Friday, October 29, 2004
Detroit Dhafir--What's Wrong with the War on Terrorism
''Although prosecutors and others entrusted with safeguarding us through the legal system clearly must be innovative and think outside the conventional envelope in enforcing the law and prosecuting terrorists, they must not act outside the Constitution. Unfortunately, that is precisely what has occurred in the course of this case"; Judge Gerald Rosen in speaking about the over-turning of the conviction of two Moroccans found guilty in Detroit, Michigan of terrorism on September 1.
The arrests in Detroit, once hailed by President Bush and Attorney General Ashcroft as accomplishments in the war on terror, has certainly taken an about face. Instead of exposing terrorism the case has un-covered an overzealous prosecution and a duplicitous Justice Department. Lead prosecutor Cupertino has been dismissed and faces charges. The once encouraging Justice Department has sounded retreat and tried to distance itself, only to become a defendant in a civil suit filed by Cupertino. All in all, Detroit has provided us with a bird’s eye view of what is wrong with the war on terror.
What happened in Detroit is not unique. The case of Rafil Dhafir, like the arrest of two Arabs in Detroit, is a shining example of how a zealous Justice Department and an eager prosecution will bend the rules to seek convictions in the war on terror. Dr. Dhafir, an accomplished 56 year old oncologist and beacon of the Muslim community, has been the victim of a united effort by various federal government agencies to undermine his civil liberties and paint him as a heinous figure. From the day of his arrest to his day in court the government has been thwarting Dr. Dhafir's constitutional right to defend himself. (Rafil's homepage:
What makes the Dhafir case so unique is that there are two trials going on. In the public trial, he has been charged with breaking the sanctions against Iraq and with a litany of tag-along charges added when the terrorism case vanished. The "other" trial has already been held behind closed doors in his absence, and he was convicted of being a terrorist.
In the secret court of innuendo Dr. Dhafir has been smeared as a terrorist by the likes of Attorney General Ashcroft
"As President Bush leads an international coalition to end Saddam Hussein's
tyranny and support for terror, the Justice Department will see that individuals
within our borders cannot undermine these efforts," stated Attorney General John
Ashcroft. "Those who covertly seek to channel money into Iraq under the guise of
charitable work will be caught and prosecuted."
And New York State Governor Pataki whom in commenting about the
arrest of 2 Albany Muslims on terroism Agust 5, 2003
"We've seen in Lackawanna, with the arrest of the Lackawanna Six, terrorist supporters living among us. We saw with the arrest in Syracuse of money-laundering efforts to help terrorist organizations. And today we see here, again, in the capital region those among us who seek to help terrorists to conduct horrible acts against the people of America and against our freedom."
Although the prosecution has consistently denied that Dr. Dhafir is being tried as a terrorist this has not prevented them from implying such publicly through their actions. With such measures as pointing out that he was in possession of an Iraqi soldier's uniform, albeit that a veteran of the First Gulf war gave the uniform to him. The prosecution ignores the fact that Dr. Dhafir was placed on the top of Saddam's Hit List and would face certain death should he ever go back to his homeland.
Then there is Judge Mordue and his rulings. Ed Menkin, Dr. Dhafir's original counsel, a respected local lawyer with a long history and knowledge of the Syracuse area asked the Judge to recuse himself because he had a son serving in Afghanistan. He refused. One cannot but help think that the Judge is operating in the second trial of innuendo and smear. He has denied Rafil bail four times. In a pre-trial ruling he denied the defense the right to question the government's intent in arresting him, in other words they cannot bring up the terrorist issue.
The Judge also said that the defense couldn't claim selective prosecution. Of all the thousands of individuals and hundreds of organizations that defied the sanctions against Iraq, Dr. Dhafir is the only person to be arrested for providing humanitarian aid. The only thing that distinguished him from the other organizations and individuals was his Arab decent and Muslim faith. http://www.jubileeinitiative.org/OperationFreeDhafir.htm
150 Muslim Families Interrogated
On the day (2/26/03) of his arrest up to 150 predominantly Muslim families that had donated to his charity (Help the Needy, HTN) were interrogated in an inappropriate manner by government agents (FBI, Department of Defense and State Police.) ( See http://www.jubileeinitiative.org/Dhafir150.htm) Agents brought with them a card with questions relating to HTN on it. In addition to questions on the card the Muslims were asked other questions about their faith, the local Masjid, their family and ties to the Middle East--all illegal lines of questioning. I was told that the agent's behavior was meant to intimidate and scare. One person interviewed told me that an agent tried to raise old religious animosities by trying to pit his Sunni beliefs against what the Shiites belief. Larry Bynham, a Quaker that had donated to HTN was treated much differently and was only asked questions on the card..
While we may cry foul over the government's apparent violation of the Muslim community’s civil rights, the government's abusive interrogation had more dire repercussions for Dr. Dhafir. It struck at the heart and soul of what should have been his outspoken base of support.
A Muslim community already reeling from Islamphobia since 9-11 and bracing for the repercussions from the upcoming war with Iraq now found themselves assaulted and under suspicion by our government. Add a dash of John Aschroft calling Rafil a terrorist and you had an ugly witch's brew that boiled over into our community and the media. (I cannot begin to describe the fear within the Muslim community. God had called me to help Dr. Dhafir. When I tried to put a rally together for him, no one felt strong enough to withstand the governmental intimidation. I opted to hold a Witness in support of the Muslim community at South Presbyterian on May 3, 2003. Up until the day of the event I was not sure that I would get more than two Muslims to come to the event. Imagine, people were too afraid to sit in the audience!
As the case of Wen Ho Lee shows us it is the defendants ethnic community that provides their greatest support.:
'I had never paid attention to Asian American people creating organizations and raising their voices. I don't think I even knew of any protest rallies by Chinese or Asians' in America. I quite amazed to discover that there were so many demonstrations about my case and the impact it was having on other people.' Page 299, My Country Versus Me , Wen Ho Lee
The importance of the defendant having a strong community support base is not not lost to the government. Similarly Quantanamo Bay's Muslim Chaplain Captain Yee was able to win his freedom from the support and efforts of the Chinese American community. What hope Rafil could have looked for from a Muslim community traumatized by 9-11 was squelched by the government.
(Although I cannot confirm this I have heard that the government has called many Muslims to be potential witnesses at the trial. Because they have been called as witnesses they cannot attend the trial and show support for Rafil.)
But the predicament for Rafil is even more complex. Arguably when the government assaulted the local Muslim community it was also intimidating Rafil's witness pool. Donors would have first hand knowledge of the charity and Rafil. But given the government's aggressive and muscular stance they feared a similarly aggressive stance against them should they come to Rafil's defense. Some are here on visas or green cards. It was like a scene out of the Godfather where one storeowner who refuses to pay extortion has his legs broken as an example to the others.
The fear created by the Fed's interrogation reverberated within the Muslim community and other potential character witnesses. One of the things I first heard about Rafil was his generosity. This was confirmed to me when he had a rally for him on the one-year anniversary of his arrest. We heard Muslims, patients and others speak about how Rafil had helped them both spiritually and financially. We heard stories of tuition's paid, chemotherapy done gratis and even a $5,000 donation to the Syracuse Police Department in 1993 to buy a horse, Sergeant Sundance, for the mounted division. Haikal Rafil's best friend did not know a lot of this because Rafil did as he was called to do--give with his right hand so that his left hand did not know what his right hand was doing. Unfortunately the anonymous giving would remain such given the Government's fear tactics. (To read about our rally http://www.jubileeinitiative.org/DhafirRally.htm )
I continue to hear stories of Rafil's generosity. One of the members of the Wood Hath Hope bible community I belong told me of a man she met in her job that said that Rafil had paid for him and his wife to travel to Mecca for Haij. I still hope to speak to this man.
It is Rafil's generosity, especially done in anonymity that convinces me that he is not guilty of the charges the government has smeared him with. The amounts the government claims he has taken for personal use is dwarfed by what we have un-covered in anonymous charitable giving.
As was the case with Muslim Chaplain Captain Yee of Quantanamo Bay the government resorted to hitting him with more charges when the terrorist case dissolved.
Smearing Rafil with a host of charges after his arrest served the government well. By claiming Rafil ripped off Medicare and used charity money for personal uses the government cast a shadow over him that went beyond the breaking of the sanctions. This shadow at least initially, made many traditional activists hesitant to support Rafil. The additional charges also served, at least in the Judge's eyes, as a reason to keep Rafil in jail.
What about those charges? In a pre trial press conference Devereaux, revealed that the government asked Medicare to investigate Dr. Dhafir for Medicare fraud and to show that he used the proceeds to fund terrorism. In the opening arguments we learned that the Medicare amounts submitted by the government were inflated. They claim that Rafil over-charged Medicare by 15% for being present for chemotherapy when he was not. They show the gross amount rather than the 15%. When we look at the total amount the government says that Rafil took it is a fraction of 1% of the total amount that he billed Medicare.
Misleading the Defense
Dhafir's prosecutors like others under Ashcroft's tutelage resorted to dirty tricks. There is a relationship between the prosecution and defense that has developed over time, particularly in smaller communities such as Syracuse, to negotiate in good faith over issues such as bail--not so in Ashcroft's world.
Devereaux, Rafil's lawyer, began negotiating for bail with the prosecution when he took over in August of 2003. As was the case with the Lackawanna six, there was never any good faith negotiations, only a ploy by the prosecution to get the defense to spend time and effort away from the case. As a Bronx DA Devereaux, thought he had seen it all. (As a person of faith that left Wall Street to serve God I am particularly troubled by the self-righteous, such as Attorney General Ashcroft, who think they can defy the teachings they so proudly claim to follow as they seek to do justice. Remember Gandhi said that we must be the change we wish to see.)
When the bail negotiations began, we, the activists were told not to hold any actions until Dr. Dhafir was granted bail. We all objected, but went along because we were told he would be out in a couple of weeks. The timing could not have been worse. When the first phase of the war against Iraq ended some in the Muslim community and others came out in support of Rafil. We had the beginnings of nascent movement--it came to a grinding halt. Weeks turned into months and it became evident in November that the prosecution never intended to grant Rafil bail. We were set free. For more on the government's dirty ticks and shenanigans such as the intimidation of a State Trooper willing monitor Rafil should he be granted bail read the bail motion--it is an eye-opener: (http://www.jubileeinitiative.org/DhafirBailInfo.htm)
Suppressing Activism--Barring Legal Counsel
We decided to join a protest over Voices in Wilderness (http://vitw.org/ ) being fined for sending aid to Iraq in defiance of the sanctions on November 14, 2003. We had a press conference at St. Lucy's where local Iraqi travelers Dick Keough and Ed Kinane spoke. Followed by a rally in front of the Justice Center where Rafil was being held. Both were a success and the rally, of mostly Muslims, made the front page of the local section of the paper.
On Monday when Royce Hawkins, part of the legal team, went to the Justice Center, a place he had been going to for over four years, he was denied access. It is clear that his not being allowed to visit Rafil was tied to the rally on Friday (he was one of the people pictured in the newspaper article about the rally.)
As Devereaux noted in the 4th bail motion hearing on January 27, 2004 Sergeant Powlina of the Justice Center told him that he was instructed by the government to deny Royce access. This was a clear violation of Dr. Dhafir's sixth amendment right to defend himself. It is also proof positive of the collaboration of various departments to the government to stifle Rafil. (To read the transcripts of the bail hearing go to: http://www.jubileeinitiative.org/dhafir_motion.pdf ( See page 19 for the Powlina comments.)
Undaunted we decided to hold another rally at the Justice Center immediately after the Eid prayer ending Ramadan. Several thousand Muslims would be at the On Center a few blocks from the Justice Center and we thought a good many of them would walk over and attend the rally after the prayer had ended. I filed a permit with the city police department. The day before our rally Rafil was moved to Jamesville correctional. This was no coincidence because the Justice Center is acutely aware of Ramadan and the needs of Muslims ( In the following article you can read how the Justice Center prided itself on it was accommodating Muslims during Ramdan:
http://www.jubileeinitiative.org/DhafirBailMotion.htm ) But I question Judge Mordue's decision to dismiss this motion. How could he, when it is very clear that Rafil is the only person to be arrested and jailed for breaking the sanctions for providing humanitarian aid.
"The selective prosecution by the government was another big legal issue. Mark
was preparing the arguments to show how the government was singling me out for
prosecution when they had never treated anyone else in this way for mishandling
classified information." Page 264, My Country Versus Me, Wen Ho Lee
In August we put forth an action, Operation Free Dhafir http://www.jubileeinitiative.org/OperationFreeDhafir.htm , to give the dismissal motion some teeth and raise public awareness about Rafil for being selectively prosecuted. To our knowledge he is the only person to be arrested and jailed for providing humanitarian aid to Iraq. Kathy Kelly of Voices of the Wilderness ( http://vitw.org/ ), Richard Deats of the Fellowship of Reconciliation (http://www.forusa.org/ ), Jim Jennings of Conscience International (http://www.conscienceinternational.org/ ) and a host of other travelers to Iraq wrote Judge Mordue letters telling him how they had openly flaunted and broke the sanctions against Iraq. Their compassionate efforts fell upon deaf ears.
I cannot fathom why the Judge will not allow the defense to question the government's intent in arresting Rafil and raise the issue of terrorism. To claim that intent and terrorism have nothing to do with this case it is like trying a person for murder after he had killed someone in self defense and not allowing them to point out that they were violently attacked. This case is all about motive--Why did the government arrest Rafil? And why does it now back track with its claims of preventing terrorism with the arrest of Rafil? Does it fear another Detroit like exposure?
Rafil has been consistently called a terrorist by the government (Ashcroft) and high-powered politicians (Patkai.) Former Reagan Attorney General Ed Meese III writing for the Heritage Foundation about the Safe Act used Justice Department information to call Rafil a terrorist. (See http://www.heritage.org/Research/HomelandDefense/lm10.cfm#pgfId-1053432 ) As the article clearly indicates the Justice Department is gloating about how the safe act was used to arrest the terrorist Rafil Dhafir. Now the prosecution, the Justice Department, is no longer boasting about the arrest of the terrorist Dhafir and does not even want to raise the issue of terrorism. What got them to change their mind?
By not allowing the defense to question the government's intent the Judge is letting Rafil to be tried in abstention in the court of public opinion and innuendo. How can he hope to have a fair trial if he cannot be there to defend himself?
By the government's antics it obvious that they will do everything that they can to suppress the truth and public awareness about Rafil. Their vulnerability and fear is that people may gain knowledge about Rafil--it is their soft spot that they have ferociously protected. I became acutely aware of this when legal counsel was denied access to the jail after our rally was in the paper.
On March 1, 2003 I was called by God to help Dr. Dhafir. I call others to join me, not so much to help or support but rather to be a witness. To be as the first book of John teaches us, a witness to the light so that the truth may be seen.
Thursday, October 28, 2004
What happened and Search the Trash
1)Testimony of Police person Chad Monroe: We understand that reporters must select and chose what they decide to report on. And editors make decisions as to what to cut from an article. We, however think that it was significant that Officer Monroe admitted that in photo of Rafil in the bank that Rafil was not doing nothing illegal and he did not he present any false ID. Today I questioned several people that were present for Devereauxs' cross-examination of Monroe and they all agreed Devereaux lit him up!
2) Special Agent Kolbe's comments. Contrary to what was said or written Agent Kolbe never said that Zagha purchased textiles with Help the Needy funds. I repeat Kolbe never said in court that Zagha purchased textiles with Help the Needy Funds.
As to Thursday's trial.
The whole day was spent by the prosecution presenting their witness Kolbe. Most of the testimony dealt with the discussion of money flows between banks. Where did the money end up?--That was the point the prosecution was trying to make. They again provided some slick looking graphs.
Search the trash. The prosecution said that they searched Rafil's trash, at his home, at his office, at the charity and probably some other places as well.
Ask yourself this---Do you think that the government would go to such lengths to sift through mounds of trash because Rafil was guilty of Medicare Fraud? Or breaking the sanctions against Iraq? Of course not, the only reason that agents were scouring Rafil's trash was because they were on a terrorism search!
Wednesday, October 27, 2004
The remainder of the day was spent hearing testimony from FBI special agent in charge, Kolbe, who went over bank accounts/records and other activity. He talked about the transfer of money to Jordan. The prosecution pointed out that no money from Help the Needy went to Charities in 1995 and 1996.
The defense won a victory when the Judge agreed that any hand written notes by law enforcement agents will be considered discovery and evidence copies of which needed to be turned over the defense.
I received several phone calls over the weekend, one even from my uncle, telling me that the picture in the Post Standard on Friday of Rafil in a bank made him look bad. The prosecution had claimed that Rafil was pretending to be someone else. Well--Devereaux ripped that BOGUS claim today during cross examination of Monroe. Zagha is a man in Jordan that dealt with financial matters for Rafil
Devereaux--Did the Dr give you ID saying he was Zagha?
Devereaux--Was he posing as someone else?
Devereaux--Is it illegal to deposit money?
Devereaux--Do you know when the picture was taken?
Monday, October 25, 2004
Dhafir Trial Adjourned until Wednesday
Thursday, October 21, 2004
Dhafir Trial--Opening Arguments
Whom you thought did better depended upon your preference. Although Devereaux clearly had the best line when he in effect said that, ' No one is better than the government with a laser and light show. But…' He went on to say that the government's fact and figures were wrong or at least substantially bloated. He did this by noting that the government's claim that Rafil ripped Medicare off for $1,1000 was really 15% of that amount or $165. (The government claims that Rafil over-charged Medicare by claiming he was present for procedures when he was not. By being present Rafil could charge 15% more. Because of the Judge's pre-ruling that the defense cannot question the government's intent in arresting Rafil--they cannot point out that the FBI asked Medicare to scour Rafil's records to show that he was overcharging Medicare to fund terrorist operations.)
The prosecution's presentation hinged on the 60 counts against Rafil. They began by with mentioning that he broke the sanctions against Iraq and went on to mention other charges revolving around his charity--impeding the IRS, mail and wire fraud and deceiving donors. There were also charges relating to Medicare fraud and using charitable funds for personal uses. Depending whom you asked, the prosecution's presentation was either detailed and thorough, or very boring.
Devereaux constantly reminded the jury that they need to look at the evidence and not take the prosecution at face value. He asked them to not prejudge and be objective. In a show of confidence he said that he was looking forward to questioning the government's witnesses, implying that the government's case was weak.
We heard about how keen the government was go after Rafil and to what extent. We heard about bugs, meetings taped and spies. We learned about Colleen Williams, a CPA and JD, whom Rafil hired to fix accounting problems but was actually a spy for the government. All the while she claimed to helping Rafil she was reporting to the FBI at night.
Devereaux also said that the date of arresting Rafil was February 26, 2003 because the person (can't remember name) that worked on the charity's books was set to return from medical leave in early March. It seems that some of the stuff Colleen Williams was working on would have been finally fixed. I have always thought and still do that Rafil was a victim of Operation Imminent Horizon (http://www.jubileeinitiative.org/DhafirOperationImminentHorizon.htm) A government's effort to harass and arrest anyone with any suspected connection to Iraq ahead of the war. Remember Rafil, a naturalized citizen of the USA, is from Iraq.
I was shocked to learn that the FBI knocked down the door of his house the day arrest knocking his wife Priscilla to the floor. Lets not forget that 85 FBI and Department of Defense agents descended upon his house the day of his arrest. Devereaux asked why they would knock down his door?, for white-collar crimes?
Devereaux's question is at the crux of what is wrong with this case and the question the defense is not allowed to ask? Why did the government go after Rafil?
Why did the government spend hundreds of millions of dollars in monitoring him?
Why did they send 85 agents to arrest him and break down his door? Don't forget that Rafil was already in a police car outside of his home.
Why did they inappropriately interrogate 150 Muslim families the day of his arrest? http://www.jubileeinitiative.org/Dhafir150.htm
Why has the government continually stifled dissent and those supporting the Dr?
Did they spend all this time, effort and money because Rafil was guilty of Medicare Fraud?
They went after Rafil because they were looking for trophies in the war on terrorism. The Judge has prevented Devereaux from pointing this out. The Judge could not prevent Devereaux from telling the jury that the government sometimes gets things wrong, as it did with the search for Weapons of Mass Destruction. He noted that as it was with the WMD's, the government is reticent to admit when they are wrong.
And what does the government do when it is wrong? It smears those that can expose them. Just look at what has happened to people such as Richard Clark and ex Treasury Secretary O'Neill.
Hope to see you Monday in court.
Wednesday, October 20, 2004
Dhafir Trial--Jury Selection
I have always been concerned about whether Dr. Dhafir would be able to get a fair trial or would he continue to be railroaded by the court that has denied him bail four times. When I walked into the courtroom on Tuesday afternoon for jury selection and was greeted by a sea of white faces my heart sank.
The blue red divide gripping our country is playing out in upstate NY. But instead of states we have the city of Syracuse and the county of Onondaga. To experience this first hand all you have to do is hold a peace sign in the city of Syracuse and progressively move farther away from the city center. In the city you get honks of approval by cars. As you move further out get less honks and more hand gestures of disapproval.
Statistics bear this out if you believe as I do that republicans are more disposed to war. The city has 15, 207 registered republicans and 30,887 democrats, or is about 2 to 1 democratic. But things change when you look at the county of Onondaga that has 95, 565 Republicans and 85, 886 democrats. Factor out the city and the county is 8 to 5 Republican
Some of you may think that it is an apples and oranges comparison to look at war attitudes and party affiliation and infer peoples' attitudes towards Muslims. Granted. Others may say that ones party affiliation or view on the war should not necessarily influence whether one can be an impartial juror. I hope so.
When I walked into the courtroom and saw 2 people of color in a room of 60 to 70 people I immediately thought that the city of Syracuse was underrepresented. The city is 64% white
http://syracuse.areaconnect.com/statistics.htm. The Northern District Jury pool includes the county' of Onondaga (Population 458,301, 84.8% white), Oswego County (population 122,377 96.5%) and Madison County (population 71,069, 96.5% white). So if we take 70 people as the potential pool of jurors you should have on average 8.2 persons of color instead of 2. Clearly there could have been more people of color that I did not recognize. Secondly, there could have been a lot of white city people in the jury. Others might say that the un-representation of city people in the jury is not unusual--If that is case that would be truly sad. Some may say that it is the number of women that matters more.
The jury was selected Wednesday afternoon. Some may say that justice was served and one person of color was selected for the jury. Lets hope so
If anyone thinks that this analysis is wrong, or has more information please contact me : firstname.lastname@example.org
One of the things that we remain concerned about is that the Judge has prevented Rafil from adequately defending himself. He has been denied the ability to use a selective prosecution defense and point out that he is the only person to be arrested for breaking the sanctions against Iraq by sending humanitarian aid. To see all the letters sent by people that similarly defied the sanctions and were not arrested: http://www.jubileeinitiative.org/OperationFreeDhafir.htm
Worse, the judge will not allow the defense to question the government's intent in arresting Rafil and raising the question of terrorism. Wow. On the day of his arrest John Ashcroft called Rafil a terrorist, as did NY governor Pataki on August 5, 2004 when two Albany Muslims were arrested and charged with terrorism. Lead prosecutor West in the Ayman Jarwan bail hearing implied that Ayman could make a dirty bomb. This injustice of not allowing Rafil to defend himself hurts him in so many ways. For example, by not allowing the defense to question the government's intent they cannot point out that the government asked Medicare to try and show that Rafil was ripping off Medicare to fund terrorism. Much more……
We are considering several actions to keep in the publics mind the injustice the judge has served Rafil by not allowing him to properly defend himself.
If you are interested in posting on this blog email me: email@example.com
We hope to hear from more of you as the trial progresses.