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Libby Case May Aid Hamas Suspect

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    Libby Case May Aid Hamas Suspect By JOSH GERSTEIN Staff Reporter of the Sun July 5, 2007 http://www.nysun.com/article/57843 An alleged Hamas operative is
    Message 1 of 1 , Jul 9, 2007
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      Libby Case May Aid Hamas Suspect
      By JOSH GERSTEIN
      Staff Reporter of the Sun
      July 5, 2007
      http://www.nysun.com/article/57843


      An alleged Hamas operative is likely to be among the first criminal
      defendants to try to capitalize on President Bush's commutation of the
      2 1/2 year prison sentence imposed on a former White House aide, I.
      Lewis Libby Jr., for obstructing a CIA leak investigation. Mohammed
      Salah, 57, is scheduled to be sentenced by a federal judge in Chicago
      next week on one count of obstruction of justice. In February, a jury
      convicted Salah and a co-defendant, Abdelhaleem Ashqar, of
      obstruction, but acquitted the pair of a far more serious charge of
      racketeering conspiracy in support of Hamas's terrorist campaigns in
      Israel, Gaza, and the West Bank.

      "What the president said about Mr. Libby applies in spades to the case
      of Mohammed Salah," Salah's defense attorney, Michael Deutsch, told
      The New York Sun yesterday. "We'll definitely be bringing it up to the
      judge. … It's going to be a real test, a first early test of whether
      we're a nation of laws or a nation of men."

      Mr. Deutsch is seeking a sentence of probation for his client.
      Prosecutors contend that federal sentencing guidelines call for Salah
      to be sentenced to up to almost 22 years. However, the prosecution
      acknowledges that the maximum sentence the law allows on a single
      obstruction count is 10 years.

      Despite Salah's acquittal on the racketeering charge, which could have
      carried a life sentence, prosecutors have asked Judge Amy St. Eve to
      find that the evidence presented at trial proved Salah was part of a
      terrorist conspiracy. "The jury did not find beyond a reasonable doubt
      that defendant Salah committed racketeering conspiracy. The standard
      at sentencing, however, is not proof beyond a reasonable doubt," the
      prosecution wrote in a recent court filing.

      Prosecutors have also asked the judge to consider a series of alleged
      offenses from the 1990s that Salah was never charged with, including
      bank fraud and perjury on behalf of a Hamas leader then facing
      deportation, Mousa abu Marzook. "To sentence Mr. Salah on the basis of
      non-relevant, stale, and acquitted conduct would most assuredly result
      in an unreasonable sentence and promote disrespect for the law," Mr.
      Deutsch said in papers filed with the court.

      At Libby's sentencing, his lawyers made similar complaints that
      prosecutors were seeking to lengthen his prison term based on a
      conspiracy to leak the name of the CIA operative, Valerie Plame, even
      though no charges were brought for the leak. Judge Reggie Walton sided
      with the prosecution in that dispute and by so doing may have added
      more than a year to Libby's sentence.

      When Mr. Bush commuted that prison sentence on Monday, he made
      particular note of the alleged unfairness in how Libby's sentence was
      calculated. "Critics say the punishment does not fit the crime : Mr.
      Libby was a first-time offender with years of exceptional public
      service and was handed a harsh sentence based in part on allegations
      never presented to the jury," the president wrote. He did not say
      explicitly that he agreed, but said those issues were among the
      "important points" he considered in making the decision to spare Libby
      from prison.

      "It applies to an even greater extent in Mr. Salah's case," Mr.
      Deutsch said. "In our case, these allegations were presented to a jury
      and he was acquitted."

      Mr. Deutsch also noted that while Libby was convicted of lying to the
      FBI and a grand jury in a criminal investigation, the lies Salah was
      convicted of telling were part of his defense to a civil case brought
      by the family of a victim of a Hamas-sponsored bombing. Salah, a
      Palestinian Arab born in Jerusalem who now holds American citizenship,
      was charged with giving false answers to written questions about his
      travels and his contacts with Hamas operatives. Legally, Mr. Bush's
      explanation for granting clemency to Libby sets no precedent and the
      commutation has no effect in any criminal case but that of the former
      chief of staff to Vice President Cheney. However, defense lawyers
      believe it amounts to an endorsement of various gripes they have with
      federal sentencing procedures.

      "There is so much good fodder in the president's statement," a law
      professor who specializes in sentencing issues, Douglas Berman of Ohio
      State University, said. "I think any very good defense attorney could
      and should look for ways to use the statement aggressively." The
      professor cautioned, however, that judges were still obligated to
      follow existing precedents.

      The issue of enhancing a defendant's punishment on account of
      acquitted or uncharged conduct has been raised in several recent
      Supreme Court decisions but not definitively resolved. In an opinion
      just last month, Justice Scalia said the current sentencing system
      suffers from a "patent constitutional flaw" in part because of the
      continuing role "judge-found facts" play in determining a sentence's
      constitutionality.

      The Libby commutation is also expected to be raised when Salah's
      co-defendant, Ashqar, is sentenced in a few months. "If you consider
      the Ashqar case under what the president has said, there certainly
      seem to be a lot of reasons for leniency," Ashqar's attorney, William
      Moffitt, said yesterday. "I think you'll probably hear a lot about Mr.
      Libby and President Bush."

      There are also some direct links between the Libby trial and that of
      Salah and Ashqar. The special prosecutor in the Libby case, Patrick
      Fitzgerald, is the United States attorney in Chicago and runs the
      office that prosecuted Salah and Ashqar. Mr. Fitzgerald did not appear
      in court at the Hamas-related trial, though he was in court daily for
      Libby's.

      In addition, a former New York Times reporter, Judith Miller, figured
      in both cases. In the CIA leak probe, Ms. Miller served nearly three
      months in jail for contempt after she refused to identify her news
      sources, one of whom turned out to be Libby. At his trial, the veteran
      journalist testified about their discussion and that he disclosed to
      her the identity of the CIA operative in question. At Salah's trial,
      Ms. Miller testified that she witnessed an interrogation of Salah at
      an Israeli jail and saw no indication that he had been tortured

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