Jewish World Review August 27, 2002 / 19 Elul, 5762

A promise the U.S. makes, but does not keep

By Nathan Lewin

http://www.jewishworldreview.com | After the murder of five Americans last month in Jerusalem -- victims of a bomb placed by the terrorist organization Hamas in a Hebrew University cafeteria -- the Justice Department dispatched a four-member FBI team to investigate. The U.S. ambassador in Israel raised the possibility that the killers could be extradited to the United States for trial.

Then last week, Israeli police arrested and publicly identified five members of a Hamas cell in East Jerusalem, including a painter at the university who described to police how he had planted and detonated the bomb. But the families of the victims should be wary of thinking that these encouraging developments -- including the painter's apparent confession -- will lead inexorably to the prosecution of the perpetrators in an American court. The record shows that past U.S. investigations of murdered American citizens in Israel have been a sham.

A 1986 anti-terrorism law makes the killing of any "national of the United States, while such national is outside the United States" a capital crime, subject to the death penalty. The U.S. government has employed this law in prosecuting cases from other countries, but the Justice Department has not returned a single indictment involving any of the 36 Americans killed in Israel since the 1993 Oslo agreement. In the past two years alone, as the intifada has raged, 19 U.S. citizens were killed prior to the Hebrew University bombing.

I am intimately familiar with one case. I am the lawyer for the family of David Boim, a Brooklyn-born American citizen who was 17 years old when he was killed by a terrorist bullet. On May 13, 1996, two Palestinians in a car opened fire on a group of civilians standing at a bus stop in Beit El, a Jewish community approximately 10 miles north of Jerusalem. Boim, a student at a nearby yeshiva whose family had moved to Israel when he was 7, was shot in the head. Hamas took credit for the drive-by shooting, and two men were identified as the perpetrators: Khalil Tawfiq Al-Sharif and Amjad Hinawi. Their car crashed as they drove from the scene, and they fled on foot to a nearby Palestinian village.

Neither Al-Sharif nor Hinawi was ever charged under the American law that calls for such prosecution. Little more than one year after Boim's death, Al-Sharif set off a bomb on Ben Yehuda Street, a pedestrian mall in downtown Jerusalem, killing himself and seven civilians (including an American) and wounding 192.

The Palestinian Authority finally brought Hinawi to trial. On Feb. 12, 1998, in the presence of a U.S. State Department observer, Hinawi confessed to driving the car used in the attack. The State Department's report says that the presiding judge "asked Hinawi whether he was coerced to give the confession, and he answered in the negative." Hinawi's defense, according to a witness he called, was that he had been "deceived" by Al-Sharif. Hinawi claimed that he did not know that Al-Sharif, who was in the back seat, would be shooting.

Since the undisputed testimony was that the car made two trips past the bus stop -- shooting first at a bus being boarded and, on a second round, at others who had been waiting to board the bus -- Hinawi's defense was preposterous.

Two days later, on Feb. 14, Hinawi was found guilty of "participation in murder" and sentenced to 10 years at hard labor. Within a few months, according to the best information that we have been able to obtain, reliable witnesses saw him walking freely on the West Bank in Palestinian-controlled territory.

American prosecutors have invoked the Antiterrorism Act of 1986, which is Section 2332 of the federal criminal code, against participants in the August 1998 bombings of U.S. embassies in East Africa. When two American citizens were killed abroad in a 1995 drug cartel operation, the murderer was convicted in the United States under this provision. And it has been successfully used in the murder of American citizens in the Philippines.

But it has never been enforced by the Justice Department against the murderers of Jewish American citizens who were living in Israel or visiting the country when they were killed. At best, the selective use of this law is mystifying and cruel to the families of the victims. At worst, it is an abdication of the prosecutors' sworn duty to enforce the law.

Boim's parents, who were born in the United States (as was their son), became Israeli citizens in 1985. But they have retained their American citizenship and make frequent trips to the United States for family visits. David also had dual citizenship. Those facts don't change anything: The Antiterrorism Act does not exclude the murder of U.S. nationals who are also citizens of another country, nor does it draw a distinction between Americans killed while living abroad and Americans killed while traveling. Moreover, Justice officials have never claimed -- in many conversations with me -- that David Boim's residency in Israel was a factor in their reluctance to prosecute.

Boim's parents have been pressing their case since 1997, when they wrote to then-attorney general Janet Reno asking that Hinawi be charged and extradited to the United States. They received letters in November 1997, February 1998 and March 1998 from top Justice officials, including the acting deputy attorney general and the chief of the terrorism unit, saying that the department did not have "sufficient admissible evidence" to charge Hinawi.

Believing that this refusal to prosecute was unconscionable, I undertook pro bono representation of the Boims. On March 25, 1999, I appeared before the foreign operations subcommittee of the Senate Committee on Appropriations and asked why there was no uproar in the United States over the failure to seek justice for the coldblooded murder of a young American. Martin Indyk, then U.S. ambassador to Israel, testified that Hinawi had been returned to jail by the Palestinian authorities -- a response that was irrelevant (and probably inaccurate). Even if Hinawi had been given a prison term by the Palestinians, that did not foreclose his prosecution in a U.S. court.

Mark Richard, a deputy assistant attorney general who testified at the same hearing, invited me to his office on April 19, 1999. He told me that the department's only reason for not prosecuting Hinawi was its concern that Hinawi's confession may have been coerced and might not be admissible in an American court. I replied that, as a former prosecutor, I knew that the federal government had indicted suspects on the basis of far less reliable confessions than Hinawi's.

Richard also said that the Israeli government had not cooperated with the FBI investigators. I checked with the Israeli Ministry of Justice: Officials there insisted that they had cooperated fully. They even gave me copies of statements from Hinawi's brother that corroborated Hinawi's role in the killing, and one from a neighbor of Hinawi who said that Hinawi had told him that he was "a member of the Iz Al-Din Al-Qassam troops of the Hamas and that they did the attack in the name of Hamas." The Israelis said they had given these statements to the FBI team, and the FBI has acknowledged to me that it received them.

Richard sent me a letter in September 1999, claiming that "the FBI and the Department are actively investigating the Boim incident." When there was still no indictment by March 2000, I wrote to Sen. Arlen Specter (R-Pa.), chairman of the Senate subcommittee, complaining that there "was no tangible progress" in the investigation. That prompted a letter from then-assistant attorney general James K. Robinson on May 23, 2000, expressing "disappointment" that I had written to Specter rather than contacting him directly. Robinson's letter stated that FBI agents had traveled to Israel on three occasions to investigate Boim's murder and had even gone to Gaza "with the U.S. Consulate General to meet with senior Palestinian officials." Robinson said that there had been "reports" that Hinawi had confessed (failing to note that the "report" was a State Department account of his trial), and reiterated that "our ability to use any such statement in an American proceeding depends on whether there is sufficient foundation for admissibility under the Federal Rules of Evidence."

Nonetheless, Robinson invited me to yet another meeting. On July 7, 2000, I met with him, two deputy assistant attorneys general and an attorney in the Criminal Division's terrorism section (who, I was informed, had made "several trips" to Israel on the case). I was astounded to hear these hard-nosed prosecutors express concern that if Hinawi were to be indicted, his defense lawyer would move to suppress his confession as coerced. Jeff Breinholt, the terrorism expert who had traveled to Israel, said, "What if Hinawi said he was beaten or tortured for four or five days before he confessed? How would the U.S. prove that it didn't happen?" I reminded him that Hinawi had confessed in a Palestinian, not an Israeli, court, and that Hinawi had acknowledged to a Palestinian judge that the confession was voluntary. I also argued that indicting Hinawi and seeking his extradition might be an effective deterrent against potential future killers of Americans in Israel. Let Hinawi present to an American court any possible claim that his confession was coerced, I said.

The FBI and the Justice Department remained unmoved. Since the Boims were not getting justice from U.S. law enforcement, I filed a civil action on their behalf against sponsors of Hamas terrorism in the United States. The federal court of appeals in Chicago recently upheld our right to sue American charities that finance Hamas.

My last meeting at the Justice Department took place in August 2001. By that time, Koby Mandell, a 13-year-old American living in Israel, had been brutally killed when he and a classmate were hiking in the Judean desert. Some Jewish groups wanted the U.S. government to offer rewards for information about the murders of Americans in Israel and the West Bank, but the State Department was resisting. Some of the officials I had met earlier were at the meeting, and when I raised the Boim case, they again gave me the same weak explanations for failing to indict Hinawi.

Invidious political calculations are surely behind this flagrant refusal to provide evenhanded enforcement of a law that Congress passed more than 15 years ago to protect Americans in foreign countries. The refusal to enforce the law -- with excuses that no prosecutor or defense lawyer would accept for a millisecond -- has encouraged the terrorists to strike at places such as Hebrew University, where, they knew, young Americans would be found.

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Nathan Lewin, a criminal defense lawyer in Washington, worked at the Justice Department from 1962 to 1969. He teaches at Columbia Law School as an adjunct professor.Comment by clicking here.