An American Dreyfus Affair: The Case of Mousa Abu Marzook

by Richard H. Curtiss

The fin de siúcle case of French Army Captain Alfred Dreyfus made history for two reasons. His 1894 conviction of spying for Germany, and the subsequent refusal of French courts to reopen the case to consider exculpatory evidence, became an example of a colossal failure of French justice—even after he finally was exonerated in 1906.

More significant was the conclusion of a young Austrian Jewish journalist who covered the case that if a Jew could be treated so badly in France, then considered the most enlightened country in Europe, there was no hope for Jews to live normally anywhere except in a country of their own. The journalist, Theodor Herzl, became the founder of modern Zionism.

The case of Dr. Mousa Mohammad Abu Marzook, a 46-year-old husband, father of six, legal resident of the state of Virginia and Hamas party political leader, who has been held in a seven-by-eight-foot cell in the Metropolitan Correction Center in New York City since July 25, 1995, but who has yet to be charged with a crime or even granted a personal hearing in a U.S. court, may go down in history as an equally colossal failure of American justice at the close of the 20th century.

What remains to be seen is whether the Abu Marzook case also will convince America’s eight million Muslim citizens that if one of their co-religionists can be treated so badly in the United States, once also considered one of the most enlightened countries in the world, there is no hope for equal rights under the law for Muslims in this country. What is indisputable is summed up in one sentence by Dr. Abu Marzook himself: “A Palestinian and a Muslim cannot expect the same American quality of justice as others when Israeli interests are involved.” His case proves his point.

Abu Marzook is a quiet, highly intelligent and perpetually smiling man who holds a Ph.D. in engineering from Columbia State University in Louisiana. In prison he reads Arabic and American newspapers, listens to AM radio in his cell, and can spend one hour a day outside the cell in a common area where prisoners are allowed to watch television. He seldom avails himself of this opportunity, however.

On Tuesdays his wife, Nadia al Ashi, and some or all of his children, whose ages range from 5 to 16, travel four hours each way from Northern Virginia to New York City to visit him. Theirs is a close-knit family. Abu Marzook used to spend two hours a day tutoring his children over and above their normal school hours. As a result, his oldest son, Omar, aged 16, and his second son, Tarik, 15, already are ready for university classes.

During prison visits the talk is mostly about family matters. Abu Marzook acknowledges sadly, however, that after having had to direct family matters largely without his assistance for 20 months, Nadia has become accustomed to making most of the day-to-day decisions by herself, and informing him afterward.

The decisions they are wrestling with now are wrenching. After fighting extradition to Israel ever since he was detained on July 25, 1995 as the family returned to the U.S. after visits to the Middle East, Mousa Abu Marzook gave up his fight for justice in the United States in January, instructed his lawyers to withdraw his appeal and waived his right to an extradition hearing.

Since he did so, however, nothing has happened. Israel, which charged in 1995 that as an acknowledged leader of Hamas, the Palestinian Islamist opposition to Yasser Arafat, Abu Marzook was implicated in terrorist acts, now is unable to assemble evidence of any kind of criminal activity on Abu Marzook’s part.

Abu Marzook has never denied he is the leader of the political section of Hamas. He says, however, that the political and military wings of the party are separate, and that he therefore has had no role in approving or planning any armed Hamas activities, or the suicide bombings that are generally cited as the principal reason that Shimon Peres lost the May 31, 1996 Israeli election to Binyamin Netanyahu.

Hamas vs. Sinn Fein

One of Abu Marzook’s lawyers, M. Cherif Bassiouni of the University of Chicago, compares holding his client, who is considered a voice for moderation within the party, responsible for terrorist acts committed by the Hamas military wing with holding Sinn Fein leader Gerry Adams responsible for every terrorist action by the IRA, or holding Yasser Arafat personally responsible for terrorist actions by any fringe group affiliated with the PLO, even groups that oppose Arafat’s leadership.

Now, even though Israel apparently no longer is interested in his extradition, Abu Marzook believes that the U.S. will be unwilling simply to release him after holding him for nearly two years without showing any cause to do so. The U.S. instead will look for a face-saving way to dispose of the case by deporting him, Abu Marzook predicts. He has heard that Jordan probably will agree to accept him.

If that happens, the Abu Marzooks have decided to leave their two oldest sons in the U.S. to continue their university studies while Nadia and the other four children, all of whom, ironically, are American-born U.S. citizens, join him in Jordan. On the other hand, the Abu Marzooks have not decided what the family will do if, after all, he is extradited to Israel, where another of his lawyers, Michael Kennedy, and human rights groups say he faces torture, which is permitted by Israeli law.

The path that put this soft-spoken, highly educated middle-aged man, who had never been accused of even a misdemeanor in his 14 years as a legal resident alien of the United States, into a federal prison for 20 months and counting began with his birth in a Gaza refugee camp 46 years ago. He studied at Helwan College of Engineering and Technology in Cairo and came to the United States in 1982. He earned an M.A. in industrial engineering at Colorado State University and a Ph.D. in the same field in Louisiana in 1993. Throughout this period he worked as an engineer both in the United States and in the Arabian Gulf, while pursuing his academic studies.

Dr. Abu Marzook first joined Hamas when he became head of its political bureau in late 1992. He moved with his family to Falls Church, Virginia, after that. In January 1995, he traveled to the Middle East. On his return to the U.S. the immigration official who stamped him in alerted him to the fact that his alien resident passport would soon need renewal. A renewal was issued by U.S. immigration and naturalization authorities in May 1995.

The following month the entire family left the U.S. during school vacation, with Mousa Abu Marzook traveling to the Gulf, and his wife and children visiting relatives in Israel. They reassembled in London for their return flight to the U.S. On their arrival at JFK airport in New York they learned Mousa Abu Marzook had been placed on an Immigration and Naturalization Service “watch list,” apparently as the result of President Bill Clinton’s signature of the highly controversial “anti- terrorism” law, which seems to strip legal aliens of many of their constitutional rights, and which lists Hamas among suspected terrorist organizations.

At this point Dr. Abu Marzook was put without a warrant or charges into the federal detention center from which he has not emerged for 20 months. Initially, apparently as a holding tactic, the U.S. government began exclusion proceedings against him, notwithstanding the fact that summary exclusion proceedings are not applicable to a permanent resident alien.

Then, on July 31, 1995, the Israeli government issued its first warrant for his arrest, charging that he had committed vicariously 10 acts of violence under a conspiracy theory between 1990 and 1994. Six of the alleged acts took place before he was a member of Hamas.

On Aug. 7, 1995 Israel filed a provisional complaint for extradition charging that in his “organizational” role as “the head of the political bureau of the Hamas organization,” Abu Marzook engaged in conspiracies to commit murder, manslaughter and harm. It was then that the U.S. issued its own first warrant for his arrest. However, the U.S. made no allegations that Dr. Abu Marzook had committed individual or substantive offenses.

Apparently realizing that the “conspiracies” it charged were not extraditable offenses under the U.S.-Israeli extradition treaty because they lacked criminality, the Israeli government then filed a new complaint entitled “Request for Extradition” on Sept. 28, 1995. The amended Israeli complaint described the allegations in the provisional complaint as substantive crimes rather than “conspiracies.”

A Political Decision

Strangely, the decision to seek an arrest warrant for Dr. Abu Marzook was not made within the Israeli criminal justice system, but in the cabinet of then-Prime Minister Yitzhak Rabin, who at the time was being accused by his Likud party opponents of being unable to cope with “terrorism” or to provide security for his people. In fact, according to the July 31, 1995 Yediot Aharanot of Tel Aviv, both Israeli State Attorney Dorit Benisch and Israeli Foreign Ministry legal adviser Joel Singer, a U.S. citizen, cautioned that Israel should refrain from presenting an extradition request for Dr. Abu Marzook because there was no factual basis to support it.

The Israeli extradition complaint nevertheless was issued, contrary to such professional legal advice. It charged that Dr. Abu Marzook “took significant organizational and financial steps in furtherance of Hamas’s goals.” Not mentioned in any of the subsequent press coverage are the charges originated both by Palestinians associated with Yassere Arafat’s Fatah movement and by former Mossad agent Victor Ostrovsky that at the beginning of the Palestinian intifada the Israeli government itself had helped Hamas supporters supply funding to the Islamist organization from abroad in order to establish it as a viable rival to Arafat’s movement. If the charges are correct, the Israeli government was asking the U.S. to extradite Abu Marzook for doing what the Israeli government was doing as well.

On Nov. 16, 1995, Dr. Abu Marzook filed a motion for bail and also filed his first petition for a writ of habeas corpus. His petition argued that the U.S. court lacked jurisdiction to extradite him, that the offenses charged by Israel were not extraditable because of the political offense exception under the extradition treaty between the U.S. and Israel, that the Israeli charges lacked any probable cause to support them, and that hearing and discovery proceedings must be ordered in this case for the reasons cited above.

On Dec. 6, 1995 extradition magistrate Keven T. Duffey of the U.S. District Court for the Southern District of New York summarily denied Dr. Abu Marzook’s motion for bail. On April 11, 1996 the extradition magistrate denied Dr. Abu Marzook’s motion for a hearing and discovery. On May 7, 1996 the extradition magistrate denied Dr. Abu Marzook’s petition and ruled that he was extraditable because there was probable cause to find he committed “crimes against humanity” and therefore he could not invoke the political offense exception.

However, no charges of committing crimes against humanity or enabling others to do so were ever lodged against Dr. Abu Marzook.

On June 1, 1996 Dr. Abu Marzook filed a second petition for a writ of habeas corpus. On Oct. 9, 1996 District Court Judge Kimba M. Wood decided that he could be extradited. On Oct. 21, Dr. Abu Marzook appealed Judge Wood’s denial of his petition.

Rights Denied

U.S. law provides accused persons the right to have an evidentiary hearing on probable cause, to present explanatory and elucidating evidence and, where appropriate, to have discovery. All of these rights were denied to Dr. Abu Marzook in the court proceedings. The thousands of pages on the case submitted by Israel failed to establish that Dr. Abu Marzook intended money raised specifically for charities, educational and social services and Palestinian relief to be diverted into military activities. In fact, the United Nations Relief Works Administration (UNRWA) also turns money over to Hamas charitable institutions for precisely the same charitable, medical and educational work.

By Jan. 16, however, dispirited by his continued confinement and the denial of bail, and convinced that, in his words, there was no real expectation of equal justice in the United States “where Israeli interests are concerned,” Dr. Abu Marzook instructed his lawyers to abandon the fight for a writ of habeas corpus and against extradition.

It may yet turn out that with Hamas and Yasser Arafat’s Fatah now functioning, in effect, as Palestinian government and opposition parties, and Arafat strongly supporting freedom for Dr. Abu Marzook and other imprisoned Hamas leaders, the last thing Israel wants is to have Dr. Abu Marzook returned to the land of his birth for prosecution. It is bound to spark more protests.

If that is the case, Abu Marzook may soon be living in freedom in Jordan or another Arab country, with his nearly two years of seemingly malicious, and almost certainly illegal persecution in the United little more than a bitter memory. If that happens, he has vowed never to return for even a visit to the United States, where he lived as a tax-paying, law-abiding citizen for 14 years.

But what about those Muslims who remain in the United States? Islam is America’s fastest growing religion and Muslims already outnumber Jews, whose pro-Israel national leaders are perceived as instigators of such blatant abuses of U.S. constitutional rights “where Israeli interests are concerned.” If a legal system whereby “some people are more equal than others,” as in the Abu Marzook case, becomes firmly entrenched in the United States, there is no way to predict the consequences for anyone over the long haul.

Asked by the writer whether he would agree that he has become “the American Dreyfus,” Dr. Abu Marzook demurs. “The American Dreyfus probably is John Demjanjuk,” he suggests. “He was deported by the United States Justice Department on trumped-up evidence, and tried, convicted and sentenced to death in Israel on false testimony. Then, after months in solitary confinement on death row, the Israelis admitted he had not done the things they had charged him with and let him return home to Ohio. The United States just went along with whatever Israel wanted. So maybe even in Israel I’ll have a better chance than I’ve received in the United States.”

Maybe he’s right.