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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ABDELHALEEM HASAN ABDELRAZIQ

ASHQAR,

Defendant.

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Docket No. 03 CR 978-2

Chicago, Illinois

November 21, 2007

8:33 o'clock a.m.

TRANSCRIPT OF SENTENCING PROCEEDINGS

BEFORE THE HONORABLE AMY J. ST. EVE

APPEARANCES:

For the Plaintiff: HON. PATRICK J. FITZGERALD

United States Attorney

BY: MR. JOSEPH M. FERGUSON

MR. REID J. SCHAR

MS. CARRIE E. HAMILTON

219 S. Dearborn St., Suite 500

Chicago, Illinois 60604

For the Defendant: MR. WILLIAM MOFFITT

11582 Greenwich Point Road

Reston, Virginia 20194

MR. KEITH ALLAN SPIELFOGEL

20 North Clark Street, Suite 1200

Chicago, Illinois 60602

Also Present: S/A BRADLEY BENAVIDES, FBI

MS. KELLY RICE, U.S. Probation Office

Court Reporter: MR. JOSEPH RICKHOFF

Official Court Reporter

219 South Dearborn St., Suite 1232

Chicago, Illinois 60604

* * * * * * * * * * * * * * * *

PROCEEDINGS RECORDED BY

MECHANICAL STENOGRAPHY

TRANSCRIPT PRODUCED BY COMPUTER

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(Proceedings heard in open court:)

THE CLERK: 03 CR 978, USA vs. Abdelhaleem Ashqar.

THE COURT: Good morning.

MR. SPIELFOGEL: Good morning, Judge.

MR. SCHAR: Good morning, Judge. Reid Schar and

Joseph Ferguson on behalf of the United States.

MR. SPIELFOGEL: Bill Moffitt and Keith Spielfogel on

behalf of Dr. Ashqar who is here.

MS. RICE: And Kelly Rice on behalf of probation.

Good morning.

THE COURT: Good morning.

We're here for continuation of sentencing. Are you

ready to proceed?

MR. SCHAR: Yes, Judge, we are.

THE COURT: Mr. Moffitt, are you ready to proceed?

MR. MOFFITT: Yes, ma'am.

THE COURT: Mr. Moffitt, would you please come to the

podium with your client.

Dr. Ashqar should be up here, as well.

THE DEFENDANT: Good morning.

THE COURT: Good morning.

I have the presentence investigation report before

me. Mr. Moffitt, have you reviewed the presentence

investigation report and reviewed it with your client?

MR. MOFFITT: Yes, we have.

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THE COURT: Dr. Ashqar, have you reviewed the

presentence investigation report and reviewed it with

Mr. Moffitt and/or Mr. Spielfogel?

THE DEFENDANT: Yes, I did.

THE COURT: Okay. Other than the guideline

objections that were submitted to the Court in your various

submissions, including your August 24th submission and your

reply to that lengthy submission, do you have any comments,

corrections or objections to the presentence investigation

report?

MR. MOFFITT: Not for -- not on the -- not Rule

32-type objections, your Honor.

THE COURT: Okay.

So, nothing else other -- I know the guidelines are

all in dispute, and I will get to those calculations

momentarily, but nothing in terms of the factual predicate,

the other information that's in here.

MR. MOFFITT: No, no, nothing else to the historical

and biological information concerning Dr. Ashqar.

THE COURT: Okay.

Mr. Schar, on behalf of the government, do you have

any comments, corrections or objections other than the

guidelines, which we'll get to, but do you have any comments,

corrections or objections?

MR. SCHAR: No, Judge.

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THE COURT: All right. And Dr. Ashqar, other than

what your lawyer has submitted to the Court in the submissions

which address the guideline calculations which I will get to

in a moment, do you have any objections or corrections to the

presentence investigation report?

THE DEFENDANT: No, your Honor.

THE COURT: Let's turn to the guideline calculation.

The base offense level. I have read your submissions

thoroughly. Your objection, Mr. Moffitt, to the base offense

level is overruled. The base offense level under 2J1.2 for

obstruction of justice is a level 14.

You have -- 2J1.11 governs contempt and the

defendant's convictions here were on Count Four, contempt, and

Count Five, obstruction.

2J1.1 cross-references 2X5.1, which provides the

Court should apply the most analogous guideline where no

guideline has been expressly promulgated for the offense.

Your objection was to applying the obstruction of

justice base offense level here.

The application notes to the guideline make clear

that in certain cases, the offense conduct will be

sufficiently analogous to obstruction of justice for that

guideline to apply.

The Seventh Circuit also made this clear in U.S. vs.

Alwan, 279 F.3d 431 at 440, a 2002 Seventh Circuit, where it

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specifically noted that "2J1.1 recognizes that in some cases,

a defendant's conduct may justify the application of 2J1.2 for

obstruction of justice. This is one of those cases."

It's clear from the evidence at trial, including the

defendant's conviction on the obstruction of justice count,

that Dr. Ashqar's refusal to testify before the grand jury was

an effort to obstruct an ongoing criminal investigation into

potential criminal activities by various individuals and

organizations.

I reject your argument that his failure to appear --

that failure to appear is more analogous here and should

provide the base offense level because he did appear here and

he refused to testify, and the jury's verdict certainly

supports it.

I am adopting the probation officer's findings with

respect to the base offense level, which is a 14.

I also want to add -- first of all, I want to

compliment Officer Rice on her thorough and detailed report

before I go any further, especially for somebody who did not

sit through the lengthy trial in this case. I commend you for

the thorough report that you have provided --

MS. RICE: Thank you.

THE COURT: -- to the Court and to the parties,

Officer Rice.

MS. RICE: Thank you, your Honor.

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THE COURT: Before I go further on the guidelines, I

want to address some general objections, Mr. Moffitt, that you

have made to all of the guideline applications, and then I'll

go back to the specific applications and specific

enhancements.

You have, in your submission to the Court, repeatedly

raised First Amendment issues. I have addressed your First

Amendment issues at length in this case, and your submission

that you've submitted to the Court is essentially more of the

same that I've already addressed. I am incorporating the

Court's prior rulings in both pretrial and post-trial on your

First Amendment arguments, Mr. Moffitt, including the Court's

November 17th, 2005, opinion which can be found at 2005

Westlaw 3095543, and the Court's ruling on your post-trial

motions for acquittal and for a new trial. And I am rejecting

your First Amendment arguments for the reasons I've already

addressed at length. And I am incorporating those by

reference.

Also, I do note, because your submission as a prior

submission to this Court ignored it, that I am incorporating

and referring to the Seventh Circuit's decision in 2003

affirming the Chicago district court's civil contempt order

against Dr. Ashqar. The Seventh Circuit previously determined

that both the New York and the Chicago district court's

contempt orders were designed to coerce Dr. Ashqar into

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complying with the Court's orders. That is not in your

submission, and I'm incorporating that by reference into the

Court's sentencing today.

The Seventh Circuit's opinion is at In Re Grand Jury

Proceedings of the Special April 2002 Grand Jury, 347 F.3d 197

at 200 and 206 to 207. That's a 2003 opinion.

With that, I will turn to the specific offense

characteristic enhancement. You have objected to the

three-point specific offense characteristic enhancement set

forth in Section 2J1.2(b)(2).

I have read your submission -- all of your

submissions, Mr. Moffitt. I've read the government's

response. In light of Agent Bray's testimony from last week,

is there anything you would like to add, Mr. Moffitt, to that

proposed enhancement?

MR. MOFFITT: Judge, forgive me, but the numbers

don't --

THE COURT: Sure, sure.

The enhancement for substantial interference with the

administration of justice. That's the three-point

enhancement.

MR. MOFFITT: Yes, your Honor, there's a great deal

that I would like to add, but I will add it as quickly as

possible.

I think Mr. Bray's testimony sets out what I have

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always thought about this particular case. It was not unknown

to the government when they called Dr. Ashqar before the grand

jury that he had in a prior occasion been called before a

grand jury and had refused to talk to the grand jury for the

same reason that he had refused to talk to the FBI earlier in

19 -- in the years 1993 through 1996, when he was called.

I would suggest to you to tell us that you would base

an investigation entirely on Dr. Ashqar under the

circumstances has got to create something in your mind about

how silly that might be under the circumstances. Dr. Ashqar,

I would suggest to you further about Mr. Bray's testimony

included all the references to what happened in the trial and

the times that the government had evidence with regard to

Dr. Ashqar and his concern.

On one page, Mr. Bray testifies that he thought that

Dr. Ashqar as of the time of the grand jury was in

communication, was using his telephone as a conduit, and yet

all the evidence of that ended in 1995. All the evidence of

any contact with Marzook ended in 1995, all prior to the

designation of Hamas as a terrorist organization by the United

States government.

Virtually every piece of evidence against Dr. Ashqar

ended in 1995. The Al Aqsa fund had ceased to exist prior to

Hamas' designation. Any contact with any of these people that

the Court -- that the agent testified they were concerned

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about had certainly ended prior to Hamas' designation.

The evidence in this case sat for approximately eight

to ten years without anybody doing anything with it. It was

finally collected when this grand jury started. When we

asked -- when the government introduced the list of phone

numbers and said that they would have liked to have known what

these people's relationship was with Dr. Ashqar, Dr. Ashqar

was not the only person that could provide that information.

The people on the list could provide the information. The

government chose not to subpoena or even talk to or call up

any of these people on this list.

And as you know, we went through a rather detailed

cross-examination with regard to that. None of these people

were called. The suggestion here is for some reason, this

investigation was thwarted by Dr. Ashqar when a parallel

investigation was ongoing in Dallas, Texas, investigating many

of the same issues and many of the same people and, in fact,

in a trial of that case used much of the same evidence,

evidence from Dr. Ashqar's home, virtually -- other things.

That did not disable that grand jury from indicting all of the

people that they indicted in the Holy Land case, as I suggest,

nor did it disable that grand jury and that U.S. Attorney's

Office from naming over 300 unindicted co-conspirators.

To suggest that the only source of information here

with respect to what was going on with regard to Hamas was

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Dr. Ashqar is, I believe, a bit of a stretch to give the

government as much benefit as I possibly can.

THE COURT: Mr. Moffitt, I'm sorry to interrupt you,

but address somewhere in your statement the significance --

your argument that they're suggesting he is the only source of

information. The enhancement 2J1.2(b)(2) provides that if the

offense resulted in substantial interference with the

administration of justice --

MR. MOFFITT: Well, I --

THE COURT: One second, please -- increase by three

levels, and note 1 provides further definition of substantial

interference with the administration of justice, but nowhere

in there does it say somebody has to be the only source of the

information.

MR. MOFFITT: Well, I suggest to you, your Honor,

that to compare what happened here with what happened in

Dallas, to suggest that simply because they did not, according

to even Mr. Bray's testimony, follow up the leads that they

have, then to come in and claim the only reason that they

didn't follow up those leads was because Dr. Ashqar refused to

testify, I think stretches credulity at this particular point.

Other people followed up other leads would show and

demonstrate that this grand jury and these agents could have

gone further than they did, and they were not limited by what

I mean to relying solely on Dr. Ashqar for information.

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If the truth of it were to be believed or if the

government's urging on this was once they couldn't talk to

Dr. Ashqar, that was the end of it, that was the end of their

investigation, that certainly didn't happen in a very

comparative parallel investigation in Dallas, Texas. And I

only offer that as an illustration of how far we can go. We

heard all of the things that Mr. Bray didn't do.

The other thing I would suggest, that this

information, whatever information it was, the government had

no information and has demonstrated no information and could

not demonstrate it before this jury, that Dr. Ashqar

maintained any contact with any of these people. And

certainly if they had had that information at the trial, they

would have offered that information.

So, by the time they called Dr. Ashqar before the

grand jury, Dr. Ashqar's information is eight to nine years

old and stale, I would suggest. It's certainly not even

sufficient enough at that point for you, if they came before

you and offered that information to search Dr. Ashqar's house

in an affidavit in 2003, you certainly wouldn't have given

that affidavit to them on the basis that whatever probable

cause they had to believe that Dr. Ashqar was still doing

whatever he was doing in 1993 was stale. No judge would have

authorized a search warrant under the circumstances of how the

government put this evidence together.

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When Mr. Bray testifies after all the investigation

of Dr. Ashqar, after everything they've done, after a trial

and whatnot, he can still not offer anything but an opinion

not supported by one piece of evidence that Dr. Ashqar was

still in touch or in communication with any of these people.

I would also point out to you, your Honor, by the

time that Dr. Ashqar was subpoenaed in Chicago, the United

States government had kicked Mousa Abu Marzook, the target of

the grand jury investigation, out of this country. It

certainly wasn't likely he -- and as Mr. Bray testified, I

believe, he said he was either in Syria or Jordan by the time

this investigation began.

All right. I suggest to you that the idea that

Dr. Ashqar was going to offer them something that would allow

them to indict Mousa Abu Marzook is belied by the fact that

they were able to indict Mousa Abu Marzook.

They talk about also whether they could indict

Mr. Salah with regard to this. Mr. Salah was indicted. He

was indicted based on his own set of confessions and various

other things. They certainly didn't need Dr. Ashqar to indict

Mr. Salah. And I point out to you that throughout all of

this, pretty unabashedly, the government has suggested that

during the course of this whole attempt to get Dr. Ashqar to

talk, he was still a target. Even though he was immunized --

if you remember, I asked Mr. Bray about whether or not he was

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still going to be indicted. I suggest to you that the

circumstances understanding the full impact of Mr. Bray's

testimony in this particular case is that the government for

eight years sat on this information, didn't do anything with

it. According it him in the first part of this, didn't even

translate the information. All right?

The government also, I think, as I mentioned to you,

had the ability, and if they firmly believed that Dr. Ashqar

was still involved with these people, the wiretap, the bug,

all of the things that they did to Dr. Ashqar could have been

extended if there was probable cause under the FISA rules.

Mr. Bray did not even say that he was aware of how

long the wiretap was as he came in here and testified. So, if

they had any real evidence that Dr. Ashqar continued this

behavior, they had the ability to extend the wiretap, to get

another wiretap, to bug his house again, to search him, to do

all of these things, none of which happened.

So, I would suggest to you that under -- on even the

widest expansion of this particular evidence, this evidence

was stale. And whatever Dr. Ashqar could say to them based on

the information that Mr. Bray had is a lot of speculation

without any material support of any pieces of evidence that

would indicate at all that Dr. Ashqar was in a position to

give them current and up-to-date information.

And I suggest to you that under -- in 1993, to the

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extent that much of what Dr. Ashqar knew was in 1993, we still

operate under a five-year statute of limitations in this

country. And he was called before this grand jury after that

five years had expired.

So, I suggest that unless the government was very

creative in their indictment, as they were with Dr. Ashqar,

with regard to making it into a RICO case and into a

conspiracy, the information that they were going to get was

very old. And there were sources of information that the

government developed that gave them more current information.

For instance, Mr. Shorbagi. Dr. Ashqar's failure to

testify did not keep the government from developing

Mr. Shorbagi as a source of information. He gave them more

particularized information about what was going on with regard

to Hamas and HLF post the designation. So, to suggest here

today that Dr. Ashqar had any information that they could use

about anything having to do with Hamas post the designation is

just -- is just ludicrous under the circumstances.

And if it was so important that they know about this,

why did they allow this evidence to sit for as long as they

allowed it to sit? I suggest that the real impetus in this

case was what happened on 9/11/2001, when all of this evidence

became important to further so-called terrorism

investigations.

But I don't suggest that the inquiry into Hamas was

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in any way affected by Dr. Ashqar. They knew exactly what

Dr. Ashqar knew. They searched his house. They bugged his

phone. They bugged the meeting in Philadelphia. They bugged

his house. All of this occurred in 1993. All of this

occurred ten years before. And the only piece of evidence

that the government suggested occurred post-1995 when the

designation was was the information that Mr. Shorbagi got.

And I suggest that Mr. Shorbagi was available to the

government to get him to testify. He admitted that he had

contributed to HLF post the designation. He took the position

that he knew at the time that he contributed to HLF that HLF

was doing -- working for Hamas.

I suggest that if you remember the testimony of

Judith Miller, the reason that Judith Miller was sent overseas

to see Mr. Salah in 1993 was that the Israeli government was

trying to convince the United States at that time that Hamas

was raising money. This was pre-designation.

At that point, the government was not aware, did

not -- was not acting. And part of this whole thing, I

suggest to you, was they found out in 1993 exactly what was

happening with Dr. Ashqar and what he was doing. They took no

affirmative steps whatsoever to prosecute Dr. Ashqar or to

call him before a grand jury in 1993, when this information

was not stale. And I would suggest that would have been the

appropriate time to call Dr. Ashqar.

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After waiting ten years to and to call Dr. Ashqar

under those circumstances, plus understanding that there had

been almost what has been described as an even dozen of

meetings between Dr. Ashqar and the FBI from the years 1993 to

1996, having had Dr. Ashqar before a grand jury in New York,

having not moved to prosecute Dr. Ashqar at that time, by

2003, the government knew exactly what Dr. Ashqar's position

was well in advance before he was called.

As you know, he was held in civil contempt in New

York, went on a hunger strike to refuse, had taken the

position that he was not going to testify against people who

were fighting, what he perceived to be fighting for the

freedom of Palestinian people. He was also aware at the time,

I would suggest to you, that the Israelis were involved in

this investigation. He had been told that.

So, I suggest to you that to claim at this particular

point that they were shocked or nonplussed and it didn't

further their investigation sort of is belied by all of those

facts. And I don't want to repeat myself, but it seems to me

that Mr. Bray's testimony, pretty much all of it, indicates

that everything that they knew and everything they were going

to ask Dr. Ashqar about were events that they knew about in

1993, people they knew about in 1993, relationships between

people that they knew about in 1993, the Philadelphia meeting

that occurred in 1993. All of those things. They were even

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aware at the time that they called Dr. Ashqar -- and if you

remember, there was a discussion regarding the Philadelphia

meeting where the decision was made that the Al Aqsa fund

would go out of business. There are no bank records

post-1993, no phone records post-1993, nothing with regard to

Mousa Abu Marzook past 1993, and nothing with regard to the Al

Aqsa fund post the phone call regarding the Philadelphia

meeting in 1993.

For all of those reasons, I suggest for the

government to suggest under these circumstances that

Dr. Ashqar inhibited their investigation because he didn't

provide them with information that at the time they were

asking for it was ten years -- between eight and ten years

old, if not older, because if you remember some of the

information that Mr. Bray testified to he said centered from

the mid 1980's.

So, you know, at the end of the day, a reliance on

Dr. Ashqar here had to be misplaced. And it's really unfair,

I would suggest, to impose such an enhancement on him.

THE COURT: Mr. Schar?

MR. SCHAR: Judge, I think there are two distinct

issues that are kind of being argued by Mr. Moffitt, and one

I'm not sure you've asked for argument on yet, and that's the

concept of whether there was actual obstruction here.

What I understand you to be asking is given the

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baseline, which is defendant Ashqar has been convicted of

obstruction of justice, did that obstruction, which has now

been found beyond a reasonable doubt, cause substantial

interference to the government within the concept of the

guideline.

And Agent Bray's testimony could not be clearer of

the amount of effort and exercises that had to occur because

of the fact that the government could not obtain the testimony

of Dr. Ashqar. There's a lot of second guessing going on of

whether or not the government should have called Dr. Ashqar or

should have approached other people.

THE COURT: You are correct, Mr. Schar. I am just

taking now argument on the enhancement for substantial

interference with the administration of justice.

I know there's some overlap. Some of Mr. Moffitt's

arguments regarding actual obstruction go to the terrorism

enhancement.

But I am just -- I am focusing now on the substantial

interference with the administration of justice enhancement.

MR. SCHAR: And the focus on that, Judge, for the

government's perspective and, again, Agent Bray's testimony

laid out in detail, once defendant Ashqar obstructed justice

by refusing to testify, a number of things had to be done

which presumably otherwise would not have had to have been

done if he had chosen to cooperate with the grand jury's

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investigation.

Agent Bray talked about the phone records, the calls,

the analysis that had to occur because defendant Ashqar would

not talk in the grand jury about the meaning of certain calls,

who he was in touch with, the actual names of the individuals

and the import of the conversations.

He talked -- Agent Bray testified at length about the

bank record analysis that had to occur, specifically the bank

records that had otherwise been obtained by the government

beyond the search documents. How there were numerous,

numerous accounts that were on their face not -- the

connections were unclear because defendant Ashqar would not

talk about the connections and the import of those records, I

believe Agent Bray talked about the fact that volumes of

records actually had to be sent to FBI headquarters where I

think his phrase was hundreds, if not thousands, of hours had

to be taken to input those documents into databases, analyze

them and then provide the results to the Chicago agents and

government that were investigating the larger Hamas

conspiracy.

The documents that were taken out of defendant

Ashqar's house. Prior to this point, those had been used, I

think, as Agent Bray said, primarily for purposes of

investigative intelligence, not been used with an eye towards

kind of a larger criminal trial or investigation. Obviously,

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the government was relying -- and this, in large part, will

actually -- will go to actual obstruction, but I will withhold

my comments on that. Suffice it to say the government was

relying in large part on the person who maintained those

documents: Defendant Ashqar, to explain which ones were

relevant, which ones were important, what they meant and which

ones the government should be spending time focusing on.

His refusal to provide any testimony regarding that

forced the government to go through a laborious process in

which essentially all the documents had to be translated

verbatim, quality controlled -- and this is all through Agent

Bray's testimony -- through hundreds of hours just to get a

fuller understanding of what actually was in the documents

because defendant Ashqar would not testify.

You know, I could go on, Judge, but on that

particular point, I think Agent Bray laid out over and over

again the various things that needed to occur in order for the

government to be able to move forward with its investigation,

and it was one of the reasons that defendant Ashqar's

testimony was so critical so early on is that he could have

resolved and negated the need to do many of the things the

government had to do because of his centrally located position

within this conspiracy.

The archivist, the phone -- kind of the phone, you

know, operator in a certain sense. He was on the phone with

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numerous people. He had documents. He had bank records of

his own and other individuals. He could have provided

basically a roadmap to all of these things and permitted the

government to avoid spending time, resources of agents and

lawyers to do this.

As to some of the comments Mr. Moffitt made, I don't

want to go into any particular detail now, but I would just --

there seems to be a continuing belief that all of the

government's evidence somehow ended in 1993 and the phrases

were defendant Ashqar didn't have any knowledge of anything

that happened beyond that.

No one knows that, Judge, because he won't answer

questions. To this day, he won't answer questions. And I

will tell you -- and Mr. Moffitt made the point, I think,

rather aptly in his comments, he was put into the grand jury

in 2003. At that point, we didn't know about Mohammad

Shorbagi. We didn't know that in 1995, years after the search

had occurred, in fact, defendant Ashqar had sent documents to

Mr. Shorbagi. That was only discovered later. He could have

provided that information to the grand jury. We could have

avoided a lengthier investigation of Mr. Shorbagi.

But beyond that, what other information is there that

he has locked in his mind right now that we don't know about?

Just because the government can't produce additional evidence

doesn't mean it doesn't exist because in 2003, we didn't know

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about Mr. Shorbagi, but he sure existed and those documents

sure had been sent to him by defendant Ashqar.

And on and on it goes, Judge. I'm happy to answer

additional questions, but I think that Agent Bray's testimony

laid out in great detail the type of things the government had

to incur. And, frankly, everything that occurred at the trial

also laid out all the types of things that the government had

to do it would not have otherwise had to do had defendant

Ashqar agreed to testify.

MR. MOFFITT: Your Honor, let me draw your attention

to Page 80 of Mr. Bray's testimony about -- that discusses the

translations and issues of the translations.

Agent Bray could not tell us what quantum of

documents had been translated before 2002. He did tell us

that some of the documents had been translated, but he

couldn't tell us. And he told us that some of those documents

had been translated nine years before this grand jury focused

on Dr. Ashqar.

He suggested that they had been translated as early

as 1994. Certainly nobody was having Dr. Ashqar testify or be

called to a grand jury at that point. He says that some of

those documents were transferred -- were translated

completely, but he was not sure of what documents had been

transferred completely.

Now, also, let's not lose sight of what happens here.

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Assuming for the sake of argument, Mr. Ashqar -- or

Dr. Ashqar -- had cooperated. And I've represented people who

have cooperated with the government. They do not take as

gospel the words of the individual who was cooperating. And

if they were going to ever try anybody with regard to these

translations or -- and the transcripts of these phone calls,

and if they were going to put Dr. Ashqar on to testify and

they wanted to use some of these phone calls, they were going

to have to translate them.

So, to suggest that the reason that they weren't

translated was that Dr. Ashqar had failed to cooperate

stretches -- again, stretches credulity. Virtually every case

that I've ever been involved in that involves these kinds of

things involves translations that the government has got to

do. And when they're going to produce evidence against a

person, they have to translate the matters. When they're

going to use Dr. Ashqar as a witness, they were going to have

to translate and interpret the bank records. They were going

to have to do all of the same things if Dr. Ashqar had been a

witness.

You know, this is -- to suggest -- every time I've

ever sat down at one of those debriefing sessions, the

government has created, before they've talked to the witness,

a list of information from the information that they possess.

And to suggest that the only reason -- the only time they were

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going to do anything about preparing this information that

they had for eight years was if Dr. Ashqar cooperated with

them in their investigation again I think, you know, strains

the level of credulity here. The government doesn't operate

that way. They don't simply take the word of somebody that is

supposedly cooperating. They do their homework beforehand or

at least anywhere that I've ever been.

So, to -- and they would have -- they would have

translated this, they would have talked to Dr. Ashqar, and

they would have tested him with regard to the translations

under these. So, I don't think we should close our eyes to

how the government has operated, at least since I've been

aware.

THE COURT: Guideline 2J1.2(b)(2) provides that if

the offense level resulted in substantial interference with

the administration of justice, increase the offense level by

three levels. Note 1 to that guideline provides that

substantial interference with the administration of justice

includes a premature or improper termination of a felony

investigation, an indictment, verdict or any judicial

determination based upon perjury, false testimony or other

false evidence or the unnecessary expenditure of substantial

governmental or court resources.

The Seventh Circuit has also referred to this in U.S.

vs. Tankersley, T-A-N-K-E-R-S-L-E-Y, 296 F.3d 620. That's a

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2002 Seventh Circuit case.

The last part of that note is what the operative

provision in this case is, the unnecessary expenditure of

substantial governmental or court resources.

Before I get to your objection on whether or not this

applies, I want to first address, Mr. Moffitt, an objection

that you made to this enhancement, as well as to the others.

You have objected to the application of the preponderance of

the evidence standard by the Court in its fact-finding for

sentencing purposes. That objection is overruled based on

clear Seventh Circuit law. U.S. vs. Alwan, 279 F.3d, 431 at

440, a 2002 Seventh Circuit opinion; United States vs.

Emerson, 501 F.3d 804, an opinion from this year; and indeed,

in August of this year, the Seventh Circuit in U.S. vs.

Hollands, 498 F.3d, 622 at 633 reiterated that "judicial

fact-finding by a preponderance of the evidence is still a

legitimate basis for arriving at the applicable guidelines

range and does not violate the Constitution, so long as the

guidelines are advisory and the ultimate sentencing decision

is based on the Section 3553(a) factors."

I am -- based on clear Seventh Circuit precedent, I

am rejecting and overruling your constitutional arguments.

MR. MOFFITT: Your Honor, if I might, I understand

what your Honor did, but I certainly wish to be heard with

regard to the terrorism enhancement.

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THE COURT: We're not at that yet. If you want to be

heard on that, I certainly can. You've made that objection as

to the applicable standard throughout, including to the

2J1.2(b)(2) enhancement.

MR. MOFFITT: I understand. I just want it be clear.

THE COURT: And I'm overruling your objection.

I also find that the government has established by a

preponderance of the evidence that Dr. Ashqar's refusal to

testify before the grand jury resulted in a substantial

expenditure of time and money by the government, and the

substantial interference of administration of justice applies.

I'm basing this on several factors. The evidence

that was introduced at trial established that the defendant's

knowledge and connection with Hamas leaders through phone

calls, through documents that were obtained at his residence,

including the list of individuals that was submitted at the

beginning of this sentencing hearing last week. Agent Bray's

credible testimony established that the government had to have

investigators organize and analyze voluminous financial

records to determine relationships and connections among Hamas

co-conspirators, as well as the origin and final destination

of significant monetary sums.

Dr. Ashqar, based on the evidence obtained in his

residence and other documents admitted at trial, was in a

unique position to provide information regarding other Hamas

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members in the United States. The Jarad debriefing memo that

was written by Dr. Ashqar, which was admitted as an exhibit in

trial, is one piece of evidence of that.

Agent Bray also testified about the significant

resources that had to be expended by the FBI to address the

financial documents, as well as the communication among

individuals that they were focusing on in connection with

their investigation. Agent Bray described this as a series of

needles in a haystack that they were trying to decipher and

that Dr. Ashqar's testimony could have provided relevant

information to them and could have helped them find those

needles in the haystacks.

His testimony, as well as the evidence admitted at

trial, more than satisfies the government's preponderance of

the evidence standard that significant resources on financial

documents and other documents found in his residence had to be

committed, hundreds if not thousands of hours he testified to,

had to be committed to decipher this information that could

have been deciphered by Dr. Ashqar.

In addition, something that came out during trial,

there were various confessions found from Hamas individuals in

Dr. Ashqar's residence that he was collecting and sending to

others as we heard at trial, including his co-conspirators or

charged co-conspirator, Mr. Salah's confession that was

discussed at length in trial and I'm not going to go into

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here. But that information, as Agent Bray testified to, was

very relevant to their information. Why he had that, who

these individuals were, where was he obtaining that

information. All of that is information that just supports

the substantial interference with the administration of

justice in this case.

I am overruling your objection to that three-point

enhancement, Mr. Moffitt, and I will adopt the presentence

investigation's calculation and apply the three-level

enhancement under 2J1.2(b)(2).

You made a point, Mr. Moffitt, that the government

would have translated all of these phone calls anyway. It's a

lot easier to translate phone calls when you have one of the

participants in the phone conversation helping you translate

them. And Dr. Ashqar did not provide that assistance.

For those reasons, I am applying the three-level

enhancement.

The next objection in the presentence investigation

report's calculation is to the application of the

cross-reference 2J1.2(c), the cross-reference applying 2X3.1.

2J1.2(c) provides that if the offense involved

obstructing the investigation or prosecution of a criminal

offense, apply 2X3.1, the accessory after the fact in respect

to that criminal offense if the resulting offense is greater

than that determined above.

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The presentence investigation report applies the

offense level for murder pursuant to 2A1.2 -- 2A1.1. I am

sustaining your objection to the application of this

enhancement. The government did not originally seek this

enhancement. This was something that was in the presentence

investigation report.

Based on all of the evidence that this Court heard

through the lengthy trial, in addition to Agent Bray's

testimony, this -- the application of this enhancement is too

tangential to this case. Even Agent Bray, when he was asked

about specific murders, he answered, well, the answer to that

is yes and no, which I think was telling about connecting the

offense of conviction here to murders. There is no specific

evidence that has tied Dr. Ashqar to any particular murders.

I think that application is just too tangential, and I will

sustain your objection.

Mr. Schar, if you want to put anything on the record,

you're certainly welcome to do so. I know you addressed it in

your written submission, but if you feel the need to add

anything for purposes of the record, go ahead.

MR. SCHAR: Judge, for purposes of the record, no.

We believe the PSR is accurate. However, we will stand on the

brief in that regard.

THE COURT: Okay.

The next enhancement is 3A1.4, which provides that if

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the offense is a felony that involved or was intended to

promote a federal crime of terrorism, increase by 12 levels,

but if the resulting offense level is less than level 32,

increase to level 32.

Mr. Moffitt?

MR. MOFFITT: Yes, ma'am.

THE COURT: Again, please do not reiterate everything

in your 175-page submission. I have reviewed that

extensively. I've reviewed the government's response. But I

know Agent Bray's testimony was relevant in part to this

enhancement. So, I will give you the opportunity to add

anything you would like.

MR. MOFFITT: Well, I would suggest to you our first

assertion here is that the government placed the issue of

what -- whether this was an obstruction to further Hamas

before the jury. They placed it. These two obstruction

pieces, the New York and the Chicago piece, were part of the

conspiracy that Dr. Ashqar was acquitted of.

In the closing argument of the government at Page

310, at Page 322, the government argued that the obstruction,

the two obstructions of Dr. Ashqar were predicate acts in

furtherance of the RICO conspiracy; and, therefore, Dr. Ashqar

could be found guilty on the RICO conspiracy by finding him to

have obstructed justice twice, that these were the typical of

the predicate acts and that this was something that the

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government -- the judge -- I mean, the jury could find based

on these, the jury could find Dr. Ashqar guilty of the RICO

conspiracy.

In fact, as you know, the jury found Dr. Ashqar not

guilty of the RICO conspiracy. And I suggest there has been a

jury finding with regard to this in light of the government's

placing these in the indictment and further in light of the

fact that they argued to the jury that these were predicate

acts in furtherance of the RICO conspiracy. The jury

absolutely rejected it.

Therefore, the government, in seeking to aggravate

this, has done -- is doing exactly what Apprendi says they

can't do. Having placed this issue before the jury, the

jury's finding of a reasonable doubt governs in terms of

aggravating the sentence with regard to Dr. Ashqar because it

expands this beyond the normal amount that you could give

Dr. Ashqar under the circumstances. This is exactly the

issue, first of all, that Apprendi addressed.

So, to suggest at this particular point after having

placed this information before the jury and having had the

jury to reject it, that the government gets a second chance

now to go against that verdict and they get a second chance at

a lower standard is, I suggest to you, a violation of the

Sixth Amendment under any Apprendi line of cases.

Clearly, Apprendi said that, you know, other than the

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fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury and proved beyond a reasonable

doubt.

Here it was submitted to a jury, and here it wasn't

proven beyond a reasonable doubt. And I suggest that this

makes this case very different than most, if not all, of the

cases where the enhancement has been applied. In most of

those cases, there has been a plea or a finding of guilt on

the underlying charge that forms the basis for which the

government seeks the enhancement. This was neither a plea,

nor was there a finding of guilt.

So, our first line of discussion with you with regard

to this comes directly out of the Apprendi/Blakely line of

cases. And to suggest here to attempt to aggravate Dr. Ashqar

beyond what the jury found would be, as discussed in those

cases, I suggest to you, a violation of the Sixth Amendment.

Beyond that, your Honor, there are problems that are

raised by Rita with regard to this situation. This case is

the case that is discussed in Rita where there are Sixth

Amendment issues involved, and there's Sixth Amendment issues

involved simply because of what the jury has done. This is a

case that is anticipated by both the concurrence and the

dissent in Rita where there are Sixth Amendment issues that

are on that particular point.

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I would suggest, and I don't want to, again, repeat

any of our arguments. Here clearly what is happening is they

are using the enhancement to increase the guideline sentence,

and I suggest to you that we have to examine whether or not at

this particular point what the statutory maximum is and

whether the statutory maximum is applied before the 3653

factors or whether the -- I guess the 3553 factors -- govern

whether there is enhancement. That's the basis of Rita.

THE COURT: Which statutory maximum? Obstruction has

a ten-year, but contempt has life.

MR. MOFFITT: Well, I said --

THE COURT: He was convicted on both.

MR. MOFFITT: I understand.

The first thing I would say to you is that the

obstruction and the contempt here, he was convicted of

obstruction because of the contempt. They are not in any way

separated under this.

Further, I would suggest that an unreasonable result

here would be if he was sentenced to life. And we've noted

that in our paper.

But beyond that --

THE COURT: But I can get to that eventually, but I

think that's taken off the table in terms of the guideline

range with no accessory after the fact.

MR. MOFFITT: I understand.

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THE COURT: So, you don't need to spend too much time

on that in terms of --

MR. MOFFITT: Okay.

THE COURT: -- the guidelines themselves.

MR. MOFFITT: Again, I would suggest to you here that

the application of the guidelines, again which are advisory,

under the circumstances where a jury decided this issue and

giving him a life sentence under those circumstances would

violate virtually everything we know about our Sixth Amendment

jurisprudence.

But I also suggest to you the application of note 2

violates the Sixth Amendment in this case. Again, we have to

go back to the Apprendi situation, and understanding that the

guidelines are no longer mandatory --

THE COURT: Are you talking about Note 2(b)?

MR. MOFFITT: I'll tell you when I look at my notes.

Hold on one second. I believe so.

(Brief pause.)

THE COURT: I assume that's it.

MR. MOFFITT: I suggest that the real issue here is

what Justice Stevens and Justice Ginsberg focused on and

acknowledging that a rebuttable presumption of reasonable

standard may cause Sixth Amendment problems, and they suggest

even if some future unusually harsh sentence might violate the

Sixth Amendment because it exceeds a yet-to-be-determined

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standard of reasonableness, this case -- that's the problem

that wasn't presented in Reda.

THE COURT: I don't understand your argument,

Mr. Moffitt.

The rebuttable -- the presumption of reasonableness

is an appellate-level standard, not a district-court standard.

MR. MOFFITT: Well, the rebuttal presumption is.

THE COURT: An appellate-level standard.

MR. MOFFITT: It is clearly, all right, but in and of

itself, it can create a Sixth Amendment problem here under the

circumstances of having a sentence that is beyond the scope

and beyond the parameters of reasonableness.

Once the reasonable standard must be applied, you can

create a Sixth Amendment problem by sentencing someone in such

a harsh sentence that it does not rationally support a

reasonable notion. We've given you tremendous information

with regard to no sentence of contempt has ever gone beyond

five years.

There really isn't any reason under these

circumstances to impose a sentence of life on Dr. Ashqar. I

suggest that that's so far out of the bounds of

proportionality, the Sixth Amendment would clearly be

implicated. It was particularly implicated when this issue

was placed before a jury.

THE COURT: Again, Mr. Moffitt, I'm addressing the

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3A1.4 terrorism enhancement --

MR. MOFFITT: But I don't think you can --

THE COURT: I'm sorry, just let me finish -- with the

guidelines. You're addressing the life issue, and a guideline

range that would have life imprisonment as a possibility would

be unreasonable, unconstitutional.

Given that I sustained your objection to the

cross-reference applying 2X3.1, a life-in-prison guideline

range is no longer possible.

So, I'm happy to hear anything you have to say,

but --

MR. MOFFITT: Again --

THE COURT: -- I think you're arguing a point that is

no longer a viable option under a guideline calculation.

MR. MOFFITT: Well --

THE COURT: Or I'm misunderstanding you.

MR. MOFFITT: Well, I am concerned because the

contempt guideline does not, at the end of the day, allows you

to decide. It doesn't impose a particular guideline range on

you because it's contempt. And I suggest that by coupling the

obstruction with the contempt, it boosts the guideline

range -- it can possibly boost the guideline.

And I'm suggesting here that when you apply the

guidelines, if the guidelines are going to be the fount of

what we do here, your guideline decision because of the nature

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of the contempt citation has to be -- function under the level

of reasonableness here.

And still, just despite the fact because of the

nature of the guideline having an unending possibility or one

that is not defined within the framework, the discretion --

the first discretionary call is here at where you think this

contempt guideline exists.

And that's still, I would suggest, by the case law

and by the Sixth Amendment, must fundamentally, that

determination, you are still bound by a reasonableness

standard at this particular point because there is no typical

guideline standard for the issue of contempt. And the

contempt here is being used to boost the obstruction guideline

because it doesn't have one.

THE COURT: Any further arguments on the terrorism

enhancement, Mr. Moffitt, under 3A1.4?

MR. MOFFITT: Your Honor, I don't want to make all

the arguments that I made. As you said, you've read my paper

and --

THE COURT: Several times.

MR. MOFFITT: -- I trust that.

THE COURT: I think you know me well enough by now.

MR. MOFFITT: Yes, I do.

But I would suggest that the only way that you could

find beyond -- here that the terrorism enhancement applies is

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on judicially adjudicated facts post a jury verdict, and that

would be a violation of the Sixth Amendment.

THE COURT: Mr. Schar? The 3A1.4 enhancement.

MR. SCHAR: Yes, Judge.

I may not be tracking Mr. Moffitt entirely, but as I

understand it, the contempt guideline based on your earlier

ruling is going to track the obstruction guideline.

THE COURT: Yes. I'm not revisiting my prior base

offense level.

MR. SCHAR: And Apprendi and Blakely as a line of

cases are inapplicable to this situation because the statutory

maximum is set at ten years for obstruction and life. There's

nothing that's going to change that. There's no jury finding

that would have changed that.

And in Booker, obviously you have discretion now, and

the guidelines are simply a factor within your discretion that

aren't -- that don't implicate in this particular case

Apprendi or Blakely.

The acquittal, as you have repeatedly indicated in

written opinions and the government has argued, does not mean

anything in relation to this particular guideline. In fact,

to the extent there's anything to be gleaned, there was an

obstruction finding beyond a reasonable doubt and conviction

when the charge was obstruction of this particular grand jury

investigation that was investigating terrorism.

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We have laid out in our briefs, I think extensively

in relation to the terrorism enhancement, why it applies and

in particular, why I believe the case Biheiri out of the

Eastern District of Virginia and then the follow-up case,

which essentially just went along with the Biheiri reasoning,

are inaccurate or incorrectly decided at several levels,

including the need for actual obstruction.

We would urge you to find that those are standards

that are not required, and simply that district court made

some analogies such as to 3C1.1 which, in taking a step back

and looking, don't necessarily make sense.

That all being said, Agent Bray's testimony, Judge,

made crystal clear, as did this trial, but Agent Bray's

testimony in particular, that, in fact, there were specific

crimes of terrorism that were being investigated, both dating

back to 1993 and to the time when defendant Ashqar was called

before the grand jury. As Agent Bray noted, this was shortly

after or around the time that there was a bombing next to the

American Embassy by Hamas in a bar called Mike's Place in

which individuals died in a bus bombing in which Americans

died.

So, there were specific actual acts that were being

investigated, but there were specific statutes as laid out in

the grand jury that were being investigated. Indeed, an

indictment was returned on a material support count that did

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not go to trial but clearly this grand jury was investigating.

As to actual obstruction, you've already hit on a

number of the things that the government would cover, and I

don't want to spend a lot of time going on it, but the Jarad

document, the who, what, when, where and why over and over and

over again, Judge, came up in Agent Bray's testimony and at

trial in ways that only defendant Ashqar can adequately

explain. Why were aliases used? Why was he using an alias?

Who did he transmit these documents to? Why was he writing up

suggestions as to how to deal with certain things? Who were

the people in Chicago that were upset that defendant Salah had

been sent on Hamas activities based on the report found in

defendant Ashqar's documents?

Yusif Saleh, Ahmed Yusif, defendant Ashqar again

could have provided significant information.

Mr. Constantine, who is Mr. Constantine? Why is

defendant Ashqar on the phone with Mr. Constantine talking

about killing a rogue Hamas member? Only defendant Ashqar can

answer those questions.

There is over and over and over again consistent

questions that were raised throughout the course of this

investigation, indeed throughout the course of the trial, that

only defendant Ashqar could answer.

And I think that was made plain when the government

had to publish documents repeatedly or publish phone calls,

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and that's literally all we could do is simply lay out for the

jury, here's what was said. What does it mean? The person

who could answer that question is sitting on that side of the

courtroom, and he will not tell us.

So, to say, Judge, that there was actual obstruction

is an understatement, and indeed on facts significantly less

compelling than this, the Benkahala Eastern District case

found actual obstruction, as well.

So, we think that the standard is not that laid out

in Biheiri, but even if it is, the facts of this case by a

preponderance of the evidence demonstrate the terrorism

enhancement applies.

MR. MOFFITT: Your Honor, let me just read something

to you.

THE COURT: I'm sorry?

MR. MOFFITT: Let me just read something to you.

This is from Page 322 of the closing argument.

"You have Abdelhaleem Ashqar, obstruction of justice,

the fifth one up there, committed two acts of obstruction of

justice, one in 1998, one in 2003. That's two acts of

racketeering activity. That in itself could establish the

pattern."

I suggest to you that when the jury said Dr. Ashqar

was not guilty of the racketeering in the face of that

argument, you can only glean that the jury thought that there

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was another reason other than furtherance in -- furthering the

racketeering conspiracy for Dr. Ashqar's failure to testify.

And to suggest anything else under these circumstances would

be to suggest an untruth.

So, having the government place this in front of a

jury and having the jury reject that notion puts us squarely

within the Sixth Amendment issue. And I suggest that you

can't revisit it now at this particular point, having done

that.

They didn't have to do it that way. They didn't have

to do it that way. And the reason they, frankly, did that

that way, your Honor, was to get it within the statute of

limitations. Whatever conduct Dr. Ashqar had committed prior

to his testimony in 2003 or being called to testify in 2003

would have been well away from the statute of limitations.

And, therefore, Dr. Ashqar could not be charged.

So, in order to charge Dr. Ashqar, they put this in

as an act in furtherance of the RICO conspiracy. That would

give them a case that was within the statutory limits, and,

therefore, they had to argue this.

Now, I don't know what reasons the jury decided to

acquit Dr. Ashqar, but they did. And if any of this -- if any

of this stuff that we've heard about the jury being the

foundation and not being able to aggravate a sentence where

the government has placed this information before a jury

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beyond a reasonable doubt and not gotten what they wanted, at

the end of the day, you know, that case law has to have some

meaning.

So, again, I would suggest to you that the first line

of defense here is the Apprendi line of cases and that once

the jury's decided this issue, this should not be an issue for

you because -- I will finally say because the acquittal's got

to mean something. If that, then there is no point in ever

going to trial if the government gets to do what they couldn't

do in front of a jury in front of you where there has been a

jury finding.

THE COURT: I am going to address in my ruling

regarding this enhancement all of the issues, not just the

ones you've raised today, but the ones you have raised in your

papers, as well. So, my ruling on this is going to be lengthy

because of all of the issues you have raised.

I will start with -- first of all, the enhancement is

Section 3A1.4 that provides if the offense is a felony that

involved or was intended to promote a federal crime of

terrorism, increase by 12 levels; but if the resulting offense

level is less than 32, increase to a level 32.

I will start with your argument that the jury verdict

dictates this issue. I am rejecting that argument on several

bases.

First of all, the jury was considering a separate

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issue, whether or not Dr. Ashqar had committed a RICO

conspiracy or should be guilty of a RICO conspiracy. Seventh

Circuit law is very clear that courts can't guess why juries

reached certain verdicts.

But this is a separate issue. The question is

whether or not his refusal to testify before the grand jury

obstructed a federal crime of terrorism, which would be an

underlying terrorism investigation as set forth in the

application note that you pointed out to the Court previously.

Even if, Mr. Moffitt, your argument were correct,

that somehow it was the precise issue, again, the Seventh

Circuit -- which I don't think it is, but the Seventh Circuit

has been very clear that even acquitted conduct can be the

basis for sentencing enhancements. But I don't rely on that

because it is a separate issue from what the jury determined.

I'm also rejecting your argument that Apprendi

dictates this. Apprendi is not applicable here because the

statutory maximum, as Mr. Schar pointed out, is ten years for

obstruction of justice and life for contempt. So, there is

not an Apprendi issue.

In addition, in United States vs. Hale, 448 F.3d 971

at 988, the Seventh Circuit in 2006 reaffirmed what it had

held in United States vs. Arnaout at 431 F.3d 994, 1001, a

2005 Seventh Circuit case. Specifically, it held that "A

defendant need not be convicted of a federal crime of

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terrorism as defined by Section 2332b(G)(5)(B) for the

district court to apply section 3A1.4. Instead, the terrorism

enhancement is applicable where a defendant is convicted of a

federal crime of terrorism as defined by Section

2332b(G)(5)(B) or where the district court finds that the

purpose or the intent of the defendant's substantive offense

of conviction or relevant conduct was to promote a federal

crime of terrorism as defined by Section 2332b(G)(5)(B)."

The word "promote" as used in Section 3A1.4 signifies

that where a defendant's offense or relevant conduct helps or

encourages a federal crime of terrorism as defined in that

same section, then Section 3A1.4 is triggered.

Another argument you raised in your papers, again,

the beyond a reasonable doubt vs. clear and convincing versus

preponderance of the evidence standard, again, Arnaout and

Hale, the Seventh Circuit made clear that preponderance of the

evidence standard applies to the terrorism enhancement as

well.

You relied on U.S. vs. Kikumura, K-I-K-U-M-U-R-A, 918

F.2d 1084 at 1100, 1101, a Third Circuit case from 1990 in the

arguments that you submitted to the Court. I am -- first of

all, this Court is not bound by that, nor am I persuaded by

the reasoning in that.

I also note that the Seventh Circuit rejected that

precise reasoning in U.S. vs. Reuter, R-E-U-T-E-R, 463 F.3d

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791, a 2006 Seventh Circuit opinion. We are in the Seventh

Circuit. I am bound by Seventh Circuit law.

And significantly, on September 10th of this year,

the Third Circuit specifically overruled its ruling in

Kikumura in U.S. vs. Fisher. The Westlaw cite is 2007 Westlaw

2580632. The Third Circuit held, "This case presents the

question we left open in our en banc decision in U.S. vs.

Greer. Does U.S. vs. Kikumura remain good law in light of the

Supreme Court's landmark decision in U.S. vs. Booker? We hold

that it does not."

Therefore, any reliance on Kikumura certainly in this

circuit and even in the seventh -- in the Third Circuit would

fail.

I am also rejecting your argument regarding acquitted

conduct for the reasons I've already addressed. The Seventh

Circuit itself has specifically rejected that argument. It

has held, "Conduct underlying an acquitted charge may be

included as long as that conduct is proved by preponderance of

the evidence." I am citing U.S. vs. Rith, R-I-T-H, 461 F.3d

914 at 917, a 2006 Seventh Circuit case.

You can also look at U.S. vs. Horne, H-O-R-N-E, 474

F.3d 1004 at 1006, 07. U.S. vs. Hurn, 496 F.3d 784, another

Seventh Circuit case.

Your First Amendment argument that you make regarding

the application of this enhancement, I am also rejecting that

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for the reasons I've previously given and have given

throughout the proceedings in this case as I mentioned at the

beginning of today's hearing.

Here it is true, Mr. Moffitt, that Dr. Ashqar was

acquitted of the RICO conspiracy, but that does not answer the

question for the reasons I've already addressed. I have to

look to determine whether or not the purpose or intent of the

defendant's offense of conviction; namely, the obstruction of

justice by failing to testify before a criminal grand jury

investigating the terrorist activities of Hamas and the

contempt conviction, was intended to promote a federal crime

of terrorism.

In making the Court's ruling, I start with the

definition of a federal crime of terrorism as the Seventh

Circuit has said that I must. That is defined in the statute

I previously gave you, Section 2332b(G)(5)(B) under Title 18.

A federal crime of terrorism is defined as a listed offense

that was calculated to influence or affect the conduct of

government by intimidation or coercion or to retaliate against

government conduct. And there are various things enumerated

in 18, United States Code, Section 1114.

I agree with Officer Rice's conclusion that the

enhancement applies here; namely, the obstruction of justice

of a federal grand jury investigating the terrorist activities

of Hamas.

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Application 2 which you have pointed out to the Court

already to Section 3A1.4, this is in both the 2006 and the

2007 guideline, it's the same, provides that an offense that

involved obstructing an investigation of a federal crime of

terrorism shall be considered to have involved or to have been

intended to promote that federal crime.

Here, again, the offense of conviction was for

obstructing justice by refusing to testify even though his

testimony was compelled before a grand jury that was

investigating terrorist activities.

If you look at the Court's finding, the government

has met its burden of establishing this by a preponderance of

the evidence. Looking at the evidence, we have first of all

Agent Bray's testimony regarding what the grand jury was

investigating, and Mr. Chanenson, who testified during trial,

also testified about what the grand jury was investigating.

The best evidence, frankly, is the testimony and the

transcript from Dr. Ashqar's testimony on June 25th, 2003,

before the grand jury. This was admitted into evidence at the

trial.

The transcript makes clear that the prosecutor

explained to Dr. Ashqar before the grand jury that he was

appearing before a grand jury that was investigating federal

crimes of terrorism, including certain acts committed by

Hamas.

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Looking at Pages 8 through 11 of the transcript, it

is, again, very clear -- I'm going to quote from this, this is

the prosecutor speaking: "Let me just explain to you that

this grand jury -- I will tell you this grand jury is engaged

in a broad investigation involving federal crimes of

terrorism, including certain acts committed by Hamas. I would

like to explain to you some of the laws that the grand jury is

investigating. These are federal criminal laws that the grand

jury is investigating. If you don't understand at any time

the laws I'm talking about or you would like further

explanation, feel free to interrupt me because I'm going to go

through a list of laws that the grand jury is investigating."

The prosecutor then went through a list of laws,

including conspiracy to kill, kidnap or maim under 18, United

States Code, Section 956; 18, United States Code, Section 1203

regarding hostage taking; Section 2332, which makes it a crime

to kill a United States national while the national is outside

of the United States; Section 2339(a), which makes it a crime

to provide material support and resources to terrorists;

Section 2339(b), which makes it a crime to provide material

support and resources to a terrorist organization, including

Hamas; Section 2339(c), which makes it a crime to finance

terrorists and terrorist organizations; Section 371, which

makes it a crime for people to conspire to break any of the

laws of the United States; Sections 1961 and 1962, which make

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it a crime for individuals to participate in the affairs of an

enterprise through a pattern of racketeering activity or to

conspire to participate in affairs of an enterprise through a

pattern of racketeering activity; the money laundering

statutes are cited, false statements to government officials,

those are cited, and the mail and wire fraud are cited, as

well as Section 1503, corruptly obstructing the due

administration of justice, including a grand jury

investigation, and Section 1512, another obstruction.

Those were made very clear to Dr. Ashqar when he

appeared before the grand jury and refused to testify. In

addressing one of your objections in your written submission

to the Court, Mr. Moffitt, not only were these made clear to

Dr. Ashqar when he first appeared in the grand jury, but they

were made clear to him at Pages 34 through 37 after he was

immunized and compelled to testify by the chief judge telling

him that what he said would not be used against him.

Dr. Ashqar refused to answer questions directly

relevant to this investigation, and I am making this ruling in

part based on the evidence that I heard during trial,

including the documents that were admitted, the phone

documents, the confessions from members of Hamas, the Jarad

memo. He refused to answer every substantive question that

was put before him.

And when he refused to answer, he repeatedly said, "I

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cannot and will not permit my answers to be used against my

relatives and colleagues who have committed no crimes or

wrongs but who are being singled out for their involvement in

the struggle for political legitimate rights as recognized

under international law. I will never give evidence or

cooperate in any way with the grand jury or any other, no

matter what the consequence to me."

When asked if he would continue to refuse to answer

questions regarding the government's terrorism investigation,

despite the fact that his refusal to answer those questions

would harm the investigation, he read the prepared statement

again and informed the grand jury, "I will never give evidence

or cooperate in any way with the grand jury or any other, no

matter what the consequence is to me."

When asked a series of questions about specific

individuals that the grand jury was interested in, Dr. Ashqar

again incorporated his statement and refused to answer saying,

"I will never give evidence or cooperate in any way with the

grand jury or any other, no matter what the consequence is to

me."

When informed by the prosecutor that his refusal to

answer questions because he didn't want to give information

that could be used against others made it "extremely

difficult" for the grand jury to complete its investigation

and to properly investigate Hamas terrorist activities,

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Dr. Ashqar, again, refused to testify, read his prepared

statement and told the grand jury, "I will never give evidence

or cooperate in any way with the grand jury or any other, no

matter what the consequence is to me."

After being immunized and compelled to testify by

then Chief Judge Kocoras, he still refused to answer any

questions regarding the investigation, regarding any terrorist

activities, regarding any terrorist activities of Hamas. He

was informed, again, after he was compelled to testify, that

the United States thought the information he had was

"critically important to the grand jury's investigation into

Hamas and other terrorist activities" at Page 53 of the grand

jury transcript.

He was also advised that his refusal to answer the

questions would have a significant impact on the government's

investigation into terrorist activities. At that point,

Dr. Ashqar again refused to testify and said, "I will never

give evidence or cooperate in any way with the grand jury or

any other, no matter what the consequence is to me."

The government has met its burden of proving, by a

preponderance of the evidence at a minimum, that Dr. Ashqar

intended to obstruct a terrorism investigation into Hamas

activities.

I know you have cited several Virginia cases

regarding what standard should apply. Those aren't binding on

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this Court, and I frankly don't need to address that issue

because I have found, based on Agent Bray's testimony, based

on the evidence heard during trial, and based on the

transcript, parts of which I have just reviewed with you, that

there was actual obstruction here.

I am rejecting and overruling your arguments,

Mr. Moffitt, that application note 2 is unconstitutional.

I've already addressed the First Amendment argument. I am

rejecting your double jeopardy argument based on U.S. vs.

Hall, 109 F.3d 1227, a 1995 Seventh Circuit case. And your

Eighth Amendment cruel and unusual punishment argument is also

inapplicable here, especially in light of the fact that the

guidelines are advisory and the Court looks to the Section

3553 factors to make its final sentencing determination.

For those reasons, I am overruling your objection to

the application of the terrorism enhancement under 3A1.4 of

the guidelines. Based on that, the offense level increases to

a level 32 with a Criminal History Category of VI.

There is no role in the offense enhancement in this

case, given that Dr. Ashqar was the sole participant in the

obstruction.

For those reasons, our final guideline calculation is

an offense level of 32, a Criminal History Category of VI,

with a corresponding guideline range of 210 to 262 months.

With respect to sentencing, Mr. Moffitt, I will hear

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from you. And I will certainly consider some of the arguments

that you have already raised with this Court that I believe

are more applicable to the ultimate sentence and the Section

3553 factors than to some of the particular enhancements.

MR. MOFFITT: Let me start by saying this is not a

case that I would suggest to you is contemplated by our

criminal law. Dr. Ashqar is not a citizen of the United

States.

THE COURT: Are you saying, just so I'm clear, that

the conviction or that the level of guidelines?

MR. MOFFITT: Well, I'm talking about the entire case

at this particular point. I'm assuming that you want me to

make my 3553 --

THE COURT: I want to you make any arguments you have

regarding sentencing and certainly include 3553 in there.

MR. MOFFITT: This is not a drug case. This is not a

case that was compelled by the issue of greed or what

typically involves criminal cases in the United States. This

case was not about money. This case is about a people.

As I said, Dr. Ashqar is a Palestinian. He was born

in Palestine, a country that is not even on the FBI computer.

He is a man who seeks the dignity that each and every one of

us seek and the right to be free in his own country.

He is a man, I would suggest to you, of great courage

and great ability. And he is in many ways an example to all

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of us. I don't know how we call upon an individual whose

country has been occupied for 50 years, the occupation of his

country violates every norm of civilized justice. And when

his people scream to be made free, fight to be made free like

every other country that has felt the sting of colonialism,

they're punished? They should be punished?

I guess certainly under the theory that if the

British had won the American Revolution, then the people that

found this country should be punished because they found this

country for the same reasons Dr. Ashqar is before you.

So, if seeking freedom for his people in his country

can be made a crime in this country, how far have we come?

How far have we come?

There is no motive here other than Dr. Ashqar's

desire to end the occupation of his homeland. And chronicles

and documents and words and things have been spoken for the

last 50 years here, overseas, and in the United Nations about

the illegality of that occupation, and nothing's happened.

It's still occupied. The Israelis still build settlements in

the occupied territories. They still confiscate Palestinian

land. And it goes on and on and on and never ends.

When will it end?

And if we make the people who are most like us in

fighting for their freedom criminals because now we're an

established government, we're proud and we're powerful.

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The history of our country was to look out for the

weak, not for the strong. There are millions of people as we

speak in refugee camps as a result of what has happened in the

occupied territories. Government witnesses won't even say the

word occupied. The world has condemned the occupation, but

the world can't stop the occupation.

Just like in Ghana, just like in Angola, just like in

South Africa, it's up to the people who live in those

countries to stop them. And I guess Dr. Ashqar will tell you

Nelson Mandela spent 27 years in jail on Robben Island

fighting for the freedom of African people in South Africa

because of an apartheid system. Jimmy Carter, the President

of the United States, has suggested that what is going on in

Israel and the occupied territories is apartheid.

Yet what we're saying today in the face of the entire

world is that these people have no right to fight back. They

have no Army. They have no nuclear bombs. They have nothing.

And in most cases they're fighting with sticks and stones, as

I told the jury.

And what are they fighting for? We are a mature

enough democracy, I would suggest to you, or if we are not, we

should be to understand the difference between what is

happening in the occupied territories and what a terrorist

group like al Qaeda looks like. These are two very different

things. We are now the occupiers as opposed to the occupiees.

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I asked myself over and over, again, if the situation were

reversed, if it was here that was occupied, if it was here

that a military power had imposed military courts, had

incarcerated my brothers, my sisters, myself, my nieces, my

nephews, on the basis of supporting that occupation; if my

wife's family had been run from the village that she was born

in because of the occupation, how much courage would I have?

Where would I stand? Would I stand with the occupier, or

would I stand with the people who are fighting that

occupation? Would I have the courage to stand up?

Now, one thing that's important to note here.

Dr. Ashqar's act here was an act of silence. He didn't

mislead anybody. He didn't lie to a grand jury. And there's

got to be a difference, I would suggest to you, between

silence and perjury. He chose to remain silent. He chose to

remain silent out of his belief that he had a patriotic duty.

I've listened to Mr. Ferguson talk about Dr. Ashqar's

duty to the United States. He had no duty to the United

States. He's not a citizen of the United States. He came

here to get an education, and he informed people about what's

going on in his country. And you heard the kind of

information about what kind of man Dr. Ashqar was. You heard

the people at the University of Mississippi testify that when

an Islamic student died, Dr. Ashqar was the person that they

went to to arrange the burial.

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You also heard from the people at Mississippi that

from the very beginning, they were told and, conversely,

Dr. Ashqar was told, that this investigation began and was

being promoted at the behest of the Israelis. Now, Dr. Ashqar

has a lot of experience with the Israelis. You've seen it in

your letters, in the letters to you. He has a lot of

experience with what the Israelis have done to him, his family

and what the occupation, not beginning with the British

occupation and his father, have done to his people.

Now, would I be willing to stand by and give evidence

to the occupier if I were asked to if this were my country

that was invaded? I would hope that I have more courage than

that. I hope that I would not lie. I hope I would not

mislead. I hope I would have the courage to remain silent.

You're not going to stop the occupation, the

brutalization of the Palestinian people. You put him in jail.

Put him in jail for a long time, and that brutalization is

going to continue. And it's going to continue in such a way

that people who are far less peaceful than Dr. Ashqar are

going to become more and more angry, and they're going to

become more and more angry about our support for that.

We sent you this (indicating). This gives you an

example of what happens to people who have his nationality

simply because of his nationality. Everything in our history

tells us that is not right, that is not fair. The fourth

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protocol of the Geneva Convention says that an occupying power

can't seize the land, can't build roads, can't build

obstructions, yet the whole world has ignored what has

happened.

And the Palestinians are a problem. They're a

problem because they won't be quiet, because they want what

you and I want, and they want for their children what I want

for mine and they want for their grandchildren what I want for

mine.

And what is it about them that says they're not

entitled to it? Is it because they're Muslim and they don't

necessarily believe the same things that we believe? Is it

because of the color of their skin? What happens when you for

50 years press a people, oppress a people, deprive people of

the fundamental notion of liberty and justice? What happens?

Are they supposed to remain silent forever? Are they supposed

to aid their oppressor out of some spirit that their oppressor

ought to be aided or some spirit of justice that I would

suggest to you is totally misplaced? What is justice? What

is just for him? What is just under the circumstances?

Is he a drug dealer? No.

Is he a racketeer? No.

What is he after? What is the goal here? Freedom.

The right to determine for themselves what their country ought

to be.

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And what happens? What happens? They have an

election. And guess what? Hamas gets elected.

Now, not one Palestinian, not one person with feet on

the ground that has a stake in that society made the

determination to call Hamas a terrorist group. That was all

done over here in the pleasure of our homes as we are not

being victimized by an occupation.

Well, you know, we have a proverb. Before you decide

to punish me, walk a moment in my shoes. What created a Mousa

Abu Marzook? What created Hamas? What created Fatah? What

created those problems? These are not inherently violent or

mean people. And this whole notion that anybody who supports

what happens in Palestine in the fight for power is evil is

ridiculous. He's not an evil man.

But why are his wants and his desires for the things

we take for granted every day -- the right to determine what

kind of government he lives by, the right to worship in a way

he chooses, the right to decide whether religion ought to play

a role in the law of the country -- why should he be deprived

of that?

You've read that his parents had a farm and once the

occupation began, they could no longer sell their vegetables

and their fruit. You read that his wife's parents were

removed from their village. This is A History of the

Occupation (indicating) written by Israelis, and they discuss

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the evils of what has happened.

I would suggest to you that the government's theory

of this case was that the Palestinians wanted to lord over the

whole state of what was called Judea or Israel. And I suggest

to you they are combatted on the other side by an Israeli

government that wants to lord over it, as well. And they have

made it impossible for the Palestinians to have a viable state

because that was their intent from the very purpose from this

book.

The man who over the years had sown scores of

settlements in order to thwart any possibility of a viable

Palestinian state reaped in this war what he may not and many

Israelis believe to be the very proof in a kind of

self-fulfilling wish. The Palestinians are not deserving of a

state of their own because of their innate murderous

barbarity. The great victory, therefore, that Sharon

succeeded in chalking up to his credit before his withdrawal

from Gaza was the casual disconnection of the Palestinian's

war against the 40-year Israeli occupation from any historical

context and from to his handiwork over the years. From The

Lords of the Land, the History of the Settlements.

Well, in this courtroom, in this procedure, in that

indictment, there was a disconnect in the same way of the

historical context. What are they to do? What is your answer

to Dr. Ashqar when he says I want my people to be free? The

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government's answer was as follows: Give up your citizenship,

give up your name, give up your heritage, give up what you

know has happened to your family, and come join us. This is

what we offer to you. We will put you in witness protection.

We will protect you from your own people. All we want you to

do is further our investigation in the people who in your

country are fighting for liberty.

What is a terrorist? Has there been a social

movement that resulted in change in this world that hasn't had

to use violence in some way to overturn a social order that

imposed the lack of any legitimate rights on the party? Has

that ever happened?

Years ago, there were revolutionary movements. It

was a revolutionary spirit. We did it in the United States.

The French did it. We salute the French Revolution and all of

its atrocities. And over and over in the world, we have

saluted people who have overcome their oppression by fighting

because the oppressor never gives up without a battle, no

matter what the oppressor says.

What do we say to him? Another 50 years? Another

generation of people in refugee camps? Another generation of

not resolving the issue in the Middle East? And we wonder, we

wonder why people in the Middle East at this particular point

resent us. Can't we draw a distinction between what is

happening and why people fight in Palestine and the difference

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between al Qaeda? Can we be sophisticated enough to

understand that difference? The world demands that we

understand that difference.

This is a man who has suffered not only personally,

but he's been jailed by the Israelis, and yet these people

want to stand there in this place, in this country, unaffected

one way or another by this occupation, not worried about it at

all and make a value judgment against him? One wonders what

Mr. Schar and Mr. Ferguson would do under those circumstances.

Would they have the courage of Abdelhaleem Ashqar? I don't

know. I would hope so. I would hope so.

But how do we make a value judgment on Abdelhaleem

Ashqar in the face of what he's experienced, what his wife has

experienced, what his family has experienced, how do we say

that he was wrong?

And, Judge, I suggest to you there's got to be a

distinction between silence and lying. There's got to be a

distinction. He had the courage to stand up and say I'm not

going to mislead you, I'm not going to lie to you, but I'm not

going to tell you. I'm not going to talk to you. These are

people who are fighting in my country for our freedom.

And it's not even a country, according to us. How

much dignity do we take away from these people? And how long

do we take away their dignity and expect them to remain

peaceful? The American native Americans didn't remain

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peaceful as their land was being confiscated and taken from

them.

What in our history on this planet tells us people

are going to sit by and let this happen it them? What else

tells us that 50 years of this they are not going to say I'm

sick and tired of being sick and tired? Do they have a right

to be sick and tired? How would anyone feel if they knew that

there were relatives in what amounts to concentration camps?

By what right does one people have to do that to

another? And then by what right do we have to expect in the

face of the terror, in the face of all the things that

happened? You've heard it. You heard it from Mr. Hroub, the

censorship, the closing of the universities, the lack of

education, the lack of opportunity, the hours and hours it

takes to go from place to place because there are only --

there are roads in the occupied territory that only can be

traveled by Israelis.

When you look and sentence Dr. Ashqar, be mindful, be

mindful of what you're saying to him. The Israelis imposed an

illegal occupation, illegal by any stretch of international

law, and you have no right to fight that. And if you fight

it, we're going to punish you.

Well, I know Dr. Ashqar. And if you told him that he

would have to spend the same amount of time that Nelson

Mandela spent in jail, 27 years, to vindicate his rights, he'd

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go and spend those 27 years. That's not fair. That's not

just. It wasn't just in Mr. Mandela's case. It's not just in

Dr. Ashqar's case.

We are very comfortable here. We have avoided many

of the things that go on in the world. We have gone from

being a people that support poor people and people who are

under colonial oppression to a colonializing power. We have

treated Arab people very badly. And you can just look at what

the Blackwater people were trying to pay for the life of an

Arab in Iraq. We treat their lives as if they don't mean

anything, and we wonder why they're angry at us. We

wonder why we're angry, because we set ourselves up as a

paragon of all the things he believes in, and we tell him that

he has no right to believe them, he has no right to fight for

them.

And then we say to the rest of the world this is our

history, aren't we proud. Aren't we proud that some family

farmers got together and said no taxation without

representation and fought the British and threw tea off, and

we're proud of that. We tell the whole world that as a

revolutionary example.

And then when another people with less opportunity

under far more oppression that faced the settlers here in this

country stand up and fight, we call them terrorists. We call

them terrorists. And if this country was under the same set

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of occupation, I hope to God I would be a terrorist.

It's been a great pleasure to be here in your

courtroom. It's been a greater pleasure to represent this man

because I've met him, I know him, I understand what he

represents. I've read pleadings that suggested that while he

was at school, he was just running around creating problems.

You have a letter from his adviser. You have a

letter from his adviser saying what kind of man he was.

You've seen numerous letters talking about what kind of man he

was.

I hope that when I leave this planet, there will be

those kind of testimonials to me. You're going to do whatever

you think is right and just and fair, and I've appreciated

your fairness throughout this whole process.

I'm going to ask for it one more time. One more

time. I'm going to ask you to put yourself for a moment in

the shoes of Dr. Ashqar, in the shoes of a family that has

faced the oppression of an occupation, in the shoes of a young

man who in 1967 saw his community invaded and a military order

imposed, in the shoes of a man whose family has a history in

fighting the occupation, in the shoes of a man who has gone to

jail, who stood up for what he believed and fought for what he

believed in a place where the world has abandoned.

I ask you to take that into consideration in

sentencing Dr. Ashqar, and I suggest to you that this is

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unlike any other criminal case that you will ever have before

you again. This is not al Qaeda. This is not Osama bin

Laden. This is none of that. We are not at war with the

Palestinian people. They are not at war with us. And to the

extent that we support this occupation, they are angry with

us. But it's only human. That's only right and just that

they be angry with us to the extent that we support this.

He is not an angry man. And if you look at those

letters, nothing in those letters indicate that this is an

angry man who's looking for revenge against the United States

or that this was motivated by revenge.

I understand that you made a ruling about what you

thought this was motivated by, but I suggest that this was

motivated only by a sense of justice that exists in all of us,

and that's all I have to say.

THE COURT: Mr. Moffitt, are you making any specific

recommendation?

MR. MOFFITT: Well, I certainly am asking you, since

you have found the guideline being what it is, to depart from

that guideline, that the criminal history here is well

overstated far beyond what it was supposed to be. And I

suggest to you the guideline itself overstates this man's

involvement and why this man was involved.

Judge, I'm not going to make a recommendation to you.

I'm going to leave it to you to decide. You've heard all of

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this. You know -- you've read all of the letters. You've

seen everything there is to know about this man. You've seen

what kind -- you get from the sense of it. If you remember

there is one letter that discusses the fact that when

Dr. Ashqar was running Al Aqsa, if you remember, there was a

student who wrote, and she said his charity was different from

everyone else's. He was looking for books, for educational

information, and that was why she contributed books and what

have you.

This man, if you remember his speech in the

Philadelphia, his speech was about education and what the

Palestinian people have to do. He was always trying to get

other people here to do that.

And I suggest to you one of the problems with

education is it makes oppression more difficult to stomach.

The more educated you become, the more -- the harder it is to

stomach oppression. As long as you remain ignorant and

powerless, it's much easier to stomach oppression. And the

people who found this country were the intellectual leaders of

their communities, just like Dr. Ashqar.

I've talked long enough. I've said what I had to

say. Again, I'm very proud to be standing with this man.

THE COURT: Thank you, Mr. Moffitt.

MR. MOFFITT: Thank you.

THE COURT: If you need to sit until it's your time

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to speak, you're welcome to do so. You can stand if you'd

like, but I see you leaning over, Dr. Ashqar, if you want to

sit until you speak.

THE DEFENDANT: That's okay. I'm going to stand up

for everything, Judge.

THE COURT: Mr. Schar?

MR. SCHAR: Judge, I want to start first with the

premise that there are two separate crimes and two separate

harms that have occurred here.

One is obviously the grand jury investigation for

which there's obstruction, and the second is the contempt,

which is actually a separate harm; that is, a judge's ruling

that was ignored and not abided by. So, there are two

separate ills for which defendant Ashqar has been convicted.

I do not want to belabor, Judge, what is at a minimum

the overwhelming evidence of the type of critical information

that defendant Ashqar could have provided to this grand jury

investigation. He was -- and this was demonstrated at trial,

on the phone with nearly every significant high-ranking member

of Hamas, including numerous founders, both in Israel and in

foreign countries such as Iran.

He was on the phone talking about the need to kill a

rogue Hamas member. He was on the phone discussing coming up

with a code of communications between Hamas members. He was

on the phone attempting to put Hamas leader Rantisi, one of

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the founders of Hamas, in touch with the family of a Hamas

terrorist who had blown himself up on the way to commit a

terrorist attack.

He was on the phone discussing ways to protect Hamas

archives. He was himself, as the evidence has demonstrated,

an archivist. Countless documents, not just relating to

education, Judge, but relating to significant violent

activities by members of Hamas, including members he was in

touch with, were found in manners that only he to this day can

explain to the grand jury, to the government, such as the

Jarad document, the confessions which we've cited earlier, the

fact they were translated from Hebrew to Arabic.

Was he at the Philadelphia conference talking about

education? He was. He was at the Philadelphia conference

also talking about defendant Salah and the need to be careful.

And to this day, we don't know all the members who were at

that conference because those answers remain locked in

defendant Ashqar's head.

In the face of overwhelming evidence, defendant

Ashqar's significant role in Hamas, the government and, in

essence, the grand jury, went to him and granted him blanket

immunity for his involvement in order to attempt to unravel

several things. First, to understand the Hamas terrorist

infrastructure in the U.S.; second to understand the full

scope of the involvement of Hamas members in the United States

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and abroad in obtaining funding for Hamas terrorist activity;

and, third and critically, to learn about past and ongoing

terrorist activities both in the United States and abroad that

impacted the lives of numerous individuals -- and this is

critical, Judge, based on what I just heard Mr. Moffitt say --

including the lives of American citizens.

There was a long discussion just now about how this

is a two-state war that has nothing to do with the United

States. And time and time, again, Judge, the evidence has

demonstrated that there are Americans -- Americans -- who are

losing their lives through Hamas terrorist attacks.

When Mr. Moffitt says no one here is being

victimized, I would have a difficult time explaining that to

the family members of people who were sitting in the United

States who have lost loved ones through terrorist attacks,

whether it's bus bombings or bullets in the head, because they

were in the wrong place at the wrong time when Hamas decided

to commit a terrorist attack.

This was never a case about the United States

providing information to the Israelis. The Chief Judge made

crystal clear when Mr. Ashqar was taken before him that the

information he provided could not be shared with the Israelis.

That was taken off the table very early.

Judge, in short, the government's goal, as it has

always been, is to determine the extent of any criminal

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activity, if any, that was occurring or still is occurring and

how such criminal activity could be stopped within the United

States in the hope of saving lives, including the lives of

Americans. And as you'll recall, Mr. Ashqar was brought to

the grand jury at a time of increasing terrorist attacks

between 1998 and 2003, many of which claimed the lives of

Americans.

Despite being willing to forego his prosecution for

his criminal activity by granting him immunity, as we know now

obviously, Judge, defendant Ashqar refused to testify.

Despite being told by both the government, and at one point in

the transcript, Judge, the foreperson of the grand jury

informed the defendant Ashqar he was actively impeding and

obstructing their terrorism investigation, defendant Ashqar

refused to testify. And indeed to this moment, to this moment

as we sit here, he holds within his head critical information

from the government's perspective regarding criminal activity

that has occurred within the confines of the United States

that only he can help bring to light.

And I think, Judge, the evidence makes fairly clear

that he knew, he knew very well that if he told the truth

about his activities, about the activities of other Hamas

members, his information would, in fact, significantly assist

the government in determining exactly the scope and level of

Hamas criminal activity in the United States and very likely

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could have led to additional charges being brought.

We have heard repeatedly, your Honor, that all

defendant Ashqar wants is to be afforded the protections of

the Constitution, and yet the fact remains he's been afforded

every constitutional right to which he is due from the moment

he walked into the grand jury to his conviction in this

courtroom, and yet it is he, defendant Ashqar, who has refused

to abide by the civic duties required of every individual in

the United States. Now, obviously, most specifically that

legal duty that comes with being called to a grand jury, being

legally ordered by a judge to provide such testimony and the

need to, in fact, provide that testimony.

Defendant Ashqar, despite enjoying all of his

constitutional rights, has failed in return to comply with his

civic duties. And he didn't make a split-second decision to

obstruct justice, Judge. He came to the grand jury with a

prepared statement knowing full well what he was going to do,

that he would never assist, as you pointed out, this grand

jury investigating terrorism despite the government's

willingness to engage him in conversations about whatever he

felt was important or needed to protect both his well-being

and the well-being of his family.

And when defendant Ashqar went into the grand jury

room and refused to assist the grand jury, he made a decision,

a decision that had significant ramifications. He made, in

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essence, a decision to take over the grand jury's role. He

made a decision that he, he alone, would determine what was

and was not important for the grand jury. He chose to protect

Hamas members. He chose to protect Hamas activities. He

chose to do what he could to make sure the grand jury would

not be able to uncover terrorist activity. In short, Judge,

he chose to stand with Hamas over the law.

The guideline range unquestionably is significant in

this case, but in many ways it also makes sense. Because

defendant Ashqar chose to help make sure there were certain

Hamas members, certain terrorists who would not be brought to

justice. And so he chose to sit in the well of this courtroom

and accept their jail time, instead of allowing a grand jury

to determine whether they would face indictment and a petit

jury to determine whether or not they would be convicted and

face time.

Judge, every individual, every individual -- and this

is not a case where a message is going to be sent to one

particular people or to another particular people. If

anything, a message should be sent that when called upon to do

so, every individual must abide by the law and assist a grand

jury's attempt to uncover information about terrorist

activity. No person -- no person -- is above the law. No

person, including defendant Ashqar, may decide by him or

herself what is or is not important to a grand jury's

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investigation, particularly one dealing with terrorism.

No person on his own may take over the grand jury's

role and decide whether a crime has occurred or whether or not

he's simply a freedom fighter and, therefore, no crime has

occurred. And yet that is exactly what defendant Ashqar has

done. To determine that anything that he has done is

permissible or should not be severely punished, Judge, would

lead quite simply to chaos, a chaos in every case. No

individual decides what is and is not important.

Accordingly, Judge, it is the government's view,

respecting your rulings, that a sentence within the

recommended guideline range is appropriate, and that's what we

would ask you to impose in this case.

THE COURT: Dr. Ashqar, before the Court imposes

sentence, is there anything you would like to say, sir?

MR. MOFFITT: Dr. Ashqar would like to take a break

for a moment.

THE COURT: Okay. Ten minutes, is that sufficient?

MR. MOFFITT: Yes.

THE COURT: We'll pick up in ten minutes.

(Brief recess.)

THE COURT: Before we broke, Dr. Ashqar, I asked you

if there was anything you would like to say before the Court

imposes sentence, sir.

THE DEFENDANT: Certainly, your Honor.

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Can I proceed?

THE COURT: Please.

THE DEFENDANT: Okay.

In the name of Allah, the most compassionate, the

most merciful, honorable Judge Amy J. St. Eve, respected

counsels, reporters, brothers and sisters. November 6, 2007,

two days before last sentence hearing, my nephew, Assam Ashqar

appeared in front of a martial court to renew his

administrative detention. He was detained in March 2006.

In January of that year, he was promoted to full

professor in physics. He was a former chairman of department

of physics at Najaf National University. Two months later, he

was detained. He was taken at 2:00 a.m. in the morning in

front of his wife, his six kids. He was taken, put away and

placed over detention center.

He was given six months by the administrative

detention, then kept extending. On that date, he was given

another four months.

So, when he finish -- when he finishes these four

months, it will be two years, and they could extend that. And

they put just one offer on the table: Leave -- you can leave

this jail if you agree to leave -- to deport -- to be deported

voluntarily.

His brother Hasan, my second nephew, he's the mayor

of my town and assistant principal of the school. March this

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year he was taken. At checkpoint, he was taken, placed in

administrative detention, given four months, extended four

months. That was March 18th. Yesterday -- day before

yesterday, I'm sorry, he was released from jail after spending

eight months. No charges, no indictment, no trial, nothing.

Just for security reasons, the martial court extended that

administrative detention.

As of now, there are 2200 Palestinian prisoners in

administrative detention, civic leaders, mayors, university

professors, trade union leaders, student council -- student

activists and so on and so forth. This has been going on

since 1967. Almost 20 percent of the detainees, except in the

first uprising, are placed in administrative detention.

October 22nd -- 22nd, '07, 2:00 a.m., a unit from the

Israeli Army called Nafshun raided a Negev desert -- Negev

jail. It's in the middle of Negev desert. I heard the news

that 250 detainees have been injured. My nephew Hasan who was

released two days ago wasn't there. I called the family and I

was told you have another relative there. His name is Hamnat

Zaltal Ashqar. He is injured, and he is in critical

condition. He's in coma in Siroka Hospital in Beer Sheva.

Around midnight of that day, he passed away. A bullet

penetrated his head, and they couldn't do anything to save his

life. He was 23 years old. He marks No. 192 of Palestinian

prisoners to be killed in Israeli jails since 1967. But from

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the second uprising, 2000, he marked No. 68.

His brother, Lua'i, he was detained, subjected to

severe torture, and he was released seven months later half

paralyzed. As of now, they didn't even allow him to leave the

territories to seek treatment.

May 7th, 2006, my nephew is the son of my sister,

around midnight the Israelis raided his apartment. They

wouldn't even go, no chance, just start firing on them. No

chance to surrender even if they were wanted by the Israelis.

Looks that you were injured. They didn't allow any ambulance,

anyone to come and save him. In the morning, they allowed the

people to get in, looks that he was injured and he stayed for

some time alive, and he was writing with his blood on the

walls.

My sister, 2002, she had severe headache. They took

her in a car, no ambulance in my town, to the hospital in the

city about 11 miles from my town. The checkpoints, there are

four checkpoints from my town to that -- to that city. They

didn't allow her. She didn't look sick. They said she had

severe headache. They said no, nothing. At night, she

entered into coma. Then they allowed her. She stayed several

days in the hospital. She woke up from the coma. They said

you have to leave. We have no place for you in the hospital.

The number of injured Palestinians exceeded our capacity. You

have to stay home. 27 days later, she passed away. She was

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about 50 years old.

Majid Samir Ashqar, another relative, again, he was

killed, target killing. They raided the town. They raided,

he's wanted. They killed him. No chance to surrender or to

be taken into custody. All of them were in their 20s.

Sayyid Solomon Ashqar, another relative, close

relative. He was killed in September, 2005, the same way

others were killed. His brother, Rommi Balil Ashqar, he was

killed in December, 2003, almost two years and three months

after that.

Zahi Azel Ashqar, he was killed in July, 2004. And

they demolished his home. Not an action, nothing. And Damri

Adil Ashqar, Moelia Ahmad Al-Ashqar, close relatives. They

were opening the door of their repair shop store. It

exploded. It was wired by bomb by the Israelis, and they were

killed. They were in their 20s.

Amilis Idil Ashqar, August, 2002, she was opening the

door of her store, and it just exploded. Her son was wanted

by the Israelis. She was in early 50s, and she was killed.

Her son-in-law was killed, although he was half

paralyzed. The list goes on and on.

From my family, just from my family, since 2002 up to

this moment, eight have been murdered by the Israelis.

Neither Mr. Ferguson, neither -- nor Mr. Schar talk about

it -- them. And they don't care to talk about them. The only

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thing they do care about is to talk about the Israelis, as if

we don't count, as if we were no human beings.

Yes, we are not Americans and they are not Americans.

But the number of Palestinian-Americans who have been killed

by Israelis exceeded the number of Americans, although I do

care and I feel sorry for every drop of bloodshed. Exceeded

the number by tens of times.

And it was represented earlier on by Mr. Deutsch to

this Court the list of Palestinians who -- American

Palestinians who were killed by the Israelis. But no one talk

about them. Unless we talk about them, who is going to talk

about them?

I don't trust anybody to talk about them unless we

talk about them.

Judge, my saga with the Israelis goes on and on and

goes for centuries. Not decades, centuries. 1897 my father

was born. In that year, his father was taken into custody for

standing up against oppression and corruption. He spent six

years in jail. At that time, Palestine was part of Ottoman

Empire or under Turkish role -- rule.

At that time, Palestine was under Turkish rule or

part of the Ottoman Empire. 1917, Palestine -- in 1917

Balfour -- issued what's called Balfour Declaration in which

it grants Palestinians -- Israeli homeland, Jewish homeland in

Palestine. And that then started revolutions. It started

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civil disobedience. 1920, Palestine fell under British

mandate, and the problems started since then.

They allowed the Jews from all over around the world

from Manhattan, from New York, from Chicago, from Russia, from

Europe, from Eastern Europe, from Africa, from Middle East to

immigrate and in the other -- to immigrate to city, to buy

land, to arm. And the Palestinians not to get arms, bars

embargo, and anybody who gets a piece of arm faces capital

punishment and embargo, a political embargo, to force them to

sell their lands to the new immigrants.

In 1936, there was six months civil disobedience by

Palestinians to protest the Jewish immigration to Palestine

and the British complicity with the new immigrants. My father

was detained by the British, and he was placed in a jail

called Jeffer Detention Center. And he was accused of

participating in civil disobedience and conflicting with the

event, et cetera.

Anyway, the deal was like that, your Honor. And I'd

like you to listen, please -- everyone to listen.

Okay. At that time, Palestine, there were no roads,

routes, roads between -- just between cities, not between

villages and cities. And the British soldiers used to move

from one place to another on horses. And they need to move

their arms, their food, supplies. And they used the detainees

as animals to carry their arms, food and supplies. And they

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said, okay, if you carry this can of food, meat, can food, you

could be released in one week. If you carry this, in two

weeks, in one month. And they came to my father.

He said, I'm not an animal. I'm not -- you cannot

treat me like -- with dishonor. I'm a human being.

He spent six months, and he was released after that.

Not a long time after that, the same situation

continued. In 1948, Israel was established and a new era in

the life of Palestinians started. It was established in 78

percent of the historical land of Palestine. There was no

Israel before. It was established, 78, and according to U.N.

statistics, about 700,000 Palestinians were forced out. Every

day I'm reminded with this tragedy and a black moment in the

history of the human being with my family, with my wife's

family.

They were living in a town called Masmir Kabira

between Tel Aviv and Jerusalem not far away from Tel Aviv.

North of Tel Aviv, they were forced to Syria and Lebanon.

East of Tel Aviv, they were forced to West Bank and Jordan.

South of Tel Aviv, which is the case of my wife's family, they

migrated to Gaza.

Usually, Haganah and other Jewish organizations used

to raid the village or the town, start to shoot, and they give

the people -- the citizens or the inhabitants just an hour or

so to leave the town. They used to leave with nothing. Her

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grandpa used to own wheat mill, wholesale business, citrus

grove. He left with nothing. Even sometimes the families,

some went to the south, some went to the north. They didn't

know about each other. What happened?

They went to Gaza. There was no infrastructure,

nothing. They stayed -- some of them who had relatives stayed

with them. Others stayed nowhere. They thought it could be

days. They didn't have even money. Her grandpa who was so

rich, he couldn't have any money to spend. It took months for

the United Nations to get involved. They provided them with

tents. That's all.

It took until 1952, they were able to settle in

camps. They settled in small, tiny, made-of-zinc houses. And

with the help of U.N., they were providing them with

necessities, just the basics to survive. Even the medical

assistance, it was almost nothing. No work. Nothing. You

know, it was no infrastructure whatsoever.

And they were not -- it took them years and years to

wake up from the shock, to leave everything in one night and

to find themselves living in refugee camps. It started, as I

mentioned, with temporary houses made of zinc. Then it was

promoted to what is banned in the U.S. now, to asbestos. And

they are still living in these houses up to this time, the

21st century. In houses made of bricks, covered with asbestos

up to this moment.

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And they settled in what's called Jabalya camp, which

is more to 60 to 70,000 live there, generations and

generations. The only thing they could do, the U.N. started

to open schools. And my deceased father-in-law at that time,

he finished. He was teaching while he was in the Middle East

school. And he was given three kilos of lentil and three

kilos of chickpeas. By the time he finished -- three kilos,

about 6.6 pounds of lentil and 6.6 pounds of chickpeas.

In the early '50s, they start to get -- to look for

works -- for work. Nothing in Palestine. Nothing that -- 20

percent left Palestine. So, they started to migrate to

Kuwait. My father-in-law, when he finished high school, he

got a job as a school teacher in Kuwait. My half brothers

migrated to Kuwait to get any work. Doesn't matter. Just to

get any work. They start to work and subsidize their families

back at home.

And my father-in-law, he started to work as a school

teacher and to work on his degree. He finished bachelor

degree in Arabic language at University of Lebanon afterwards.

My brothers -- three brothers -- migrated to Kuwait.

And like many other Palestinians -- by the way in 1990, when

Saddam Hussein invaded Kuwait, there were about 450,000

Palestinians living in Kuwait just working. They start with

education. Working in any field just to do something because

in Palestine there was nothing.

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In 1971, he passed away. And his family was given

few months to pack up and leave. Anyone who is not Kuwait

cannot stay there unless he is doing some work. They are

not -- although my wife, for instance, was born there, but she

was not given the Kuwait citizenship.

She went back to Gaza to start another struggle. The

whole family went back to Gaza in a tiny town. When we talk

about Gaza, they think that, you know, it's like a state or --

it is 100 -- 250 square miles. Now 1.5 million live there.

And only five -- five check -- entrances to that, all

of them now they closed. Nothing can go inside or outside,

even after the Israelis withdraw from Gaza, without the

permission of the Israelis.

For instance, the case of my brothers who moved to

Kuwait, because their income was below a certain level, they

were not allowed to bring their families. Their families

stayed at home, my hometown. They used to go one year, get

back. At that time, there was no communication, no phone

calls. Letters used to take one month or two months. Money

wires to go to -- the same thing, they used to wire to Amman,

Jordan and they have to send a letter to pick it up from

there. Something like that.

But 1967, when there was another turning point in our

lives. I was born in 1958. At that time, I was nine years

old almost, and new influx of immigration of migrants started

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again. But this time to Jordan and to other. According to

U.N. statistics, 2,000 -- 209,000 were immigrated from West

Bank and Gaza Strip to Egypt, to Jordan and to everywhere.

Nowadays, the size of population of Palestinian

refugees in the world are 6 million. 3.5 million live in West

Bank and Gaza Strip, and 1.2 million live what's called Arab

Israel. And nowadays, the Israelis, they are talking about

transfer. Not the transfer of us only, transfer of the Arab

Israelis to be forced out because this is a Jewish state.

Your Honor, in 1967, I was a student in the school,

elementary school. We used to have an elementary school.

Three classes before the Israeli occupation, three teachers.

Every two classes in one classroom. After 1967, we just had

one teacher for the six grades.

We learned one thing since 1948. The only thing to

live if we want to live in honor and dignity, we don't have

much resources, the only thing we do, we can do is to continue

our education. To live in honor and dignity, that's the only

thing we can do, because we are determined to live in honor

and dignity. We don't want to live any life -- any kind of

life.

So, the elementary school, we finished the elementary

school. At that time, as I mentioned, three classes. No

running water. No running sanitation. No sanitation. No

health center. No phone service. No electricity. Nothing.

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It took us until 1971, end of 1971 to get electricity by

generator for four hours every night. We used to read on

kerosene candles, to read like that (indicating), and in the

morning to have the ashes in our noses.

Health center, it was not built until 19 -- until the

end of 1970. And just a nurse and the doctor used to come

once a day for half a day, and the nurse to -- just to give

shots and stuff like that. And if we need a doctor, we have

to go to the city. Every city is surrounded by a cluster of

villages. My town, Tulkarim, is surrounded by 60 villages

until early '90s.

We used to go to the city to private physicians and

there was a hospital. We have to pay -- although it's

governmental, small one, but we have to pay for it and it's

very primitive.

I finished the school, but that's not -- you know,

our concern was the school. Our families pushed us for to

continue our education. We used to have citrus grove, as

Mr. Moffitt mentioned -- I'm sorry, black plum grove, olive

trees, apricot, almonds. But these are -- you know, when the

season comes, we have to collect it in days, and we have to

sell it, except the olive. The markets, no markets.

Sometimes we have to sell it at a cost below shipping cost.

Happened in 1967, 1968. So, we have to remove the black plum,

the cherries, the apricot. What we left with is olive trees,

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and it gives every other year the harvest. We collect it

every other years. Because it doesn't -- I don't know why, it

doesn't give harvest every year.

And that's the only thing left because we can store

it. The rest we cannot store it.

And settlements start to take over our lands.

Nowadays settlements take more than 40 percent of our land,

occupies more than 40 percent of our lands. What can we do

about it? To complain to U.N.

As of now, hundreds of U.N. resolutions, none has

been implemented when it comes to the Israeli issue. None.

Zero. Zilch. Why? Because we are not counted. As I have

been watched through the course of this trial, we should

suffer and we should continue to suffer and we should beg for

standing -- for standing up for our people and standing up to

live in honor and dignity.

I finished the high school -- the elementary school.

There is no middle school in my town. We have to go to

another village. Two miles in the morning going down the

hill, two miles in the afternoon, no transportation, no

whatsoever.

We finished middle school. We went to the high

school. It's five miles from my town. Sometimes we could

find transportation, sometimes we have to walk, and sometimes

we cannot use the road because there are some demonstrations

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somewhere, and the Israelis might detain the students. So, we

have to go through agriculture or scenic roads.

Your Honor, I went through this for one just purpose,

to live in honor and dignity, and we had an opportunity. I

didn't wait until 2002 or 1996 to be given that opportunity to

live as a traitor or as a collaborator. I was given that --

everyone was given that opportunity to serve the Israelis, to

provide information, to become an informant for the Israelis.

We didn't have to go to school. "Just work as an informant,

and we could protect you." We had that as informant. But we

are determined to live in honor and dignity like any other

human being as long as it takes.

I went to the university. I didn't want to go. I

got an admission at university in Jordan. I didn't want to go

to Jordan. I didn't want to go anywhere. I want to stay in

my homeland. Although it was costly, I went to the

university. I enrolled at university in January 1978.

I was taking, as I have been as a student, to take

every opportunity to finish as early as I can. And that's

what I did. I used to take the summer course. But during

that time, during I should graduate in 1981 -- anyway, during

the course of my education at the university, the university

was closed in different times for one years by the Israelis.

One full year, two months, three months, two months, three

months, and so on and so forth.

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Each time there is a demonstration, Israelis come,

raid the university, fire tear gas, rubber bullets, live

ammunition, injure some students, then a military order

closing the university because consider it as military zone.

One year. One full year.

Anyway, in 1981, in November 2nd, Tulkarim before

declaration, there was an administration at the university

speech. Within the university. The Israelis besieged

university. They didn't allow anyone in or out. By the

afternoon -- by the evening, they allowed the students to

leave after the Red Cross intervened and with the

administration to allow the students leave peacefully, and we

left. Half an hour later, Israelis raided my home and

arrested me and I was charged with participating in actions

against the Israeli Army.

During the trip from Bir Zeit University to the

Ramallah detention center, it was like eight miles. During

that we were kicked, beaten in the head, on our knees, by all

means, by the guns in their -- to press on our feet. And we

were hurt whatever you could imagine from words like donkeys,

animals, stuff like that.

Then we were presented with Hebrew. "Sign it, sign

it."

"What's that?"

They say, "This is indictment."

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"What is it? We have not done anything."

I was placed in a small cell with five detainees,

sometimes seven. There are 16 students in that day. There

was no bathroom in that room. We were given two jars, one for

drinking water and one to use it for urine and if we needed

for bowel movement.

During the day, they used to allow us once to use the

bathroom in the other room. And it was no heat, and it was so

cold in Ramallah at that time. And the doors are bars. It's

so cold. We given just a few blankets, and we have to manage

to keep ourselves warm.

I was -- we, after next day, they -- all universities

went to the administration, and after 16 days they decided to

release us. We were given, like here, some -- some what's

called options. "What are these options?"

"To plead guilty. Time served and you pay fine, you

go home."

"But I'm not guilty."

"Okay, you have another option. Testify not against

the whole people or against some people you know, just against

one of the students who were arrested with you, and we'll set

you free like that."

"I can't do that."

"So, okay, you are going to face a trial and you

might be placed for your life in jail because facing the

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Israeli Army is a serious, serious crime."

"Okay. Do whatever you want, but I have not done

anything wrong. I have not -- I just commemorated the

anniversary. Is that even too much for me to do?"

We were released. We were brought to the court just

once. We paid -- the university paid a fine. We don't know

what happened to that. And after that, they didn't call us

because they knew there was no case.

And, you know, detaining Palestinians as of now --

and I'd like everyone to know, Mr. Schar, Mr. Ferguson,

Bradley Benavides, Mr. Bradley Benavides, Mr. David Bray,

Mrs. Jill Pettorelli, Ms. Kelly Rice to know as of now 650,000

Palestinians have been detained. If you take -- it's 20

percent of the whole population. But if you know that, like

95 percent of the them are men. Men detainees. And know that

about 60 percent of the Palestinian who are under here, then

you come to conclusion more than 70 percent of other pop --

men population have been detained for nothing.

Just they want them to become informers. This is the

first offer on the table. Or to curse them, to threaten them,

to scare them, or to have them -- subject them to too much

torture. Once they are released, hoping that they will depart

and live in diaspora.

As of now, 650,000 Palestinians, 650,000

Palestinians, as of now more than 1100 -- 11,000 Palestinians

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are in jails in substandard conditions. Negev desert that I

told you about just a few minutes ago, there are 2400

Palestinians in that -- detainees, political detainees. 1,000

in permanent buildings. 1400 in tents in the middle of the

desert. Many, many times you woke up to find a snake sharing

just the warmth or other reptiles sharing the warmth under the

blanket.

You, Judge -- your Honor, these are some. As of now,

more than 5,000 Palestinians have been killed not since 1967,

but since 2000. They are killed by Israeli Army. 224 target

killings. In a missile they leave nothing sometimes with

them. They fire missile at a human being. And I never heard

Mr. Ferguson or Mr. Schar call it terrorism. To leave -- to

collect their parts from trees and from stones, this is not

terrorism because it is held -- it's conducted by what's

called democracy.

Well, to be fair, I think we have to be sorry for

each drop of blood, whether from Israelis or from

Palestinians. This is, I think, it is -- it's an education

for human beings, not just asking for extra for their minds

for being educated or being officials. We have to be careful.

If they are weak and couldn't stand for themselves, we have to

stand up for themselves. We have to talk about their

sufferings and to expose their atrocities, the Israeli

atrocities. And that's what I have been doing since I came to

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this country.

Your Honor, I finished bachelor degree 1982. I

couldn't find a job. As I mentioned, no infrastructure, but I

have an opportunity to become an informant and to become rich.

But I never tried to build a career in espionage or

intelligence. It's not in my mind. It's not -- I'm not that

type of person to hurt any human being whomever that human

being is.

I couldn't find a job. The only opportunity to find

a job in my field is to immigrate to Saudi Arabia. I didn't

want to immigrate. I want to live and die in my homeland.

That's as simple as that.

So, universities were established. The Israelis

allowed a few universities to establish and expand. There was

only one university, Bir Zeit University. It started in 1973.

Another one start, Najaf National University in 1978. Then

they start to allow Islamic University of Gaza in 1978, too.

And we are -- when I got an admission at Middle East

Technical University in Turkey where the language of

instruction is English because at that time, I did not want to

spend more time studying languages.

By the time we got there, we're faced with the

reality that we are Palestinians, and we don't have much -- we

don't have many opportunities like other human beings. Our

admissions were cancelled. They said, you know, there was a

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military court, and they treated Palestinians as an extension

for leftists. So, they cancelled our admission.

I didn't know what to do. I was told there are some

American universities in Greece. So, I traveled to Greece,

and I get an admission at an American university there, which

was established to serve the needs of the military personnel

at American bases in Greece. I never looked. We always look

high to the U.S. as a country of opportunities, state-of-art

education, state of art in everything.

I got an admission in that university, and I was

given permission to enter the American bases whenever I

wanted. I never did because I have nothing to do. I don't

need to know anything about that. All my courses were off the

bases.

So, I finished in 1985. I got an opportunity to work

at a bank in Greece. They were badly in need for Arab

graduates to work who know English, know Arabic, and at that

time, I was -- I knew, I could say I knew Greek language. I

didn't want to stay overseas. I went back.

And in that year, 1985, the Israelis deported 60

university professors from the Islamic University of Gaza.

Why? Because they are Palestinians. They have rights, but

because when the Israeli occupation took place in 1967, they

were studying abroad. They were not -- so they don't have the

right to live in that country. They don't have the right to

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live in their homelands. They were given permission to teach

at the university. In that year, for political reasons, they

revoked their permission. And they were badly in need for

staff, you know, the academy staff.

I got a job as lecturer at school of business to

teach business, and it was another shock in my life. I went

to the university. I never been to that university before.

And reminded me of the atrocities of the occupation.

The university, there's a permanent building called

administration. Classrooms were held in temporary buildings,

covered with asbestos. Covered with asbestos. When it

rained, we couldn't teach. We have to stop. There were 5,000

students in that university.

I was teaching -- I was, you know, because of a

shortage of the number of professors, there were 120 students

in the senior level. This is the small size of class. And

sitting on chairs, no issue -- as I mentioned, no carpet, just

on that -- and asbestos. Covered with asbestos. That's it.

At 1986, I was given the position of director of

public relations department. Honestly, I accepted, although I

knew it was costly, but it was an opportunity to expose the

atrocities of the Israelis against my people.

I visited the camps, and it tells the story. As I

mentioned, covered with asbestos, open sanitation, kids

playing in that, no medical, health -- no health coverage for

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everybody. Just schools run by United Nations, and it looks

like jails. No accommodations, no AC. They have to stand in

line and forced to drink milk in the morning and to take some

tablets, vitamins or fish tablets, or I don't know what's

called in the morning, and my wife went to that school, to

these schools, these type of schools and her sisters and

brothers.

I started -- then the Israelis went after me. I was

summoned the first time and threatened. By the end of '86

they given -- they gave me 24 hours to leave Gaza Strip, and

they said we are fed up with you. Why? Because I was the

editor of the university magazine. I was meeting with

diplomats from different diplomatic missions in Tel Aviv and

Jerusalem, meeting with reporters, talking of the Israeli

atrocities against my people and against the university. It

was not recognized. The president of the university was

deported. As I mentioned, in one year, 60 were forced out.

And more than that.

Each time there was a meeting in the university or a

commemoration of any universities, the Israelis used to

besiege the universities. Sometimes, and in one incident in

April '87, the Israelis raided the university with bulldozer.

They damage whatever they could damage. 80 students were

injured. Ten cases of abortion because of the tear gas.

And just I wrote about it. I was summoned. At that

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time, I was a newlywed, and I was threatened with deportation

unless, unless I stop talking about the Israelis atrocities.

And my stand was like my stand today. I'm going to

speak for those who cannot speak up for themselves. Shortly

afterwards, the uprising started.

At that time, 1985, '86, I applied for U.S. Thomas

Jefferson fellowship. It is financed by USAID, administered

by Amethyst. And they grant a scholarship for every year for

a Palestinian in each field. One year in business, physics,

engineering, education and stuff like -- so, I applied in

1985. I got the admission in 1989.

The uprising started in '87. December '87. And the

university was closed. My wife was a student at the

university. She couldn't finish her diploma. She was in the

last year. The university was closed. Not just Islamic

University of Gaza, all universities, all schools, all

kindergartens were closed. It was not closed for one year.

No one talked about it. It was closed from December '87 until

1991, '92. All academic institutions from the kindergarten

until the universities were closed.

My wife was not able to finish her diploma until

1990. She was given these courses or the tests in these

courses by her professors in their homes. We were not allowed

to use churches or mosques or any public schools for teaching.

So, when the university closed, we couldn't do much

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except to talk about what's going on. In 1989, April, 1989, I

got an admission. I didn't apply for it. Amethyst applied

for it. And I got the admission to the University of

Mississippi. Just I provided them with all documents and they

got the admission for me. I never dictated when I can go,

where to go. And I applied for a certain field, which is

business administration or operations management because we

were badly in need in the Holy Land for that major.

I got to the U.S. in November 16th, 1989, 18 years

ago and five days. I enrolled in January. The reason I left

early, because in November 16th, marked the second anniversary

of announcing the Palestinian state. In 1988, it was

announced in -- by former PLO chief -- chair Yasir Arafat in

Algeria in 1988. And there was demonstrations, and we lived

under curfew for 16 full days. At that time, I was in Gaza

living -- I'm original from West Bank. At that time, I was in

Gaza. I was living in Gaza at that time moving between Gaza

and West Bank.

Then was curfew. Full week without any interruption,

without any break. After one week, they allowed us two hours

to get supplies, food and medicine. After two hours -- after

one week for two hours. Then they started to allow us every

day or every other day for two hours for 16 full days.

So, I decided to leave in November 16th in the second

anniversary. I was afraid that curfew might be imposed, and I

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would not be able to leave. And I didn't leave easily. The

Israelis didn't allow me to leave. I wanted to catch the

first semester, to enroll in the first semester, but the

Israelis didn't allow me.

And we have to get authorization, permission to

leave. And they didn't leave -- and, you know, I start to

seek permission. I applied for permission. I obtained an

attorney, and they said you need to see the intelligence

department. I did. And I met what's called Mr. Ben, alias.

This alias is not -- you know, it's part of our culture

nowadays.

Anyway, I met Mr. Ben. He said, well, we have

nothing against you, but you are an activist, and we don't

want you to go to the U.S. to become an activist. It's more

harmful for us to become an activist there than to become an

activist here.

I retained an attorney after while, big-shot attorney

as it's called. He was a member -- he was a minister of

Menachem Begin government. Anyway, he get me permission. I

talk to him. I met him the first time and said what's going

on? Tell me what's going on in your life. I told him. I

said nothing there but occupation. Makes your life miserable.

That's it. Pack your stuff and leave. It was Monday. He

said you can leave by Thursday.

Anyway, I get permission. At that time, my mother --

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I got the permission, but my mother passed away. She was --

she had cancer, breast cancer. I waited until two months

almost after that, and I left.

I came to the U.S. I enrolled as a full-time student

taking every summer semester, teaching, working as a teaching

assistant, working as a research assistant. And the

scholarship was working fine with me. I was -- they used to

pay the tuition fees and allowance, books, everything and

medical insurance. Everything went fine in 1990.

'91, things started to change. I was told by

Mrs. Nancy Rogers, assistant director of international

programs, Mrs. -- referring student adviser Leslie Benningham,

they were contacted many occasions by Agent Steve Taylor, and

there he told them we have nothing against him. It is the

Israelis who instigated the investigation. We have nothing to

do against him. We have nothing to worry.

And December 17th, 1991, I was -- Mr. Taylor called

me and he met me. He interviewed me, and he said this

interview takes place per the request of the State Department.

I never -- again, I never looked at the U.S. -- I never

maintained a hostile relationship. I never looked at them

negatively. So, I went and I talked with them. It was eight

minutes. That's all. And he give me his card and said, okay,

if you face any problem, let me know.

But the inquiries continued. Each time I meet

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Mrs. Rogers or Mrs. Benningham, they tell me that we were

contacted by FBI and by Mr. Taylor.

1994, that second interview took place, but before

that and that's what scared me the most, your Honor. In '92,

I finished the major comprehensive exam. In January '93, I

finished the comprehensive exam in the minor. In three years,

I finished the work, the course work. I passed the

comprehensive exams from the first time. I published two

papers. And I was teaching, working as a teaching assistant

or as a research assistant. Everything went fine.

I finished the comprehensive exam, ready to work on

my dissertation. The academic adviser, he was so helpful, so

understanding. Things have changed. When I call him, he said

where are you calling from? If I say from house, he said

okay, I'm busy now, I'll call you. If I say from the

university, he would talk with me. And I didn't know what's

going on.

I submitted the first proposal in my dissertation. I

was trying to finish in four years. I didn't want to stay. I

want to go back. That's what I came for. And I came on visa.

I never tried to change it. Before it expired, I wanted to go

back. That's where I wanted to live and die.

I submitted the first proposal. He said, well, you

have to change it. I talked with other committee members,

they said his name was Dr. Ed Gillimorter (phonetic), told us

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not to read it. I knew something fishy was going on, but I

didn't know what's going on, to be honest with you. I would

not think that -- I would not think in my dreams ever it will

go to that level.

Anyway, second proposal, third proposal. Later on,

until September '96, he told me that I was interviewed many

times by agent, FBI Agent Mr. Steve Taylor. And he told me

that I was scared. I could change the university, but the

same thing could happen. And I couldn't go back without

finishing my degree.

October, 1994, 26th, Mr. Steve Taylor called me and

he said, "We need to see you."

I said, "Okay. How about tomorrow?"

He said, "No, today. Because there are some people

who wants to meet with you."

And I went there. It was Mr. Avery Rollins,

supervising special agent from Jackson, Mississippi, and

Mr. Taylor. And they said they didn't allow the director of

international programs to come with me. He was with me, but

they didn't allow him to attend the meeting.

Anyway, they said okay. This interview was taking

place per the request of the Israeli government. And we did

talk for one hour, 40 minutes. I didn't have any problem

talking with FBI. Again, I never viewed the relationship as

hostile, or I never looked at them as enemies. I have just

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one enemy, the occupiers of my homeland. That's all. And if

they leave my homeland, then I would look at them like I look

at every other human being.

Anyway, your Honor, we talked about many issues.

They asked me about Al-Aqsa education fund, how much money did

you raise? Why did you establish it? How did you spend the

money? I talked about it.

I didn't have any problem talking with them because

I'm not doing anything wrong. I'm not -- I have not done

anything under the table. Everything in the light, everything

in the phone, from my house. So, I did talk to them about

everything.

By the end of the meeting, I said, "Okay, hold on, I

have just a few complaints."

They said, "Go ahead."

"Number one, I said we have been receiving harassing

calls for years. Each time my wife answers the call, they

said okay, where's Ashqar. If she said who is speaking, who

is calling, they would hang up.

"If I answer the phone, they would hang up."

I talked with them about what I repeat. Then I told

them about packages that we received without return address.

And I talked with them about some tampering with my credit

cards. I told them in one occasion, we receive adultery

movies ordered by 911 Jackson Avenue, Suite 242, Oxford,

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Mississippi, 38655, and that is the address of FBI, ordered to

be delivered to my address and charged to my credit card.

On another occasion, Circuit City called to verify an

order. It was placed by your address to my address -- to your

address, I'm sorry, on my credit card for a camera. In a

third -- anyway, many occasions. I talked with them about.

They said, "Okay, could be the Israelis. We have

nothing to do with that."

And they ask me this question, and I'd like everyone

to hear it. They said, "Well, if you knew someone would harm

us, someone would do anything against the U.S., would you tell

us?"

I said, "Absolutely. I don't want anything -- I

don't want to see anyone do anything against anyone in the

U.S."

Our message is simple. We need to mobilize

Palestinians, Arabs, and Muslims and everyone to change the

American foreign policy. But that can be done through

political means, not through violence. And I have been saying

this in the board rooms, in my lectures, everywhere, anywhere.

They said, "Okay, go back to your normal life."

That's his words, Mr. Avery Rollins. "Nothing to worry about.

Go back to your normal life."

Although I was faced with the realities. The

apartment next to me was occupied by FBI. Besides bugging my

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home, besides wiring my phone, besides since 1996 following me

wherever, whenever, the apartment next to me was occupied.

And I'm not psychic reader. No. I saw the FBI agent leaving

that apartment and black curtains on the windows of that

apartment. No one was leaving, going in or out, except one

time I encounter Mr. Taylor leaving that apartment.

So, I know I am under scrutiny, and I'm not doing

anything -- nothing to fear, nothing to be intimidated,

although my course of work, my dissertation was badly hurt. I

couldn't -- I continue -- the subjective, you know -- the

course work is objective, but the comp exams are subjective.

They started to contact my advisers in '93 after I'm done with

the course work, after I was done with the comprehensive exam.

But the dissertation is subjective work, and it could

be affected by everything. And I was trying to finish up

before my scholarship expired. And I don't want to live in

this country. I don't want to stay in this country. I want

to go back to my country.

February, '95, I fell -- fly down the stairs,

bouncing on my back and I fractured my -- I fractured the

coccyx. Anyway, it was displaced, and the pain has -- the

pain became chronic. I started the journey over treatment in

Oxford, Mississippi, Jackson, Mississippi, New Orleans,

Louisiana, Memphis, Tennessee. Then I move to north Virginia

and so on and so forth. Just -- I was living on painkillers.

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I was taking two painkillers every four to six hours, plus

muscle relaxer, plus anti-inflammatory plus -- anyway, I was

fully dependent on medications.

'96, my wife finished the degree in '93 -- '93, '94.

She was not working. She got an admission for Ph.D. But when

she saw what I had been through, she decided not to pursue it,

to leave it there. She finished her master's degree in

education. She couldn't find a job in Oxford. She got a job

in New Jersey in '96. And we were ready to leave because my

scholarship expired. I couldn't work, and we need a source of

income. And she needs to do something. She couldn't stay in

a small town doing nothing.

Then Mr. John Hailman contacted me, chief of the

Criminal Division in the U.S. Attorney's Office in Northern

Mississippi. He contacted me. We were scheduled to leave on

Sunday. He contacted me on Thursday, September 5th. We met

at Nancy -- Mrs. Rogers' office at the University of

Mississippi.

And they said, "Okay, this is the situation. FBI,

CIA, INS -- or Immigration Naturalization Service, at that

time -- Criminal Division of U.S. Attorney concluded their

investigation. You have four options: Option 1, deportation;

option 2, subpoenaed to New York where the U.S. Attorney and

FBI offices are dominated by Jews who are pro-Israel; or

third, option 3, exposing whatever documents we have and

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eventually Hamas would kill you; 4, helping us build cases.

Helping us incriminate some people."

I said, "Well" -- "and we can provide you with

protection. You have to change your name. And I'll find out

if your wife can call her sister." Her sister was living in

New Orleans.

I said, "Mr. Hailman" -- and he was presented to me

as pro-Palestinian. "Mr. Hailman, why now?" I said.

Just "We concluded our investigation."

I said, "Okay, listen, it looks from what you told me

I don't have four options. I have only one option because I

don't have control over the other options. You want to deport

me or if you want to subpoena me to New York or if you want to

expose whatever you have, I have no control over that. And if

you want to hurt me, don't seek my permission. The only

option is in my hand is to become a traitor or a

collaborator."

He said, "No, no, it's not like that."

I said, "Okay, call it whatever you want. Something

I can't do, I will not do as long as I live. I'm supporting

the cause of freedom, justice, equality. I'm not going to

turn against my people."

So, he said, "Okay."

I said, "Okay. Why now, again? Is it because I'm

moving to New Jersey?"

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He said, "Yes. We don't want you to move because,

you know, there the FBI and U.S. Attorney offices are

controlled by Jews." Take it into my mind I was not -- I was

given that he's pro-Palestinian, although that contradicts

that. But I was not -- lack of understanding of the American

legal system, lack of understanding of -- anyway, I told him,

"Okay, what if we call it off."

He said, "Go back to your normal life, nothing to

worry about."

I said, "Okay, we'll call it off."

The hardest part was to convince my wife. We packed.

We were already packing our stuff, rented a truck, ready to

move, and she got a job contracted from Al-Azal School in New

Jersey. So, we call it off.

And I thought that the end of it.

October 2nd, 200 -- I'm sorry -- 1996, they called

me, said, "We need to see you."

I said, "Okay."

"Did you think about what our offer?"

At that meeting, there were Mr. John Hailman,

Mr. Avery Rollins, Mr. Jim Frere, the head of FBI Mississippi,

Mr. Steve Taylor, and Mr. Richard Calcano, supervising special

agent, the head of FBI office in Oxford, Mississippi.

And I said, "Okay."

"Did you think about offer?"

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I said, "You know, there was no offer to me."

And they said, "Go back to your normal life."

They said, "Well, the Department of Justice in

Washington wanted to pursue this issue with you, and we need

your help and" -- anyway, he gave me a speech.

I said, "Sir, I'm not going to hurt any human being.

I'm not going to stand as a traitor or as a collaborator."

Then he said, "Okay. How about talking with your

wife and come back tomorrow with your wife." And I went. My

wife and I went and attended that meeting. That was October

3rd. The meetings were held in Ramada Hotel, not in the FBI

department or office.

Anyway, we went there, and they said what they said.

They repeated their offers, and we told them our stand.

Now, they moved to another thing, inducements. They

offered me citizenship for me and my wife, employment for me

and my wife, money to start business.

I told them, "Guys, gentlemen, you know, I don't want

to build a career in espionage or intelligence. I just want

to live in honor and dignity like any human being. I don't

want to become a traitor or collaborator. I don't want to

turn against my people."

"How can the world help an investigation initiated by

the government of Israel that you buy on my homeland against

my people, how do you want me to come and take the stand and

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testify against them? Tell me."

Said, "Okay, what do you want?"

I said, "I don't want anything. Just let me live

normal."

Said, "Okay, how about helping you to become a

minister in Arafat's government?"

I said, "Okay, you know, it looks that you don't

understand me. To me, goal is important, but more importantly

for me how to pursue that goal. The means are more important.

If I want money, I could make it any way I want. Not to come

to the U.S. I could become an informant."

Then said, "Okay, think about it, and we'll talk

about it next meeting."

Next meeting, Mr. John Hailman showed up by himself

in the same hotel, and he said, "Okay, now we don't want you

to testify against anybody."

"Okay. What do you want me to do?"

He said, "We need your help to understand the

situation in Palestine."

I said, "Well, that thing I have been doing in

public, I have been doing in universities, I have been doing

everywhere. I don't have problem with that. But okay, this

is the -- I don't want -- please, don't ask me about anybody.

I'm not going to answer any question without my attorney."

Needless to say, your Honor, that in October 2nd

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meeting I enlisted legal counsel, and in a way they told me

no. They said, well, this would hurt you, not help you.

Therefore, it's better not to have a legal counsel.

We met -- do you know how many meetings did we meet?

We met in October 2nd, October 3rd, October 7th, October 17th,

October 16th, October 18th, November 4th, November 20th,

December 5th, December 19th, January 23rd about 15 -- all the

meetings that took place since 1991 until that meeting, 15 --

almost 15 meetings. I didn't have any reservation. I didn't

have any problem to talk about general situation Middle East

to help them understand the situation.

I'm not an informant. I'm not an FBI analyst. I'm

not a CIA analyst. I was given a job to become an overseas

operations officer for CIA. I declined it. I don't want to

build a career in espionage or intelligence.

My ultimate objective was at that time to become

university professor. Things started to change, and I want to

get involved in politics later on. But at that time, I didn't

want to build a career in espionage. They offered me a job

with the CIA, and I could be stationed back in my home, but I

didn't want that. I received it in writing.

So, meetings continued, and at one point they

introduced Mr. Atkins. And they said, "Okay, things have

changed. Now national security service is taking control of

the investigation. It's not criminal. And Joe Atkins will

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continue with you."

And I met with him, and he start to ask me questions

and I told him, "Per the agreement, I am not going to name

names. I'm not going to answer any questions without my

attorney."

Anyway, on December -- on January 24th, 1997, after a

sort of tense meeting, I told -- I inform Nancy Rogers who

organized these meetings, "I'm not going to meet with them."

And she conveyed a message to me from Mr. John Hailman: "We

are not going to let you live normally or peacefully, any

way -- any way."

I said, "Well, I think there is a law in this country

and this country's not run by Mr. Hailman. I'm not going to

intimidate -- to get intimidated by his statement, and I'm not

going to meet with him again. If they want me, they can get

in touch with my attorney."

I consulted after that with Mr. David Cohen,

Georgetown University, and Albert McKiver from Washington,

D.C.

February 14th -- March 14th, 1997, my adviser passed

away. April 27th I defended my dissertation. It was done for

a long time. I defended my dissertation and graduated in May

of that year, '97.

I moved after while in August of that year to

Washington, D.C. and started to work -- I didn't have any

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valid passport. I used -- I came to this country on Israeli

travel document, renewable every year.

After the establishment of the Palestinian Authority

in '93, '94, they said you have to get a Palestinian passport,

we are not going to renew it.

And, unfortunately, I was denied a Palestinian

passport until 2003.

So, I didn't have any valid passport. I couldn't

leave. I start work with my passport to get a valid passport.

And I get a job to work to find a place to live until I can go

back to my homeland country. Although now if I go back, I

will not be able to be united with my wife. She is from Gaza

Strip. She cannot go to West Bank. I cannot go to Gaza

Strip. Everyone, we have to be apart.

I started to at least to watch things might change.

So, I try to get work on temporary basis until things settle

down and being able to get together. I watch then --

THE COURT: We're going to take about a ten-minute

break, Dr. Ashqar, and you can continue when we come back.

THE DEFENDANT: Okay. Thank you, your Honor.

(Brief recess.)

THE COURT: Dr. Ashqar, you may continue.

THE DEFENDANT: Your Honor, I was served the first

subpoena in November '97. I tried to leave the country

honestly. And I had an interview on Monday. Then I was

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served the subpoena, I think, Wednesday or Thursday just a day

before the Thanksgiving and to appear right after the

Thanksgiving. And I informed them through my attorney that

I'm going to take the Fifth.

Anyway, they deferred it until February 20th, I

think. They sent me the subpoena. Two FBI agents were

waiting in front of my house, and they said the subpoena, they

said, "We need to talk with you."

I said, "Talk with my attorney."

They said, "We need to talk with you."

I said, "I think I did talk with you more than

enough."

And they said, "Either you talk with us or we serve

you with a subpoena anyway."

They serve me with the subpoena. I appeared in front

of honorable Judge Cote in New York -- Denise Cote -- and I

refused to answer any questions, and she held me in civil

contempt. I started hunger strike immediately, extreme

measures in extreme conditions. I have been through too much,

more than the comprehension of any human being. I don't

want -- I cannot -- I couldn't -- I cannot, I will not help

anybody build cases against my people or incriminate anybody.

I couldn't. I cannot, I will not hurt any human being.

I told them this is a political case, I'm not going

to testify. And I was held in civil contempt, and I took

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again the extreme measure and extreme conditions to start a

hunger strike to protest the way I was treated by FBI and U.S.

Attorney, mainly in Mississippi.

And I was held in MCC in Manhattan for 11 days.

Eight days' incarceration, I was just taking water and only

water. Then I was moved to Winchester ward -- Winchester Jail

where I placed in a ward. And I was fed through my veins in

hands and legs for one month. Then they collapsed, the IV

couldn't go through. Then they placed the IV in my neck,

three stitches without anesthesia. It came out, they push it,

and I became infected. It was infected, and I had fever, had

infection.

Twice, the first time three stitches, but when it

came out, they placed two stitches without anesthesia, and

they -- after one month it came out and started to feed me

again through my vein, in my veins, my hands, on my legs. Two

months. Then collapsed. They couldn't -- the IV couldn't go

through anymore. They used to place it -- I swear the last

one time in three days they tried to place it 50 times, put it

forward, backward, to the right, to the left. My veins

collapsed.

After four months, the judge issued a force order,

feeding order, and I was fed from my nose, NG tube from my

nose through my throat into my stomach.

I was kept in the same room in the same bed with

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seriously ill patients. Just in one month, in one month two

patients, cancer patients, passed away in front of me. And

after six weeks, my nose inflammated, my throat inflammated

and I placed a request: "Please, feed me with my veins until

at least my throat and my nose heals."

They said, "You have no say. We have a forced

feeding order."

I said, "You know, we are human beings. Let's

communicate as human beings. It's hurting. It's killing me.

I can't tolerate it."

You know, because they used to put the medicine in

the IV, and it used to clog. Therefore, they used to take it

every two days, every three days and replace and I became

inflamed.

And I said, okay, if you want to place it, go ahead

and place it, but over my dead body because I can't take it

anymore, and they shackled me. And they start to place the IV

into my nose, right nose. It didn't go through and start to

bleed. Into my left nose and it came out of my mouth. Then

into my right nose. Then into my left nose.

Judge -- and they shackled me. They shackled me

three weeks. My hands and my legs like that (indicating).

After that, after six months, 130 days sharp, the judge

released me from civil contempt. And, again, I thought that

my ordeal is over and I could go back to live a normal,

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peaceful life. And still I had no place to go.

So, and still, you know, I had the fracture, the

muscle diminished, everything, you know. And it took me one

year of physical therapy treatment to change the consequences

of the hunger strike. And I did manage checkups and I was --

up to this moment, I'm still taking medications.

I applied for political asylum. In December '98, my

visa expired, and I didn't want to stay illegally in this

country. And I couldn't leave. I couldn't -- I have no -- I

had no place to go.

February '99, it was granted, then revoked and

referred to an immigration court. The government keep -- kept

continuation, continuation until I was not allowed to work for

six months. This is, you know, for once anybody applies for

political asylum, he cannot work for six months, or he cannot

get the work permission after six months until they decide on

his -- anyway, they didn't decide.

They referred it to an immigration court.

Continuation after continuation until at that time I started

to work. I worked after I get the work permission, and I

didn't want to stay away from my field. I was teaching as

adjunct professor at university -- District of Columbia

University, Strayer University, and I started to teach at

Towson University in Maryland, 80 miles from my home. I got

it through some friends. I didn't want to waste the

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opportunity. I didn't want to stay away from my field. I was

driving 80 miles back and forth four days a week on temporary

basis until I got a job at Howard University.

Anyway, in 2000, I got a job at Howard University.

In 2002, in September, 2002, assistant dean of the university,

Howard University School of Business, told me, "We know who

you are. Someone from Mississippi" -- I don't know who's that

person is -- "sent us your file, and we know who you are."

I said, "Who from Mississippi sent you my file and

why?"

He said, "I can't tell you."

Anyway, later on they told me we are not going to

renew your contract despite a recommendation by the

appointment committee to hire me on tenure track. Every three

years -- the first of three years on temporary basis, after

that on tenure track. The appointment committee fought

against one, recommended the appointment, but they told me we

are not going to recommend -- we are not going to renew it.

I'm sorry.

Anyway, the judge -- immigration judge -- set a day

for a hearing, final hearing, and he said, "I'm not going to

renew it. I'm not going to continue the case." June 16th,

2003, and he schedule it for hearing.

The FBI provided nine volumes of information, the

same volumes that were used in my case, the same -- everything

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the same by FBI. Judge scheduled six weeks for hearing.

Suddenly -- and I'd like everyone to pay attention, your

Honor. Your Honor, he scheduled six weeks for a hearing.

Suddenly, the FBI presented stipulation: "Stipulate to this

and you don't need to testify, they don't need information,

they don't need the truth."

What are these stipulation? The same thing that they

have been asking: To build cases to incriminate some people.

To stipulate that Holy Land Foundation is a terrorist

organization, IAP -- Islamic Association for Palestine -- is a

terrorist organization, so-and-so is a terrorist.

Philadelphia meeting is -- was organized by Hamas. Hamas --

there's Hamas in the U.S.

And I told my attorney, "I think it's time for me to

leave. I'm not going to stipulate. I think I can't find any

place to go. I can't take it anymore."

We sign the agreement to depart voluntarily within

two months. In June 16th, 2003, I was served a subpoena to

appear in front of grand jury in Chicago, on the same day, to

appear on the 18th. And I got the termination of contract

from Howard University on the same date, June 16th.

Your Honor, it was not enough time. We seek

continuation for grand jury appearance, and I was granted

until June 25th. But they said you have to call to report to

FBI twice a day in Chicago at 10:00 a.m. and 7:00 p.m., not to

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leave your town. And I abided by the agreement. I was

calling in twice. I was calling FBI twice a day, not leaving

my town without their permission.

And I appeared and took the same stand because I know

two things: Number one, this case is initiated by the

government of Israel. American security is not the Israeli

security. No Palestinian did anything against the security of

the U.S. in the U.S.

Second, I'm determined to live in honor and dignity.

I cannot turn against my people as long as it takes. And I

took the same stand. I was held in civil contempt, and I took

the same stand not to testify -- not to eat or drink anything,

just water, to protest the way I was treated.

But this time something happened unusual. Three days

after my incarceration, they cut off the water. They kept me

in a dry cell from Monday until next Sunday when I was rushed

to the hospital -- Bethany Hospital. They took me once to the

medical clinic in jail and placed the IV despite my rejection

and gave me 300 cc.

And after that, the case was moved to your Honor. I

was indicted with criminal contempt and later on with

obstruction of justice later, then with RICO. And since

November 5th -- November 3rd, I'm sorry, 2003, I was placed

under some electronic monitoring, started with home arrest,

then curfew. Then again I was detained for one month, almost

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one month. Then released to home incarceration, and I stayed

in home incarceration wearing the ankle bracelet from

September 15th, 2004, until March 26th this year. And the

course of the trial, which is exhaustion of a person

financially, emotionally.

You don't know what we have been through. And before

that, we were struck by another tragedy, stabbing to death of

my sister-in-law in New Orleans, Louisiana. We are still

living that tragedy, still an open case. No one has been

charged. No apprehension. No whatsoever. And we are

reminded every day with that tragedy with my sister-in-law's

son Ahmed living with us.

And I found myself in a place that I couldn't go to

New Orleans to help my family through that hard time. I had

to stay home. We buried -- they couldn't take even -- we

tried to take the body, the coffin to be buried back in

homeland in her homeland, but the borders were closed, and we

couldn't do that.

Your Honor, I think -- I did what I did. I'm taking

responsibility what I did. And if I'm going to test- -- if

I'm -- they are going to subpoena me again, I'm going to take

the same stand. I'm not going to turn or to take the stand

and testify against people, my people. I'm not going to help

anybody build cases, incriminate my people, as long as it

takes.

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But I'm a Palestinian. I'm not an American. I have

a commitment towards my people. And I never hurt anyone or

knew of anyone would do anything against the U.S. and held

that information. But to designate my people and go after

them for the sake of the Israelis, I think something -- not

me, every Palestinian would not do.

Your Honor, I think we have been through too much,

beyond the comprehension of any human being. When I came to

this country, the first thing I did, to get a driver's license

because I didn't have a driver's license because to get a

driver's license, you have to get clearance from security, and

I was denied that.

Second thing, I kept records of everything and for

the first time in my life I have appointment book. And I

started to keep, which turned to be -- then to be called

documents afterwards. I had the appointment book, '90, '91,

'92, '93, almost 1400 pages out of 1600 pages to be called

documents.

The first time my wife joined me after she finished

her degree in March '90, she said, "This is the first time in

my life almost to live to feel peace and to feel in peace and

security and tranquility."

We used to sleep in our clothes because we expected

the raid of the Israelis any time to detain us. And they

could break the door without any notice. So, we used to sleep

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in our clothes.

"This is the first time." That's her statement.

Your Honor, I think it's time for me to pick up

what's left in my life to live in peace, harmony, dignity, and

to join my family back at home. I have been out of this --

out of my homeland 18 years and six days -- five days, I'm

sorry. My brothers get married. I don't know his kids.

Many, many nephews. Many nieces got married. Many cousins.

I don't know anyone. Those who I mentioned were murdered or

detained. I don't know. They were in the early 20s. When I

left, some of them were two years, three years, four years

old. I don't recall all of them. I don't remember all of

them.

Although my tale of pain and suffering would not end.

I don't know where to go if I'm going to be granted status to

stay or not or the Israelis would go after me.

All documents that was taken from my home was used

against my people back at home. Since '92 has been used. And

if I went through what I have been through in this country,

then you can imagine what would happen to me if I go back.

Your Honor, thank you for your understanding and for

your patience. This is the first time to have an opportunity

to tell my story.

Thank you.

THE COURT: Thank you, Dr. Ashqar.

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THE DEFENDANT: Your Honor, before you move, can I

just thank -- I'm sorry, I forgot to thank my counsels, my

legal counsel Bill Moffitt, his wife Edna Moffitt, for working

hard on my case, for their help and understanding and, more

importantly, believing in me.

Also, to thank Mr. Keith Spielfogel, Professor Andrea

Lyon and anyone -- and Sean and everyone who worked in my

case.

Also, I'd like to thank the community for supporting

me, who stood up for me and believing in me and trusting my

brothers and sisters. You are supporting a cause of freedom

and justice. Helping the Palestinian people is supporting a

cause of freedom and justice.

Also, I'd like to thank my wife who has been through

this with me. We got married; after two months, I was

threatened with being deported by the Israelis. My nephew,

Ahmed Muhammad, and my mother-in-law has been captive with me.

She couldn't leave. And now things will not be the same for

us until we have a grave.

Thank you.

THE COURT: The sentencing guidelines, as the Court

has already addressed, there's a range of 210 to 262 months.

The guidelines are advisory. In fashioning the sentence in

this case, as the Court is directed to do so by the Supreme

Court and the Seventh Circuit, the Court looks to Section 3553

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and the factors in Section 3553.

The sentence that the Court is going to impose is

based upon those factors and will satisfy and address the

factors in Section 3553. The first factor the Court must look

at under 3553(a)(1), the nature and circumstances of the

offense and the history and characteristics of the defendant.

Refusing to testify before the grand jury after you

have been immunized and compelled to do so is a serious

offense. The grand jury process in this country is essential

to obtain information for law enforcement and for our country.

I strongly disagree with your statement, Mr. Moffitt,

that Dr. Ashqar had no duty to the United States. When living

in this country, you have a duty and an obligation to follow

the laws and comply with the laws or suffer the consequences.

Part of the honor and dignity in living in this

country is abiding by those laws and complying with those

laws. Refusing to comply with the court order and failing to

testify before the grand jury is a very serious offense.

In looking at the nature and circumstances of the

offense, I note, however, that there is no evidence that you,

yourself, Dr. Ashqar, have ever participated in any violent

acts or intended to do so. There also has not been any

evidence in this case that the terrorist activities that were

under investigation by the grand jury were directed at the

United States.

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In looking at your history and characteristics,

Dr. Ashqar -- and I have reviewed all of the letters,

Mr. Moffitt, that you have provided to the Court, but I'm also

looking at the evidence that has been provided to this Court

during the course of the trial and through the sentencing

hearing and through Dr. Ashqar's own statements today. I

respect that you want to support your family members,

Dr. Ashqar, but when you're in this country, you must do it

legally, and refusing to testify before the grand jury when

you've been immunized and compelled to do so is not doing it

legally.

And you, yourself, told the grand jury, "I will never

give evidence or cooperate in any way with the grand jury or

any other, no matter what the consequences to me," and there

are consequences.

I reiterate what I said before, though. There is no

evidence that you have participated in any violent acts. You

do not have a criminal history. You have not been convicted

other than in this action of any crimes before coming here.

So, I take all of that into consideration.

One other thing I do note in looking at your history

and characteristics, although you indicated that you are

accepting responsibility for your actions, in the

hour-and-a-half plus that you have spoken, I have not seen any

remorse from you for the crime that you committed here.

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I also heard from you exactly the opposite, that if

you were in the same situation again, that you would do the

exact same thing and refuse to testify before the grand jury.

The sentence that the Court is going to impose will

reflect the seriousness of the offense of conviction here, the

obstruction of justice and the contempt. It will promote

respect for the law.

Mr. Moffitt, you argued that a lengthy sentence would

be contrary to the principles of liberty and justice that this

country was founded upon. The exact opposite is true. The

ability of the government to prosecute cases depends upon

truthful testimony before the grand jury. It is not up to any

one individual to decide if they agree with the grand jury,

disagree with the grand jury, if they can protect people.

When a witness has been immunized and compelled to

testify before a grand jury, he cannot deliberately ignore

that order and interfere with the law enforcement process

without consequences. And that is certainly true where a

grand jury is investigating terrorist activities.

Those actions undermine a critical part of our

investigatory process and our prosecutorial process in the

United States. In providing -- the sentence the Court is

going to impose will provide just punishment for the offense.

It will also provide adequate deterrence to criminal conduct

of others. It is essential to send a message that you cannot

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walk into grand juries when you've been immunized and

compelled to do so and say I'm going to take things into my

own hands, and I'm not going to do that. You cannot do that

without significant consequences.

In terms of protecting the public from further crimes

of you, you refused to testify in New York. You refused to

testify in Chicago. You have disregarded your legal

obligations of living in this country.

Having said that, I'm not sure that any sentence the

Court would impose would ever deter you from refusing to

testify again. I just don't think you would ever do that,

Dr. Ashqar, based upon on your own statements today and

everything that the Court has seen.

The final factor in Section 3553 is to provide the

defendant with needed educational or vocational training. I

don't really think that is a factor here.

There is a criminal offense level of 32 and a

Criminal History Category of VI, as the Court has previously

said. For alternate reasons, looking at Category VI and

guideline 4A1.3(b)(1), I do think that substantially

over-represents the seriousness of your criminal history in

this case. You have no convictions other than the one before

this Court. You have not been arrested. A Category VI

significantly and substantially over-represents that.

Based upon everything that the Court has seen, I

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think a Category I is more appropriate, and my sentence will

reflect a guideline offense level of 32 with a Criminal

History Category of I, which has a 121-to-151-month guideline

range.

For all of the factors in Section 3553, that I have

just given, even if the Court should not have a Criminal

History Category of I, even if the category of VI is more

appropriate, under the Section 3553 factors, I would deviate

from the Category VI guideline range to the guideline range

that I have just noted.

For all of those reasons, pursuant to the Sentencing

Reform Act of 1984, Dr. Ashqar, it is the judgment of the

Court that you are hereby committed to the custody of the

Bureau of Prisons to serve a term of imprisonment of 135

months on Counts Four and Five of the second superseding

indictment.

You must pay a $100 special assessment on each count

of conviction for a total of $200. I am also imposing a fine

of $5,000.

Upon your release from imprisonment, you shall be

placed on supervised release for a term of two years on each

count to run concurrent.

Within 72 hours of your release from the custody of

the Bureau of Prisons, you shall report in person to the

probation office in the district to which you are released.

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While on supervision, you shall not commit another

federal, state or local crime. You shall comply with the

standard conditions that have been adopted by this Court and

also comply with the following additional conditions:

You shall not possess a firearm or a destructive

device.

You shall refrain from any unlawful use of a

controlled substance.

You shall submit to one drug test within 15 days of

your release from imprisonment and random drug tests

thereafter not to exceed 104 tests per year, as conducted and

directed by the U.S. Probation Office.

You shall cooperate in the collection of a DNA sample

to the extent one is authorized by the law.

In addition, you shall comply with the following

special conditions:

Upon completion of your imprisonment, you are to

surrender to a duly authorized official of the Homeland

Security Department for a determination on the issue of your

deportability by the appropriate authority in accordance with

the laws under the Immigration and Nationality Act and the

established implementing regulations.

If ordered deported, Dr. Ashqar, you shall not

re-enter the United States without obtaining in advance the

express written consent of the Attorney General or the

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Secretary of the Department of Homeland Security.

I am going to waive the costs of incarceration and

supervision based on your limited ability to pay.

You have the right to appeal your conviction in this

case, Dr. Ashqar, as well as the sentence that has been

imposed by the Court. If you wish to do so, you must file a

notice of appeal with the Seventh Circuit within ten days, and

you can talk to Mr. Moffitt about how to go about doing that.

Is there anything further?

MR. SCHAR: Several things, Judge. On Counts Four

and Five, the statutory max on Count Four is 120 months. I'm

not sure if Count five is 135 or simply additional time to run

consecutive.

THE COURT: Thank you for clarifying that.

Count Four is the contempt which does have the

statutory maximum. I will --

MR. SCHAR: The obstruction has that.

THE COURT: I'm sorry?

MR. SCHAR: The obstruction has the statutory.

THE COURT: Has the statutory maximum, which is

Count -- Count -- because of the -- it was Three and Four at

the time it went to trial. Under the second superseding

indictment, it's Four and Five. Five is the obstruction with

the 120 months.

So, I'm sentencing you on Count Four to the 135

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months, and the sentence on Count Five is 120 months to run

concurrent with the sentence on Count Four of the second

superseding indictment.

I think it's a ten-year statutory cap, not a five.

MR. SCHAR: Yes, ten, years, Judge.

THE COURT: Okay. Is there anything further?

MR. MOFFITT: Your Honor --

THE COURT: Mr. Moffitt?

MR. MOFFITT: Yes. I would ask that Dr. Ashqar be

allowed to self-surrender.

MR. SCHAR: Judge -- I'm sorry, go ahead. There is

one other issue before we get to that issue because the

government does have an opinion on that. I'm not sure you set

a fine schedule, which I think is now required pursuant to

Seventh Circuit law.

THE COURT: Any fine that remains unpaid at the time

of supervised release will become a condition of supervised

release to be paid in the amount of 10 percent of the

defendant's gross net income -- gross income.

Thank you.

MR. SCHAR: Yes, Judge.

THE COURT: Yes.

MR. MOFFITT: He is currently still on bond. He has

appeared timely at every -- on occasion that he's been

required to. We're not -- we're not asking for a long period

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of time.

THE COURT: What are you asking for, Mr. Moffitt?

MR. MOFFITT: I would like to ask for 45 days so he

might be able to spend the last of the holiday season with his

family.

MR. SCHAR: Judge, our position is under 3143 remand

is required. I would note he's not on electronic monitoring

anymore, and I would also note repeatedly throughout his

statements, he indicated a willingness and wish to leave the

country.

He's under an order, essentially agreed order, of

deportation, and now the reality is he's looking at over ten

years in the federal penitentiary, and his reasons for fleeing

have gotten significant as this reality has now struck. And

we would ask that he be remanded immediately.

MR. MOFFITT: He was looking at life imprisonment at

one point. He returned every time. He came to hearings that

he wasn't even required to come. This is a man who I would

suggest to you from everything that he has told you carries

with him the notion that the dignity of his people is

important.

I would suggest that it would be against his nature

at this particular point to run in the face of this. If he

was going to run, he certainly would have run when we got the

probation report and it said that he was facing life. I mean,

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the reality that he was facing jail time has been a reality

that he certainly faced up to long before this.

And certainly Mr. Salah was allowed to surrender

himself. I don't see where Dr. Ashqar, in light of the fact

that there's no violence in his history, is any different.

THE COURT: I don't think you can compare this case

to Mr. Salah's case. He was convicted of different charges

and facing different guidelines and had some very, very strong

community ties to Chicago. So, I don't think you --

MR. MOFFITT: Well --

THE COURT: -- can compare this case to his case.

MR. MOFFITT: -- I would suggest to you that he has

community ties. Some of them are in the courtroom, and we're

not asking for a long period of time.

MR. SCHAR: Judge, I think we're talking about a

significant period of incarceration. The statute's fairly

clear in this regard. It's not a danger-to-the-community

issue. It's simply a risk-of-flight issue at this point.

There are no significant appellate issues, your

Honor, from the government's view, nor is there clear and

convincing evidence that he is not a risk of flight at this

point. Again, he's not on any type of monitoring, and he has

every reason to leave the country and not face this sentence

and continue to feel currently very strongly about, which is

his fight for the Palestinian people.

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MR. MOFFITT: Where does he go? He has no passport.

There's no place for him to go.

THE COURT: In looking at Section 3143, the statute

directs that the defendant be taken into custody unless the

Court finds by clear and convincing evidence that he is not

likely to flee or to pose a danger to the safety of any other

person or the community.

I agree, I don't think Dr. Ashqar is a danger to the

community. However, I do not find by clear and convincing

evidence that he's not likely to flee.

He's facing a substantial sentence. I am concerned

by statements that he himself has made, that you want to

return, you're trying to return. I am concerned that -- at

your lack of remorse for what has happened here. I am

concerned that you've indicated you'd go out and commit the

same crime again.

For all of those reasons, there is not clear and

convincing evidence, as required by the statute, and I will

order that the defendant be taken into custody.

MR. SCHAR: Thank you, Judge.

THE COURT: Is there anything further?

MR. SCHAR: No, Judge.

THE COURT: Thank you.

(Which were all the proceedings heard.)

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CERTIFICATE

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

/s/Joseph Rickhoff September 3, 2008

Joseph Rickhoff Date

Official Court Reporter

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