Pulitzer Prize Winner Hawks 'Protocols of the Elders of the Anti-Islam Movement' in the New Yorker
At this point, observant readers are no doubt confused. By Shipler's own admission, the Elbarasse documents, including the Explanatory Memorandum, were subject to challenges on both the trial court and appellate levels. Both sides briefed the court, and judge and the appeals court panel ruled on the merits of their arguments. These are what are generally known as "adversarial proceedings," much as Shipler claims never occurred. It's not clear exactly then what Shipler was expecting. An entirely separate trial over the Explanatory Memorandum? With his own damning acknowledgement of these defense team challenges, we can only conclude that he's being duplicitous, or really, really thick.
But that's not all. During the trial one of the investigators in the Holy Land case, FBI Special Agent Lara Burns, twice mentioned the Explanatory Memorandum (trial transcript 09/28/2008 at p. 21, 10/07/2008 at p. 71). And yet having reviewed hundreds of pages of trial transcript at no point did I find the defense attorneys questioning Burns on redirect on the provenance, authority or relevance of the Explanatory Memorandum.
This might be breaking news to David Shipler, but a federal trial itself is, in fact, an adversarial proceeding. By raising the memo during questioning, the defense had an opportunity to question her about it on redirect, and the HLF defense team apparently declined to do so.
So Shipler admitting that objections to the Explanatory Memorandum were heard by both the trial and appellate court, and the apparent silence by the defense team on the matter during the trial itself, entirely refutes Shipler's assertion that the document was never subject to an adversarial proceeding.
2) The Islamic groups named Explanatory Memorandum were admitted as hearsay as a Bush Administration legal ploy to deny them their day in court.
Again in his book, Shipler names the Bush administration as a leading part of the conspiracy to smear the Islamic groups named in the Explanatory Memorandum (pp. 193-194):
This guilt by association is based on the document's [ed - the Explanatory Memorandum's] twenty-year-old list of what its author consider "our organizations" and "our friends," which the Bush administration's Justice Department used to claim that the groups "are and/or were members of the US Muslim Brotherhood." Their designation as unindicted co-conspirators was a handy prosecutorial tool, because the federal rule barring hearsay doesn't apply to evidence from an alleged co-conspirator. The hearsay can be introduced and some prosecutors love to drive through that loophole. The technique is controversial, because those names have no opportunity to rebut the label and the government has no obligation to prove its accuracy.
Those unproven allegations about organizations' ties to the Brotherhood, plus untested FBI reports, have been widely cited in the anti-Islam subculture. [emphasis added]
So according to Shipler's tin-foil hat conspiracy, the evil Bush administration used legal tricks to enter the Explanatory Memorandum as hearsay, so the Islamic groups named could never challenge it, and the "anti-Islam subculture" could have a field day at their expense.
But here's something that Shipler omits from his conspiracy: the Justice Department submitted these documents, and Judge Solis entered them into evidence, under Rule 801(d)2(E) of the Federal Rules of Evidence as statements made by a party's co-conspirator.
As I noted previously, in Shipler's book he quotes the defense attorneys admitting they challenged the Elbarasse documents as hearsay at both the trial court and Fifth Circuit Court of Appeals -- claims that were roundly rejected by both courts.
In fact, the Fifth Circuit panel in its decision in the HLF appeal spends twelve pages (pp. 34-46) explaining their upholding that the Elbarasse documents, which included the Explanatory Memorandum, were NOT hearsay, as the defense argued, and were properly admitted under Rule 801(d)2(E). As the Fifth Circuit panel said (p. 46)
In sum, we conclude that the lawful joint venture theory is a viable theory of admissibility under Rule 801(d)(2)(E) and the anonymity of the documents here did not bar their admission because the evidence was sufficient to show the documents were created as part of a joint undertaking between the declarants and the defendants. The district court did not abuse its discretion in admitting the Elbarasse and Ashqar documents pursuant to Rule 801(d)(2)(E).
And as for the poor Islamic groups unjustly tarred by the Bush administration (according to Shipler), it should be noted that while they weren't even defendants in the case, the Islamic groups were in fact given their day before his court to challenge their designation as unindicted co-conspirators.
Judge Solis heard the motions of the three groups who protested and ruled on it, even conceding that that the unindicted co-conspirator list should not have been made public, but finding that there was "ample evidence" tying the three groups who protested their designation to the Hamas conspiracy. When the Fifth Circuit separately examined his order on appeal, they concurred with the sole exception that Judge Solis' sealed order should be unsealed.
So there is no legal basis for Shipler to claim that the Explanatory Memorandum was hearsay (two federal courts found otherwise), nor that the Islamic groups named in the document never had a chance to challenge their designation (both their motions and their appeals were heard and ruled on by the trial court and the Fifth Circuit).
3) That the judge failed to distinguish between the Explanatory Memorandum's list of "our organizations" and "the organizations of our friends."
Surprisingly, this is Shipler's weakest objection. He believes he has caught Judge Solis in some judicial nonfeasance.
In the New Yorker article he hints at this point:
Two features of the memo are highlighted by the Islam watchers: first, its assertion that “the Ikhwan [Muslim Brotherhood] must understand that their work in America is a kind of grand jihad in eliminating and destroying the Western civilization from within,” and, second, “a list of our organizations and the organizations of our friends.”
Then, again, in his book (p. 190):
He also accepted the government's assertions by citing the seized Elbarasse documents, including the Explanatory Memorandum, without testing their accuracy in an adversarial proceeding. He did not distinguish between the memo's list of "our organizations" and "the organizations of our friends." He ruled, "The Government had produced ample evidence to establish the associations of CAIR, ISNA [Islamic Society of North America], and NAIT [North American Islamic Trust] with HLF [Holy Land Foundation], the Islamic Association of Palestine ("IAP"), and with Hamas." [emphasis added]
In a blatant dishonest move here, Shipler leaves the false impression that Solis ignored a distinction between two separate lists, erroneously lumping them in all together.
But in fact, as you can see in the screenshot below from the FBI's translation of the list included with the Explanatory Memorandum found on the federal courts' website, the document itself made no such division between "our organizations" and "the organizations of our friends". They are all included together (p. 32, the original is found on p. 15):
And when he quotes Judge Solis saying there was "ample evidence" associating ISNA, NAIT and CAIR with the HLF-Hamas conspiracy, Shipler conveniently ignores that the judge continues on for another five pages in his decision (pp. 14-19) outlining all of the evidence presented in the case detailing their respective roles in the conspiracy and in direct support of the Explanatory Memorandum's identification of them as one of "our [the Muslim Brotherhood's] organizations."