By Rudolph Bush and Jeff Coen
Tribune staff reporters
Published February 1, 2007, 11:09 PM CST

In a legal defeat for the Bush administration's domestic war on terror, a federal jury Thursday acquitted two men of being leading members of the Palestinian extremist group Hamas and conspiring to support terrorism from the United States.

Bridgeview businessman Muhammad Salah swallowed hard and visibly fought back tears of joy as the jury acquitted him and co-defendant Abdelhaleem Ashqar of the most serious charges in the landmark case.

Salah and Ashqar, a business professor living outside Washington, D.C., were found not guilty of the racketeering charges that could have resulted in life prison terms. The men were convicted of lesser charges including obstruction of justice, and their lawyers promised to fight to keep them out of prison altogether when they are sentenced in June.

Salah hugged his family and supporters and raised his arms in victory as he left the Dirksen U.S. Courthouse to applause.

"The terrorism theory is defeated," he said as he left. "We are not terrorists, and everyone can see it."

The case was among the first to level allegations that America was being used as a fundraising base for a government-designated terrorist organization, but it was built largely on evidence that was more than a decade old. Some of that evidence was gathered in Israel—including what the defense contended was Salah's coerced confession—and involved conduct that occurred in the early 1990s, before the U.S. had given Hamas the terror designation.

Former U.S. Atty. Gen. John Ashcroft had announced the charges against Salah and Ashqar in a 2004 news conference in Chicago that heralded a significant shift in the Justice Department's approach to allegations about domestic support for foreign militant groups.

But Salah's lawyers said their win shows the government was overreaching.

"It's a huge victory—what's left is a relatively minor charge," said Salah's lawyer, Michael Deutsch. "I think the jury rejected this idea that you can criminalize this kind of organizing activity under RICO [Racketeer Influenced and Corrupt Organization Act] in the U.S.," he said. "It's a stretch."

Leaders of the U.S. attorney's office and the FBI in Chicago disagreed, and said the outcome of the Salah trial would do nothing to dissuade them from using the same tools again to fight terrorist organizations with branches or operatives here.

"This case is not going to prevent us from aggressively pursuing terrorism and terrorism financing cases," said Gary Shapiro, first assistant U.S. attorney in Chicago

That includes the unprecedented use of Israeli agents to testify against defendants, as they did against Salah and Ashqar.

"We don't believe we would have received guilty verdicts on all the other counts if it had not been for their testimony, which put all the conduct of the defendants into perspective," he said.

Jurors deliberated for 14 days over three weeks before finding Salah, a 53-year-old grocer, not guilty of conspiring to provide funding, recruiting, training and other aid to Hamas, a group responsible for dozens of terrorist attacks in Israel, Gaza and the West Bank. He was convicted of obstruction for lying under oath when questioned in a civil suit filed by the family of David Boim, an American student killed in a Hamas shooting.

$156 million awarded

In 2004, a federal jury awarded Boim's parents $156 million after finding that Salah provided support to Hamas.

Ashqar, 48, had been accused of archiving and distributing key documents and acting as a kind of switchboard who connected Hamas members across the globe to one another through his home telephone. He was convicted of obstruction and criminal contempt for refusing in 1998 to testify before a grand jury

Jurors said they were not divided, and simply applied the evidence presented in the three-month trial to the law they were given.

"There was a lot of evidence to go through, a lot of documentary evidence to go through," said juror Max Lapertosa, a lawyer for Access Living, a disabilities advocacy and services organization in Chicago. "The law was complex. In the end I think we came up with an unanimous verdict that is as fair as we could have possibly rendered."

That evidence included the confession of Salah, an American citizen, provided in 1993 while in the custody of Israel, as well as bank records showing he had received nearly $1 million from top Hamas leader Mousa Abu Marzook.

And the evidence included a trove of documents and wiretaps collected by federal agents in 1993 and 1994 under the Foreign Intelligence Surveillance Act, or FISA. The act permits electronic surveillance for the purpose of gathering intelligence domestically against people suspected of being foreign agents.

Some of the wiretaps and documents captured under the FISA order were entered as evidence against Salah and Ashqar in a process facilitated by the much-scrutinized Patriot Act.

The case had so many unusual elements that it's not possible to generalize from the results, Shapiro said.

But he said this was not a case about someone innocently sending or taking money overseas to aid charitable events. One of the defense positions in the case was that fundraising efforts were meant to support hospitals and education in the West Bank.

Prosecution cites terror acts

"The evidence in this case was pretty substantial that the money went overseas to aid the military wing of Hamas, and that that money went at least for the ostensible purpose of killing the Israeli military and engaging in other terrorist acts which killed civilians," Shapiro said.

Salah's lawyers also had contended that he was tortured into confessing while in Israeli custody. The prosecution had rejected that claim, and had even brought in former New York Times reporter Judith Miller—who had seen some of the interrogation—to testify about Salah's condition.

At the Mosque Foundation in Bridgeview on Thursday, Muslims who worship with Salah celebrated the verdict. They said it shows Muslims can find justice in the American legal system.

"Our community will no longer have to be afraid," said Amira Daoud. "I'm so glad that American people—his peers—gave a verdict that shows he couldn't have done this."

Leaders of Jewish advocacy groups expressed disappointment over the acquittals on the most serious charges.

"The fact that the charges were not sustained is a setback for the international fight against terrorism, plus for the public's understanding of how terrorist organizations can take advantage of the openness of democratic societies," said Yehudit Barsky of the American Jewish Committee in New York.

But they took some consolation in Salah's conviction for lying under oath in the Boim litigation.

"There is no escaping the fact that both of these individuals [Salah and Ashqar] were deeply involved with Hamas," said lawyer Steve Landes, who represented the Boim family at the trial.

Notified of the verdict, Boim's father, Stanley, said he was "at a loss for words."

"We have to hope that for people who do evil, justice will be done," he said from Jerusalem.

Salah relatives pleased

Salah's relatives said the jury's verdict shows Salah and Ashqar were only engaged in legal conduct, supporting Hamas' charitable work in gatherings protected by the U.S. Constitution.

Salah was forced to talk to Israeli interrogators and give a handwritten statement admitting he acted as the military commander of Hamas from his home in Bridgeview, they said.

Prosecutors had argued that Salah's confession to Israeli authorities was voluntary and included corroborating facts.

"They were basically trying to do Israel's work," Salah's cousin, Abdullah Salah, said of the government. "They were using Israeli agents, [coerced] confessions, in an American courtroom. It's un-American."

"We are not terrorists. We are not bad people," said Mahmoud Salah, Salah's brother. "We came to this country to be free.

"Now we thank God because it is over."

Tribune reporters Ron Grossman and Margaret Ramirez contributed to this report.