Court expunges one Hamas reference to Muslim group, leaves another

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WASHINGTON (JTA) -- A U.S. appeals court ordered that a lower court's reference to a group's association with Hamas be partially expunged.
The New Orleans-based U.S. Court of Appeals for the Fifth Circuit released its decision on an appeal from the North American Islamic Trust on Wednesday. It was first reported that day by Politico's Josh Gerstein.
Last year, Jorge Solis, a U.S. District Court judge in Dallas, ruled that NAIT and 245 other entities and individuals had their Fifth Amendment right to avoid self-incrimination violated when prosecutors publicly listed them as unindicted co-conspirators in the federal case against the Holy Land Foundation, which had been charged with providing material assistance to Hamas.
NAIT, which owns a number of mosques, wanted Solis' decision unsealed and wanted its references to the group's associations with Hamas, a terrorist group, expunged. The appeals court ordered the decision unsealed and ordered expunged one reference to a NAIT-Hamas association, but left in another.
The government's error was to make public the list, the three judge appeals panel wrote in its decision. It noted that Solis said the government had  less harmful options at its disposal.
Solis "held that the Government did not argue or establish any legitimate government interest that warranted publicly identifying NAIT and 245 other individuals and entities as unindicted coconspirators or joint venturers, and that the Government had less injurious means than those employed, such as anonymously designating the unindicted coconspirators as 'other persons,' asking the court to file the document under seal, or disclosing the information to the defendants pursuant to a protective order," the appeals court wrote.
Among the other groups on the list were Council on American Islamic Relations and the Islamic Society of North America. These groups did not join NAIT in its appeal, however.
According to the appeals ruling, the government acknowledged that not sealing the list was an oversight, and further said that by titling the list with the double designation "co-conspirator/joint venturer" it was not necessarily ascribing involvement in criminal activity to the listed groups.
"Joint venturers" suggests a weaker association than "unindicted co-conspirator," the appeals court noted. An entity qualifies as a "joint venturer" "merely by engaging in a joint plan -- distinct from the criminal conspiracy charged -- that was non-criminal in nature," the appeals court wrote. "Therefore, even if NAIT could have been accurately characterized as a joint venturer, that characterization does not carry an inherently criminal connotation."
Solis' original ruling that the groups were unduly harmed by publication of the "co-conspirator" designation, along with the prosecution's emphasis that some groups on the list were merely "joint venturers" complicates arguments by some conservative and pro-Israel groups that CAIR and ISNA have been tainted by the coconspirator label.
After a 2007 trial ended in a mistrial, a jury in 2008 convicted the Holy Land Foundation and five of its officers of violating U.S. laws banning funding for designated terrorist groups.

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