UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

IN RE GRAND JURY SUBPOENA
OF ABDELHALEEM ASHQAR

NOW COMES, Dr. Abdelhaleem Ashqar, by and through his attorneys, Stanley L. Cohen, Esq., and Zuhair Nubani, Esq., pursuant to 28 U.S.C. §1826, et. seq. who respectfully move this Honorable Court, for the reasons set forth in the annexed Memorandum of Law and all of the attached affidavits, exhibits and affirmations to (1) quash the herein subpoena issued by the Grand Jury of the Northern District of Illinois, (2) deny the government’s application that Dr. Ashqar be incarcerated for Contempt arising from his refusal to testify before the Grand Jury, (3) compel the government to provide the discovery sought herein and (4) for a hearing in support of the relief requested.
STANLEY L. COHEN, an attorney duly admitted to practice as such before this Court pro hoc vice affirms under pain and penalty of perjury, and pursuant to the Federal rules of Civil Procedure the following to be true, except that stated upon information and belief, which he believes to be true:

I. INTRODUCTION.
1. For the second time in five years, Dr. Abdelhaleem Ashqar finds himself before a federal grand jury, subpoenaed for his testimony in yet another government investigation into the practices of Palestinian political activists and their supporters both here and abroad.
2. In 1998, Dr. Ashqar spent 180 days in detention following an order of civil contempt that was issued from the district court for the Southern District of New York (Cote, J). [See annexed hereto as Exhibit A, Opinion and Order, In Re Grand Jury Subpoena of Abdelhaleem Ashqar, No. M11-189 (Misc. Part I, DLC)] He passed all his time in custody on a hunger strike, declaring by his actions that he would sooner starve to death in an American jail cell than give testimony in conflict with his religious and political beliefs.
3. As his health and body failed, he was medically force-fed by means of a catheter; the first three months of his hunger strike had brought Dr. Ashqar to the brink of collapse, requiring that he be catheterized through the veins in his neck, the only place where technicians could find enough vitality in his circulatory system to insert the plastic tubing.
4. Yet despite an ordeal of the flesh that would likely coerce the average person to abandon their defiance, Dr. Ashqar continued almost three more months beyond such a point of morbid self-destruction, causing lasting damage to his body, before the court determined his religious and political resolve were genuine and unshakable, and ended his incarceration.
5. Now, faced with a new subpoena, this witness again declares his principled, political and religious resolve to refuse any testimony, which he believes would hurt the cause of Palestinians everywhere. [See annexed hereto as Exhibit B, July 12, 2003 affidavit of Dr. Abdelhaleem Ashqar.] It is Dr. Ashqar’s fervent belief that the persecution of Palestinian activists here in the United States is in part orchestrated by the government of Israel, and in part by pro-Zionist American elements, and that the goal of this persecution is to neutralize or eliminate systematically all opposition to the continued occupation by Israel of Palestinian lands. He can never, and will never, give testimony in any proceeding that is designed to hurt the cause of Palestinian liberation. In this respect, his refusal to testify is a political decision.
6. Yet, as a devout Muslim, he is further resolved against testifying because he believes this would violate his religious precepts; namely, the prohibition in the Qu’ran, its scriptures and commentaries, against giving any testimony to be used to hurt the causes of justice, freedom and Islamic righteousness. As Imam Mohammed Al-Hanooti testified at Dr. Ashqar’s May 26, 1998 hearing before Judge Cote, “it is mentioned in the Qu’ran, in verse . . . 283, paragraph no. 2, and it is elaborated by a prophetic tradition of narration, as well as it is mentioned in books of jurisprudence that a testimony should never be given if it hurts the person himself or it it hurts others in an unjust way. A testimony should be of everything moving in the channel of justice. But here there are things, according to what Ashqar believes that will be behind the limits of justice. So Islamically, he is not allowed to say anything if it hurts others.” [See annexed hereto as Exhibit C page 50, lines 22-25, and page 51, lines 1-6, of transcript of May 26, 1998 hearing before Judge Cote, Southern District of New York].
7. In his recent statement to this Court, Dr. Ashqar declared the following:

I respectfully refuse to answer any question put to me other than my name, address and occupation on several grounds: Most important , to do so would violate my long-held and unshakeable Religious, Political and Personal Beliefs; Second, any answer I might provide could and would be given to Israel and would be used by Israel against me in an unfair illegal and politically motivated prosecution for my beliefs and associations and Religion; Third Having been tortured before by Israel for my beliefs, associations, and Religion, any answer I might provide could and would be given to Israel which would once again torture me as a result of such answers; and Fourth I have been for years the subject of widespread electronic surveillance which is illegal and being used by the Grand Jury to prepare for and to question me. Approximately, five years ago, I was subpoenaed to appear before a Grand Jury in New York regarding what I believe to be is the same subject matter as this. At that time, I refused to testify and I was held in contempt and jailed for six months. I began a hunger strike as soon as I was jailed and maintained that strike until my release leaving me with permanent medical problems.
It is not my intention to obstruct justice or to interfere with any matters under consideration by this Grand Jury. As I said, I can not answer any question today, just as I refused to do so five years ago for the reasons I have set forth. I cannot and will not permit my answers to be used against my friends, relatives and colleagues who have committed no crimes or wrongs but are being singled out for their involvement in the struggle for our legitimate political rights as recognized under international law. I would rather die than betray my beliefs and commitment to freedom, justice and democracy for Palestine and Palestinians who have been homeless for more than 50 years.
I will never give evidence or cooperate in any way with this grand jury, or any other, no matter what the consequences to me.

II. ACADEMIC CAREER OF DR. ASHQAR

8. Dr. Ashqar is a political activist for the cause of Palestinian freedom. Dr. Ashqar is also an academic, and his refusal to testify is as much about academic freedom as about political and religious freedom—the right to study, advocate and teach ideas free of political persecution. His orientation to this struggle is Islamic. He believes that to serve his people is his only call in life, and he has dedicated himself to teaching, writing and academic research; providing social services and educational opportunities for young Palestinians; and publicizing the plight of his people here in the United States and around the world.
9. Dr. Ashqar was born in 1958 in the West Bank, then under Jordanian rule, and raised in the area near Tulkarem. He attended BirZeit University near Ramallah in 1979, where he studied English and Arabic literature, and business administration. During student demonstrations in 1981 protesting the Israeli military closure of Palestinian universities, he was arrested by the Israeli security service, and with other student organizers, imprisoned for sixteen days without charges. During this time, he was beaten, denied medical care for injuries sustained in the arrest, and interrogated relentlessly about his activities as a student activist against the Israeli occupation. [See Exhibit B.]
10. After his release, Dr. Ashqar moved briefly to Greece, where he completed a Master of Buisness Administration degree at La Verne University in in 1985. He returned to Palestine and moved to Gaza City in October of that year, where he took a lecturer position with the Islamic University of Gaza, teaching business administration in the School of Economics and Management, and working for the University in various administrative capacities. The University was founded by Palestinian academics, clerics and activists in 1978 after Egypt stopped accepting students from the Gaza Strip.
11. In October, 1986, he was appointed as Director of Public Relations for Islamic University in Gaza by then University President Mohammed Saker. His duties in this position included editing the university magazine and other publications, and acting as the official spokesperson for the school, publicizing both the University and the general cause of Palestinian freedom. Professor Saker, now on the faculty of the University of Jordan, states that in addition to chairing the University’s formal receptions and networking activities, and organizing all press conferences there, Dr. Ashqar “was also in charge of all university relationships with other universities, charitable organizations, and non-governmental organizations such as the Red Cross, Red Crescent, the Council of Higher Education,” local newspapers and the international press. [See annexed hereto as Exhibit D, October 25, 2002 affidavit, with attached c.v., of Professor Mohammed Saker.]
12. As an editor and spokesperson, Dr. Ashqar was continually harassed for his activities by the Israeli military starting in 1987. The magazine and other publications he shepherded were banned; his freedom of speech as a spokesman for the university was restricted; he was denied permission to travel to academic and human rights conferences in Europe, America and the Arab world, where such speech would have been lawful and protected. From the very start, Israel attempted to destroy the University. They would not allow it to construct buildings on its campus, and many courses were taught in open-air tents. Under military rule in Gaza, the Israeli Health and Education Ministry for the Palestinian territories made all accreditation and funding decisions, and refused to grant any University graduates their certificates. They prevented schools from opening, and even shut down the School of Nursing. The University itself was periodically closed down by order of the governing Israeli military general; the longest of these closures was from 1987 to 1992.
13. As Taher Shriteh, a Palestinian journalist who has worked for The New York Times, as a producer for CBS News, and a correspondent for Reuters remembers, “the Israelis saw the Islamic University, the only university in Gaza at the time, as a the core of the national resistance for their military occupation,” [see annexed hereto as Exhibit E, 24 October 2002 affidavit of Taher Shriteh] and notes that in 1987 the international press was focussed on the University to see how its students would commemorate the twentieth anniversary of the Israeli occupation. University students marched on December 9, 1987, to Al-Shifa Hospital in Gaza to protest the death of seven Palestinians killed by an Israeli military vehicle. This event led to the complete closure of the University by the military, which in turn sparked the uprising against the Occupation which would come to be known as the first intifada, and lasted until 1994 and the implementation of the Oslo “peace process.”
14. The campus of Islamic University in Gaza became a military zone, off-limits to Palestinians who faced imprisonment for setting foot there. Mr. Shriteh and others continued to cover this story, and as he notes in his affidavit, he arranged an interview with CBS News correspondent Bob Simon for American television with Dr. Ashqar, who described the plight of the University, its students and Palestinians under Occupation. This broadcast angered Israeli authorities significantly, and made Dr. Ashqar a target of their crackdown on Palestinian nationalism.
15. In 1989, as a member of the faculty of the University, Dr. Ashqar won a prestigious Thomas Jefferson Fellowship, sponsored by the United States AID program and overseen by the Fulbright scholarship plan, to go to the United States to complete a doctoral program in business administration. At first, Israel refused to allow Dr. Ashqar to leave in time to begin his studies at the University of Mississippi in Oxford (“Ole Miss”), finally relenting three months into the academic year. Once at Ole Miss, Dr. Ashqar took up his studies with honors, but also maintained close contact with the struggle in Gaza and Palestine, never letting the cause of freedom for his people stray for long from his heart.

III. DR. ASHQAR’S ROLE AS A FUNDRAISER AND OVERSEAS FISCAL COORDINATOR FOR THE UNIVERSITY

16. In 1990, the President of Islamic University in Gaza, Dr. Ahmed Abu Halabeya, asked Dr. Ashqar “to become the coordinator for the University overseas with the members of the Board of Supervisors and Founders, which was the highest authority for the University. These board members were located in Jordan, Tunisia, Saudi Arabia, Kuwait, United States and Egypt.” [See annexed hereto as Exhibit F, October 2002 affidavit of Dr. Ahmed Abu Halabeya.] As described by Dr. Abu Halabeya, Dr. Ashqar declined to accept this appointment. But as relations between Israel and her Arab neighbors soured with the intensification of the intifada, banking and wire services to the Occupied Territories were suspended, making it impossible to pay Islamic University staff, raise money for programs, or even to continue the makeshift teaching arrangements that had moved off campus in response to the Israeli closure. Fiscal activities on behalf of the University took place entirely in Europe or the United States.
17. After some time, Dr. Abu Halabeya again asked Dr. Ashqar to coordinate American donations to the University with one of the University’s founders living in the United States at that time, Dr. Mousa Mohammed Abu Marzook. During the next two years, Dr. Ashqar acted as Coordinator on behalf of the University, while studying for his doctorate at Ole Miss. Dr. Ashqar oversaw limited parts of the University’s necessarily byzantine financial system, which required—because of Israel’s own policies that prevented Palestinians from having their own free and independent banking system—that multiply-valenced transfers involving European and American accounts, as well as street-level money-changers in the West Bank, be employed to get University donations from donors to the bursar’s office in Gaza.
18. The U.S. government’s investigation of Dr. Ashqar’s activities on behalf of the Islamic University’s fund-raising programs is nothing short of perverse. Its blindness to the specific facts and circumstances of the Occupation highlights its slavish devotion to Israel’s continuing agenda to dominate the Palestinian people in every way possible, even to the point of denying them opportunities of higher education. While any American bible college or Big-Ten football powerhouse, and any sized institution in between, need only hold a cocktail party for alumni at the university club where elegant donors may chat amiably over their checkbooks with the chancellor, deans, poets and athletes, Palestinians are not accustomed to such luxuries. Rather, to operate a first-rate, accredited university under the boot of military occupation, in the rabbit-warren confines of the giant internment camp known as Gaza, takes a great deal of ingenuity and dedication—qualities Palestinians have in copious supply.
19. Islamic University in the late 1980’s enrolled more than 5,000 students. Nearly half of these students, according to Dr. Abu Halabeya, received tuition waivers because of their economic duress, and attended classes for free. The rest paid the nominal fee of $120 per semester—quite a lot of money for a Gazan family living in a refugee camp, or in the slums of Gaza City. In 1987, the University budget was capitalized at approximately $5,000,000 (five million), and according to both Dr. Abu Halabeya and Dr. Mohammed Saker, some thirty percent of this operating budget came from wealthy Palestinians and charitable organizations overseas, in the Muslim world, Europe and America. After the closure of the University and Israel’s attempt to destroy it during the intifada, nearly all the financial sources of the budget were shifted to overseas donors.
20. Dr. Ashqar’s association with Mousa Mohammed Abu Marzuq, in his capacity as a fiscal coordinator for the University, is the sole basis for the U.S. government’s continuing interest in him as a subject for investigation and subpoenas. Yet Dr. Ashqar is not a member of HAMAS nor does he have any knowledge of its operations. Dr. Abu Marzook is indeed a political leader of the Islamic Resistance Movement (HAMAS), living in exile in the Arab world. HAMAS is in fact a militant resistance organization dedicated to ending the Israeli Occupation of Palestinian lands, founded in 1987 during the first intifada. As noted by the U.S. State Department and the Central Intelligence Agency, and remarked upon in countless news stories, academic articles and analyses, HAMAS also includes a significant social and charitable services component, which provides health and dental clinics for Palestinians under Occupation, emergency medical services, operates food banks and community cultural centers, and centers of religious instruction, all of which activities are unrelated to the military operations it has conducted, and comprise more than half of the organization’s total activities.
21. HAMAS has literally served the needs of tens of thousands of Palestinians in the structural vacuum of life without a government, under military occupation. Yet long before the existence of HAMAS, Dr. Abu Marzook was an educator and activist, and a founder in 1978 of the Islamic University in Gaza, where Dr. Abu Marzook grew up. As such, he sat on the University’s Board of Supervisors and Founders, and during his many years of living in the United States, he has acted on behalf of the University to help with the routine board member duties of financial oversight.
22. Yet the government’s investigations into Dr. Ashqar’s activities as an overseas revenue officer on behalf of the University attempt to conflate these innocent works with the activities of HAMAS, an organization which, in any event, was not added to the United States’ list of circumscribed terrorist groups until more than a decade after Dr. Ashqar first accepted his appointment by the University as a fiscal coordinator.
23. In this, the government unwittingly aids Israel in her long campaign to close the University and destroy its ability to operate, or to carry out its educational mission. How tawdry that the full weight of the United States’ investigative powers, and her courts and jails, should be brought to bear against this simple academic, all in the service of Israel’s despicable campaign against Islamic University of Gaza—yet that is precisely the net effect of this eleven-year persecution by the government of Dr. Ashqar, and serves only to reinforce his resolve never to testify to this Court or any other about his activities on behalf of the University.
24. Dr. Ziad Abu-Amr, a professor of political science at BirZeit University in the West Bank, and who holds a doctoral degree in comparative politics from Georgetown University, is acknowledged as a leading authority on the history of HAMAS, and is the author of, among other titles, Islamic Fundamentalism in the West Bank and Gaza (Indiana University Press, 1994); The Origins of Political Movements in the Gaza Strip: 1948-1967 (Jerusalem, Dar Al-Aswar, Acre, 1987); and “Ahmad Yassin: Profile of a Fundamentalist Leader,” in Fundamentalist Leaders in the Middle East, R. Scott Appleby, ed., (University of Chicago, 1997). He has written extensively on many of the players, minor and major, involved in various of HAMAS’ activities, both social-political and military. When questioned about Abdelaheem Ashqar, he writes,
Abdelhaleem Ashqar is not known to me as a leader or even a prominent member, or a member in Hamas. I am not aware of any violent activities in which he was involved. I don’t even know Mr. Ashqar personally, and I have not heard of him before I was approached to testify in his case. In my research on Hamas, I never came across his name or the activities attributed to him. [see annexed hereto as Exhibit G, October 28, 2002 affidavit of Professor Ziad Abu-Amr].

25. Professor Abu-Amr also opines that “there is no doubt that Dr. Ashqar would be arrested, interrogated, most likely tortured and sentenced to long term imprisonment” if he attempted to return to the Occupied Territories.

IV. THE GOVERNMENT’S INVESTIGATION AS A TOOL OF ISRAELI HARASSMENT

26. Nancy Rogers, formerly the Assistant Director of the Office of International Programs at the University of Mississippi, knew Dr. Ashqar during his seven years at the University, from January 1990 to May 1997, and was present sometime in late 1996 or 1997 when FBI agent Steve Taylor first made inquiries at her office about Dr. Ashqar. She states that during the period from the government’s initial contact with her about Dr. Ashqar to May 1998, when she testified at a hearing in the District Court, SDNY, she “worked closely with Dr. Ashqar, Steven Taylor, Special Agent of the FBI, and John Hailman of the U.S. Attorney’s Office in Oxford, MI.” [See annexed hereto as Exhibit H, February 12, 1999 letter from Nancy McLeod Rogers].
27. Ms. Rogers states that “Mr. Taylor stated the investigation was prompted by the Israeli government.” In that regard, during her testimony before the Court at Dr. Ashqar’s first hearing as a contemnor, she testified that on “Several occasions I was told that this was prompted by the government of Israel, that his name had been published in a book as someone who was an enemy of the country.” [See annexed hereto as Exhibit I, transcript, 26 May 1998, In re: Grand Jury Subpoena of John Doe (Abdelhaleem Ashqar) M11-189 (DLC), p. 15, lines 6-9.] In addition, Leslie Banahan, an Assistant Chancellor for Student Life at Ole Miss writes that she was the foreign student advisor there when the investigation began. She spoke with Agent Taylor during his several visits, and she states that “On one occasion, I asked Agent Taylor why the FBI was so interested in this particular student. He told me that it wasn’t the FBI that was interested in Mr. Ashqar; it was the State Department. I asked why the State Department was so interested in Mr. Ashqar. He said it was the Israeli government that was interested in Mr. Ashqar.” [See annexed hereto as Exhibit J, February 10, 1999 letter of Leslie Banahan.]
28. While it is not unusual for the government to use its investigative powers to pursue criminals from foreign jurisdictions who take refuge in the United States, both at the request of those foreign states, or on its own initiative, Dr. Ashgar has not yet been charged with any crime in Israel or anywhere else. Rather, as a scholar and political activist, and even as a US-based fiscal coordinator for Islamic University in Gaza, all his activities have been above reproach by the standards of our law.
29. In fact, it is these very activities’ political nature that makes Israel target Dr. Ashqar so doggedly over the past twenty years. This explicitly political activity in opposition to the illegal Israeli occupation, as well as his activity to further the goals of Palestinian higher education, are all constitutionally-protected activities. In this respect, Dr. Ashqar’s refusal to testify is supported not only by his ardent beliefs as a Palestinian nationalist and Muslim, but by the very constitution he has lived under as a resident, whose Bill of Rights he cherishes dearly.

V. RESOLVE NOT TO TESTIFY INCREASES AS CONDITIONS
WORSEN IN PALESTINE.

30. When he was jailed in 1998 by the district court for refusing to testify, his incarceration and hunger strike were well-noted in the Arabic-speaking press abroad and here. His subsequent emergence from that ordeal has enhanced his reputation as a leading thinker and teacher in the Palestinian exile community, one who has shown an unflinching readiness to sacrifice himself for the cause.
31. If this enhanced status alone were not enough to foreordain the outcome of any attempt by the Court to compel his testimony, the Court might well consider the context of his resolve, both then and now. In 1998, at the tail end of the now dead Oslo “peace process,” relations between Palestinians living under occupation and the Israelis who rule over them were perhaps at their greatest extent of détente. The Palestinian Authority practiced some measure of autonomy, if tightly drawn, in limited urban areas of the West Bank and Gaza. A government was taking its first tentative steps, forming a civilian police and civil defense force, building an international airport, and developing its nascent economy with western aid. Israeli troops had withdrawn from select areas of the Occupied Territories, and plans were in effect for a further pull-back. And while the great bulk of Palestinians in the Occupied Territories still lived in deplorable refugee camp conditions, with staggering unemployment and poverty, the diminution in open hostilities had given many observers cause for guarded optimism.
32. Yet despite the superficial improvement in conditions for Palestinians at that time, Dr. Ashqar’s own commitment to the struggle for self-determination was not lulled by such false hopes, and did not flag in its resolve. Rather, at a time when some Palestinians held for many years in Israeli jails were being released in a show of good-will amnesty, Dr. Ashgar chose instead to accept imprisonment here, in America, rather than give testimony.
33. How much more so, in this time of great pain and horrific violence for the Palestinian people, can we therefore expect Dr. Ashgar’s recalcitrance to have deepened? Now in the third year of what has come to be called the Al-Aqsa intifada, the Palestinians have seen their hopes of statehood dashed by Israel’s escalating oppression and continued occupation. Their government has been shelled and besieged, their legally and duly-elected president kept an unshaven prisoner in his own rubble-strewn office, cut off from the world; their cities invaded and re-occupied by the hated Israeli Defense Forces; their houses demolished, their children, parents, husbands, wives, brothers and sisters shot, killed, crushed, driven like cattle from their homes; their government offices, jails, and schools reduced to ruins by aerial rocket and missile attacks, naval shelling, and tank fire; their water supply cut off; their roads blockaded; their activists assassinated; their olive and orange trees cut down; their economy strangled.
34. Dr. Ashqar, like Palestinians in exile the world over, has seen these developments, too. He has watched as the illegal and internationally condemned Jewish settlements in the Occupied Territories have doubled their size and population in the ten years of the so-called “peace process,” without any sign of abatement. He has watched as the “peace process” itself has turned into an empty, cynical charade calculated to legitimize the expansionist goals of the illegal occupation. And he watches now as the United States cravenly initiates its “road map for peace,” pretending that it can assume the role of impartial, benevolent mediator, while simultaneously arming one side of the conflict at a rate of more than ten million dollars per day with the most sophisticated weaponry US taxpayers can buy—taxpayers like Dr. Ashqar.
35. If the events of the past five years have increased Dr. Ashqar’s despair and frustration as a Palestinian, then they have only increased his reservoir of resolve in equal measure. It cannot be reasonably expected that a devout Muslim with a declared fealty to the cause of freeing his people from tyranny, who has already shown extraordinary willingness to withstand hunger and imprisonment for his beliefs, and who is held in high esteem by his people for his principled stand, will now suddenly transform into a willing witness and abandon his refractory ways.
36. To jail this man as a contemnor serves no possible goal of coercing his testimony, but rather acts only as punishment for his refusal to comply. The current intifada in the Occupied Territories is not, for Dr. Ashqar, a mere news story from the other side of the world, nor is it an mental abstraction of struggle and politics. Rather, each day’s events, every shooting or bombing, every Israeli helicopter attack, is for Dr. Ashqar as real as the quotidian events of his Virginia suburb. The pain he suffers watching the torment of his people is real.

VI. PRESENT CONDITIONS AS SEEN AT FIRST-HAND
37. For those familiar with the terms and circumstances of the Occupation solely through the lens of American television, or via newspaper headlines, it is perhaps difficult to understand the depth of Dr. Ashqar’s resolve to defy the subpoena at bar in this matter. There simply is no substitute for first-hand experience in this case, if one is to gain a nuance and insight on the mentality of the Palestinian nationalist. Until one has walked the alleys of the refugee camps in Gaza—where raw sewage runs down the gutters; where residents live twelve to a room in cinder-block UN “temporary” housing built fifty years ago in the midst of the crisis surrounding Israel’s foundation; where the elderly finger house keys strung on loose cords around their necks, keys that fit doors on houses demolished by Israel in 1948—the tragic dimension of Dr. Ashqar’s struggle will always elude one.
38. I have traveled throughout the Occupied Territories with my staff repeatedly over the last five years, and I have visited all of the principal refugee camps of the Palestinians, both in the Territories and in the neighboring countries of Jordan and Lebanon. I have witnessed first-hand the current intifada, especially the military invasion of last year, and the horrific Israeli spasms of indiscriminate violence, house demolitions, mass arrests and collective punishment of this past year, which have brought conditions in the Occupied Territories to an all-time low.
39. In the last days of March of 2002, the Israeli Defense Forces (IDF), under the command, orders and direction of their Prime Minister Ariel Sharon, launched “Operation Defensive Shield.” This operation took the form of a multiple-pronged military assault on the Palestinian cities of the West Bank—Ramallah, Nablus, Jenin, Bethlehem, Tulkarm and Qalqilya—and incursions of armored divisions for containment and control of all roads and rural and agricultural areas. The operation continued throughout the month of April and concluded after approximately seven weeks, with partial or complete withdrawals from select urban areas, while further re-deployment to other areas was carried out. After some three weeks of slightly decreased tensions, the Israeli Defense Forces renewed operations and re-invaded most of these areas on June 19th purportedly in retaliation for several bombing attacks in Jerusalem and elsewhere. On June 21st the Israeli cabinet announced a plan “for all-out seizure of the West Bank,” and began implementing a new full-scale deployment immediately, sending columns of armor and thousands of troops into seven out of eight West Bank urban areas.
40. During the re-invasion on the night of the 21st of June, ten Palestinian civilian non-combatants were killed by IDF troops, including three children in the marketplace of Jenin, where Israeli tanks opened fire on a crowd of shoppers attempting to buy food during what they thought was a break in the ‘round-the-clock military curfew. In a rare admission of guilt, an IDF spokesperson said the army had made a mistake. Then, on June 27th in operations in Qalqilya, IDF forces fired on school children again after a curfew break had been arranged so that students could take final exams. Israel admitted for the second time in a week that its forces had “acted improperly;” as a result, three children were wounded, one with brain damage.
41. The government vowed then and has proceeded since to take all Palestinian lands and institute total closure until all armed resistance stops. Apparently, what the government means by this is exemplified by the massive explosion that demolished the four-story Palestinian Authority regional headquarters in Hebron on June 29th, in an attempt to kill ten to fifteen suspects inside who refused to come out. Simultaneously, the government of Ariel Sharon has undertaken the commencement of a vast construction project to build a security fence, which may eventually stretch to some 1,400 miles around Palestinian areas, despite the absence of any final-status negotiations on what may legally constitute that border.
42. During the spring, 2002 operations, my staff and I were present in the West Bank, working from East Jerusalem, where we met with local human rights activists in an effort to pursue information on Palestinian-American victims of Israeli violence. We had learned of these individuals from a variety of sources in the United States earlier that spring, including their families in various cities in the U.S., and domestic organizations active in the Arab-American community. In our effort to meet and work with the Palestinian-Americans in the West Bank, we encountered many insurmountable obstacles related to Israeli military control of the region at gunpoint.
43. We were repeatedly turned away at checkpoints and security barriers, and impeded by Israeli authorities in all our attempts to physically meet with our fellow American citizens trapped in the military zones of Ramallah, Nablus, Jenin and elsewhere. In addition, officials of the American Consulate in East Jerusalem were unwilling to intercede on our behalf when we met with them in April.
44. In addition, during last year my staff and I went to Gaza, which I have visited at least three other times in the past, at least once in a relative time of peace. On that occasion, we saw first-hand the devastation of Israeli F-16 attacks on the Gaza City municipal center, the jail and ministry tower, and the destruction wrought by Apache helicopters in crowded urban areas. All of Gaza was effectively a prison camp, its roads blockaded, its economy on hold, its people simmering with the resentment of the down-trodden, the despair of slaves.

VII. OVERVIEW OF ISRAELI OCCUPATION IN THE WEST BANK
SINCE SEPTEMBER 2000

45. The most recent manifestations of the Israeli tactics of collective punishment, indiscriminate violence and assassinations, and their use in terrorizing a civilian population for the calculated goals of ethnic removal and territorial expansion, delineates the many sufferings of Palestinians under Israeli occupation, and thereby limns the degree to which Dr. Ashqar will resist attempts to compel his testimony.
46. While precise casualty figures will not be known for some time, it is estimated that at least 600, and perhaps as many as 1,000 Palestinian civilians were killed, with as many as 4,000 injured or seriously wounded and many thousands rendered homeless in the six weeks of military operations conducted in the Defensive Shield campaign. The total official death figures for Palestinians since September, 2000, was given recently as 3003 Palestinians.
47. International donors—including the World Bank, the United States Agency for International Development, the European Union and the United Nations— currently estimate physical damage at $361 million in the cities of the West Bank from the IDF invasion. This figure extends the already substantial physical damage estimates of $305 million resulting from the seventeen months of conflict preceding Operation Defensive Shield, a period now referred to variously as “the second intifada,” or uprising, or “the al-Aqsa intifada..”
48. And while these figures seek to detail material, on-the-ground destruction of property, neither can approximate the true depth of economic devastation for both the West Bank and Gaza, which will necessarily result in the coming months and years as a result of this terrible start to the new century. United Nations and European Union sources have recently estimated economic losses since September 2000 in the billions of dollars.
49. The 2002 operations, and the ensuing intensification of closures, targeted assassinations and collective punishment of that year, while only the most recent phase in thirty-five years of occupation, heralded a quantum increase in the level of Israeli violence, illegality, and wholesale violation of human rights against a subjugated population. The widespread, continuing use of indiscriminate military force against civilians, the use of comprehensive and systematic collective punishment against an occupied civilian population, the use of its military for extra-judicial assassinations of militant or nationalist Palestinian activists, and the deliberate rampant destruction of economic, social and political viability—all place the state of Israel in clear violation of many international standards and covenants of legal behavior to which Israel is a signatory, including the United Nations Charter, the Fourth Geneva Convention of 1949, and the Hague Regulations of 1907.
50. The recently introduced Bush Administration initiative, the so-called “road map to peace,” unveiled with great fanfare at Aqaba this spring, has not given much comfort to Dr. Ashqar or to any other Palestinians. While it may suggest a means for the United States to intervene in the conflict, it shows absolutely no willingness to engage the most difficult and long-standing issues which are at the very heart of the crisis in Palestine: the continually expanding settlements and the Palestinian right to return to the lands confiscated from them within the so-called “Green Line” in 1948, when Israel forcibly expelled thousands of Palestinian families. From Dr. Ashqar’s perspective, the road map to peace is meaningless rhetoric cynically crafted for American domestic consumption, to give both the appearance that the US government is neutral and interested in a just peace, and to create the illusion that Israel is reasonable in its position. Yet not a single settlement has been dismantled and evacuated, nor are any likely to be, as the Jewish settler population in the Occupied Territories swells past the quarter-million mark; nor has any Israeli governmental authority ever so much as countenanced even the idea that Palestinians forcibly removed in 1948 have compensatory issues still on the table. The bitterness felt by Dr. Ashqar and others watching this charade of justice and western “diplomacy” is acute.

VIII. WELL-FOUNDED FEAR OF TORTURE AND PERSECUTION
51. Yet even if the Court is not persuaded by the depth of Dr. Ashqar’s past resistance, nor by the intensity of his passion in struggle, as fired by the crucible of current events, it must consider a third factor which Dr. Ashqar knows prevents him from testifying. Dr. Ashqar understands that he will likely return home to Palestine soon, as he has voluntarily withdrawn his petition for political asylum, because the asylum process would necessarily compel his testimony on matters related to his political organizing. [See annexed hereto as Exhibit K, affidavit of Denyse Sabagh, Esq. counsel for Dr. Ashqar and his January 1999 Application for Asylum, note top page “For INS Use Only” where box marked “granted” appears to be checked, then crossed out with a second box, “referred” checked and dated on July 15, 1999.]
52. As Dr. Ashqar describes in detail in his affidavit [See Exhibit B, 12], his Jordanian passport, which functioned hitherto only as a travel document without rights to residency, is now expired. His recent request to the Jordanian government for a renewal of the privileges it grants has been denied. [See annexed hereto as Exhibit L, a photocopy of Dr. Ashqar’s Jordanian passport, with correspondence including: June, 2000 letter from Jordanian Ambassador to the United States; and June, 1998 letter from Jordanian lawyer Anis F. Kassim.]
53. Because Israel directly controls all the movements of Palestinians into and out of the Occupied Territories, and can detain any Palestinian who presents himself at any of their ports, it is probable that Dr. Ashgar will be in Israeli custody in the near future, facing prosecution for charges made out of whole cloth.
54. It is well-known that over the last decade Israel and the United States have worked closely in a series of shared efforts involving prosecutions in both countries and other proceedings as well. For example, in the early 1990’s, Israel, with the assistance of US law enforcement agencies, attempted to extradite Mousa Abu Marzook to stand charges for various offenses related to his position as head of the political wing of HAMAS. Most important, little if any, of the evidence purportedly connecting Marzook to the substantive offenses in Israel, occurred in Israel but instead took place in the United States. In that regard, evidence developed here established that Dr. Abu Marzook, with other individuals, had arranged a series of financial transactions that allegedly ended up in the coffers of HAMAS. Dr. Ashqar was specifically named during the proceedings as a source of some of those financial transactions. In addition, a US citizen, Mohammed Salah, a resident of Chicago, was arrested, tortured, prosecuted, and jailed in Israel for nearly five years because of his alleged role in the transfer of money from the United States to HAMAS in Palestine. As with the case of Abu Marzook, evidence used initially against Sallah in Israel was later in turn used against him in a civil forfeiture proceeding brought in Chicago by federal prosecutors. (See, n Chicago [--------------------]. In another case in the Northern District of Illinois, United States v. Alwan, 279 F.3d 431 (7th Cir. 2002) a contemnor was prosecuted in the United States on the basis of information collected and used first against him in Israel, then later in the United States following his release from an Israeli prison. Currently, there is a lawsuit underway in the Northern District of Illinois, Boim, et al. v. Quranic Literacy Institute, et. al., case No.00 C 2905, in which the parents of a young American allegedly killed by HAMAS in Israel are proceeding on the basis of evidence uncovered there and in the United States against various defendants who reside in this country. Finally, as set forth in the affidavit of Dr. Ashqar and amply supported in Appendix A herein, there is overwhelming evidence that Israel and the US worked collectively in building a case against Ashqar’s application for political asylum. Given the incestuous relationship between these two countries with regard to the so-called “HAMAS investigation” over the last decade, and in view of the allegations uncovered pertaining to Dr. Ashqar there can be no doubt that Dr. Ashqar will be prosecuted in Israel for various criminal offenses. While we are prepared to produce experts in Israeli law at a hearing if necessary, it is well settled that there exist various sections of Israeli law that indicate that Dr. Ashqar can be charged for various offenses as both a specific actor, an aider-and-abettor or a conspirator despite the fact that he has not set foot in Israel in many years and despite that fact that all of the allegations attributed to him occurred in the United States. Moreover, not only is the statute of limitation under Israeli law twenty years, which in this case, permits for a prosecution of Dr. Ashqar for acts which occurred in Israel in the early 1990’s, but Israel maintains a broad view of its extra-territorial jurisdiction.
55. Once in custody, he has a reasonable fear that he will be subjected to torture by the Israeli security apparatus, the GSS or the Shin Bet, as he was in 1981 when first arrested by them for his political activities. As noted in Dr. Ashqar’s affidavit, Israel subjected him more than twenty years ago to beatings and harsh physical treatment during interrogations and imprisonment without charges that lasted some sixteen days: “I was also jailed by the Israeli military in Ramallah in 1981, for participating in a peaceful, lawful demonstration at Beir Zeit University in the West Bank, where I was a student . On that occasion, I was beaten, kicked, struck repeatedly in the head and body with rifle-butts and fists, and my bare feet were stomped on by soldiers for hours. I was questioned repeatedly, with beatings administered, and ultimately I passed sixteen days in a tiny cell with as many as six other students at a time, and only a small jar in which to urinate.” [See Exhibit B.]
56. In addition, during the intervening years when Dr. Ashqar was a student at Ole Miss and the subject of an Israeli and/or an American investigation, members of his family in the Occupied Territories were terrorized, arrested, and subjected to the usual brutal behavior.
57. Dr. Ashqar’s brother, Helmj Hasan Al-Ashqar states that in 1995, a convoy of six Israeli armored vehicles came to the Ashqar family house in the West Bank, and besieged the home, shouting for Abdelhaleem to come out (this despite the fact that any cursory check by the much-vaunted Israeli intelligence network at the campus of Ole Miss would have revealed him hard at his studies.) The soldiers searched the Ashqar home, and left after a few hours. They returned five nights later, after midnight, and as Mr. Al-Ashqar describes, “this time they broke the windows and entered my brother’s house, I came out and argued with them about what they did.” [See annexed hereto as Exhibit M, affidavit of Helmi Hasan Al-Ashqar.] After ransacking the place, they again left empty-handed.
58. Dr. Ashqar’s nephew Issam Rashid Ashqer recounts how four years later, in July of 1999, he was returning from a visit to his mother near Nablus in the West Bank when an Israeli special undercover unit in a taxi cab blocked his way, and took him prisoner, leaving his wife and four children behind as stunned witnesses. He was brought to a series of prisons in Israel, held in tight confinement with two other prisoners he believes were Israeli spies, and after two days, subjected to interrogation which lasted eleven days. He states,
The interrogation process was a follows: the marshals would come around 5:00 am and shackle my hands behind my back, put a fabric bag on my head down my neck and tied it. The fabric bag was soaked with vomit, excrement, and blood. The odor coming from the bag was beyond the comprehension of any human being. I was forced to sit on the bench in the interrogation corridor with my hands shackled to the bench and my feet not touching the floor. That process was on a daily basis from about 5:00 am until around 2:00 am with no rest and 10-15 minutes for each meal, for which the marshals used to take me back to the cell and then back to the interrogation corridor. The marshals used to slap my face, kick me in my stomach and stamp my feet into the floor. They also played very loud music constantly to deprive me from sleeping. [See annexed hereto as Exhibit N, November 5th 2002 affidavit of Issam Rashid Ashqer.]

59. Issam would be hospitalized with carbon dioxide poisoning after being subjected to an air-tight cell without ventilation for fourteen hours, where he collapsed after increasing difficulty breathing. His interrogation was continued after his recovery, but he would collapse again from high blood pressure, and was ultimately released from Israeli custody after nearly a month. He suffers from high blood pressure to this day. Issam stresses in his affidavit that he has never had any political affiliations whatsoever, and that the explicit subject of his interrogation was his family connection to his uncle.
60. Any testimony Dr. Ashqar might, in the hypothetical sense, give to an American grand jury would set the stage for greater interrogation and coercion once in Israeli hands. Israel has continually shown a predilection for employing torture to force both information and confessions from detainees. For this strategic reason, as well as his political and religious principles, Dr. Ashqar cannot possibly contemplate giving any information about his political activities, lest it endanger him, his colleagues or his family greatly at a later time.

IX. EXPERT OPINION ON THE LIKELIHOOD OF DR. ASHQAR’S ARREST AND TORTURE BY ISRAELI SECURITY

61. Dr. Laura Drake, a professor of Middle East Affairs at American University in Washington, D.C. describes the likelihood of Dr. Ashqar’s arrest and imprisonment if he returns to Palestine is stark legal terms. [See annexed hereto as Exhibit O, February 15 1999 affidavit of Laura Drake.] As she details, the Israeli legal system criminalizes much conduct that in the United States would normally be constitutionally protected, including basic freedoms of thought and association. She is familiar with Dr. Ashqar’s Palestinian activism, and states that “there are still laws on the books prohibiting freedom of political associations and beliefs similar to those held by Dr. Ashqar.”
62. Dr. Drake states that the act of association or affiliation with a prohibited organization or “political trend” carries a standard three year prison term. Such terms are “renewable” indefinitely on “administrative” grounds “without formal charges ever being filed or the prisoner every being put on trial—even a military trial.” She states that forced confession extracted during brutal interrogations are standard practice, “the use of torture with the purpose of extracting confessions has been systematized in Israel to the point where it has become absolutely routine.”
63. Dr. Drake states that most torture is applied to subjects suspected of ordinary crimes of speech and association, not actual security crimes, for the purpose of extracting confessions. She notes that the Landau Commission (see above) effectively legalized torture in 1987, and notes “to my knowledge, Israel is the only country in the world that has adopted legalized torture.” She also notes that no one can reach the autonomous sectors of the Occupied Territories without first entering an Israeli port, where they would be subject to detention. Dr. Drake concludes, based on her expert opinion, that there is a reasonable expectation that Dr. Ashqar will be intercepted and detained by Israeli security services at his port of entry, and will not be allowed to return to his home area of Tulkarem. She also states that it is “reasonable to believe that he will then be subjected to interrogation with torture . . . [and]. . . indefinite imprisonment without charge or trial.”
64. Similarly, Georgetown History Professor Emeritus Hisham Sharabi writes that “the moment [Dr. Ashqar] arrives at the airport or the land border, he will be arrested, interrogated, imprisoned and exposed to an endless series of harassment, imprisonment and probably torture.” [See annexed hereto as Exhibit P, December 2, 1999 affidavit of Hisham Sharabi.]
65. Professor Sharabi notes that Dr. Ashqar’s long association with the Islamic University of Gaza makes him a target for the security services, as “the entire institution of the Islamic University is considered suspect by the Israelis.” In addition, Professor Sharabi states that the published book Hamas: from Belief to Terrorism, which describes Dr. Ashqar as a prominent HAMAS member, effectively marks him for the worst treatment Israel reserves for adherents to that organization, whether or not the allegations are even believed to be true.
66. The Reverend Dr. Donald E. Wagner, a professor on the faculty at North Park University in Chicago and the director of the Center for Middle Eastern Studies at North Park Univ., states “there have been a plethora of cases of Palestinian oppositional figures facing torture, various levels of physical and psychological abuse, extended imprisonment, and some cases of death while in prison.” [See annexed hereto as Exhibit Q, February 11, 1999 affidavit of Rev. Dr. Donald E. Wagner.]
67. As noted above, Professor Ziad Abu-Amr states in affidavit that “Based on Dr. Ashqar’s background and experience with the Israeli authorities, the alleged confessions and allegations made by some Palestinian inmates (usually under torture and duress) against him, his calls with Dr. Musa Abu-Marzook, and the money wires [between the two], there is no doubt that Dr. Ashqar would be arrested, interrogated, most likely tortured and sentenced to long term imprisonment” if he should return to his homeland.
68. Finally, Dr. Hanan Ashrawi, the first Commissioner General of the Palestinian Independent Commission for Citizen’s Rights, a member of the Palestinian Legislative Council, and a former cabinet minister in the present government of the Palestinian Authority, states that she knew Dr. Ashqar when he was a student activist at Bir Zeit University, where she was a professor in the 1980’s. She states that “at least he will be detained, arrested, interrogated.” She further states that “he will be subject to detention, persecution and prosecution and probably ill treatment.” [See annexed hereto as Exhibit R, Transcript of Feb. 1, 1999 Deposition of Dr. Hanan Ashrawi.]

X. THE USE OF TORTURE AGAINST DETAINEES
69. The foregoing statements of those experts familiar with Israeli justice should leave no doubt that Dr. Ashqar will be subjected to the harshest treatment when he returns to his homeland. For this reason, he cannot give any testimony here as it would place him in grave danger at Israeli hands upon his return. Should any skeptical American doubt for an instant that Israel might torture a Palestinian college professor to force a confession, ample documentation exists proving that Israel, inasmuch as she enjoys the billions of dollars our taxpayers send her year in and year out, has no compunctions when it comes to violating even our own citizens’ human and civil rights with impunity.
70. Israel’s use of torture against suspects in detention, including Americans, has been the subject of extensive documentation over the last thirty years by many human rights groups, non-governmental organizations, and U.S. governmental reports. In 1970, both the United Nations and Amnesty International issued reports charging Israeli authorities with practicing torture in the occupied territories. The International Committee of the Red Cross and Israeli lawyers also reported the use of torture in Israeli prisons in the early and mid-1970s. For example, in 1977, Israeli lawyer Felicia Langer wrote:
"The use of torture during investigations is a method, and I declare it as a lawyer who has dealt with thousands of cases. I have seen the marks of torture on the bodies of hundreds of my clients ... I knew prisoners who went mad as a result of torture ... Many people have died in prisons as a result of torture, or are condemned to a slow death because of the lack of medical treatment."

71. Israeli torture of Palestinian detainees became headline news in June 1977, when the London Sunday Times printed a detailed report which concluded that "torture of Arab prisoners is so widespread and systematic that it cannot be dismissed as `rough cops' exceeding orders. It appears to be sanctioned as deliberate policy."
72. Researcher Stephen J. Sosebee documents that

In a two-year period between 1977 and 1979, the US consulate in East Jerusalem sent more than 40 cables to the State Department reporting that torture is a common practice employed by Israelis to extract confessions and to punish Palestinian prisoners. Documentation of Israeli torture, deaths of Palestinians under detention, and other abuses increased in the late 1970s. The absence of human rights organizations in Palestine in the late 1960s and 1970s makes it difficult to estimate the number of Palestinian prisoners who died in prison in the early years of Israeli occupation.

73. In 1982, it became clear that widespread use of torture by the IDF was common following the Israeli invasion and occupation of Lebanon, especially at the notorious Ansar detention camp. As Sosebee writes,
An incident in 1984, however, became the turning point in precise documentation of torture in Israel. Majid and Subhi Abujumaa were beaten to death by the Israeli secret police (the Shin Bet) following a failed bus hijacking in Gaza. The truth that the cousins were murdered during interrogation, and not during the storming of the bus as the Israeli government had reported, only surfaced after an Israeli newspaper printed a photograph of one of the men being led away in handcuffs. This incident led to the Landau Commission investigation into the practices of the Shin Bet. The Israeli Government Commission documented the use of torture to obtain confessions from detained Palestinians, yet none of the convictions based upon such coerced confessions reversed.

74. During the first intifada of the late 1980’s, Israel detained thousands of Palestinians in a network of internment camps, many of them under the age of eighteen, for such actions as throwing stones or demonstrating against the Occupation. Recalling his stint as a guard in Gaza Beach “one of the best” of such camps, respected Israeli journalist Ari Shavit wrote of his experiences with rare candor and insight:
Most Palestinians are awaiting trial; most were arrested because they were throwing stones or were said to be members of illegal organizations. Many are in their teens. Among them, here and there, are some boys who are small and appear to be very young. . . The prison has twelve guard towers. Some Israeli soldiers are struck – and deeply shaken - by the similarity between these and certain other towers, about which they have learned at school. . . Maybe the Shin Bet is to blame for this- for the arrests it makes and what it does to those arrested. For almost every night, after it has managed in its interrogations, to “break” a certain number of young men, the Shin Bet delivers to the [soldiers] a list with the names of the friends of the young men. . . [Then] the soldiers . . . go out almost every night to the city and . . . come back with children of fifteen or sixteen years of age. The children grit their teeth. Their eyes bulge from their sockets. In not a few case they have already been beaten . . . And soldiers crowd together in the “reception room” to look at them while they undress. To look at them in their underwear, to look at them as they tremble with fear. And sometimes they kick them- one kick more, before they put on their new prison clothes . . . Or maybe the doctor is to blame. You wake him up in the middle of the night to treat one of the individuals just brought in- a young man, barefoot, wounded, who looks as if he is having an epileptic fit, who tells you that they beat him just now on the back and stomach and over the heart. There are ugly red marks all over his body. The doctor turns to the young man and shouts at him. In a loud, raging voice he says: may you die! And then he turns to me with a laugh: May they all die! Or maybe the screams are to blame. At the end of the watch . . . you some times hear terrible screams . . . hair-raising human screams. Literally hair-raising . . . In Gaza our General Security Services therefore amount to a Secret Police, our internment facilities are cleanly run Gulags. Our soldiers are jailers, our interrogators torturers . . . Thus in the forty months of the intifada, more than ten thousand Israeli citizens in uniform have walked between the fences, have heard the screams, have seen the young being led in and out . . . And the country has been quiet. Has flourished . . . The thousand (if not fifteen thousand, if not twenty thousand) Israelis have done their work faithfully – have opened the heavy iron doors of the isolation cell and then closed it. Have led the man from the interrogation chamber to clinic, from the clinic back to the interrogation chamber. They have looked close up at people shitting in terror, pissing in fear. And not one among them has begun a hunger strike in front of the house of the prime minister. Not one among them that I know has said, this will not happen. Not in a Jewish state.

75. According to an I.D.F. report in February 1991, some 75,000 Palestinians had been arrested during the first three years of the intifada, of whom a yearly average of 15,000 were actually charged each year. The Israeli human rights group B’Tselem estimates that most of these administrative detainees were not interrogated intensely or over long periods, and were released within the first 18-day military detention phase.
76. Others were tried in "quick trials" on the basis of evidence given by the arresting soldier alone. However, B’Tselem researchers have concluded that some 1,600 detainees per year underwent interrogation during that period, and that it is likely most of them experienced some form of physical or psychological pressure, including: beatings; threats against themselves and their families; sleep deprivation; loud music; denial of medical treatment; prolonged, cruel restraint, or “shabah;” use of the “tiny chair;” extreme cold; hooding the prisoner for days with urine-soaked bags; violent shaking of the prisoner; and other practices.
77. The General Security Services used and continues to use these methods pursuant to secret procedures that were based on the recommendations of the 1987 judicial commission of inquiry headed by retired Supreme Court Justice Moshe Landau. The Israeli High Court appointed a special body, the Landau Commission, to study allegations of torture and make recommendations. The Commission found that not only were methods of physical abuse and torture used extensively in interrogation, but also that the Shin Bet then routinely lied about the practice in open court whenever asked about the confessions they had extracted by prosecutors.
78. Then, in a stunning development that left many in the human rights and international law communities astonished, the Commission explicitly endorsed the use of physical abuse as part of an interrogation, stating, "The Commission agrees that . . . clearly delineated psychological [and] physical pressures may legitimately be exerted in the interrogation of one suspected of terrorism and has proposed precise guidelines for the Shin Bet to adopt."
79. According to the Landau Commission recommendations, the GSS interrogation methods may combine “non-violent psychological pressure of an intense and prolonged interrogation . . . with a moderate measure of physical pressure.” The Landau Commission also suggested the legal support for the use of these methods, which contravene various provisions of the Penal Law. The support proposed by the commission is the “defense of necessity,” which removes criminal responsibility where a person “committed an act that was immediately necessary” to save life or property from serious injury, and was done in a reasonable manner under the circumstances.
80. While these procedures are revised periodically by a special ministerial committee, the official guidelines to this day have never been published, and Shin Bet has continued to use many of the practices otherwise banned by the High Court by simply declaring a detainee a terrorist suspect.
81. The years since the first intifada have witnessed various legal struggles by groups within Israel, as well as international groups, which culminated in a second review by the Israeli High Court of torture practices by the General Security Services three years ago. Yet many groups report that as the resistance to the occupation has intensified in the past few years, reports of torture and brutality by the interrogators have become more frequent.
82. B'Tselem, the internationally-esteemed Israeli human rights group, estimated on the eve of the High Court’s codifying of GSS interrogation rules, based on official sources, human rights organizations, and attorneys, “that the GSS annually interrogates between 1,000-1,500 Palestinians. Some eighty-five percent of them—at least 850 persons a year—are tortured during interrogation.”
83. Unfortunately, the procedure rules remain unpublished, and in the permanent emergency climate of the Occupied Territories, the “ticking time-bomb” theory is nearly omnipresent, giving the GSS a free hand to torture any detainee that comes before them.
84. The U.S. Department of State reported last year that Israeli laws and administrative regulations prohibit the physical abuse of detainees and a landmark decision by the High Court of Justice in September 1999 prohibited the use of a variety of abusive practices, including violent shaking, painful shackling in contorted positions, sleep deprivation for extended periods of time, and prolonged exposure to extreme temperatures; however, during the year, human rights organizations, including B’Tselem, Human Rights Watch, LAW, and the Mandela Institute for Political Prisoners reported that there was an increase in the number of allegations that Israeli security forces tortured and abused detainees, including using methods prohibited in the 1999 High Court decision. There also were numerous allegations that police officers beat detainees.
85. The Government stated that the security forces have complied with the High Court's decision and that the Attorney General's office investigates any allegations of mistreatment. Human rights groups indicate that the person who is responsible for carrying out the initial investigation into such allegations is a GSS officer, and that, as a result, the GSS provides preliminary research in injuries into its own alleged abuses. Human rights groups charge that largely because of they system, few cases have been opened and no GSS agent has been criminally charged with torture or other ill-treatment for the past several years.
86. In addition, the role played by confessions in winning convictions against suspects remains as crucial as ever, if not more so. Palestinian detainees, including American citizens, remain subject to military law and as such cannot avail themselves of anything like the constitutional protections accused persons enjoy here in the United States. As the State Department cautiously puts it,
Most convictions in security cases before Israeli courts are based on confessions. The law prohibits the admission of forced confessions as evidence; however, there have been allegations that this occurs. A detainee may not have contact with a lawyer until after interrogation, a process that may last days or weeks. The Government does not allow representatives of the International Committee of the Red Cross (ICRC) access to detainees until the 14th day of detention. Detainees sometimes state in court that their confessions are coerced, but judges rarely exclude such confessions. According to Palestinian human rights groups, some Palestinian detainees fail to make complaints either due to fear of retribution or because they assume that such complaints would be ignored. During the year, there were no known cases in which an Israeli court excluded a Palestinian confession because of a finding of improper means of investigation or interrogation.

XI. CURRENT RESEARCH INTO PALESTINIAN-AMERICAN VICTIMS OF TORTURE

87. A forty-seven year old Palestinian-American from Chicago went with his wife in the spring of 1999 to make his religious pilgrimage to Mecca, the historic center of the Islamic world. He was born in a Palestinian West Bank village called Maithalun, and had not been there in many years. He had planned to visit his childhood home after a few weeks in the middle east and a short stay with siblings in Jordan. He traveled on the morning of April 26 to the Husseini/Allenby Bridge border crossing between Jordan and the West Bank, where Israel maintains its port of entry to the Occupied Territories. Though he possesses a U.S. passport, he was detained without explanation, and after fourteen hours, taken to a prison near Haifa. His wife, not yet a U.S. citizen, was admitted to the West Bank without trouble.
88. The next day, an American consular official visited this citizen, gave him some magazines and told him he could not get involved. He was kept in a series of tiny, foul cells, measuring three feet by seven feet, with only a filthy, lice-ridden blanket and a hole in the floor for a toilet, and every day he was interrogated for several hours. Overhead lights blazed all night, and never let him sleep. For approximately six weeks, he was subjected to interrogations using the shabeh methods of the GSS—painfully bound and shackled to a chair, hooded with a suffocating, putrid burlap sack, deafened with endless loud music at full volume next to his head, and threatened and insulted.
89. At one point, his interrogator told him, even as he repeatedly protested that he was an American, that “America is shit.” This torture victim was denied medical treatment for the intense pain in his back, he was denied visits, and he was sometimes left in his tiny cell for days. Eventually, he was transferred to the notorious Moscobiya Prison, stripped naked and humiliated, and on June 2, he was driven back to Allenby and expelled to Jordan with his American passport. (See internal annexations filed under John Doe et. al. v State of Israel et. al).
90. B’Tselem notes that the GSS still uses all of the methods as a routine matter of interrogation procedure, as we find in the many studies and reports of human rights groups, witnesses, and victims:
The GSS methods include holding the interrogees [sic] in prolonged isolation from the external world and in filthy and unsanitary conditions, sensory isolation, and disorientation. The interrogators deprive interrogees of sleep for extended periods, threaten and curse at them, and shackle them for prolonged periods so tightly as to cause pain. Interrogators compel interrogees to kneel or bind them in positions that lead to extreme pain and exhaustion. They also use direct physical violence, such as shaking, beating, and kicking.

91. Similarly, a thirty-one year old American identified by my staff who is a partner in a pizzeria in Miami, tells a terrifying story of his arrest at Allenby and his subsequent torture and ill treatment at the hands of the GSS. He went to the West Bank in October 1998 to visit his childhood home and see his family there. After about two weeks, he went to visit his sister in Jordan, by means of Allenby Bridge.
92. As in the previous case, this man, too, was detained at the crossing, arrested, and accused of being a member of a terrorist organization. The substance of this absurd charge was eventually revealed to him: his sponsorship, through a charitable group, of an Arab child for twenty-five dollars per month, in the style of the late-night television fund-raising group, “Save the Children,” was characterized by his tormentors as sending money to terrorists. But this Palestinian from Florida would not learn this until he had spent weeks in filthy cells, being interrogated daily and subjected to the harshest treatment. All of the classic repertoire of Israeli torture is on display in the case of this man: the shackling and shabeh restraint; the suffocating hood; the blasting rock music; death threats; sleep deprivation and withholding of food; the confession written in Hebrew, which he can’t read, urged on him repeatedly; the use of other ‘prisoners,’ working for his interrogators, to threaten him with violence; the threats against his family; being stripped naked and exposure to cold.
93. At one point in his detention, he was shackled painfully to a small chair and left there alone for three days; his hands swelled up grotesquely, and this man still has nightmares about the ordeal. Throughout his detention, he demanded a lawyer and visits from the Consular office, but the soldiers and agents mostly laughed at him, and abused him even more.
94. The Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, to which Israel is party, defines torture as intentionally inflicted "severe pain or suffering, whether physical or mental" on a person to obtain, among other purposes, "information from him or a third person." The convention unequivocally prohibits torture under any circumstances. Art. 2 (2). Other conventions, such as the Covenant on Civil and Political Rights (Art. 7), and conventions dealing with the laws of war, prohibit torture and other forms of cruel, inhuman, or degrading treatment and punishment (hereafter: ill-treatment) in all circumstances. The prohibition on torture and ill- treatment is, therefore, absolute, and no “exceptional” circumstances may justify derogating from it.
95. The Washington Report on Middle East Affairs reports that

John Dugard, the United Nations Human Rights Commission special rapporteur in the Occupied Territories, has released a report criticizing both sides of the ongoing conflict and expressing distinct concern over Israel’s treatment of Palestinian children held in Israeli prisons. According to the march 28 Arab News, Dugard put the number of Palestinians under the age of eighteen arrested or detained since September 2000 at around 1,000. Over 90% of those, Dugard noted, were arrested on suspicion of throwing rocks at Israeli soldiers. The evidence Dugard collected “indicates fairly convincingly that children are subjected to inhuman treatment, probably amounting to torture in terms of the torture convention.” He said the children were held for lengthy periods while being interrogated, blindfolded, forced to sit or stand in uncomfortable positions, denied food or sleep, and occasionally assaulted. Israel, Dugard noted, is ‘the state in the region that is probably most firmly committed to the rule of law within its own territory. But when it comes to the treatment of Palestinians outside its territory, there seems to be a lack of concern for human rights and this I find very disturbing.’ ”

96. The official silence on the part of the U.S. government is perhaps even more disturbing, given the extensive documentation of Americans whom Israel has tortured. It is difficult to think of another country that has treated U.S. citizens in such numbers with such a heavy hand in recent times without earning a White House protest or caution. Yet the U.S. has never acknowledged publicly that Israel is a torture regime. Whatever reasons the U.S. might supply for its silence, it cannot claim ignorance.
97. As expert Jerri Bird, who has studied the issue of torture in the Occupied Territories for many years (and has had significant contact with the career foreign service culture) notes in an affidavit submitted in John Doe et. al v. State of Israel et al., supra, by 1978 the consular section of the Jerusalem consulate general had sent over 40 reports on Israeli mistreatment of Palestinian political prisoners in Jerusalem and the West Bank to the State Department. And in the ensuing years, the State Department was informed on at least two occasions by consular staff that Americans had been tortured. [See annexed hereto as Exhibit S, affidavit of Jerri Bird.] Since that time, a steady and solid body of evidence has made its way to Washington indicating that Israel is a torture state and has tortured Americans on many occasions—certainly enough to have warranted after twenty-five years an investigation. But sadly, the government apparently does not feel that the vast sums of taxpayer dollars paid to Israel by the U.S. entitles Americans to know about this dirty secret—all our billions do not buy us any truth in this regard.
98. Yet Dr. Ashqar is not an American. Rather, in the view of Israeli security concerns, he is a troublemaker, stirring up anti-Israeli sentiments among the otherwise gullible American public with his activism in the United States. As amply documented above, the Israeli security apparatus has no qualms when it comes to torturing American citizens. It is well-founded and reasonable, therefore, to believe that Dr. Ashqar, a stateless Palestinian refugee, will be singled out for the very worst treatment the GSS and Shin Bet can concoct, once he is in their hands. As the next three cases demonstrate, the torturers of the Israeli secret police have been as busy as ever in the past few months.
99. Mohammed Salah Hassan Taha, from the Bureij refugee camp in Gaza, was arrested during the Israeli demolition of his home on March 3 of this year, and in the process was wounded in the head by gunfire. He was taken into custody by the GSS and for the next ten days denied medical treatment for his head wound; deprived of sleep; interrogated for all but two hours per day, with his hands bound so tightly they bled and swelled; subjected to the “tiny chair” confinement for many days; spat upon; and beaten in the stomach while interrogators threatened rape and violence to his family. [See annexed hereto as Exhibit T, letter, May 6, 2003, from the Public Committee Against Torture in Israel, to the Israeli State’s Attorney and the Military Attorney, reference T/5.]
100. Aref Salma Haribat was arrested on January 15 of this year in the Dura/Hebron area, and interrogated for 21 days at Ashkelon prison. He was bound and interrogated in eight hour stretches, during which he was beaten with fists and threatened with violence against his family, and the demolition of their home. In addition, he was kept in a small room cooled to a very low temperature by an air conditioner unit which was never turned off. Lights deprived him of sleeping. [See annexed hereto as Exhibit U, May 1st , 2003 letter from the Public Committee Against Torture in Israel, to the Israeli State’s Attorney, reference H/11.]
101. Ahmed Abed –Alcarim Der Mohammed, age 31, was arrested on November 5, 2001 in the Dura/Hebron area, at the home of his parents. He was interrogated at the General Security Services’ Interrogation Unit, Petah Tikva Detention Center, for seventy-three days. He was interrogated daily for long periods for this entire time, subjected to the “tiny chair” binding, deprived of sleep and beaten. He was denied medical treatment for his condition of leukemia, and deprived of his medications. [See annexed hereto as Exhibit V, May 1st, 2003 letter from the Public Committee Against Torture in Israel, to the Israeli State’s Attorney, reference D/10.]

XII. DR. ASHQAR’S PREVIOUS INCARCERATION
AND INJURIES SUFFERED

102. During his confinement five years ago for contempt, Dr. Ashqar came very near to dying, in the words of Dr. Arif Mumtaz, MD, who examined him as his attending physician. As he wrote to Dr. Ashqar on June 24 1998, only three-fourths of the way through the total length of his hunger strike,
I have told you and wife and your attorney that we have not reached the point where you are killing yourself, and there is nothing we can do about it. I write this letter to go on the record with you. As a doctor it is extremely frustrating to watch a patient kill himself and be able to do nothing about it. My staff and I have tried everything to no avail. I have pleaded with you to stop refusing nutrition. I have also pleaded with your wife and attorney to convince you to stop what you are doing. When you take a turn for the worst (sic) in the next few days, there is a strong chance that we will be unable to revive you. [See annexed hereto as Exhibit W, June 24 1998 letter of Arif Mumtaz, MD.]

103. He would ultimately lose some forty pounds of body weight, nearly one fourth of his total body mass, and permanently damaged the fractured coccyx he entered jail with (as a result of a fall some weeks before his incarceration), as he could not move around, and lay on his back or sat the entire time. The condition became inflamed, and was compounded by vertebral problems related to the fall, and to his declining muscle mass. As set forth in Dr. Ahqar’s affidavit in painful detail, despite the conditions of his prior confinement and the medical crisis which resulted from his hunger strike, his spirit remained strong and his unwillingness to testify absolute.

CONCLUSION

104. Dr. Ashqar will not testify. The government knows it. The record shows it. Accordingly, for all the reasons herein above set forth and on the basis of the attached Memorandum of Law it is respectfully requested that the Court quash the subpoena of the Grand Jury of the Northern District of Illinois or, in the alternative, deny the government’s application to imprison Dr. Ashqar for civil contempt.

Date: New York, New York
On this 12th day of July, 2003