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.