When the Bush administration shut down the nation's largest Muslim charity five years ago, officials of the Dallas-based foundation denied allegations it was linked to terrorists and insisted that a number of accusations were fabricated by the government.
Now, attorneys for the Holy Land Foundation for Relief and Development say the government's own documents provide evidence of that claim.
In recent court filings, defense lawyers disclosed striking discrepancies between an official summary and the verbatim transcripts of an FBI-wiretapped conversation in 1996 involving Holy Land officials.
The summary attributes inflammatory, anti-Semitic comments to Holy Land officials that are not found in a 13-page transcript of the recorded conversation. It recently was turned over to the defense by the government in an exchange of evidence.
Citing the unexplained discrepancies, defense lawyers have asked U.S. District Judge A. Joe Fish in Dallas to declassify thousands of hours of FBI surveillance recordings, so that full transcripts would replace government summaries as evidence.
The demand could force government prosecutors to either declassify evidence it has fought to keep secret or risk losing a critical portion of evidence in its case.
In December, the judge denied a defense request to declassify the documents so they could be examined by defendants in the case. Seven former foundation officials, six of them U.S. citizens, have been charged with funneling money to overseas charities controlled by Hamas, which the U.S. has designated as a foreign terrorist organization. The defendants have denied the charges.
Though defense attorneys already have government clearances that allow them to review the material, under the federal Classified Information Procedures Act they have been prohibited from sharing it with their clients. And unless the act's rules are declared unconstitutional in the case, defense attorneys argue, the defendants will have no way of proving that the statements attributed to them were misconstrued or never made.
The recently declassified summary of surveillance on April 15, 1996, asserts that during a conversation wiretapped by the FBI, Holy Land's former executive director Shukri Abu Baker told two associates there was no need to worry about the foundation being unfairly targeted because U.S. courts were not under the control of the American Israel Public Affairs Committee or its sponsor, "the government of the demons of Israel."
The summary portrays Baker as raging against "the Jews of the world" and as claiming that Jews have no allegiance to anything but "their pockets and to preserving the illegal Zionist state of Israel."
Additional anti-Semitic comments the FBI summary attributed to Baker or Ghassan Elashi, Holy Land's former board chairman, included:
* "Their [Jews'] only purpose here in the U.S. is to purchase as many politicians as possible and to warp the way the American Christians feel and think not just about the Christian religion but mainly about the Palestinian people ... and to rob as much money as possible from American taxpayers for the illegitimate excuse of protecting and preserving the chosen people of God."
* "Even Jesus Christ had called the Jews and their high priests
* "I am confident that in the end justice, and not the Jews, will prevail. I believe that there is still justice in America."
None of those quotes was contained in a 13-page transcript of the conversation, defense lawyers said in their motion to expand access to classified evidence.
"Throughout the run-up to trial, the government has insisted that the defendants can learn what is contained in the [surveillance] intercepts by reading the so-called 'summaries' of those intercepts," defense attorneys said in their papers.
But the recently disclosed transcript, attorneys said, shows that "not only are the summaries so inaccurate and misleading as to be useless," but that the "author of the attached summary has cynically and maliciously attributed to the defendants racist invective and inculpatory remarks the defendants never uttered."
"It is appalling that such summaries even exist, much less that the government represented that this is all our clients need to know in order to defend themselves."
Defense lawyers declined to comment about their motion. A federal prosecutor said the government would respond with its own filings to the court.
How the summary and transcript could be so different was unclear, though experts in the Foreign Intelligence Surveillance Act arena theorized that its top-secret nature may have led some analysts to believe that the work product would never be publicly disclosed, much less entered into evidence in a trial.
Because the court records are heavily redacted, it could not be determined who provided the summaries of the FBI wiretaps.
Other alleged discrepancies also have dogged the case. Holy Land lawyers challenged the accuracy of an FBI memo, for example, that quoted a foundation office manager as telling Israeli authorities that charitable funds were "channeled to Hamas."
But defense lawyers told the court the translation from Arabic to Hebrew to English distorted the official's original statement, and that he should have been quoted as saying, "We have no connection to Hamas."
The Holy Land Foundation was closed weeks after the Sept. 11 terrorist attacks on New York and the Pentagon. The action followed years of efforts by Israel and many pro-Israeli groups in the U.S. to close the foundation on the grounds that it was a fundraising front for Hamas.
The former Holy Land officials facing trial are charged with conspiracy to provide material support to terrorists by sending money, goods and services to Palestinian charities controlled by Hamas, a U.S.-designated terrorist group since 1995.