a hold on the HTN application, preventing it from moving forward.) The government wanted Williams to inform on HTN and she described how FBI Agent Jim Kolbe, IRS Agent Mark Sweeney and US Attorney Brenda Sannes had spent three days, first individually and then together, asking her to wear a recorder in her meetings with HTN defendant Ayman Jarwan. She described them as “waving the flag” and telling her that, “9/11 may not have happened if people were involved.” She felt the HTN people “were being pursued” and got rid of them as a client after only three meetings. She never agreed to wear a wire and refused to refer the case to a government attorney.

The government called more than 50 witnesses to testify, but neglected to call two key people: Kelly Tubbs, Dhafir's office manager of ten years who was proud of the fact that Dhafir's office had never failed an audit; and Maher Zagha, a co-defendant who was the HTN representative in Jordan. Zagha organized for food, clothing and medicine to go by land and sea to Iraq. He also sent money to Dhafir's elder brother (also a physician) in Baghdad, so that animals could be bought, sacrificed and given to the needy, particularly around Muslim holidays.

Arrested in Jordan on the same day as Dhafir's arrest in the US, Zagha was held and questioned for three weeks by Jordanian authorities under FBI direction. In the end, Jordanian authorities released him, satisfied that he had indeed sent aid to sick and starving Iraqi civilians on behalf of HTN. Zagha was presented as a fugitive at trial when, in fact, he was living in the house he had always lived in and would gladly have come to the US to testify on Dhafir's behalf. Neither the prosecution nor the defense asked him to testify.

The government did not call Tubbs because it considered her a “hostile witness,” and, sadly, despite Tubbs calling the defense lawyers regularly asking to testify, they did not contact her either. The total extent of government's reach in this case can be surmised by the surveillance conducted on Tubbs alone. Tubbs, who had nothing to do with HTN, had her home bugged and her telephone conversations monitored. On one occasion, government agents even entered her house and copied her computer hard drive. Told of the bugging after Dhafir's arrest, she and her husband began announcing their arrival when they got home, even alerting those “listening in” that they wouldn't be able to hear anything on the evenings her husband's band was practicing. She and her husband have since moved, and although her experience has shaken her trust in the government to the core; her trust in Dhafir remains steadfast.

Witnesses who were obliged to testify against Dhafir in exchange for either immunity or a plea deal spoke of their respect for Dhafir and his kindness and generosity, often saying he was “like a father” or “like a brother” to them. Several Iraqi-born witnesses broke down on the stand as they talked about conditions in Iraq during the sanctions. On the fourth day of the trial, Walid Smare, a witness who had accepted immunity in exchange for his testimony, broke down as he was being cross-examined about his family's circumstances during the sanctions.

This prompted all hell to break loose in the courtroom: the government objected to its own witness crying; the defense objected to the government's objection and the witness insisted he wasn't looking for sympathy. Once things calmed down, Judge Mordue, the presiding judge, instructed the jury, “[M]embers of the jury, we're not here to judge whether it's a noble thing in the world and the right thing, that's fine. But the thing we're here for is whether or not there's been a violation of the law done according to what the allegations are by the government.”

A Compliant Media

The government was duplicitous in this case from the outset, yet no media outlet directly challenged the inconsistency. And because no terrorism charges were brought against Dhafir, only the local newspaper, the Syracuse Post-Standard, covered the trial. Prosecutors could not have written better articles themselves. Early in the trial, the coverage prompted one of Dhafir's three lawyers to write to the paper asking for better representation of defense cross-examination of witnesses. American Civil Liberties Union (ACLU) court watchers attending the trial also wrote letters asking the paper to give more balance in its coverage. And a multifaith group, who prayed together outside the courthouse each day before proceedings began, met with editorial staff and was told that the defense's side of the case would be more fully represented when it started calling its own witnesses.

In the 14-week trial, the defense called one witness for 15 minutes, Dr. Edward Cox, director of Health Now, for Medicare, and his testimony appeared to confirm the defense reading of a rule in the Medicare Handbook on which all the Medicare counts rested. Next day, the Post-Standard reported this testimony as it was given. However, the following day, the paper ran a story on the front page, with a picture of Cox, in which he appeared to contradict his own testimony.

The paper did eventually offer a couple of small challenges to the government duplicity in an editorial and a cartoon. Other than that, it aided and abetted the government in transforming Dhafir's image in the community from that of a compassionate humanitarian to a crook and supporter of terrorists.

Bait and Switch

In the end, Dhafir was found guilty on 59 counts of violations of the economic sanctions against Iraq, money laundering, mail and wire fraud, tax evasion, visa fraud (all of the above related to running HTN) and Medicare fraud. (The jury was not allowed to deliberate on one count in which the government had listed the wrong bank.)

Although the government acknowledged that Dhafir donated $1.4 million of his own money to HTN over the years, he was still convicted of spending more than $500,000 dollars of HTN money on himself and his friends. And despite receiving less reimbursement from Medicare for the previous year than he had spent on chemotherapy alone, he was convicted of Medicare fraud.

In 1993, Dhafir wrote a letter to Medicare complaining about its “ever-changing” rules and disrespect of his staff. For this action, his office was put on a “pre-payment flag,” which meant that his office would not receive payment until someone at Medicare checked his office's billing. At trial, the defense was unable to find out when, if ever, Dhafir's office was taken off this flag. Medicare charges usually involve fictitious patients and made-up illnesses; Dhafir's case had none of this. The government does not dispute that Dhafir's patients received care and expensive chemotherapy; its argument for all 25 counts of Medicare fraud was that because Dhafir's Medicare claim forms had been filled out incorrectly, his office was not due any reimbursement for the treatment or chemotherapy his office had administered.

After the guilty verdicts came down, District Attorney Glenn Suddaby (now a federal judge) told reporters he didn't want anyone saying anything about terrorism and that, regardless of 9/11, this prosecution would have gone ahead. But six months later, on submitting a sentencing memo that asked for a sentence of not less than 24 years, he announced that Dhafir had links to terrorism. Dhafir and other HTN defendants are now listed on the government's list of successful terrorism prosecutions along with Mrs. Dhafir and William Hatfield, Dhafir's personal accountant.

The Post-Standard covered this announcement as if its reporter had not been present every day of the 14-week trial. A prominent front-page article with a very large headline announced, “US Says Manlius Doctor Was Linked to Terrorists,” and a few pages later another headline announced, “Prosecutors say video links Dhafir to al-Qaida founder.” The connection? On several occasions during the 1980s, Dhafir was in Pakistan as a volunteer with Doctors Without Borders in mujahedeen refugee camps. On one of these trips, he briefly met and interviewed Abdallah Azzam, who was later known as a teacher and mentor of Osama bin Laden and Gulbuddin Hekmatyar, future Taliban prime minister of Afghanistan. At the time Dhafir met these two, they were friends of the US and the government even noted this in a footnote of its memo.

In fact, they were then very good friends of the US, which was funding them and other Afghan mujahedeen to the tune of millions of dollars to aid their fight against the Soviet Union. Throughout the 1980s, both these people were welcomed to the US and allowed to fund raise freely throughout its length and breadth. In 1985, Hekmatyar was part of a delegation of mujahedeen leaders who came to the US to lobby diplomats at the UN General Assembly, and Ronald Reagan hosted this group of “freedom fighters” at the White House (although Hekmatyar declined to attend because he thought it would be bad for his image). Hekmatyar is a brutal warlord, who killed and oppressed the Afghan people while in power, and the US is once again courting him as a partner who can help “bring stability” to the region.

Criminalizing Compassion in the War on Terror

That the government strategy for prosecution was premeditated can be seen in a 2003 “Terrorist Financing” paper published shortly after Dhafir's arrest. Written by Jeffrey Breinholt, then coordinator of the Department of Justice Terrorist Financing Task Force and research and practice associate at Syracuse University Institute for National Security and Counterterrorism (INSCT), it sets out the game plan for prosecutions.

In the introduction Breinholt says:

“Persons cannot be convicted of the federal crime of terrorism because there is no such crime. Instead, terrorism crimes have developed in the same manner as other crimes, policymakers determine what evil (or 'mischief') should be prevented and then craft criminal laws that take into account how such mischief is generally achieved. On occasion, acts that are criminalized are not ones that should necessarily be discouraged, if committed by persons not otherwise involved in the targeted conduct. In such cases, laws are crafted to criminalize such conduct only in particular circumstances.” [p. 3]

Within weeks of Dhafir's sentencing to 22 years in prison, Breinholt presented a lecture containing the essence of this paper to a group of third-year law students at Syracuse University. Entitled “A Law Enforcement Approach to Terrorist Financing,” it highlighted the Dhafir and HTN case. Greg West, one of the three HTN prosecutors, helped present the lecture, while the other two prosecutors, Michael Olmsted and Steve Green, were in attendance to answer questions. Law school faculty was also present along with representatives from the INSCT, a sponsor of the lecture.

Breinholt told the students that Dhafir's case had been under-prosecuted and in the context of the lecture's title the implication was clear: West told the class that one of the biggest frustrations of his career was having access to intelligence and not being able to share it. Breinholt enumerated the statutes being used as powerful tools for prosecution of terrorist financing and explained that these tools were not widely known even among prosecutors. He voiced a hope that law schools could serve as a kind of farm system educating students in this new field of law and that this, in turn, would create lawyers who would be familiar with and who could use these new prosecution tools.

He explained that because the “American public won't tolerate anything less than the rule of law,” creative ways had to be figured out to draft laws that can be used to prosecute what they are trying to prevent. According to Breinholt, this task was addressed by a Department of Justice Terrorist Financing Task Force that came together to craft ways to apply white-collar expertise to the problem of terrorism. A major tool that emerged from the work of this task force, Breinholt told students, is the use of IEEPA violations to gain convictions in terrorist financing cases. He said that to convict under IEEPA all that was necessary was to build a chain of inferences from available circumstantial evidence.

Dhafir and other HTN defendants are listed on page 20 of Breinhot's paper under the heading “Clean money cases.” Others under this heading include: Enaam Arnaout of Benevolence International Foundation (BIF); Sami Al-Hussayen, a graduate student at the University of Idaho, associated with Islamic Assembly of North America (IANA); Sami Al-Arian, a Palestinian professor from Florida; and the Holy Land Foundation, the biggest Muslim charity that was shuttered in 2001, but not prosecuted until six years later. (See “Denial of Due Process to Muslims Disgraces Us All,” for what happened to people in each of these cases. At the time of this article, the HLF case had not yet been prosecuted. After being convicted in a second trial, HLF's two main principals each received 65 years and three others received lesser sentences. )

Later in “Terrorism Financing,” under the heading “Crimes of terrorist financing,” Breinholt lists the statutes used in prosecution of these cases. Statutes under this heading that were used in Dr. Dhafir's case are 50 USC. ss 1701,1702 (IEEPA) and USC. ss 1956(a)(2)(A), “operating an unlicensed money transmitting business.”

Neither Breinholt nor West told the class that these “powerful prosecution tools” are being used mostly against Muslim charities and individuals associated with those charities, while violations by large corporations like Halliburton and Chevron Texaco, that did billions of dollars worth of business in defiance of IEEPA, go largely unpunished. At the most, these corporations have gotten a slap on the wrist and a fine, but no individual board member or officer has ever faced prosecution. And although many non-Muslim charities work in the same troubled regions of the world as Muslim charities, not a single non-Muslim charity has been closed. None of this was mentioned at the lecture.

By hosting this lecture, Syracuse University Law School gave credence to a charge never brought against Dhafir and HTN and, in so doing, became an accomplice in the government's subterfuge. After the lecture, a request was made to Dean Hannah Arterian that (ACLU) court watchers who attended the trial be allowed to address the students; it was denied.

Pre-Emptive Prosecution: The New Paradigm

In the wake of 9/11, the FBI and Justice Department indicated that their goal was to prevent terrorist attacks before they occurred by prosecuting under a new paradigm they called pre-emptive prosecution. The strategy used in the Dhafir and the HTN case is just one variant and the government has many tools in its arsenal to help prosecute successfully. These include, but are not limited to, use of agent provocateurs/informants who help frame innocent Muslims and are rewarded with money and US citizenship; use of staged press conferences and pre-trial publicity that hype unfounded and sensational terrorist allegations in order to scare communities, damage the reputation and credibility of Muslims and influence the jury pool; use of strategies for intimidating juries into believing that the defendants are real terrorists by excessive security, by insisting on anonymous witnesses and/or jurors and by constantly referring in trials to 9/11 and to known terrorists such as Osama bin Laden even when these references are irrelevant to the charges; excessive and inappropriate use of conspiracy charges and the use of guilt by association to smear those who have innocent contacts with known or suspected terrorists, including the accused having met these people years before they were labeled terrorists by the US government; use of secret evidence and secret court opinions; and use of multiple trials – if it is unsuccessful in a first trial, the government keeps going until conviction is achieved either in a new trial or by coercing the defendant into a plea deal.

Project SALAM (Support and Legal Advocacy for Muslims), a group founded by two lawyers from one of these cases, has a database documenting these post-9/11 “terrorism-related” prosecutions that, “have included a significant number of Muslims who were in fact innocent of any crime, and others who were severely overcharged and/or over sentenced.” Over the last two years, Project SALAM has written a series of letters to President Obama and Attorney General Holder asking for review of these cases involving pre-emptive prosecution. It has yet to receive an answer.

Although this type of prosecution is currently being used mostly against Muslims and Arabs, it's unlikely this will always be the case. A bill currently in the first step of the legislative process is titled in part “To direct the secretary of state to submit a report on whether any support organization that participated in the planning or execution of the recent Gaza flotilla attempt should be designated as a foreign terrorist organization … ” If this bill passes and is used in conjunction with the recently passed National Defense Authorization Act (NDAA), which authorizes the US military to indefinitely detain anyone suspected of being a terrorism supporter, many more humanitarians could find themselves in a similar situation to Dhafir's.

Communication Management Units

Dhafir has served most of his sentence in a Communication Management Unit (CMU) in Terre Haute, Indiana, that houses almost exclusively Muslim and/or Arab men, many of them principals of now defunct Muslim charities. There are currently two of these special units; the other located in Marion, Illinois. Conditions in these units are extreme: visiting and phone calls are severely restricted; no contact visits are allowed; units are equipped with 24-hour video surveillance that covers every inch of the facility; incoming and outgoing mail is monitored through Washington; and prisoners have no recourse to challenge their designation to these units.

The Terre Haute CMU is housed in the old death row building that had been vacant for a number of years before Muslim prisoners from all over the country were moved there in December 2006. Because the building is old and dilapidated, prisoners are subject to extreme heat in the summer and cold in the winter, including snow in some of the cells.

The Center for Constitutional Rights (CCR) sued the Bureau of Prisons (BOP) in March 2010 saying the units were unconstitutional, but the case is not resolved and prisoners are still being held there. On October 7, 2011, members of Congress wrote a letter to the BOP expressing concern about policies and practices at the CMUs including the extraordinary restrictions on communications, lack of due process and disproportionate number of Muslims being held there. They have not yet received a reply from the BOP.

Resentencing

A decision handed down by the Second Circuit Court of Appeals in August 2009 upheld Dhafir's conviction, but suggested the district court look again at the sentencing guidelines. The sentencing guidelines range on which his sentence was based was erroneously increased as if he were a third-party (professional) money launderer rather than the reality, which showed that he transmitted funds derived from the very same offenses which he had been convicted for personally committing (“mail fraud” and “tax fraud”). Resentencing was scheduled for January 5, 2012, and just 13 days before it, Dhafir was suddenly moved out of the CMU into the general population at Terre Haute.

One might hope that this move is a preparation for release, but it's more likely that it is in order to steal thunder from the 75 letters written to the Judge Mordue on Dhafir's behalf telling, in part, of extreme conditions in the CMU and asking for clemency. People who have written to Judge Mordue on Dhafir's behalf include Denis Halliday and Hans Von Sponeck, both of whom resigned from the UN because they were unwilling to implement a genocidal policy of sanctions against Iraq; Nobel Laureate Mairead Maguire; and many other individuals, including members of Dr. Dhafir's family, families of his former patients, people from his faith community, and people across the world who greatly appreciate his humanitarian outreach.

February 26, 2012, marks the ninth anniversary of Dhafir's arrest and incarceration. He is in his sixties now and has a number of health issues that certainly affect his ability to endure the circumstances in which he is serving his sentence. He developed a heart condition after his arrest and has not always had the heart medication his condition requires. He's also had two extremely painful episodes of gout that could easily have been prevented if he had been given medication. And he had to wait a long time to have a painful hernia treated, which has unfortunately now recurred, requiring further surgery. He will likely die in prison if he does not get relief at resentencing.

Following Nuremberg Principle IV, Dhafir did violate the Iraq sanctions, but this does not make him a terrorist. At resentencing, which is now scheduled for February 3, the prosecution will be asking that Dhafir's sentence be increased; the defense is hoping for immediate release or, at the very least, a significant sentence reduction. It remains to be seen if justice will finally be done in this case.