U.S. v. Marzook

• Decision Date: 08 June 2006
• Docket Number: No. 03 CR 978.,03 CR 978.
• Citation: 435 F.Supp.2d 708
• Parties: UNITED STATES of America, Plaintiff, v. Mousa Mohammed Abu MARZOOK, Muhammad Hamid Khalil Salah, and Abdelhaleem Hasan Abdelraziq Ashqar, Defendants.
• Court: U.S. District Court — Northern District of Illinois

435 F.Supp.2d 708

UNITED STATES of America, Plaintiff, v. Mousa Mohammed Abu MARZOOK, Muhammad Hamid Khalil Salah, and Abdelhaleem Hasan Abdelraziq Ashqar, Defendants.

No. 03 CR 978.

United States District Court, N.D. Illinois, Eastern Division.

June 8, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph M. Ferguson, United States Attorney's Office, Chicago, IL, for Plaintiff.

Thomas Anthony Durkin, Durkin & Roberts, Janis D. Roberts, Attorney at Law, Chicago, IL, Michael Kennedy, Michael Kennedy, P.C., New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

ST. EVE, District Judge.

On August 19, 2004, a Grand Jury returned a multiple-count, second superseding indictment (the "Indictment") against Defendant Muhammad Hamid Khalil Salah ("Defendant" or "Salah"), also known as Abu Ahmad, and his co-defendants, Mousa Mohammed Abu Marzook and Abdelhaleem Hasan Abdelraziq Ashqar. Defendant Salah has filed a motion to suppress statements he allegedly made to Israeli authorities in 1993 on the basis that he did not voluntarily make any of the statements which the government seeks to admit at trial. Defendant Salah argues that Israeli authorities coerced and tortured him into making any such statements. The Court conducted an extensive hearing on the issue. Because the Court finds that the government has met its burden of proving by a preponderance of the evidence that Defendant voluntarily made the majority of the statements at issue, the Court denies Defendant's motion in large part. The Court further finds that the government `has not met its burden of proving Defendant's purported statements to Officer Suleiman on January 27, 1993 and February 21, 1993 were voluntary, and therefore, the Court grants Defendant's motion as to these statements. The Court's reasoning is set forth in detail below.

BACKGROUND

I. Defendant's Arrest in Israel

On approximately January 25, 1993, Defendant Salah was arrested by Israeli authorities at a checkpoint between the Gaza Strip and Israel.¹ From Salah's arrest through March 1993, Salah allegedly made various incriminating statements — both orally and in writing — to Israeli authorities while he remained in their custody. Although he made statements through May 18, 1993, his questioning was essentially completed two months earlier on March 18, 1993. Salah allegedly made such statements to agents of the Israel Security Agency ("ISA") — also known as the General Security Service ("GSS") and "Shin Bet" — the Israeli National Police ("INP"), and others working for these Israeli authorities. The government seeks to admit these statements during trial.

II. The Statements at Issue

The statements at issue are as follows:

1. Oral statements that Salah allegedly made to agents of the ISA after his arrest and while in custody which are memorialized in the ISA's activity logs;

2. Salah's alleged statements on January 27, 1993, and February 21, 1993 to INP Officer Meron Suleiman;

3. Salah's alleged January 30, 1993 statement to INP Officer Hezi Eliyahu;

4. A handwritten signed agreement allegedly entered into between Salah and his GSS interrogators;

5. A handwritten map allegedly made by Salah;

6. A handwritten statement allegedly authored by Salah between approximately March 1, 1993 and March 4, 1993; and

7. Salah's oral statements allegedly made and tape recorded at a March 18, 1993 session with an ISA interrogator.

Defendant allegedly made the majority of these statements to two ISA interrogators — Nadav and Haim. Both Nadav and Haim testified in court at the suppression hearing. In addition, Officer Eliyahu testified, but Officer Suleiman did not. Salah's interrogation primarily took place at the Ramallah interrogation facility in the West Bank.

III. The Indictment

The Indictment charges Defendant Salah with conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d) (Count I); knowingly providing and attempting to provide material support and resources to a Foreign Terrorist Organization, namely, llamas, in violation of 18 U.S.C. § 2339B (Count II); and obstructing justice, in violation of 18 U.S.C. § 1503 (Count III). (R. 59-1.) Each charge is premised upon and related to Salah's alleged support of the llamas terrorist organization, both prior to and after the United States designated Hamas as a Specially Designated Terrorist Organization and a Foreign Terrorist Organization. The Indictment alleges that Hamas has called for violent terrorist attacks, and engaged in numerous terrorist attacks aimed at Israeli military personnel, police officers, and civilians. It alleges that Defendant Salah has provided material support to llamas, including recruiting and training new Hamas members in the United States and disbursing money from the United States to support llamas activities and members. It further alleges that Salah was a member of a United States-based Hamas security committee that identified Palestinian men in the United States to assess "their capacity to participate in terrorist activities against Israel."

In furtherance of the conspiracy, the Indictment alleges that Defendant Salah traveled to Israel in January 1993 to further the objectives of Hamas. During this trip, Israeli authorities arrested him as described above.

The government seeks to admit the statements set forth above as evidence at the trial of this matter. The government bears the burden of proving the voluntariness of these statements by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 627, 30 L.Ed.2d 618 (1972). The trial is scheduled to commence in October, 2006.

IV. The Hearing²

Commencing with opening statements on March 3, 2006, the Court heard extensive testimony over thirteen days.³ During the hearing, two interrogators from the ISA testified, including Nadav, the interrogator who primarily questioned Defendant Salah during the time period in question. The Court heard over six days of testimony from these two witnesses, including approximately four days of cross examination. Defendant Salah called multiple witnesses at the hearing, but did not testify himself. Both sides admitted extensive documentation for the Court to consider. To the extent it is relevant, the Court will address it below.⁴

Defendant Salah submitted an affidavit in connection with his motion to suppress in which he averred that he only made the statements at issue after months of "an ongoing nightmare of unmitigated and unbearable terror, threats, physical and psychological abuse, and sensory and sleep deprivation carried out by numerous Israeli interrogators, soldiers, police officers, jail guards and others working with the Israeli authorities." (R. 310-2 at ¶ 5.) Salah's affidavit provided details of the conditions he claims he endured during his interrogations by Israeli authorities. (Id. at ¶¶ 7-29.) Because his affidavit made a preliminary showing that a significant, disputed factual issue exists, the Court held an evidentiary hearing. See United States v. Wilson, 169 F.3d 418, 426 (7th Cir.1999).

Prior to the hearing, the Court granted the government's motion to conduct certain portions of the suppression hearing in a closed courtroom because the anticipated testimony was classified under the Classified Information Procedures Act ("CIPA"), 18. U.S.C. app. 3. United States v. Marzook, 412 F.Supp.2d 913, 919 (N.D.Ill. 2006). Specifically, the Court ordered the testimony closed to the public for two ISA witnesses — Nadav and Haim. Id. The government agreed to waive the majority of the classification designation as to Defendant Salah and his attorneys thus they were present for the majority of the hearing. Id. at 917. Pursuant to the Court's order, significant portions of the transcripts from the suppression hearing containing either non-classified information or information to which the government agreed to waive its classification designation were subsequently filed in the public docket. Id. at 924. (R. 465-1, 485-1, 502-1, 509-1, 510-1, 512-1.)

Because the government refused to waive the classification designation regarding certain limited areas of the ISA testimony, the Court conducted a limited portion of the hearing ex parte, in camera. The Court also reviewed various documents ex parte, in camera pursuant to Section 4 of CIPA, to determine whether disclosure is appropriate and, if so, in what form. The remainder of the proceeding was open to the public.

V. Testimony Elicited During the Hearing

The government called the following witnesses during the suppression hearing: ISA Interrogator Haim, ISA Interrogator Nadav, Israel National Police Officer Hezi Eliyahu, and Federal Bureau of Investigation ("FBI") Special Agent Priestap. The government also called FBI Special Agent David Bray in its rebuttal case. Defendant Salah called the following witnesses at the hearing: Jonathan Kuttab, Yuval Ginbar, Avigdor Feldman, Eyad El Sarraj, Ahmed Al-Batsh, and Ribhi Qatamesh.⁵ Defendant Salah submitted an affidavit, but did not testify at the hearing. A summary of the pertinent portions of each witness's testimony is set forth below. Because a portion of the testimony was classified and thus covered by CIPA, limited portions of this opinion are filed under seal.

In addition, both sides introduced exhibits during the hearing. To the extent such exhibits are relevant and material to the Court's ruling, they are discussed below.

A. ISA Agent Haim

ISA Interrogator Haim testified for 3 full days of testimony — over 20 hours of testimony in total, including 11 hours⁶ of extensive cross-examination by Defendant's counsel. Haim testified regarding the ISA and its organizational objectives. Haim testified that the ISA — whose motto is "defend but not be seen" (Transcript of Suppression Hearing ("Tr.") at 836) — has an overall agency mission aimed at preventing the acts of terrorists and terrorist...