Criminalizing Compassion in the War on Terror: Muslim Charities and the Case of Dr. Rafil A. Dhafir

By Katherine Hughes

“The first question which the priest and the Levite
asked was: ‘If I stop to help this man, what will
happen to me?’ But ... the good Samaritan reversed the
question: ‘If I do not stop to help this man, what
will happen to him?’” Martin Luther King, Jr.[1]

“The truth shall set you free?  Maybe.  But first the
Truth must be set free.”
Wole Soyinka, Nigerian playwright, educator.[2]

Since the events of 9/11 the government has
implemented powerful new prosecutorial tools to gain
convictions in its War on Terror.  In an article
entitled, “Terrorist Financing,” Jeff Breinholt,
Deputy Chief of the Department of Justice’s
Counterterrorism Section, explains these tools and how
they are being used to win convictions.[3]  On page
thirty-one of the article he lists the statutes being
used in the criminal prosecution of terrorist
financing and among these statutes is the
International Emergency Economic Powers Act (IEEPA),
which Breinholt also labels as “United States economic
sanctions.”[4] IEEPA provides the President of the
United States with authority to deal with any “unusual
and extraordinary threat” that has its source in whole
or substantial part outside the United States; this
includes threat to “national security, foreign policy,
and the economy.”[5]

Prosecutors armed with the statutes listed in
Breinholt’s paper are further empowered by using them
in conjunction with the “material support of
terrorism” laws, Executive Order 13224, and civil
asset forfeiture laws, particularly those under IEEPA,
which were amended by the PATRIOT Act. Under the IEEPA
civil asset forfeiture provisions the government can
close down an organization and seize its assets while
an investigation is ongoing, without probable cause of
criminal activity and without any charges ever being
brought against anyone.[6] 

E.O. 13224 was issued on September 23, 2001, and
introduced a blacklist of organizations and
individuals suspected of terrorism, materially aiding
terrorism, or associating with terrorists.  IEEPA and
international law permit humanitarian assistance for
these suspects, including food, clothing and medicine,
but this humanitarian aid is outlawed under the E.O.
13224.[7] The penalty, for an IEEPA violation, for
organizations that knowingly engage in terrorist
financing already carries a sentence of twenty years
to life in prison. What this new provision does is
“drastically increase the penalties for knowing
violations of non-terrorism-related IEEPA
offenses.”[8] People with a concern for civil
liberties are troubled by the fact that the government
provides no legal definition of what they consider a
“specially designated terrorist” and by the broad
manner in which the government is interpreting the new
rules.[9]

Muslim charities and individuals connected with these
charities are bearing the brunt of the effects of this
new law.[10] Since September 11, 2001, six major U.S.
Muslim charities and several smaller Muslim charities
have been shut down.[11] And working in close
collaboration with the U.S. government does not
provide charities with protection from this fate.  In
2002 a new charity, KindHearts (KH), was established
after the U.S. government had closed the three largest
Muslim charities in the country in December 2001,
accusing each of supporting terror.[12]  Despite
working closely with government agencies to ensure it
complied with all the new rules, KH has suffered the
same consequences as the other charities.  In February
2006, KH?s assets were seized and its operation frozen
because of dubious allegations of financing
terror.[13]

In a March 2006 article in The Washington Post, Laila
al-Marayati and Basil Abdelkarim, board members of
Kinder USA, a Muslim-American nonprofit humanitarian
organization said,

“We are among those American Muslims who decided that
because it is our right as Americans to fulfill our
religious obligation to help the needy both here and
abroad, we would start a new charity.  We did so in
2002 and have experienced our fair share of government
harassment as a result.  None of us is interested in
engaging in illegal activity; it is immoral, unethical
and un-Islamic, and it serves no useful purpose
whatever.  Our crime is that we care about what
happens to the children of Palestine.  Who knows what
price we will have to pay for our hot-breakfast
program for hungry kids in Gaza, for our playground
project in the West Bank, for our psychological trauma
center in Hebron.”[14] 

THE EFFECT ON MUSLIM CHARITY

In a report titled, “Muslim Charities and the War on
Terror,” OMB Watch,[15] documented its concerns about
the treatment of Muslim charities and the people
involved with the charities.[16]  Among the many
concerns OMB voiced are use of questionable evidence
to shut down the largest U.S.-based charities that has
resulted in much needed humanitarian assistance not
reaching people who desperately need it, use of
anti-terrorist financing policies that deny Muslim
charities the right of due process and are unequally
enforced, and holding of organizations and individuals
associated with humanitarian work “guilty until proven
innocent.”  They conclude that despite the new
investigative powers the authorities have failed to
produce evidence of terror financing by U.S.-based
charities.[17]

In May 2005, David Cole, professor of law at
Georgetown University and legal counsel in several
“material support” cases, testified before the U.S.
Senate Committee on the Judiciary about the
constitutional implications of use of these statutes.
Speaking about how the statutes impose “guilt by
association” and therefore violate the First and Fifth
Amendments, Cole said,

“The statutes described above prohibit virtually all
associational support to selected political
organizations, while granting executive branch
officials effectively unreviewable discretion to
target disfavored groups.  These laws make it a crime
to write an op-ed, provide legal advice, volunteer
one?s time, or distribute a magazine of any
‘designated’ group, even if there is no connection
whatsoever between the individual’s support and any
illegal activity of the proscribed group.

“Under these statutes, an American citizen who sends a
treatise on nonviolence to the Kurdistan Workers?
Party to encourage it to forgo violence for peace can
be sent to prison for fifteen years.  This is so even
if he proves that he intended the treatise to be used
only for peaceful ends, and that it was in fact used
solely for that purpose.  Such a moral innocent can be
said to be ‘guilty by association.” [18]

THE “HELP THE NEEDY” CASE

This is precisely the situation in which Dr. Rafil A.
Dhafir found himself. In direct response to the
humanitarian catastrophe created by brutal sanctions
on Iraq, Dhafir, a man of Iraqi descent and Muslim
faith, and an American citizen for almost thirty
years, started the charity Help the Needy (HTN).
According to United Nations (UN) statistics, every
month throughout the 1990s almost 6,000 children under
the age of five in Iraq were dying from lack of food
and access to simple medicines.[19] Three senior UN
officials resigned because of what they considered a
“genocidal” policy against Iraq.[20]

When Madeleine Albright, then U.S. Ambassador to the
U.N., was asked in a CBS interview if the deaths of
half a million children was a price worth paying to
punish Saddam Hussein, she infamously replied, “I
think this is a very hard choice, but the price–we
think the price is worth it.”[21]  When the deaths of
children over the age of five and adults are added,
the number killed as a direct result of the sanctions
rises to between 1.5 and 2 million dead civilians.[22]

Dr. Dhafir is a pillar of the Muslim community in
Central New York. He was a founding member of the
local mosque, and he served as the imam at Syracuse
University until they hired a full time imam.  He paid
a substantial amount of the running costs of the
mosque and provided free medical consultation to those
at the mosque without health insurance.  His medical
practice was in Rome, New York, an underserved area in
which he was the sole oncologist.  In his practice he
provided free health care to people without insurance,
and he paid for their expensive chemotherapy medicine
out of his own pocket.[23]

For thirteen years Dhafir worked tirelessly to help
publicize the plight of the Iraqi people and to raise
funds to help them.[24] According to the government,
Dhafir donated 1.25 million dollars of his own money
over the years.[25] As an oncologist, he was also
concerned about the effects of depleted uranium on the
Iraqi population that experienced skyrocketing cancer
rates.[26] For the crime of breaking the U.S. and U.K.
sponsored UN sanctions on Iraq and sending
humanitarian aid to sick and starving civilians,
Dhafir was held without bail for thirty-one months and
then sentenced to twenty-two years in prison.[27]

Since the day of Dhafir’s arrest, February 26th, 2003,
when eighty-five agents went to his home, government
officials at national and state levels have portrayed
Dhafir’s humanitarian work as support of
terrorism.[28]  Simultaneous to Dhafir’s arrest,
between the hours of 6 a.m. and 10 a.m., others
associated with HTN were arrested in Syracuse, New
York; Boise, Idaho; and Amman, Jordan.  At the same
time about 150, mainly Muslim, families who had
donated to HTN were interrogated by government
agents.[29]  On the same day, Attorney General John
Ashcroft announced that supporters of terrorism” had
been apprehended, a completely unfounded assertion
that was reiterated by New York Governor George Pataki
in August 2004, just prior to the start of Dhafir’s
trial.[30]

At the same time, and throughout the trial, local
government officials, the prosecutors and District
Attorney, denied that the case had any connection to
terrorism and instead portrayed Dhafir as a common
thief.[31] District Attorney Glenn Suddaby said:
“there’s no evidence that any of the Help the Needy
money went to al-Qaida, the Iraqi government, or to
buy arms and bullets that could be used against U.S.
soldiers.”[32]

The inconsistencies in the government’s position have
been a startling feature of this case from its
inception, and they suggest two possibilities: either
one hand of the government doesn’t know what the other
is doing or the government is aiming deliberately to
deceive. No media outlet has challenged the government
directly and demand that it provide an explanation for
its contradictory assertions, although Michael Powell
of the Washington Post drew attention to them shortly
before the trial began:

“There is a shadow-boxing quality to the terror
allegations lodged against Dhafir. In August, Gov.
George E. Pataki (R) described Dhafir’s as a ‘money
laundering case to help terrorist organizations . . .
conduct horrible acts.’ Prosecutors hinted at national
security reasons for holding Dhafir without bail. But
no evidence was offered to support the
allegations.”[33]

Despite Pataki’s pre-trial announcement, which was
perfectly timed to reach potential jurors, the
prosecution successfully petitioned Judge Norman
Mordue not to allow the charge of terrorism to be part
of the trial.[34]  Not surprisingly the specter of
terrorism hung over the trial throughout the
proceedings, and prosecutors could hint at more
serious charges but the defense lawyers were never
allowed to follow this line of questioning.[35] 

Dhafir’s seventeen-week court case was conducted as a
sixty-count case of white-collar crime with no charges
of terrorism, and as a direct result of this only the
local Syracuse newspaper, the Post Standard, covered
the proceedings. The paper proved to be little more
than a mouthpiece for the government; on the rare
occasion that it did provide coverage of cross
examination, it immediately followed with a
re-statement of the charges in the indictment.[36]
During the seventeen weeks of daily coverage of the
proceedings the paper failed to give more than a
passing mention to an ecumenical group that met every
morning outside the federal building to worship for
half an hour before the trial commenced at 8.30 a.m.,
or to the ACLU court watchers who were present in
court every day.[37] Concern has been expressed about
reporters being embedded in war zones; there should be
equal concern about them being embedded in federal
buildings.

Of the sixty counts in the indictment, most were
related to breaking the sanctions: conspiracy, mail
and wire-fraud, money laundering, and tax evasions.
These charges are easily explained when viewed in the
context of the sanctions, but the government did
everything it could to prevent the condition of Iraq
during the sanctions from being referred to at the
trial.

According to the government, the investigation of HTN
began with a Suspicious Activity Report (SAR) from a
bank.  The government encourages financial
institutions to report “suspicious activity” by
watching out for money transfers between related
accounts of related entities. But many non-profit
organizations that have nothing to do with supporting
terrorism make these kinds of transfers on a regular
basis.[38]  Because of the SAR report seven government
agencies investigated Dhafir and HTN for five years.
They intercepted mail, email, and faxes; bugged his
office and hotel rooms; and conducted physical
surveillance.

Because the government was unwilling to prosecute
Dhafir for sanctions-related charges alone, the last
twenty-five counts of the indictment are related to
Medicare fraud. The government evidence for this part
of the case was extremely weak.  For example, a bar
chart that supposedly compared the dollar amount of
Dhafir’s billing of Medicare with other doctors’
billing was completely meaningless.  It showed
Dhafir’s bar as being very tall and the other doctors’
bars being much smaller, but when the witness was
asked by the defense to say what types of doctors the
other doctors were, or what their geographic location
was, she could not answer.[39]

The whole of the Medicare case revolved around a
single rule called “incident to,” meaning any
treatment performed by someone other than the doctor.
The government claimed that Dhafir had filled out the
forms incorrectly, and was therefore entitled to no
reimbursement from Medicare, despite the fact that
patients had received treatment and chemotherapy
drugs.  The defense contended that even if Dhafir’s
office had filled out the forms wrongly, which they
did not believe he had; Medicare had only overpaid 15%
of $1102.80—the difference between what they pay for
a doctor’s time as opposed to a nurse practitioner’s
time—a total overpayment of $166.[40]  This was not
fraud but merely incorrect billing. Medicare fraud
usually involves fictitious patients and made-up
illnesses; Dhafir’s case had none of this.

The government presented the Medicare evidence in the
same way they presented the evidence related to the
sanctions. After weeks of testimony following checks
from bank to bank, they then turned to day after day
of testimony regarding Medicare forms, asking
individuals from Dhafir’s office to validate their
signatures on the forms, thus proving that they had
indeed signed the forms, but nothing else.[41] The
defense presented one witness for fifteen minutes, Dr.
Edward Cox, head of the carrier organization that
processes claims for Medicare.[42] Reading from the
New York State Handbook Cox confirmed the defense’s
contention that in order to bill Medicare under the
“incident to” rule, a non-physician was required to
have a license or training.[43]  Thus, according to
the handbook, Dhafir’s billing of Medicare was proper.

The Post Standard reported this testimony correctly
the day after it was given, but on the following day
the paper had a front-page correction with a picture
of the witness who was apparently contradicting his
testimony of the day before.[44] And despite the
testimony of this witness, the judge in his “charge to
the jury” told them that under New York law a
laboratory technician required a license; in other
words, training alone was not sufficient.[45]

On the day of the sentencing of Mrs. Dhafir, she was
ordered to pay back $62,000 to Medicare.  Mrs. Dhafir
worked in the billing department of her husband’s
practice with several other people.  Asked on the same
day how much of that money had actually been spent on
chemotherapy medicine that was administered to
patients, Michael Olmstead, the head prosecutor, was
unable to say. When Dhafir was asked the same
question, he said that 90% of this money had been
spent on medicine.[46]  This leaves 10% of the money
for the doctor’s time, the nurse’s time, and blood
work.  Dhafir also said that in 2002 Medicare
reimbursed him less than he had spent on medicine
alone.  A look at the records would confirm or refute
this, but Dr. Dhafir has been continually denied
access to his own records that were taken from his
house and office on the day of the arrest.

Jennifer Van Bergen, a journalist with a law degree
and author of The Twilight of Democracy[47] has
written a two-part article on Dhafir’s case entitled
“New American Law: The Case of Dr. Dhafir” and “New
American Law: Legal Strategies and Precedents in the
Dhafir Case.”[48]  In this article and other writings
Van Bergen warns about the danger of civil liberties
being undermined when the government uses parallel
legal tracks not intended to be mixed.[49]  She notes
that, as happened in Dhafir’s case, conspiracy laws
and money laundering laws used “creatively” with the
PATRIOT Act and IEEPA can be used to construct a vast
distorted picture.  Dhafir’s case sets a legal
precedent and means that others who provide
humanitarian and medical assistance to those in need
could, like Dhafir, end up being put away for the rest
of their lives.

THE GOVERNMENT STRATEGY REVEALED

In November 2005, just weeks after Dhafir was
sentenced to twenty-two years in prison for
white-collar crimes, the government presented a
lecture to a group of third-year law students at
Syracuse University Law School in which Dhafir and the
HTN case were highlighted.  Jeff Breinholt, author of
the article on terrorist financing mentioned above,
and Greg West, one of the Dhafir prosecutors,
presented the lecture, which was entitled, “A Law
Enforcement Approach to Terrorist Financing.”[50]  The
other two Dhafir prosecutors, Michael Olmstead and
Steve Green were also present, along with law school
faculty and representatives from the Institute for
National Security and Counterterrorism (INSCT), a
sponsor of the lecture.[51] 

The slant of this lecture, along with Breinholt’s 2003
“Terrorist Financing” article, and the fact that
Dhafir and the other HTN defendants are listed on the
FBI’s list of “terrorism convictions since September
11, 2001,” give credence to the idea that the
government’s creative use of parallel legal tracks was
a strategy from the outset.[52] 

Breinholt told the students at this lecture that
Dhafir’s case had been under-prosecuted. In the
context of the lecture title—“A Law Enforcement
Approach to Terrorist Financing”—the implication
was clear.  He told students about the statutes being
used as powerful tools for prosecution of terrorist
financing and explained that these tools were not
widely known even among prosecutors.  And 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.[53] 

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.[54]
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. In his article,
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 when in
particular circumstances.”[55]

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. Breinholt said that to convict under IEEPA all
that was necessary was to build a chain of inferences
from available circumstantial evidence.[56]

In Breinholt’s article, Dhafir and other HTN
defendants are listed under the heading “Examples of
‘clean money’ cases.”[57] Listed under this same
heading are 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);[58] and Sami
Al-Arian, a Palestinian professor from Florida.[59]
Later in the article, under the heading, “crimes of
terrorist financing,” Breinholt lists the statutes
being used in prosecution of these cases.[60]
Statutes under this heading that were used in
Dhafir’s case are 50 U.S.C. ss 1701,1702 (IEEPA) and
U.S.C. ss 1956(a)(2)(A), “operating an unlicensed
money transmitting business.”[61] One of the Dhafir
prosecutors, Mr. West, explained to the class that one
of the biggest frustrations of his career was having
access to intelligence and not being able to share it.

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, which 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. [62] 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.[63]  None of this was
mentioned at the lecture.

By hosting this lecture on Dhafir and HTN, Syracuse
University Law School gave credence to a charge never
brought against Dhafir, and in doing so they became an
accomplice in the government’s subterfuge. After the
lecture a request was made that the American Civil
Liberties Union (ACLU) court watchers who attended the
trial be provided with “equal time” to speak to the
students.[64]  Syracuse Law School Dean Hannah
Arterian denied this request.

In testimony given on Capitol Hill by the U.S.
Treasury Department, prosecution of Muslim charity
cases is being used as a model of success in efforts
to disrupt terrorism.[65] However, the testimony often
contradicts the actual rulings in the cases and the
testimony fails to acknowledge that there are no
terrorist convictions among any of the cases. At a
2004 Pace University Law School symposium, Dr. Laila
al-Marayati addressed the way this Treasury Department
targeting of Muslim charities threatens civil
liberties, constitutional rights, and the rule of law
for not just Muslims, but for every American,
regardless of creed:

“The ever present threat of a ‘terrorist designation’
by the Treasury Department functions based on the
principle of ‘guilty until proven innocent.’ The use
of secret evidence, hearsay, erroneous translations,
guilt by association and press reports in recent court
cases further erodes the ability of charities to rely
on basic assumptions regarding their constitutional
rights, especially when the courts ultimately favor
the government when ‘national security’ is allegedly
at stake. Over-zealous surveillance tactics of the
intelligence community such as wiretapping,
infiltrating organizations by bribing employees to
work as spies (thereby disrupting normal and lawful
humanitarian activities), and engaging in other forms
of harassment - when added to the above bleak picture
- will not only chill, but will freeze completely
American Muslim charitable giving overseas.  Perhaps
this is the goal of the US government.  However, no
one should be fooled into thinking that America or the
American people will be much safer as a result.”[66]

LESSONS FROM HISTORY

Writing during the McCarthy era, Judge Irving R.
Kaufman warned,

“We are not inclined to dismiss lightly claims of
constitutional stature because they are asserted by
one who may appear unworthy of sympathy.  Once we
embark on shortcuts by creating a category of
‘obviously guilty’ whose rights are denied, we run the
risk that the circle of the unprotected will
grow.”[67]

Writing after the Holocaust Pastor Martin Niemoeller
said,

“First they came for the communists, and I did not
speak out–because I was not a communist; then they
came for the socialists, and I did not speak
out–because I was not a socialist; then they came for
the trade unionists, and I did not speak out–because I
was not a trade unionist; then they came for the Jews,
and I did not speak out–because I was not a Jew; then
they came for me—and there was no one left to speak
out for me.”[68]

We appear once again to have entered a dark time in
which the civil liberties of a select group of people
are being denied.  The message being sent to Muslim
communities across the country is that pillars of
their community can be knocked down without any call
for equal justice from the non-Muslim community.  It
is incumbent upon each of us to defend civil liberties
for all, not least because “injustice anywhere is a
threat to justice everywhere.”[69]

————————-

Katherine Hughes began attending the seventeen-week
trial as a court watcher for the ACLU but quickly
found that she could not in good conscience be the
uninvolved observer their organization required.  For
the last two years she has worked to achieve justice
for Dr. Dhafir.  More information can be found at her
website: http://www.dhafirtrial.net

Donations to the Dhafir appeal fund can be made to
Dhafir Appeal Fund, c/o Peter Goldberger, Esq.,
Attorney at Law, 50 Rittenhouse Place, Ardmore, PA
19003.  Write “Dr. Dhafir Appeal Fund” in the memo
line and please note that donations are not tax
deductible.