Libby Case May Aid Hamas Suspect
- Libby Case May Aid Hamas Suspect
By JOSH GERSTEIN
Staff Reporter of the Sun
July 5, 2007
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
"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
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
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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