Two major Muslim organizations, the North American Islamic Trust and the Islamic Society of North America, are asking a federal judge to rebuke prosecutors for publicly naming the groups as unindicted co-conspirators in a federal criminal case against officers of an alleged Hamas front, the Holy Land Foundation of Richardson, Texas.
In a motion filed yesterday in federal court in Dallas, lawyers from the American Civil Liberties Union contend that prosecutors violated the constitutional rights of NAIT and ISNA by branding them as conspirators even though they were not indicted in the case and have not been charged with wrongdoing.
"It is an egregious departure from regular practice," an ACLU attorney, Hina Shamsi, said in an interview. "The smear happened and the notoriety of our clients as a result has spread and there's no way they are able to defend themselves."
In court papers, leaders of NAIT and ISNA said the co-conspirator designation has hampered their relations with law enforcement entities, such as the FBI, and stymied interfaith dialogue with Jewish organizations. "There's a blacklisting of mainstream groups at a time when it's so important to have that kind of cooperation," Ms. Shamsi said.
A former attorney for the groups, Daniel Reinberg, alleged in an affidavit that the lead prosecutor on the case, James Jacks, agreed in July 2007 to clarify publicly that the government was not alleging that NAIT or ISNA conspired to violate the law. In an e-mail the groups filed with the court yesterday, Mr. Jacks seemed to apologize both for the delay in resolving the situation and for any harm caused to the groups.
"I am sorry for the problems for your clients. I hope to get something to you or file something with the court as soon as I get some free time," the prosecutor wrote to Mr. Reinberg.
Mr. Reinberg said Mr. Jacks essentially reneged, saying he was concerned about the impact removing the groups from the list would have on the case.
Justice Department guidelines instruct prosecutors to be "sensitive to the privacy and reputation interests of uncharged third-parties" and to file lists of co-conspirators under seal where possible. A spokeswoman for prosecutors declined to comment, citing a gag order in the case.
A former terrorism prosecutor, Andrew McCarthy, called the dispute "a tempest in a teapot," because evidence produced at the Holy Land trial last year supported the placement of the groups on the list. Some exhibits showed $20,000 in payments from NAIT to a man who later became a top Hamas official, Mousa Abu Marzook, and his wife. "You don't have to prove beyond a reasonable doubt someone's a co-conspirator," Mr. McCarthy said.
In October, jurors in the trial deadlocked on most of the charges and issued some acquittals. A retrial is set for September.
During the trial, another Muslim group named as a co-conspirator, the Council on American-Islamic Relations, asked the judge to strike the list. The motion, which prosecutors opposed, is pending.