IMMIGRATION COURTUS DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEWNEWARK, N.J.

________________________________________In the Matter of

MOHAMMAD M. QATANANI (principal respondent)A76 133 969

SUMAIA M. ABUHNOUDA76 123 694

ISRA M. QATANANIA76 123 697

AHMAD M. QATANANIA76 123 696

OMAR M. QATANANIA76 123 695________________________________________

RESPONDENTS’ SUMMATION

Claudia SlovinskyGrace MengAttorneys for RespondentsLaw Offices of Claudia Slovinsky401 Broadway, Suite 1600New York, N.Y. 10013(212) 925-0101

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INTRODUCTION

The Government in this case is attempting to deport a respected Muslim leader, a man

who has been a leader in forging ties between religious communities, who has led the way for

Muslims in America to be fully integrated into civic life and who profoundly believes in the

democratic ideals of this country. In the nine years that the Government has investigated Dr.

Mohammad Qatanani’s application for adjustment of status, they have found no real evidence to

support a denial. Yet because the Government cannot believe that Dr. Qatanani is actually the

exemplary man he has demonstrated himself to be, it has resorted to using baseless and

unsupported accusations, suspect documents, and insinuations of guilt by association in pursuing

its goal. Dr. Mohammad Qatanani fully qualifies for adjustment of status and merits its grant as

a matter of discretion.

LEGAL STANDARD

When grounds of inadmissibility are alleged that would permanently bar an alien from

entry into the United States, as they are in this case, the seriousness of the consequences require

that any such findings of inadmissibility be carefully considered and supported by the record.

Unlike many grounds of inadmissibility, such as public charge (INA § 212(a)(4)), or unlawful

presence (INA § 212(a)(9)(B)), a finding of inadmissibility under the grounds alleged or implied

in this case, § 212(a)(6)(C) and § 212(a)(3)(B), would result in a permanent bar to entry into the

United States. The Board of Immigration Appeals and the federal courts have acknowledged

that when a finding would result in such severe consequences, particular scrutiny is required.

See, e.g., Matter of Y-G-, 20 I & N Dec. 794, 797 (BIA 1994); Luciana v. Attorney General, 502

F.3d 273, 278 (3d Cir. 2007). Therefore, even though an applicant for admission or adjustment

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of status has the burden to prove that he is admissible to the United States, INA § 240(c)(2), 8

C.F.R. § 1240.8(b), the Government may not make unfounded allegations of fraud or

misrepresentation, or of material support for a terrorist organization, without authenticated,

probative, and reliable evidence to support its allegation.

Specifically with regard to the ground of inadmissibility for fraud or misrepresentation,

the BIA has held: “[W]e will ‘closely scrutinize’ the factual basis for the IJ's determination that

an applicant is inadmissible under § 1182(a)(6)(C)(i) [INA § 212(a)(6)(C)], since such a finding

may perpetually bar the applicant from admission.” Matter of Y-G-, 20 I & N Dec. 794, 797

(BIA 1994). The Third Circuit emphasized the severity of a permanent bar to benefits under the

immigration laws, stating that in the context of “frivolous” asylum claims, such a finding could

be a “death sentence.” Luciana v. Attorney General, 502 F.3d 273, 278 (3d Cir. 2007).

Similarly, in the context of inadmissibility for criminal convictions, statutes and regulations have

imposed on the Government specific requirements for the authentication of documents, 8 C.F.R.

§ 1287.6, and for consideration of documents as a record of conviction. INA § 240(c)(3)(B) and

8 C.F.R. § 1003.41.

Most importantly, an alien must be given a “fundamentally fair” hearing, in accordance

with his due process rights. Ezeagwuna v. Ashcroft, 325 F. 3d 396, 406 (3d Cir. 2003). The

Third Circuit clarified in Ezeagwuna that “fairness is closely related to the reliability and

trustworthiness of the evidence. . . . Therefore, our analysis as to whether an individual's

constitutional rights are violated turns on whether the evidence considered . . . is reliable and

trustworthy.” Id. at 405. This standard must be applied to the evidence offered by the

Government in this case.

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ARGUMENT

I. DR. QATANANI IS STATUTORILY ELIGIBLE FOR ADJUSTMENT OF STATUS AND CERTAINLY MERITS ADJUSTMENT AS A MATTER OF DISCRETION.

A. Dr. Qatanani Has Demonstrated a Strong Commitment to Developing and Improving Interfaith Relationships.

Dr. Qatanani has worked tirelessly since his arrival in the United States in 1996 to build

bridges between communities of faith—Jewish, Christian and Muslim. As numerous religious

leaders have attested through letters of support and testimony, Dr. Qatanani has become a leader

in promoting interfaith dialogue, not only in his own mosque but also on behalf of the larger

Muslim American community in New Jersey and throughout the United States.

When Dr. Qatanani first arrived at the Islamic Center of Passaic County (“ICPC”), it was

a small mosque with a predominantly Palestinian congregation that had little interest in activities

outside of that community. Dr. Qatanani’s arrival precipitated a major shift in ICPC’s activities,

as it began to grow and to attract a diverse group of Muslims, both American-born and from all

over the world, as well as non-Muslims who were welcomed as friends. As Muhammad

Mahmoud testified at trial, “When Qatanani came, he made me and my family who were

Egyptian Americans, he made us feel welcomed to the mosque. He made other ethnicities feel

they’re welcomed to come to the mosque.” Testimony of Muhammad Mahmoud (identified as

“Muhammad Macdema” in the transcript1), Tr. at 335. Dr. Qatanani himself stated at trial:

“[A]fter when I came I tried to make it as the mosque of everybody for white, black, Arabs, non-

Arab. If you go there for the Friday prayer, you will find all ethnic groups.” Tr. at 743.

1 Due to numerous inaccuracies throughout the transcript, such as the one noted here, respondents hereby preserve their objection to the transcript as provided by the court on July 14, 2008, as an official transcript for any purpose, including for appeal.

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Under his leadership, ICPC has hosted numerous events that bring rabbis, ministers and

priests into the mosque, while also sending its own congregants out to synagogues and churches.

The mosque has frequently hosted the Muslim-Christian Project of northern New Jersey, and Dr.

Qatanani has attended the interfaith Seder with Reverend William Potter and Rabbi David Senter

for many years.

Dr. Qatanani has done much more than merely participate in interfaith dialogues. He has

also encouraged and brought his congregants to important interfaith events and he has strived,

with Rabbi Senter and Reverend Potter in particular, to start larger community-building projects

that would involve even more members of their respective congregations. Rabbi Senter

(identified as “Center” in the transcript) testified at trial:

Every subsequent [interfaith Seder] . . . he [walked] through the door with a group of teenagers and to me that was the greatest testament in the process. . . . [I]t is really an investment when you have a clergyman who is willing to bring the youth of his mosque into a synagogue to learn and build those bridges. . . . While there are other rabbis involved in the process and are other imams involved in the process and are other priests involved in the process, to this level I have not seen it. Tr. at 253.

Father Philip Latronico (identified as Latronaca in the transcript) further attested that Dr.

Qatanani’s leadership extends to other mosques:

[T]here’s a wider realm of dialogue that occurs because of this man. . . . He gets the other mosques involved. When we go into a section and we have trouble contacting them, Imam Qatanani through his connections with the other Moslem communities has gotten people to come forward to dialogue with [us]. Tr. at 295.

Dr. Qatanani seeks to stay in the U.S. in large part to continue his work promoting

understanding and friendship between people of different faiths. Tr. at 816-18. As Mr.

Mahmoud testified, Dr. Qatanani’s commitment to this work is deeply rooted in his faith: “He

said we need to look at our religion because this is all part of our religion. We need to leave the

cultural baggage aside and reach out to these other faiths.” Tr. at 338.

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His congregation did not uniformly support his work at first. Dr. Qatanani testified,

“They ask me, why did you let non-Moslems to enter the mosque. It is forbidden for them to

enter the mosque.” Tr. at 748. But as attested to by Mr. Mahmoud, because “the imam kept

stressing over and over this is important,” Tr. at 337, his congregation came to support him

actively, even sending teams to answer questions about Islam in 150 churches throughout

northern New Jersey. Testimony of Reverend William Potter (identified as “Park” in the

transcript), Tr. at 278.

B. Dr. Qatanani Has Provided Valuable Assistance to Local and Federal Law Enforcement Officials Throughout His Tenure at ICPC.

The Islamic Center of Passaic County, under Dr. Qatanani’s leadership, was among the

first mosques to issue a statement after the events of September 11, 2001, condemning the

attacks within hours. See Resp. Exh. 21. As Reverend Charles Blustein Ortman of the Unitarian

Church of Montclair attested in his letter to the court:

Friday afternoon [September 14, 2001] a delegation from our congregation . . . went to the Islamic Center Mosque over in Paterson. . . . When we got there members of the Mosque were busily engaged in a blood drive for the victims of the attack in New York. A huge sign floated over the entrance to the facility proclaimed that the Arab-American community and that of the Nation of Islam denounced the terrorist attacks on the United States. We were greeted warmly, with open arms and invited into the office of the Imam, Mohammad Qatanani. . . . The Imam talked about how the terrorists had sought to divide us. ‘But look,’ he said, ‘The opposite has happened. Look at us here together.’ . . . We spoke together of our need for solidarity and mutual support.” Documents showing Dr. Qatanani’s work in condemning terrorist attacks, Resp. Exh. 3.

Well before September 11, Dr. Qatanani was a leader in making sure that his mosque was

active in countering false perceptions of Islam. He has been vocal about how the Koran does not

condone terrorism, and has led the mosque in working extensively with government officials,

including the FBI, the Sheriff of Passaic County, various prosecutors and municipal government

officials.

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Assistant U.S. Attorney Charles McKenna testified that Dr. Qatanani has been crucial in

helping the U.S. Attorney’s Office in Newark: “It’s important for us to have leaders in the

Islamic community that will be accepting of us and give us inroads into the community and in

that regard, yes, he has [helped us do our work].” Tr. at 285. His testimony directly contradicts

FBI Agent Angel Alicea’s claim that he was not aware of any law enforcement assistance from

Dr. Qatanani. See Testimony of Alicea, Tr. at 184.

It is particularly notable that the U.S. Attorney’s Office testified on Dr. Qatanani’s

behalf, as the U.S. Attorney serves as counsel for the Department of Homeland Security

(“DHS”). Testifying in support of Dr. Qatanani’s application for adjustment of status could

result in a conflict-of-interest with its client, DHS, particularly if there were any reason to

believe any investigation would lead to criminal charges against Dr. Qatanani. The decision to

do so speaks to the extensive and lasting nature of the relationship between the U.S. Attorney’s

Office and ICPC, as led by Dr. Qatanani.

AUSA McKenna specifically stated that he has visited ICPC three to five times per year

since September 11, 2001. Tr. at 284. AUSA McKenna also testified that he had been given the

opportunity to speak at the mosque on a number of occasions, to “demystify” what the U.S.

Attorney’s Office does. Before 2001, AUSA McKenna stated that the Islamic community

tended to be more insular . . . and law enforcement was not that familiar with the social mores of the community. . . . We learned through this process . . . a lot of other things about the way Islamic people conduct themselves that we were ignorant of . . . that helped us to gain a better understanding of them and hopefully they of us. Tr. at 286.

AUSA McKenna’s testimony made clear that Dr. Qatanani has always welcomed them and that

“[t]here’s never been a question or time when we have wanted something from the mosque or the

congregation that we’ve not been able to obtain it.” Tr. at 286.

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Sheriff Leo McGuire of Bergen County and Sheriff Jerry Speziale of Passaic County

reiterated this sentiment as they testified to their close and longstanding relationships with Dr.

Qatanani. Sheriff Speziale described how he had been invited to speak at the mosque and how

ICPC had conducted trainings on cultural sensitivity. Tr. at 312. He also stated that ICPC

hosted a “law enforcement summit,” at which “the FBI was present,” “on how we could better

identify criminals that may come through the community or try to blend into the community and

how we could better share information back and forth so we could prevent terrorist attacks and

future problems in the community.” Tr. at 312-13. He praised Dr. Qatanani for being “a bridge

of peace,” and “a voice of reason,” Tr. at 313, and that he has been “honest and ethical in . . . any

dealings that I’ve had with him.” Tr. at 315. He noted in particular that one of his detectives

was assigned to the Joint Terrorism Task Force, and that he had never reported any negative

information about Dr. Qatanani, nor reported there was any reason not to work with him and

ICPC. Tr. at 325.

There is ample additional documentary evidence of Dr. Qatanani’s long relationship with

law enforcement and government officials. In December 2000, Dr. Qatanani led the opening of

the New Jersey Senate session with a prayer, the first time in history that the prayer had ever

been offered by a Muslim cleric. See Documents showing Dr. Qatanani’s work with government

officials, Resp. Exh. 4. In direct rebuttal to Agent Alicea’s testimony that the FBI did not

receive assistance from him, Dr. Qatanani has submitted letters and invitations clearly

confirming the cooperative relationship Dr. Qatanani and ICPC had with the FBI for many years,

such as the hosting of a job fair at the mosque for the FBI and other government agencies. See

Resp. Exh. 4. Dr. Qatanani testified that he supported this job fair because, “Moslems [are] part

of this community. They have to understand the jobs. . . . We don’t want them to look to these

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jobs as suspicious jobs. No. These jobs for serving the country, serving the community. So we

want our people to understand.” Tr. at 652.

As with his interfaith work, there was initially some resistance in the mosque to the

bridges Dr. Qatanani was trying to build with law enforcement. When the FBI first came to the

mosque, “[i]n 1997 or 1998[,] . . . most of the people were shocked[,] . . . but after awhile it

became normal.” Testimony of Dr. Qatanani, Tr. at 752. Eventually, some of these government

officials and law enforcement agents “used to be seen in the mosque more than Moslems. For

example, John Page [from the FBI], he became a friend to the community.” Id.

The Government in this case seeks to paint the law enforcement witnesses as missing a

“piece of the puzzle” because they had not personally examined the inconsistent and deficient

documents submitted by the Government to prove the existence of an alleged Israeli conviction.

Tr. at 327. But as Sheriff Speziale attested, “I have my opinion and I base that on the totality of

the circumstances from my dealings with Dr. Qatanani.” Tr. at 326-27. Clearly, the

Government’s allegations have not changed what these witnesses know of Dr. Qatanani’s

character and of his commitment to their work together.

C. Dr. Qatanani Has Inspired the Transformation of His Congregants Into Full and Active Participants in American Civic Life.

One of the biggest changes effected by Dr. Qatanani during his time in the U.S. has been

the transformation of his congregants, whom he has encouraged to become active participants in

civic and public life. His leadership in this sphere has been particularly courageous, as he has

had to go against long-held community beliefs. For example, there are Muslims who believe that

a good Muslim living in a non-Muslim country should not vote. Dr. Qatanani squarely

countered this belief, putting the full weight of his scholarship behind his assertion that Muslim

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minorities must become active participants of the country they live in, including the democratic

system. Tr. at 732, 801.

Similarly, as Huma Hasan (identified as “Ms. Hassan” in the transcript) testified, Dr.

Qatanani was instrumental in helping to establish Wafa House, an organization that works to

combat domestic violence with a particular focus on providing culturally sensitive services to

Muslim and Arab communities: “He stands at every fundraiser saying how important it is for an

organization like Wafa House to exist. He is a cleric, an imminent [sic] cleric to stand there and

talk about a much tabooed subject. So that speaks for itself.” Tr. at 304. Ms. Hasan also

testified about her personal experience with Dr. Qatanani, how as a single mother, she had been

turned away from another mosque, but in contrast, at ICPC, she had been welcomed by Dr.

Qatanani who made her feel like “part of his biological family.” Tr. at 306.

The quality of religious and community leadership Dr. Qatanani offers the United States

is critical at the current time. Dr. Qatanani’s work is based in his belief, as he testified, that

in the Koran according to one of the famous eyes [sic] in the Koran—from male and female and we made you into tribes and nations to know each other. So to know each other is one of the goals of the religion. Religion means living with others, loving others, serving others. . . . If you live in isolated place it means you don’t apply your religion. Tr. at 754-55.

Rabbi Senter affirmed in his letter to the court, “His work embodies the American value

of brotherhood among people of divergent backgrounds. Imam Qatanani is an asset to our

country and his ministries advance our culture and values.” Resp. Exh. 2. Father Latronico

strongly asserted, “Of all the Imams and Sheiks I have worked with since 1993, I have never

found one more dedicated to the cause of peace and the desire to help his people to become part

of our American Culture where appropriate.” Id. As Reverend Potter attested, “Dr. Qatanani has

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made and will continue to make an invaluable contribution in building a more compassionate and

less fearful nation. We are blessed to have this man and his family in our midst.” Id.

In sum, Dr. Qatanani is more than merely admissible to the United States. His

community-building efforts between immigrants, faiths and law enforcement should be lauded,

as he possesses exactly the sort of character traits that make this country great.

II. THE GOVERNMENT HAS NOT PRODUCED ANY CREDIBLE EVIDENCE OF NEGATIVE FACTORS TO DENY DR. QATANANI ADJUSTMENT OF STATUS.

The Government has had nine years to investigate Dr. Qatanani, and yet they have not

presented a single negative factor worth any weight. Its efforts to prove Dr. Qatanani

inadmissible for alleged support of Hamas or fraud are based on a set of foreign documents with

serious and troubling deficiencies, as argued throughout these proceedings and countered with

substantial evidence provided by Respondents (see Section III). Because they have no real

evidence that Dr. Qatanani is ineligible for adjustment of status, the Government has resorted to

implying that he is guilty by association, to making inferences without any evidence that he

communicated about terrorism with alleged terrorists, to alleging improper handling of money

when there was none, and to making insinuations regarding Dr. Qatanani’s character based on no

facts at all. The Government’s attempts to discredit him in this way only serve to highlight that

they have nothing real to present against him. But because these allegations, however spurious,

were made, Dr. Qatanani has at trial answered each one.

A. The Government Has Sought to Infer Guilt by Association.

The Government has throughout this case attempted to connect Dr. Qatanani with

Mohammad El-Mezain, the prior imam of the Islamic Center of Passaic County. The

Government has sought to introduce evidence of Mr. El-Mezain’s activities and speech, as well

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as the fact that he was a defendant in the Holy Land Foundation prosecution in Texas. The

Government has never alleged any connection between Dr. Qatanani and any of Mr. El-Mezain’s

activities, much less improper or illegal ones. Rather, they have urged only an unfounded

inference that if they worked at the same place, and lived in the same building, they must be

allied in illegal or improper activity.

The weakness of the Government’s case was apparent when it questioned Dr. Qatanani

about a conference that Mr. El-Mezain attended in Los Angeles before Dr. Qatanani had even

arrived in the U.S. Tr. at 831. As the evidence shows, the only connection between the two men

is that they overlapped as employees of the ICPC for a period of three years. As Dr. Qatanani

testified, “We were working in the same place, but we have two positions.” Tr. at 741. They

lived in different apartments in a building owned by the mosque to house its employees.2 Tr. at

746. Most significantly, Dr. Qatanani’s difference in political and religious vision about the way

the mosque should develop led to considerable friction between the two men, to the extent that

soon after his arrival Dr. Qatanani began to search for another job in Chicago. Ultimately, their

differences led to the forced resignation of El-Mezain from the ICPC at Dr. Qatanani’s

insistence. Tr. at 744-46.

The Government has also sought to build its case against Dr. Qatanani on the fact that his

wife had a brother, Mahmoud Abu Hanoud (identified in the transcript as “Mahmud Abu

Honoud”) who was a Hamas militant eventually assassinated by the Israeli government. Again,

the Government’s case is based on the unfounded inference that merely because Mr. Abu

Hanoud was one of his wife’s thirteen siblings, Dr. Qatanani must have collaborated with Mr.

Abu Hanoud about illegal or terrorist activity. No improper activity is even alleged – because 2 The Government in cross-examination of Dr. Qatanani sought to insinuate that he had failed to list the apartment number on his 1999 application. Tr. at 825-26. Dr. Qatanani clearly testified, however, that by the time he had applied for adjustment of status, Mr. El-Mezain had resigned and Dr. Qatanani had moved into the main, larger apartment in the building, which was not normally designated with an apartment number. Tr. at 952.

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there was none – so the “facts” offered to support this allegation are that Dr. Qatanani attended a

family dinner in 1993 along with fifty other members of his wife’s family, Tr. at 855-58, and that

once Mr. Abu Hanoud called his sister here in the U.S. from prison for a few minutes. Tr. at

860-62.

Although the Government expressed surprise at Dr. Qatanani’s testimony that he would

not have discussed his imprisonment and torture in the Israeli military prison with Mr. Abu

Hanoud soon after his release, it is not at all unusual that he would refrain from discussing that

experience at a family gathering, particularly where children were present:

Everybody knows I was released but in our life there we don’t talk about these issues. We don’t like to talk about our torture and bad experience. .  . . [E]ven my children until this moment, they were surprised to know I was . . . detained. They don’t know about the torture in there. I didn’t tell them what happened to me. . . . So we are sitting on food, eating and we want to forget everything in the past. So they want to make a good gathering, beautiful gathering, family gathering. This is what happened. Tr. at 858.

The Government’s numerous attempts to introduce into the record articles regarding the

activities of Mr. Abu Hanoud should be rejected, as no matter who Mr. Abu Hanoud was and

what activities he was involved in, they are not relevant to Dr. Qatanani or this case.

The Government’s effort to besmirch Dr. Qatanani’s character even included an

allegation that Dr. Qatanani spoke at the same conference as someone who the Government

subsequently denaturalized and deported. Dr. Qatanani testified that he was not aware that this

person was even present at that conference. Tr. at 932-33. The Government’s suggestion that

the act of speaking at the same conference as someone else somehow taints that individual is

absurd. Again, if these allegations prove anything, it is that the Government has found nothing

of any substance against Dr. Qatanani in nine years of searching.

B. Dr. Qatanani Has Never Engaged in Any Illegal or Improper Activity.

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The Government has made a series of petty, baseless allegations in their effort to

discredit Dr. Qatanani. Although the lack of substance behind these allegations should be clear,

each is responded to in detail below.

First, Agent Alicea testified that Dr. Qatanani gave another brother-in-law, Hussein

Sholi, $5,000 when he was leaving the United States to return to Palestine. Tr. at 162. Mr.

Sholi, who had come to the U.S. at the invitation of the State Department, was stopped at the

airport before his departure and asked about funds he was carrying. Agent Alicea admitted that

after questioning, Mr. Sholi was allowed to continue his journey and the money was not

confiscated. Tr. at 165-66. Agent Alicea stated that, “given [his] training and experience in law

enforcement,” the only reason a person would send cash abroad in this manner rather than wiring

it was because “you don’t have the bank account” or because it “circumvents the financial

system.” Tr. at 163, 167. This conclusion is not only unjustified, but serves to highlight Agent

Alicea’s lack of expertise and credibility. Dr. Qatanani explained to this Court that he and his

wife sent the $5,000 cash to Palestine with his brother-in-law to take advantage of the trip,

thereby saving the $59 the bank charged every time he made a wire transfer. Tr. at 865. He

explained that the family is building a home in the West Bank and that this was a payment

towards that construction. Id. Like the Government’s other reasons for denying Dr. Qatanani

adjustment, this basis for a suggestion of impropriety is unfounded and meaningless. Notably,

the Government did not raise the allegation of impropriety found in the decision denying

adjustment of status, that “conflicting information had been provided to the FBI concerning

whether [he] or [his] wife had provided $5000 in cash,” most likely recognizing the absurdity of

such a charge. I-485 Denial, DHS Exh. 6.

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The Government revealed at trial that they have obtained Dr. Qatanani’s bank records

from at least as far back as 1999. During the testimony of Agent Alicea, the Government

attempted to question him about wire transfers Dr. Qatanani had made, without documentation or

notice to Respondents, an approach that was rightly rejected by the court. Tr. at 152-57. In any

event, there is nothing illegal, improper, or even unusual about an immigrant family sending

funds back to their country of origin. In fact, no actual allegation of illegality or impropriety has

even been made by the Government. A presumably thorough nine-year investigation of Dr.

Qatanani’s bank transactions has produced nothing of any interest.

In 1999, Dr. Qatanani and his wife applied for and received several months of formula

for their newborn twins under the New Jersey Women and Infants program (“WIC”). The

Government’s insinuations notwithstanding, there was nothing improper in the receipt of these

benefits nor in the answer Dr. Qatanani provided on the Form I-485 filed in 1999. Dr.

Qatanani’s family was fully eligible to receive baby formula under WIC, a U.S. Department of

Agriculture program that covers pregnant or postpartum women, infants, and children up to age

5.3 The New Jersey income guidelines for WIC eligibility are approximately 180% of the U.S.

Poverty Income Guidelines. In 1999, the maximum yearly income for a family of eight to

qualify was $50,364,4 more than the $43,800 that the Qatanani family had declared as income on

their 1999 tax return. Furthermore, any WIC benefits would have been received after Form I-

485 was filed on April 1, 1999, Resp. Exh. 3, as his twins were born on September 24, 1999,

almost six months later. In sum, Dr. Qatanani’s answer “no” to Part 3, Question 2 on the

application filed on April 1, 1999 was entirely accurate.5

3 Information about New Jersey WIC can be found at http://www.state.nj.us/health/fhs/wic/. 4 The 1999 HHS Poverty Guidelines can be found at http://aspe.hhs.gov/POVERTY/99poverty.htm. 5 Additionally, federal law makes clear that WIC is not to be considered when determining whether someone is likely to be a “public charge” and therefore inadmissible, nor is public assistance received by other family members to be attributed to an applicant, as was the case here. See Field Guidance on Deportability and Inadmissibility on Public Charge, 64 Fed. Reg. 28689 (March 26, 1999).

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The Government attempted to make it appear improper to have claimed a property tax

credit under New Jersey law because Dr. Qatanani did not own any property. Tr. at 845-49. But

the property tax credit is available to tenants. Dr. Qatanani testified that the accountant who

prepared his tax return that year advised him that it was legal to take the tax credit. Tr. at 955-

56.

The Government argues that it was improper for Dr. Qatanani to work without an

employment authorization card, Tr. at 842-43, blatantly ignoring the statute governing

adjustment of status and unauthorized employment at INA § 245(c). As that statute makes quite

clear, only those who work without authorization prior to filing their adjustment application are

barred from adjustment. INA § 245(c). As Dr. Qatanani never worked prior to filing his

application for Adjustment of Status, he is not barred from adjustment.

The Government sought to insinuate that Dr. Qatanani purposely concealed his identity

with regard to his international driver’s license, despite an unequivocal disposition indicating

that the charges of fraud were dismissed. See Disposition of Dr. Qatanani’s NJ Traffic Violation,

Resp. Exh. 18. Nevertheless, Agent Alicea repeatedly called Dr. Qatanani’s international

driver’s license a “fraudulent document.” Tr. at 174, despite his knowledge that it was not

fraudulent. As Dr. Qatanani testified, an international driver’s license uses the exact translation

of the foreign driver’s license, and his Jordanian driver’s license listed his name as “Mohammad

Mahdi Ahmed Hasan.” Tr. at 937, 939-41; see also Jordanian Driver’s License, Resp. Exh. 25.

Although Dr. Qatanani was mistaken in his belief that it authorized him to drive in New Jersey,

there was nothing fraudulent about the document itself. Tr. at 938. Even Agent Alicea’s

description of what ultimately happened to the company that produced the license makes clear

the document was not “fraudulent,” as the company was allowed to continue production, but

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with a “caveat that’s supposed to be put on the document.” Tr. at 174. Again, the ultimate

outcome of the case reveals the utterly baseless nature of the Government’s insinuations, as the

charge of fraud against Dr. Qatanani was clearly dismissed. See Disposition of Dr. Qatanani’s

NJ Traffic Violation, Resp. Exh. 18.

Finally, the Government has alleged that the ICPC encouraged its members not to

cooperate with law enforcement, both in the testimony given by Agent Alicea and through its

questions during the cross-examination of Dr. Qatanani. Tr. at 185, 926. The only evidence the

Government has presented in support of this contention is a document entitled, “Know Your

Rights,” which Dr. Qatanani did not even recognize. Tr. at 928. Regardless, the document in

question explains to the public the rights of an individual under the First, Fourth and Fifth

Amendments to the Constitution. DHS Exh. 24. The Government’s suggestion that it is

improper to educate members of a mosque about their rights under the constitution is chilling, as

is the Government’s implication that Dr. Qatanani is not worthy of living in this country because

he supports constitutional rights.

C. Dr. Qatanani’s Political and Religious Beliefs and Activities Do Not Raise Any Negative Factors.

Dr. Qatanani’s support for a peaceful end to the Israeli occupation of the West Bank and

Gaza is not a “negative factor,” but rather an opinion shared by millions of people around the

world, including President George W. Bush.6 The Government sought to discredit Dr. Qatanani

by asking if he had “lament[ed] that Jerusalem is under the control of the Israelis who you call

6 President Bush on a recent trip to the Middle East described the opening point for peace negotiations as follows:

There should be an end to the occupation that began in 1967. The agreement must establish Palestine as a homeland for the Palestinian people, just as Israel is a homeland for the Jewish people. These negotiations must ensure that Israel has secure, recognized and defensible borders. And they must ensure that the state of Palestine is viable, contiguous, sovereign and independent. “Bush sets peace terms,” Associated Press, Deseret News (Salt Lake City), January 11, 2008.

17

transgressors.” Tr. at 931. In his testimony, Dr. Qatanani confirmed his belief that the Israeli

occupation of the Palestinian territories is wrong and explained, “We don’t talk about Jews. We

[are]7 talking about the occupation. We’re talking about the operation against the human being.”

Tr. at 932.

The politically complex Israel/Palestine problem is certainly not an issue that needs to be

resolved in this case. However, it is important to note that it is not improper or negative, or even

uncommon, to hold the political belief that the Israeli occupation of the Palestinian territories

should end. Even some Israeli leaders have agreed with that sentiment: “In 2003, two years

before Israel withdrew from Gaza, then-Prime Minister Ariel Sharon said that ‘keeping 3.5

million Palestinians under occupation is bad. Occupation is bad.’” Associated Press, January 10,

2008, available at http://www.msnbc.msn.com/id/22587081.8

The Government has not produced any evidence, or even alleged that any evidence exists,

indicating that Dr. Qatanani was a member of Hamas or assisted that group, other than the

suspect Israeli documents they seek to admit. Dr. Qatanani has consistently and credibly

testified that he was a member of a student religious organization at the University of Jordan

from 1985-1991, along with hundreds of other students, that was affiliated with the Muslim

Brotherhood. Tr. at 733. As a religious organization, it was certainly encompassed by Dr.

Qatanani’s answer “various religious organizations” to the question on Form I-485, “List your

present and past membership in or affiliation with every organization, association, fund,

foundation, party, club, society, or similar group in the United States or in other places since

7 The transcript states, “We aren’t talking about occupation” but this is an inaccurate transcription, as the tape clearly indicates that Dr. Qatanani said, “We are talking about the occupation.”8 Similarly, a majority of Israelis favor an end to the Israeli occupation of the Palestinian territories. In a poll published by Maariv, a major daily newspaper in Israel, 62% of the Israelis polled supported an end to the Israeli occupation of Palestinian territories. Israelinsider, June 1, 2003, available at http://web.israelinsider.com/Articles/Politics/2357.htm.

18

your 16th birthday.”9 The Muslim Brotherhood was, and is, a completely legal organization in

Jordan, as it is in most of the world. The Muslim Brotherhood is not a part of Hamas, and the

State Department accordingly has never listed the Muslim Brotherhood as a Foreign Terrorist

Organization. Even Agent Alicea conceded that Hamas is not the same as the Muslim

Brotherhood. Tr. at 150.

Agent Alicea also tried to make hay of the fact that the Muslim Brotherhood is not legal

in Syria, but he failed to add that all parties other than the ruling party are banned in Syria. U.S.

State Dept. Country Reports on Human Rights Practices, available at

www.state.gov/g/drl/rls/hrrpt/2007/100606.htm. His comment that the Muslim Brotherhood is

banned in Egypt also revealed his lack of expertise. While technically banned, the party also has

members elected to Parliament, making up the most important opposition bloc in Egyptian

government.10 As U.S. asylum and immigration law has long-recognized, being a member of an

organization that is banned in some country in the world is not a ground of inadmissibility.

Seeking to imply that Dr. Qatanani is unworthy of adjustment, the Government even

resorted to quoting the Koran to impeach the credibility of Rabbi Senter:

[D]o you [believe] somebody who made the following statement is tolerant of other religions, quote, “Oh, Allah, make us among those who have pure hearts and pure intentions and our lord, glory be to him. Divide and classify the people into few believers who have righteous [sic], hypocrites, and disbelievers and he characterized the hypocrites, and disbelievers. In [their hearts] there is illness and he will increase the illness and he will be swiftly punished in the day of judgment. This belief and hypocrisy and sins, its cause is an illness in the heart.” Tr. at 261.

To quote the Koran in order to impeach a character witness improperly suggests that a belief in

Islam and its sacred text is a “negative factor” in adjustment. That kind of religious intolerance

9 Dr. Qatanani explained clearly that he was advised to put “various religious organizations” on the 1999 application by his prior attorney, who correctly explained that he would have the opportunity to provide more information, including updated information, at his adjustment of status interview. Tr. at 803. 10 See Joshua Stacher and Samer Shehata, “Hear out Muslim Brotherhood,” The Boston Globe, March 25, 2007, available at http://www.boston.com/news/globe/editorial_opinion/oped/articles/2007/03/25/hear_out_muslim_brotherhood/.

19

and bias should never be espoused by an agent of our government and is antithetical to core

American beliefs. The outrageous nature of such an implication was soundly addressed by

Rabbi Senter, who responded, “I can give you quotes from my tradition, the Roman Catholic

tradition, just about [any] other tradition that have existed that have been a lot less tolerant.” Tr.

at 262.

D. The Government’s Vague, Prejudicial Allegations of an Ongoing Investigation Cannot Be Considered When Deciding This Case.

During their testimonies, FBI Agent Alicea and ICE Agent Heather Philpott both

insinuated – without providing any evidence in support – that Dr. Qatanani is the subject of an

ongoing federal investigation . Testimony of Alicea, Tr. at 183; Testimony of Philpott, Tr. at

355-58. The Government’s attempt to prejudice this Court’s assessment of Dr. Qatanani through

vague and unsupported allegations violates his due process right to fully confront witnesses and

evidence proffered against him, and the Court should explicitly exclude this portion of their

testimony from its consideration. Moreover, because these insinuations are not credible, the

Court should look at the entire testimony of these witnesses with heightened scrutiny.

Respondents in immigration proceedings must be given the opportunity to fully cross-

examine witnesses and evidence that is proffered against them. INA § 242(b)(3); 8 C.F.R.

§ 1240.10(a)(4); McConney v. Rogers, 287 F.2d 473 (9th Cir. 1961); United States ex rel.

Doukas v. Wiley, 160 F.2d 92 (7th Cir. 1947); United States ex rel. Huber v. Sibray, 178 F. 150

(W.D. Pa. 1910). In this case, where Dr. Qatanani was not allowed the opportunity to examine

any evidence that would support the Government’s insinuations that he is the subject of an

ongoing investigation, that portion of their testimony should be stricken.

Any remedy short of excluding this testimony would violate Dr. Qatanani’s due process

right to fully confront the evidence against him. U.S. Const. Amend. 5; INA § 242(b)(3); 8

20

C.F.R. § 1240.10(a)(4). In Kiareldeen v. Reno, 71 F.Supp.2d 402 (D.N.J. 1999), the District

Court found that a respondent in immigration detention had not been afforded due process where

the Government relied on five “summaries” of information gathered by the FBI’s Joint Terrorism

Task Force attesting that the respondent was a threat to national security. Id. at 413-14.

Although the information was allegedly obtained from multiple reliable sources, the Court found

this type of evidence unconstitutional, as it compelled the respondent “to attempt to prove the

negative in the face of anonymous slurs of unseen and unsworn informers.” Id. at 413 (internal

quotations and citations omitted); see also Kiareldeen v. Ashcroft, 273 F.3d 542, 547 (3d. Cir.

2001) (noting that the Third Circuit denied INS’s motion to vacate the District Court decision in

Kiareldeen on October 28, 1999).

In this case, the Government’s vague insinuations that Dr. Qanatani is the subject of a

federal investigation provide even less opportunity for him to challenge the assertions than was

the case in Kiareldeen. See id. at 548 (noting that the FBI summaries did provide Kiareldeen

with the basic facts of the allegations against him, which allowed him to present a considerable

amount of rebuttal evidence and ultimately secured his release from detention and adjustment of

status). Vague insinuations should not be permitted to become part of the record when, as here,

the respondent is essentially denied any way to cross-examination those insinuations. See Matter

of Martinez, 16 I&N 723 (BIA 1979) (holding that evidence obtained at a hearing against the

respondent’s brother should not have been permitted to be introduced against the respondent in

an immigration proceeding because he did not have an opportunity to cross-examine the

witness); United States v. Mastrangelo, 172 F.3d 288, 296 (3d Cir. 1999) (holding that

prosecutor’s unsubstantiated insinuations in summation that defendant possessed the knowledge

21

to make methamphetamines required mistrial even where trial judge gave jury instruction to

disregard the improper statements).

In any event, the validity of the Government’s allegations that Dr. Qatanani is personally

the subject of an ongoing investigation is very dubious. As Dr. Qatanani testified, he has never

been personally questioned by the FBI or other law enforcement agency regarding any of his

activities other than those involving the mosque’s work with law enforcement officials. Tr. at

810. Sheriff Speziale from Passaic County testified that his department has a representative on

the Joint Terrorism Task Force, a squad with representation from numerous law enforcement

agencies that work together on terrorism matters in New Jersey, and that he has never been given

any negative information about Dr. Qatanani from the federal government, or from anyone else,

for that matter. Tr. at 325. If there were negative information about a “person of interest” to the

FBI and ICE, in the post-9/11 era it would likely be shared with other members of the Joint

Terrorism Task Force, especially the local law enforcement officials most likely to come into

contact with or to have information about that person. Furthermore, the fact that the U.S.

Attorney’s Office testified on Dr. Qatanani’s behalf belies the agents’ insinuations that Dr.

Qatanani is under suspicion of illegal activity, as the U.S. Attorney’s office would be the office

to prosecute any charges.

Because the FBI and ICE agents’ insinuations that Dr. Qatanani is the subject of on

ongoing investigation are not credible, this Court should consider all of their testimonies with

heightened scrutiny.

III. THE DOCUMENTS FROM ISRAEL DO NOT PROVE DR. QATANANI TO BE INADMISSIBLE, PARTICULARLY WHEN WEIGHED AGAINST THE DOCUMENTARY EVIDENCE AND EXPERT TESTIMONY PROVIDED BY RESPONDENTS.

22

Throughout these proceedings, the Government has argued that Dr. Qatanani has been

convicted in Israel for membership in Hamas, about which he made a material misrepresentation.

The only evidence the Government has provided in support of these charges has been a

series of illegible photocopies with differing dates, a bewildering array of Israeli agencies, and

various attestations with little indication of which documents are being authenticated and by

whom. No original documents have ever been submitted. The burden to prove admissibility is

obviously on the party seeking to introduce evidence. The Government has had ample

opportunity to address questions raised by Respondents and the Court, yet the Government has

not done so, and therefore it has failed to meet its burden of proof.

No properly authenticated documents that can prove the existence of a conviction have

been submitted into the record. The precise origin of each document has never been established,

nor has the Government shown or asserted that a specific agency or agencies has custody over

these documents and therefore has the authority to authenticate them. The only thing that is clear

is that none of these documents were provided by a court of record.

Additionally, the Government did not dispute much of Respondents’ evidence

demonstrating the serious procedural deficiencies in the Israeli military court system in 1993, as

well as the extensive documentation of torture and other abusive techniques used during

interrogation at that time. Respondents’ evidence on these issues has been confirmed and

corroborated through multiple human rights organizations, the U.S. State Department human

rights report, an academic expert on the sociology of the military court system, a lawyer with

almost thirty years of experience handling hundreds of cases in the military court system, and the

Israeli High Court of Justice itself. The Government’s own witness, Professor Amos Guiora,

corroborated many of these details. The Government’s answer to the documentation regarding

23

torture has largely been limited to a semantic argument that in 1993, the Israeli government did

not consider the techniques employed on Dr. Qatanani to be “torture.”

The Government seems to believe this Immigration Court must accept these documents

as they are, without question about the lack of authentication, their deficiencies or the system

that produced them. Our statutes, regulations, and case law, however, make it clear that this

Court can and must consider whether documents purporting to prove a conviction from another

country are authentic and reliable in order to admit them into evidence. Moreover, even when

documents are admitted, the court has the authority to determine how much weight they should

be given, particularly when weighed against other evidence to the contrary. In this case, the

Government’s fatally deficient submissions and the Respondents’ uncontested proof of the

serious due process problems in the system that allegedly produced these documents require that

the documents be excluded, or alternatively, be given no weight, as they are insufficiently

reliable to prove the truth of the matter asserted within them.

A. The Government Has Not Provided Attestations of Authenticity That Refer To Any Specific Documents.

As mandated by federal regulation, all official records:

when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by an officer so authorized. This attested copy in turn may but need not be certified by any authorized foreign officer both as to the genuineness of the signature of the attesting officer and as to his/her official position. The signature and official position of this certifying foreign officer may then likewise be certified by any other foreign officer so authorized, thereby creating a chain of certificates. 8 C.F.R. § 1287.6(b) (emphasis added)

As the party providing the documents, the burden to authenticate is on the Government to prove

that the officer that provided them was “so authorized.” Yet it has not provided any attestations

of authenticity that refer specifically to any documents. Nor has the Government provided any

other reliable means of authentication.

24

In its first submission on June 12, 2007, the documents included an “Attestation of

Authenticity of Official Records” by Liat Lev-Ary, identified as an employee of the Israeli

National Police, dated September 7, 2005. This “attestation” refers to the “verdict” and

“criminal record.” It is not clear to which documents the words “verdict” and “criminal record”

refer. They certainly do not refer to the “Indictment” and “Protocol.” More disturbingly, this

attestation directly contradicts another letter by Staff Sgt. Major Abigail Amseli-Dahan, dated

September 26, 2006, which explicitly states, “subject was never arrested by the INP therefore,

there is [sic] no fingerprints, nor photo, nor criminal record.” DHS Exh. 10. If that were the

case, whose criminal record and fingerprint is being provided by Ms. Lev-Ary? The fact that

Ms. Lev-Ary’s signature was later attested to as authentic by another officer known to Tom

Rhodes at the U.S. State Department does nothing to cure these problems. DHS Exh. 7.

Furthermore, no attestation of authenticity has ever been provided for the “Indictment”

and “Protocol.” On April 17, 2008, the Government provided a second submission, with a

“certification . . . pertaining to the Indictment and Protocol.” Cover Letter from Assistant Chief

Counsel Alan Wolf, DHS Exh. 14. This submission, however, did not contain any attestation of

authenticity for the “Indictment” and “Protocol.” Instead, it contained a letter on “Directorate of

Courts” letterhead, dated October 5, 2006, signed by Anat Agami, stating simply: “Please find

attached the documents concerning your request.” DHS Exh. 9. This letter contains absolutely

no reference to Dr. Qatanani. The file number listed on the letter does not match any other

number in the documents presented. As Mr. Kuttab testified, it is unusual that the official seal of

Israel is absent from the letterhead. Tr. at 587. Additionally, markings on the top right corner

may indicate erasures. DHS Exh. 9. This letter on Directorate of Courts letterhead may well be

completely unrelated to the case before the Court.

25

This was essentially the same letter submitted with the earlier June 2007 submission; the

only change was that additional letters referring to this letter were provided by Judge Alon

Gillon, Deputy Director Yitzchak Blum, and Tom Rhodes of the U.S. State Department, dated

April __, 2008. DHS Exh. 14. These later letters do nothing to remedy the defects of the

“Directorate of Courts” letter. While these letters attempt to create a “chain of certificates” in

accordance with 8 C.F.R. § 1287.6(b), the officers attest only that the signature on this letter is

that of Anat Agami, with Mr. Blum referring vaguely to “attached court military records”

without identifying specifically which documents these are. DHS Exh. 14. The Government

cannot create a meaningful “chain” of possession where the initial letter of Anat Agami makes

no attestation regarding any documents.

Interestingly, the second submission also omitted certain letters to and from the “Military

Prosecution” that were included in the first submission, inserted between the “Directorate of

Courts” letter and the “Indictment” and “Protocol.” DHS Exh. 10. In the second set of

documents provided by Israel, it appears these letters were removed to imply that the

“Indictment” and “Protocol” were provided directly under the cover of the “Directorate of

Courts” letter. Even if they had been there, they cannot cure the lack of a chain of possession to

Anat Agami. The letter from Staff Sgt. Major Amseli-Dahan, which states, “Attached please

find a copy of the Quatanani [sic] file, as we have received it from the Military Prosecution,” is

not addressed to the “Directorate of Courts” but to “The Competent Authority USA.” DHS Exh.

10.

In sum, the only “attestation” provided in these documents makes vague references to

documents that others have, in part, denied exist. No attestation has ever been provided by a

court, and no attestation has referred to an “Indictment” and “Protocol.”

26

B. The Government Has Not Established That The Agencies Allegedly Conveying These Documents Are the Custodians of These Records and Are “So Authorized” to Authenticate Them.

In addition to the complete lack of attestation of authenticity for any specific documents,

it is simply unclear where these documents come from. The various stamps, cover letters, and

attestations in the documents provided by the Government refer to a bewildering array of

agencies, including the military prosecution, the Israeli National Police, and the Directorate of

Courts. The Government has made little attempt to clarify this critical issue, and it cannot assert

that any specific agency has regular custody of these documents and the authority to authenticate

them. The Government has failed to establish that any particular agency is the agency “so

authorized” to convey these documents.

1. The Legal Structure and History of the Israeli Military Court System as Part of the Military Administration of the Occupied Territories Raise Serious Questions About Which Agencies Have Conveyed These Documents and Their Authority to Do So.

Throughout trial and in supporting evidence, Respondents have established that the

Israeli military court system is, both in its legal structure and its history, a system created for the

specific goal of administering the military occupation of the West Bank and Gaza. It is therefore

not an independent judiciary, comparable to the independent judiciary of the United States or the

Israeli civil judiciary.

Professor Lisa Hajjar,11 in her book Courting Conflict, explains:

11 The Government at trial raised an objection to the testimony of Professor Lisa Hajjar, arguing that she had not provided an affidavit. The Government, however, had raised no objections to the lack of an affidavit before trial. On June 30, 2008, Respondents had submitted a book Professor Hajjar had authored, thereby providing comprehensive and detailed notice of the scope of the witness’s expertise. The Government certainly had sufficient resources to examine the book, as was evidenced by the presence of three attorneys during the hearing. The Government’s additional objections to the scope of Professor Hajjar’s expertise, as well as its suggestion that she is not an impartial witness, were unfounded. As Professor Hajjar testified, her expertise as a sociologist studying the military court system in Israel necessarily includes expertise in the basic legal structure of the courts, as well as the relevant laws that create and govern it. Tr. at 408, 411. Her statement that prosecutors routinely lied to judges was not her conclusion (and an indication of bias), but the conclusion of the Israeli Government’s Landau Commission. Tr. at 459-60. Her book, Courting Conflict, has been widely read and praised by Israeli scholars, Tr. at 412-13, and was even cited as a reference by the Government’s own expert witness Amos Guiora. See Quirin to Hamdan:

27

The Israeli military court system is part of the military administration, which is headed by the military commander of each region (West Bank and Gaza). . . . Administratively, the court system is under the direct authority of the Military Advocate General (MAG), who occupies the highest position within the legal substructure of the Israel Defense Forces (IDF). The MAG recommends people as judges to the military commander of the region and assigns judges to specific courts. Lisa Hajjar, Courting Conflict, at 253, Resp. Exh. 20 (hereinafter referred to as “Hajjar”).

The Government’s witness, Professor Guiora, confirmed that in 1993 the prosecutors and judges

were “all in the same military unit.” Tr. at 104. Professor Hajjar agrees: “Direct supervision of

the courts falls to the president of the military court of appeals. . . . [T]he judges and prosecutors

are members of the same IDF unit. . . . [T]he Military Advocate General oversees both the courts

and the prosecutors.” Hajjar at 254; see also Testimony of Hajjar, Tr. at 464.

Historically, the system was created to support Israel’s occupation of Gaza and the West

Bank. Human Rights Watch, Torture and Ill-Treatment: Israel’s Interrogation of Palestinians

from the Occupied Territories, at 99, Resp. Exh. 20 (hereinafter referred to as HRW). Israel’s

argument for its control over these territories was not that of a “foreign occupation,” but rather a

legal argument for a military administration. Hajjar at 53-54. Therefore, when the intifada or

uprising began in 1987 with the attendant rise in Israel’s concern for security, “it couldn’t

respond to the Palestinian uprising the way it would respond to serious threats to its security if it

was in foreign territories. Israel could not . . . utilize a war model . . . It had to use in a sense a

legal model.” Testimony of Hajjar, Tr. at 418; see also Hajjar at 27-28; HRW 99-107.

Therefore, Israel sought to “bring the intifadeh [sic] under control using the legal resources

which were primarily the military court system.” Tr. at 418. Part of that effort included using

the military court system as a way to gather intelligence. Israel had always relied on Palestinian

informers to provide information about what was going on among Palestinians, but during the

Creating a Hybrid Paradigm for the Detention of Terrorists, 19 FLJIL 511, 523, fn 64 (2007).

28

intifada, many people who had been collaborating with Israelis refused or were killed for having

collaborated. Tr. at 419. Because “Israel lost its eyes within the community,” it “elevate[d] the

importance of interrogation” as a means to gather intelligence. Id.; see also HRW at 2-4.

As part of the military administration of the occupied territories, the military court

records are not “public” in the way the records of a court of record are public. Given Israel’s

security concerns, it is not surprising that these records would not be easily accessible, as

ultimately they belong to the military, not to a public court. As Jonathan Kuttab12 testified,

records from the military court are “almost impossible to track down.” Tr. at 582. In his

experience, when he has attempted to obtain records for a Palestinian he did not represent in

court, he has had trouble even determining where they are held. He has been told, however, that

they are in “the army archives in Tel Aviv”:

All our contacts . . . are either with the military government, with the prosecutor’s office, or with their offices in Tel Aviv pertaining to the military courts and the defense ministry. Never the Israeli justice of ministry and directorate of courts which are the civilian and the Israeli part and usually have nothing to do with the West Bank and Gaza occupied territories. Tr. at 580.

In any case, Mr. Kuttab has never actually succeeded in obtaining any records for a

former detainee. Id. The difficulty Mr. Kuttab has faced in trying to obtain records was shared

by the Government’s own witnesses, Agents Alicea and Philpott. Tr. at 229, 361.

2. The Government Has Not Established that the Directorate of Courts is the Custodian of These Records.

12 The Government objected to the testimony of Mr. Kuttab, also for the lack of an affidavit prior to testimony. The Respondents, however, had provided a detailed witness proffer on April 28, 2008, to outline the scope of his testimony. The judge’s decision to limit his testimony to the witness proffer and to allow the Government more leeway in cross-examining him certainly did not prejudice the Government, as the Government had ample opportunity to cross-examine him, as evidenced by 34 pages of cross-examination in the transcript. Furthermore, the judge made clear that the Government would have the opportunity to recall its own witnesses, including telephonic testimony for its expert at the University of Utah, after hearing the testimony of Respondents’ experts, which the Government chose not to do.

29

In addition to the fact that the letter on “Directorate of Courts” letterhead does not refer to

anything that would connect it to this case, the Government has not proven that the Directorate

of Courts is the appropriate agency with usual custody of the “Indictment” and “Protocol,”

pursuant to 8 C.F.R. § 1287.6(b). As Mr. Kuttab clearly explained, the Directorate of Courts has

no jurisdiction over the military court system, as it oversees only the Israeli civil judiciary. Tr. at

580. Professor Hajjar, in all her work researching the military court system, had never

encountered the Directorate of Courts. Tr. at 522.

Rather than provide affirmative evidence that the Directorate of Courts is “so authorized”

to certify the authenticity of these documents, the Government merely suggested that certain

international conventions and treaties resolve this issue. During cross-examination of Mr.

Kuttab, the Government sought to imply that the Directorate of Courts is the appropriate body to

provide documents under the Hague Convention. The Hague Convention on International Legal

Cooperation and Litigation, however, exempts “public documents” from diplomatic or consular

legalization requirements through the use of an “apostille” certificate. An “apostille” was never

provided with these documents, which furthermore, are not “public documents.” See Convention

of 5 October 1961, Abolishing the Requirement of Legalisation for Foreign Public Documents.13

Furthermore, the “competent authorities” to issue an apostille in Israel are the Ministry of

Foreign Affairs and Registrars of Magistrates’ Courts and Civil Servants Appointed by the

Ministry of Justice, not the Directorate of Courts. See List of Designated Competent

Authorities.14

13 Available at http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=41. 14 Available at http://www.hcch.net/index_en.php?act=conventions.authorities&cid=41.

30

The Government alleges that these documents were provided to the U.S. government

pursuant to a request under the Mutual Legal Assistance Treaty with Israel (“MLAT”).

However, there is no proof of such a request or response to it in the record. And even if there

were such proof, the mere fact that documents are provided by a foreign country through a

bilateral treaty does not obviate the Government’s burden to authenticate the allegedly official

documents they seek to submit into evidence.

3. The Government Has Not Established That the Israel National Police or the Military Prosecution Is the Custodian of These Records, But Even If They Were, Records from the Police or Prosecution Would Not Constitute Proof of a Conviction.

The documents appear to possibly have been provided by the Israeli National Police

and/or the Military Prosecution. The Government has not presented proof, or even argued, that

the Israel National Police or the Military Prosecution is the agency “so authorized” to provide

and authenticate the records at issue. But even if the Government had established the police or

prosecution as the appropriate agency, it would not resolve the due process issues that prevent

American courts from recognizing police or prosecution records as proof of a conviction.

In addition to the “attestation” signed by Ms. Lev-Ary of the Israel National Police, the

documents submitted by the Government included the letter from Osnat Hershler, dated May 3,

2005, which is on Israel Police letterhead. DHS Exh. 8. A preprinted form called, “Suspect’s

Pedigree Information” has what appears to be an “Israeli Police Stamp” on it, while a printout

called “Results of Query of Israel Police Records, Interpol Unit” self-identifies as a police

record. DHS Exh. 14. The Government’s witness, Professor Guiora, also identified these latter

documents as police records, which would be “part and parcel of the case of the file that the

prosecutor receives from the police.” Tr. at 53.

31

At the same time, the documents included a letter from Staff Sgt. Major Amseli-Dahan

on Israel Police letterhead stating:

Please be informed that subject was never arrested by the INP therefore, there is [sic] no fingerprints, nor photo, nor criminal record. Subject was arrested only once, by the IDF back in 1993. Attached please find a copy of the Quatanani file, as we have received it from the Military Prosecution. DHS Exh. 10.

This letter is followed by a letter from Major Morris Hirsh of the Military Prosecution of Judea

and Samaria to Staff Sgt. Major Amseli-Dahan. DHS Exh. 10. Staff Sgt. Major Amseli-Dahan

seems to indicate not only that the INP does not have any records, but also that there is a clear

separation and division between the Israel National Police and the Military Prosecution. Yet Ms.

Lev-Ary of the Israel National Police is simultaneously claiming authority to attest to the

authenticity of a “verdict” and “criminal record.”

The Government has not proven that the Israel National Police or the military

prosecution, or both, are the custodians of records from the military court system in the occupied

territories. They argue only that the Immigration Court does not have the authority to question

which agency within a foreign government is authorized to certify records. See ICE Response to

Evidentiary Objections, dated March 10, 2008. The Immigration Court certainly has the

authority to question the origin of these records, and to require compliance with the regulatory

requirement that an officer be “authorized” to authenticate documents, or some other sufficiently

reliable means of authentication. Authentication is critical in this case, where there are so many

inconsistencies, contradictions, and lack of clarity with respect to the documents and their origin.

Even if it were clear that the Israel National Police or the military prosecution were

providing these records and were authorized to do so, they could not be admitted as a record of

conviction in accordance with INA § 240(c)(3)(B) and 8 C.F.R. § 1003.41. Section 1003.41,

entitled, “Evidence of criminal conviction,” clearly states, “In any proceeding before an

32

Immigration Judge,” before going on to delineate the types of records that are allowed (emphasis

added). A police report or prosecution document is certainly not included in subsection (a), and

U.S. courts have found that such documents are not reliable, thereby preventing them from being

admissible under the broader “catch-all” language of subsection (d).

The Supreme Court has clearly established that police reports, even when generated in

the U.S. system, may not be used to determine proof of a conviction. Shepard v. U.S., 544 U.S.

13, 125 S. Ct. 1254, 1257 (2005); Matter of Texeira, 21 I & N Dec. 316 (BIA 1996); Clainos v.

United States, 163 F. 2d 593 (D.C. Cir. 1947). Additionally, the BIA and the Sixth Circuit Court

of Appelas have found that police reports may not be used as a basis to determine eligibility for

relief. Matter of Arreguin, 21 I & N Dec. 38 (BIA 1995); Billeke-Tolosa v. Ashcroft, 385 F.3d

708 (6th Cir. 2004).

The Ninth Circuit Court of Appeals specifically held inadmissible documents provided

by Interpol purporting to be proof of Israeli convictions. U.S. v. Perlmuter, 693 F. 2d 1290, 1292

(9th Cir. 1982). Although Perlumuter involved documents provided through Interpol, and not the

Israeli police, the court’s concerns encompass records obtained from the Israeli police as well:

Rap sheets are not based on first-hand knowledge of the matters being recorded; only the court where the conviction occurred has such knowledge. What is required of American police and courts must be required of foreign police and courts. The reliability accorded foreign police records in our courts cannot be greater than that accorded the police records of this country. Id. at 1296 (Ferguson, C.J., conc.).

Even if this Court were to find these documents to be admissible, their uncertain origin

would seriously diminish their weight and, accordingly, their ability to prove the existence of a

conviction. As the Second Circuit found in Francis v. Gonzales, 442 F.3d 131 (2d Cir. 2006):

In identifying reliable evidence, there are good reasons to prefer records emanating from neutral courts and magistrates instead of from agencies whose jobs are to seek to detect and prosecute crimes. . . . In addition to biases, there

33

may also be increased possibility of error the farther the information spreads from its original source. Id. at 143.

Although the court in Francis admitted a Jamaican police report as evidence, it found that the

document did not constitute clear, convincing, and unequivocal proof that Francis was convicted

of the alleged crimes. The court further noted that a report from a foreign police department

could be even less reliable than one from a domestic police department, as “[w]e ordinarily are

without dependable means to assess accurately the reliability of a foreign jurisdiction’s

prosecutorial or police records. . . . Neither we nor the IJ have any way of knowing how close a

foreign jurisdiction’s procedures are to our own.” Id. at 143, citing Small v. U.S., 544 U.S. 385,

125 S. Ct. 17552, 161 L. Ed. 2d 651 (2005) (noting that “foreign convictions differ from

domestic convictions in important ways” and may “include a conviction from a legal system that

is inconsistent with an American understanding of fairness”).

The proffered documents themselves illustrate why prosecution records are not

sufficiently reliable to prove a conviction. The Government’s witness, Professor Guiora,

testified that “the prosecutor when he received the file from the police, the file included the

defendant’s statement along with the protocol of the remand hearing.” Tr. at 92. Professor

Guiora further stated that the indictment would have been “predi[cat]ed on two documents. One

is the defendant’s own statement and on the protocol of the remand hearing.” Tr. at 94-95. Mr.

Kuttab confirmed that the prosecution’s file would certainly contain the confession or

“statement” taken from the defendant, as indicated in the “Indictment.” Tr. at 607. Yet although

the cover letters assert that at least some of these documents were received from the “Military

Prosecution,” the “statement” indicated in the “Indictment” is missing (as well as the protocol of

the remand hearing), thereby preventing this court from examining whether, assuming one

actually exists, the statement supports the alleged charges and conviction. The Immigration

34

Court in this case even set a deadline of April 18, 2008, for production of the alleged statement.

No document was ever produced. This suspicious omission of a critical document reveals why

prosecution documents should not be used to prove the existence of a conviction.

C. The Documents Provided by the Government Are Internally Inconsistent and Do Not Prove the Existence of a Conviction Against Dr. Qatanani.

In addition to the lack of authentication and their inadmissibility as a record of

conviction, these documents contain a series of inconsistencies and deficiencies that seriously

undermine their reliability, and raise the possibility that these documents may be referring to

someone other than the principal respondent, Dr. Qatanani.

First, nothing on the supposed “Protocol” identifies Dr. Qatanani. While the prosecutor,

record, interpreter, and defense attorney are identified by name, the defendant is not identified in

any way. DHS Exh. 10. In fact, the pre-printed word “defendant” appears to have been partially

struck. The Government expert, Professor Guiora, conceded: “It may be possible that might

have been struck.” Tr. at 82. Although he had stated adamantly in his affidavit that the defendant

was present in the courtroom, DHS Exh. 19, under cross-examination, he changed his

unequivocal statement to, “I think in the defendant’s presence [the attorney] told the court that

the defendant pleads guilty to the charge.” Tr. at 97 (emphasis added). He also went on to

acknowledge that a defendant’s absence “would not invalidate the proceeding.” Tr. at 89.

Second, the “Indictment” mentions a “Mohammed Qatanani,” nothing links the “Indictment” to

the “Protocol,” as the file number on the “Indictment” (10771/93) does not match the file number

on the “Protocol” (60771/93). DHS Exh. 10, see also Tr. at 590-91. Furthermore, as Dr.

Qatanani testified, “Mohammed Qatanani” is a very common name, as he alone has ten cousins

with that name. Tr. at 717.

35

Third, as stated previously, the confession upon which the verdict relies is conspicuously

absent. The Government witness explained that an indictment would be based on two

documents, the defendant’s statement and the protocol of remand hearing. Tr. at 94-95.

Accordingly, the “Indictment” offered in this case refers to a “Sgt. Major Maadi Harab . . .[who]

collected the statement of the defendant,” and “Log of the extension of remand.” DHS Exh. 10.

Mr. Kuttab confirmed: “The [Indictment] refers to some Israeli who as [sic] going to come and

testify how he obtained the statement. So I assume he’s talking about a written confession[,] . . .

otherwise it will be hearsay. They wouldn’t be allowed to testify to it.” Tr. at 623. Furthermore,

as Mr. Kuttab testified, and as confirmed by the Landau Report and Human Rights Watch, the

Israeli military court system relied overwhelmingly on written confessions to obtain convictions.

Tr. at 622, 627-29, HRW at 241-42, Resp. Exh. 20.

Professor Guiora sought to minimize the absence of the confession, stating that a judge

could convict based on a “confession” proffered by the defendant’s attorney at the time of

sentencing, Tr. at 43. This statement, however, does not explain why the defendant’s

“statement” is missing from documents received from the “military prosecution,” as well as the

“log of the extension of remand.” Tr. at 92; see also DHS Exh. 10. Because the supposed

confession is missing, we cannot examine whether the confession supports the charges and

ultimate conviction. The Government was given every opportunity to produce the confession.

The possibly deliberate omission from these records raises serious questions about the

authenticity and reliability of a conviction that allegedly was derived from the defendant’s own

confession. Dr. Qatanani is therefore entitled to an inference that the confession either does not

exist, or, that if it exists, it does not support the conviction or is otherwise inadmissible.

36

The other documents provided by the Government include a computer printout labeled

“Suspect’s Pedigree Information,” with a marking that has been translated as a stamp of the

Israeli National Police. Notably, the fingerprint on “Suspect’s Pedigree Information” has not

been identified, while the birth date listed on the form, “6/29/64,” is not Dr. Qatanani’s birth

date. And, as noted above, the very existence of these documents is denied by Staff Sgt. Major

Amseli-Dahan. DHS Exh. 10.

Suspicion that these documents may be referring to someone other than the principal

Respondent is further raised by the letter from Osnat Hershler, Superintendent of the Israel

Police, which states, “Mohamed Qatanani [sic] was convicted for membership in an illegal

organization. . . . According to our border control listings, the a/m person returned to Israel on 1

May 06. (was he deported? If so, we have not been informed of his deportation).” DHS Exh. 8.

Dr. Qatanani has not left the U.S. since he entered in 1996, Tr. at 737, a fact which is not in

contention in this case, and therefore he is certainly not the man identified by Mr. Hershler in

this letter.

37

D. Additional Inconsistencies Between the Documents and the Testimonies of Dr. Qatanani and the Expert Witnesses Further Undermine Their Reliability and Probative Value.

The documents’ reliability and probative value are further undermined by the

inconsistencies between the documents and by Dr. Qatanani’s credible, detailed testimony about

his three-month detention in Israel, as well as the testimony of the expert witnesses on the

political situation at that time.

During the hearing on June 2, 2008, Dr. Qatanani testified that two lawyers represented

him at various stages of his detention, Mohammad Al-Halaby and Naem Abu Yaqoob. Tr. at

783 (mis-transcribed in the transcript as “Mohammad Alhalby” and “Naem Abu Yauoub.”)

Neither of these men is the person identified as the defendant’s attorney on the “Protocol,” who

is listed as “Navah Abu Shkeib,” a name that Dr. Qatanani has never heard.

Additionally, Dr. Qatanani was able to renew his residency permit after his release and

allowed to remain in the West Bank for a few weeks before he and his family returned to Jordan.

Tr. at 878. As indicated by the residency permit in evidence, there was no restriction on

movement, and he had no trouble crossing the border back into Jordan. Dr. Qatanani’s Israeli

Government-Issued Travel Permit, Resp. Exh. 24. A man who had been charged and convicted

of membership in Hamas, particularly during the sensitive and difficult time following the

signing of the Oslo Accords, would not have been released without any restrictions on his travel

and movement in general, particularly if he had a suspended sentence, according to Mr. Kuttab.

Tr. at 571-72.

The disproportionality of the charge to the sentence on the “Protocol,” raises further

doubts about the authenticity and reliability of this document, particularly with regard to the

38

substance of the conviction alleged within it. Professor Hajjar testified that the Deputy Military

Advocate General stated directly to her, “Anything related to Hamas would have the maximum

penalty. Prosecutors were instructed not to plea bargain on anything pertaining to Hamas. They

were supposed to insist on the maximum penalty.” Tr. at 429. This was a strategic decision to

support the negotiations around the Oslo Accords, to push for lenient sentences on organizations

supporting the negotiations, such as Fatah, and to push for harsh sentences on organizations

opposing them, such as Hamas. See Hajjar at 123-24, Respondents’ Exh. 20. The State

Department human rights report for 1993 went even further, stating, “[M]embership in the

mainstream Fatah organization ceased to be considered a ‘security offense’ by the Israeli

authorities.” US DOS Country Reports on Human Rights Practices for 1993: Israel and

Occupied Territories at 1207, Resp. Exh. 11 (hereinafter referred to as US DOS Country

Reports). The Human Rights Watch report provided an illustration of this strategy, as its report

included a detainee, who charged with membership in Fatah, an organization supporting the

negotiations, was sentenced to only two months and eight days. HRW at 42, Resp. Exh. 20.

Yet the sentence indicated on the “Protocol,” for three months, would have been

extremely lenient by “Israeli military standards” in general. Tr. at 435. Mr. Kuttab, with years

of experience representing hundreds of detainees in the Israeli military court system, agreed, Tr.

at 565, 592, noting also that a single-judge court would have had the authority to impose a

sentence of up to five years. Tr. at 624. Therefore, there is a surprising incongruence between

this policy and the “lenient” sentence allegedly given to Dr. Qatanani, after his supposed

conviction for membership and support of Hamas. Tr. at 435-36.

The testimony of ICE Agent Philpott also raises doubts about the authenticity of these

documents. Agent Philpott testified that she notified the FBI about the IBIS “hit” on Dr.

39

Qatanani’s adjustment of status application in 2002. She stated that it was not her responsibility

to check for convictions in Israel or Jordan, but that the FBI “probably” did so. Tr. at 375.

During that time, the FBI never notified Agent Philpott that any information had been received

regarding any foreign convictions for Dr. Qatanani. From Agent Philpott’s perspective,

“everything was negative.” Tr. at 373. Yet when an MLAT request was supposedly made after

the February 2005 interview, in which Dr. Qatanani openly and in detail described his three

months of detention in Israel in 1993, the suspect documents – with the inconsistencies and

deficiencies described above – were sent by the State of Israel.

Notably, even though this “conviction” is central to the Government’s case, the

Government did not even question Dr. Qatanani about the contents of the “Indictment” or the

“Protocol.” The inconsistencies between these documents and the historical and political context

of that time, in the face of Dr. Qatanani’s contrary, credible account of his detention and the

names of the lawyers he hired, raise serious questions about the authenticity of these documents,

particularly when coupled with the inherent deficiencies in these documents and the lack of

proper authentication. This Court should find that these documents are unreliable and exclude

them, or at the least, find that they do not prove the existence of a conviction against Dr.

Qatanani when weighed against the evidence submitted by Respondents.

E. Even if the Documents Had Been Properly Authenticated, the Serious Due Process Deficiencies in the Israeli Military Court System in 1993 Warrant Exclusion of These Records as Proof of a Conviction, or Alternatively, Make Them So Unreliable They Cannot Prove Dr. Qatanani Inadmissible.

Despite the Government’s suggestion that this court accept the Israeli documents without

question, U.S. courts have always scrutinized whether evidence has been obtained in a manner

that comports with American standards of due process. Even if the documents provided by Israel

had been properly authenticated, this Court should not give any weight to the purported Israeli

40

military court records because the system that allegedly produced these documents has serious

due process problems that undermine the reliability of these documents.

U.S. courts, statutes, and regulations have applied similar standards of fundamental

fairness to determine whether to credit foreign convictions. In a case involving sentence

enhancement for a prior drug conviction in the Philippines, the Third Circuit carefully analyzed

whether the defendant’s conviction was “obtained in a manner inconsistent with concepts of

fundamental fairness and liberty endemic in the Due Process Clause of the Fifth Amendment of

the United States Constitution.” United States v. Kole, 164 F.3d 164, 171 (3d Cir. 1998).

Similarly, a court ruling on whether a Japanese conviction could be used as a predicate offense

held, “Given the uncertainty surrounding foreign convictions, a defendant should have an

opportunity to challenge those convictions which were obtained in such a manner as to raise

serious doubts about the credibility of the fact-finding process and, thus, to render it

fundamentally unfair.” United States v. Small, 183 F. Supp. 2d 755, 762 (W.D. Penn. 2002).

Concerns about due process are apparent in the State Department regulations as well, which state

a foreign conviction in absentia cannot be considered in determining whether an alien is

inadmissible for a crime involving moral turpitude. 22 C.F.R. §40.21(a)(4).

When these considerations are applied to the documents in this case, it is clear that they

must be excluded or given no weight.

1. Records from a Military Commission are Not From an Independent “Court of Record” and Therefore Cannot Be Admissible.

In a recent decision on the validity of the military commissions at Guantanamo, the

Supreme Court noted that military courts, as a rule, are not considered as reliable adjudicators of

guilt and innocence as are courts of record. Boumediene v. Bush, 553 U.S. __, 128 S. Ct. 2229

41

(2008). The Court described the difference between the proceedings in a court of record and a

military commission established, in that case, by executive order:

[I]t can be assumed that, in the usual course, a court of record provides defendants with a fair, adversary proceeding. . . . A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. 128 S. Ct. at 2268-69 (emphasis added).

The ruling in Boumediene is relevant to this case because, as the Government’s witness

Professor Guiora pointed out, the military court system in the occupied territories is “akin” to the

military commissions on Guantanamo. Tr. at 107, 109. Like the military commissions, the

Israeli military courts are separate and distinct from the Israeli civilian courts, which have

jurisdiction over all civil and criminal cases involving Israelis, including the court-martials of

Israeli soldiers. The military courts were established solely to try Palestinians, with far fewer

procedural protections. Hajjar at 255; HRW at 100, Resp. Exh. 20. In 1993, the system was

composed of military soldiers from the same units, some playing the part of prosecutor and some

playing the part of judge. Hajjar at 253-54; see also Testimony of Guiora, Tr. at 104. Military

units are trained to have cohesion and unity, as security is their reason for existence.

Furthermore, judges were appointed by the IDF Regional Commander, and lacked the

security of tenure. These conditions raise profound concerns about the independence and

impartiality of proceedings. International Commission of Jurists, “Israel – Attacks on Justice

2002” at 5, Resp. Exh. 13. In 1991, Aryeh Cox, an Israeli lawyer who had done duty as a reserve

military court judge indicted the system: “It is clear that this is not a natural and ordinary court

system, but some solution that the military administration found for the purpose of enforcing the

occupation regime.” Hajjar at 102. According to Professor Hajjar, “One judge with a long tenure

in the courts said that judicial impartiality was an ideal but that in reality judges had to be

42

conscious of the relationship between their role and the larger military goal of restoring order by

punishing those who resisted.” Hajjar at 107, Resp. Exh. 20.

The differences between the Israeli civilian courts and the Israeli military court were

stark enough that in one case, a U.S. court’s decision to extradite the defendant to Israel rested on

the Israeli government’s promise to try the defendant in the Israeli civilian criminal court, rather

than the military court. Ahmad v. Wigen, 726 F. Supp. 389, 417-19 (E.D.N.Y. 1989).

In sum, the Israeli military court does not meet the criteria of providing a “judicial

hearing before a tribunal disinterested in the outcome and committed to procedures designed to

ensure its own independence.” Boumediene, 128 S. Ct. at 2268-69. Therefore, a “conviction”

from the Israeli military court should not be admitted as proof of a criminal conviction as would

a conviction from a court of record.

2. The Israeli Military Court System in 1993 Further Lacked the Procedural Safeguards That Would Allow a U.S. Court to Consider Its Records as Admissible and/or Reliable Evidence.

In addition to the fundamental deficiencies inherent in a system run by a military

occupation, the Israeli military court system, particularly in 1993, lacked sufficient procedural

safeguards. The potential problems began at the moment of initial detention. Any Israeli soldier

or policeman was authorized to arrest or detain, without a warrant, any Palestinian for whom

“there is reason to suspect” he has committed a security offense. HRW at 88, Resp. Exh. 20; see

also US DOS Country Reports at 1206, Resp. Exh. 11. The authority to arrest without a warrant

meant that a soldier or policeman had complete leeway to arrest or detain, as he was not required

to articulate or justify to a judge his “reason to suspect.” There was no requirement in Israeli

military legislation to inform suspects at the time of arrest the reason for arrest; all of the ex-

detainees interviewed for the Human Rights Watch report had not been informed “why they were

43

being arrested, where they were being taken, which agency would have custody over them, or

what rights they had under the circumstances.” HRW at 89, Resp. Exh. 20. Detainees could

initially be held without seeing a judge for up to eight or eighteen days, depending on the case,

and up to ninety days without seeing a lawyer. Id. at 103-04, 106; see also US DOS Country

Reports at 1206, Resp. Exh. 11. The 1993 State Department noted that “in theory a detainee has

the right to see a lawyer as soon as possible,” but that “officers routinely issue a written order to

delay access to counsel for up to 15 days for reasons of security or to conduct the investigation,”

and that this period could be extended up to 90 days in total. US DOS Country Reports at 1206,

Resp. Exh. 11. Mr. Kuttab found the same to be true in his experience: “This is a case of an

exception swallowing the rule because the rule is you do have the right of access to a lawyer

unless it interferes with an ongoing investigation or interrogation.” Tr. at 540.

The U.S. State Department further emphasized the isolation in which detainees were

kept: “Israeli regulations also permit prisoners to be held in isolation from family and from other

detainees during interrogation.” US DOS Country Reports at 1206, Resp. Exh. 11. The Red

Cross was denied access to prisoners until the 14th day after arrest. Id. at 1205.

During this period of time, before the detainee was allowed to see a lawyer, the detainee

was subjected to a number of legally sanctioned and systematic, abusive interrogation methods

(described in more detail in Section III.F below). A defense attorney was finally allowed to see

the detainee when the interrogation was over. Testimony of Kuttab, Tr. at 540. And even when

access was allowed, “[c]rowded facilities and poor arrangements for attorney-client consultations

in prisons hinder[ed] effective legal defense efforts.” Id. at 1207. Mr. Kuttab testified that

communication with his client in court would often occur through a window in the waiting room

44

where detainees were held a few doors down from the courtroom itself, and not a separate,

private room. Tr. at 547.

It was not uncommon for a Palestinian to be arrested and imprisoned without charge.

The law allowed detainees to be administratively held and then released. US DOS Country

Reports at 1204, Resp. Exh. 11; see also Testimony of Guiora, Tr. at 32-33; Testimony of

Kuttab, Tr. at 562. By a “widely acknowledged rule of thumb,” approximately fifty percent of

Palestinians arrested were released or administratively detained without charges. Hajjar at 185,

Resp. Exh. 20. The State Department reported that in 1993, roughly 29.6% of the 500 detainees

in IDF facilities were awaiting charges or trial, and 2.3% were detained administratively. US

DOS Country Reports at 1205, Resp. Exh. 11. Of the thirty-six ex-detainees interviewed

extensively by Human Rights Watch, twenty-three had been released without charge, while six

had been placed in administrative detention. HRW at 25, Resp. Exh. 20.

When detainees were charged, the charges usually were derived from evidence obtained

during the period of interrogation. As Professor Guiora pointed out, the “Indictment” in this

case, typical of other indictments, was based on the “statement of the defendant” and the log of

the remand hearing. Tr. at 94-95. From 1988 to 1993, nearly all Palestinians who were charged

were convicted, with only 3.2% of defendants acquitted. HRW at 2, Resp. Exh. 20. Nearly all

of these convictions were based on the defendants’ confessions, as “they are the cornerstone of

the military judicial system in the occupied territories.” Id. at 241. The Landau Commission, in

particular, highlighted the centrality of confessions in the system when finding that interrogators

had routinely lied to judges denying the use of coercive methods in order to be able to use the

confessions as evidence. Id.

45

The confessions themselves were written in Hebrew, and routinely not translated into

Arabic. Defendants were not given access to a lawyer or independent interpreter when they

signed the confession form. HRW at 246, Resp. Exh. 20; see also Testimony of Kuttab, Tr. at

542. Similarly, court proceedings were in Hebrew, a language most defendants did not

understand, and frequently were not translated into Arabic. Hajjar at 146-47, Resp. Exh. 20; see

also Testimony of Kuttab, Tr. at 551-52, 556; HRW at 259, Resp. Exh. 20. Defendants were not

provided with documents that informed them of the charges against them, nor of the results of

the proceedings. Tr. at 583. In the two years that Professor Hajjar observed court proceedings,

she recalled that only “[s]ometimes judges would ask people if they stand by their confession,”

Tr. at 521; it was certainly not routine procedure, as confirmed by Mr. Kuttab. Tr. at 567.

Although Israeli law technically allowed defendants to challenge the admissibility of

their confessions, it was nearly impossible for Palestinian defendants to prevail in a “mini-trial”

on that issue. HRW at 243-44, Resp. Exh. 20. Mr. Kuttab, in his almost thirty years of

representing detainees, could not recall a single time that he had challenged a confession, or

heard of a successful challenge. Tr. at 559; see also Testimony of Goldstein, Tr. at 699. The

Government’s own witness confirmed the rarity of successful challenges, as Professor Guiora

testified that in presiding over thousands of cases throughout a nineteen year career in the

military court system, he had only excluded a confession two or three times. Tr. at 29, 41-42.

There were numerous obstacles to mounting a “mini-trial,” HRW at 251-52, 261. First was the

perhaps accurate perception by defendants that their chances of convincing a military judge that

their account of physical and mental abuse resulting in a coerced confession would not likely be

believed over the denial of the abuse by the testifying interrogator. Additionally, this perception

would lead to the fear that the loss of the mini-trial would ultimately lead to stiffer sentences.

46

Testimony of Hajjar, Tr. at 505-06. As Mr. Kuttab testified, “If I ask for that procedure, they

will postpone the case until they can bring in the person who took the confession and the judge

will tell me if you fail on that count, then the punishment to your client will be much more

severe.” Tr. at 558. Human Rights Watch made the same finding: “Those who do challenge the

credibility of the GSS and of military prosecutors are in some cases treated by the judge as if

they are wasting the court’s time.” HRW at 259, Resp. Exh. 20.

Furthermore, the Israeli government purposefully “compartmentalized” the system,

making sure that the person who took the statement from the defendant was not the same person

who had “applie[d] moderate or excessive physical force [or] torture.” Tr. at 605. That way,

when the sergeant who took the statement came to testify, he could be truthful about not having

personally used abusive interrogation techniques if questioned by the judge. Tr. at 605-06. In

such a system, it was not surprising that “many lawyers shrink from the task of aggressively

cross-examining GSS interrogators, who are seen as agents of a secretive and all-powerful

agency against whom legal redress is impossible.” HRW at 259, Resp. Exh. 20. As a result of

these pressures, the overwhelming majority of convictions were the result of plea bargains.

Hajjar at 3, Resp. Exh. 20.

Unsurprisingly, the fundamental flaws of the military court system affected a significant

proportion of Palestinian men. Between 1988 and 1993, by some accounts 100,000 Palestinians

were arrested by Israeli forces, and 83,321 were charged or prosecuted. Hajjar at 107, Resp.

Exh. 20. Professor Hajjar testified that one out of three Palestinian men have been arrested at

least once. Tr. at 520; see also Hajjar at 186, Resp. Exh. 20. Throughout 1993, some four to six

hundred Palestinians were under interrogation on any given day. HRW at 3, Resp. Exh. 20. At

the end of 1993, when Dr. Qatanani was detained, “a total of 9,573 Palestinians were

47

incarcerated in IDF (5,308) facilities and prison service facilities.” US DOS Country Reports

for 1993 at p.1205. The fact that a Palestinian man was arrested and interrogated did not

indicate that he was suspected of any offense, as interrogation became a major information-

gathering tool for the military administration after the first intifada began, particularly for those

coming back to the West Bank from other countries. Testimony of Hajjar, Tr. at 419, 432. The

intifada that began in 1987 also led to a sharp increase in the number of detainees being

processed through the military court system, with subsequent pressures on the system itself.

Hajjar at 10-11, Resp. Exh. 20. Despite the high number of detainees, the number of permanent

judges was small, about forty to fifty. In Nablus, where Dr. Qatanani was allegedly processed,

there were only three judges for the three-judge panel court and only one judge for the one-judge

court. Tr. at 445-46.

Due to these serious procedural problems, the International Commission of Jurists, an

international human rights organization recognized by the United Nations for its work,

unequivocally declared, “[Israeli] Military court trials do not meet international standards for fair

trial,” Resp. Exh. 13, echoing the criticisms of Human Rights Watch, the U.S. State Department,

and numerous other human rights organizations and advocates.

These deficiencies also violated the International Covenant on Civil and Political Rights,

which provides among other rights, “anyone who is arrested shall be informed, at the time of

arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

Additionally, anyone arrested or detained on a criminal charge shall be brought “promptly before

a judge or other officer authorized by law to exercise judicial power,” Art. 9, and that “everyone

shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal

established by law.” Art. 14.

48

Dr. Qatanani’s experiences are consistent with the experiences of the thousands of other

Palestinian men detained at the time. His credible testimony has always been that in October

1993, upon entry into the West Bank, he was given a paper requiring him to report to an Israeli

military base in a week. Tr. at 755. In keeping with Professor Hajjar’s description of Israel’s

efforts to gather intelligence at that time, Dr. Qatanani would have been targeted merely for

being a student at the University of Jordan in 1987. The questions he was asked during

interrogation were of an intelligence-gathering sort—information about his college, the activities

there, what he knew about the relationship between Moslem Brotherhood and Hamas. Tr. at

762. He was also pressured to spy for Israel, alternately threatened with violence to his family

and offers of money. Id. During this time, he was subjected to torture and abusive treatment

(described in more detail in Section III.F below).

The first time he saw a lawyer was approximately eighteen days after his detention, when

there was an extension of remand hearing and he was left in the waiting room. Tr. at 778. A

lawyer named Mohammad Al-Halaby came to the window in the door and told him, “[T]hey

want to extend the time.” Id. Because he had not come home, his family had also hired a

lawyer, Naem Abu Yaqoub, who came to see him a few days later. Id. They met at a table “for

20 minutes and in the middle of the jail . . . [while] soldiers are around us,” Tr. at 779, giving

him little privacy or opportunity to talk to his lawyer. This lawyer told him, “you are in

interrogation time. . . . I can’t do anything for you . . . until finishing the finishing paper. . . . I

understand that they have nothing against you.” Tr. at 779. Dr. Qatanani did not remember if he

had signed it, stating, “I think I remember most likely there is paper that has to be signed at that

moment.” Tr. at 777. In any case, he certainly was not read the contents of any papers, Tr. at

780, given a copy of any papers, nor told there were any charges filed against him. Tr. at 777.

49

Dr. Qatanani testified that he never saw a judge. Tr. at 782. He was taken to a building

with a court in Nablus with fifty other detainees and left in the waiting room. Id. Although Dr.

Qatanani saw that “they took people to the courtroom coming and judging,” he was left “waiting

in that room the whole day and I was taken back to Majeto15 [sic] without seeing any judge or

prosecutor.” Tr. at 782. He saw his attorney, Naem Abu Yaqoub, at the window in the waiting

room, who told him, “I hope you will be released today. They have nothing against you. You

are very clean and I hope that it will be so today.” Tr. at 783. He did not say that Dr. Qatanani

had been charged with any crime, nor that he would be pleading guilty to any crime. Tr. at 786-

87. On the contrary, everything he said made him think otherwise. Then Mr. Yaqoub never

returned. Tr. at 783. Neither he nor anyone from the court gave him any papers. Tr. at 787.

Neither Dr. Qatanani nor his family knew in advance when he would be released. Tr. at 788,

792.

In the face of overwhelming evidence of due process deficiencies in the Israeli military

court system, as reported by numerous human rights organizations, the U.S. State Department,

the Respondents’ expert witnesses, and Dr. Qatanani, the Government has produced a single

expert witness, who confirmed many of the aspects of the system the Respondents described.

The Government also presented a report by Ruth Levush from the Library of Congress

describing jurisdiction and procedures at the military court in Nablus in 1993. Gov’t Exh. 11,

22. She too confirms some of the due process deficiencies that Respondents have shown, but

more importantly, her account is limited to the law as it is on the books, rather than how it is

applied in practice. The State Department in its 1993 report recognized the need to distinguish

15 The transcript states “Majeto,” though Dr. Qatanani is referring to “Mejido,” a facility mentioned in the Human Rights Watch report and in his affidavit.

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between theory and practice, noting, for example, that the theoretical right to promptly consult an

attorney is not provided in practice. US DOS Country Reports for 1993 at 1206, Resp. Exh. 11.

This court should find that in practice the Israeli military court system did not comport

with due process as well as in theory.

F. Dr. Qatanani Suffered Torture and Abusive Treatment During His Detention in Israel in 1993, Warranting Exclusion of Any Evidence From That System.

Dr. Qatanani has established through credible testimony – supported by extensive

documentation– that he was subject to certain interrogation techniques that have been widely

condemned as torture. Due process in this country has always required exclusion of “statements

that are extracted by threats or violence,” and U.S. courts have consistently applied this standard

when considering evidence obtained on foreign soil. U.S. v. Karake, 443 F. Supp. 2d 8, 51 (D.C.

Dist. Ct. 2006). See also U.S. v. Abu Ali, 395 F. Supp. 2d 338, 380 (E.D. Va. 2005) (“torture,

and evidence obtained thereby, have no place in the American system of justice”); U.S. v.

Marzook, 435 F. Supp. 2d 708, 774 (N.D. Ill. 2006) (“The Court does not condone torture in any

form and there is no place for statements made as a result of it in any American court”). Courts

have applied either the standard of (1) whether statements were made involuntarily, Marzook,

435 F. Supp. 2d at 741, Abu Ali, 395 F. Supp. 2d at 372; or (2) whether the evidence was

obtained in a manner that “shocks the conscience,” regardless of whether the statements were

made voluntarily. U.S. v. Fernandez-Caro, 677 F. Supp. 893, 895 (S.D. Tex. 1987); U.S. v.

Marturo, 982 F. 2d 57, 60-61 (2d Cir. 1992).

Specifically with regard to confessions, courts have always applied the “the totality of the

circumstances” test, including characteristics of the accused and details of the interrogation, in

determining whether a confession should be admitted. Schneckloth v. Bustamonte, 412 U.S. 218,

51

225 (1973). Statements that are “extracted by threats or violence” clearly violate the Due

Process Clause, but so do those “obtained by…direct or implied promises” or “the exertion of…

improper influence.” Hutto v. Ross, 492 U.S. 28, 30, 97 S. Ct. 202, 50 L. Ed. 2d 194 (1976).16

In response, the Government has argued that the expert witnesses were not present at Dr.

Qatanani’s interrogation, and that regardless, those techniques were not considered “torture” by

Israel. The Government has certainly failed to counter Dr. Qatanani’s extensive evidence of

torture and ill-treatment in detention in 1993. The treatment he suffered is reason alone to

exclude the documents from this system, or at a minimum, to give these documents no weight in

determining whether they prove the existence of a conviction.

1. Dr. Qatanani Has Provided Extensive Evidence That He Suffered Torture and Abusive Treatment in Detention in 1993.

The evidence of torture and abusive treatment of Palestinians in Israeli detention in 1993,

the relevant period, is extensively documented and widely corroborated. The interrogation

techniques included physical assault, position abuse – including shackling to the wall or to an

uneven child’s chair in intentionally impossible positions to maintain, often in small closets, and

with a foul-smelling hood over the victim’s head – exposure to extreme temperatures,

relentlessly loud music, and sleep deprivation. HRW at 108-204, Resp. Exh. 20; see also

Testimony of Guiora, Tr. at 110-12.

Psychological abuse included threats of violence against the victim’s family and

threatening detention of the victim for indefinite periods of time. HRW at 199-200, Resp. Exh.

20. These techniques were extensively documented by Human Rights Watch and other human

16 See Brooks v. Florida, 389 U.S. 413, 414-15, 88 S. Ct. 541, 19 L. Ed. 2d 643 (1967) (defendant held in solitary for 14 days); Stidham v. Swenson, 506 F.2d 478 (8th Cir. 1974) (where suspect was imprisoned in solitary confinement for 18 months in subhuman conditions, including a bug-infested cell, lack of sufficient food, and denial of visits with family and friends); Arnett v. Lewis, 870 F. Supp. 1514, 1523-25, 1540 (D. Ariz. 1994) (where defendant was incarcerated in “oppressive conditions,” including the lack of adequate plumbing and heating, clean water, blankets and nutrition); Wainwright v. LaSalle, 414 F. 2d 1235, 1237-39 (5th Cir. 1969) (where defendant was in “continuous incommunicado custody for 12 hours” before confession was elicited following prior denials).

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rights organizations as systematic, “clearly being carried out with the knowledge of the

government.” HRW at 6, Resp. Exh. 20. The U.S. State Department also noted, “The apparent

intent of these practices was to disorient and intimidate prisoners, often with the goal of

obtaining confessions or information about third parties.” US DOS Country Reports for 1993 at

1204, Resp. Exh. 11.

Although the International Committee of the Red Cross generally does not make its

findings public, it “departs from its policy of confidentiality only when the violations it observes

are systematic and grave, and when the conditions have failed to improve despite the ICRC’s

repeated and confidential contacts with the relevant authorities.” HRW at 67, Resp. Exh. 20. In

May 1992, “they were sufficiently concerned by the practices they observed in Israeli detention

facilities that they did issue public statements about them.” Testimony of Goldstein, Tr. at 693;

see also US DOS Country Reports for 1993 at 1204, Resp. Exh. 11 (noting that ICRC declared

such practices to be violations of the Geneva Conventions).

Dr. Qatanani’s testimony regarding his treatment in detention throughout these

proceedings has been consistent with the techniques described by the expert witnesses. For

approximately the first thirty days, Dr. Qatanani testified that he was physically mistreated,

hooded with a foul smelling sack over his head, and subjected to various forms of position abuse

—in small closets and with temperature extremes and obnoxiously loud and constant music. Tr.

at 768-76. He was intentionally sleep-deprived and kept disoriented, so that he did not know

“day or night.” Tr. at 774-75. He was subjected to interrogation in which he was threatened

with harm to his family and told, “No one will account, will judge us. You know we can do

anything against you.” Tr. at 764. If the interrogator did not like his answers, he was taken

away and placed in one of the forms of position abuse for hours at a time. Tr. at 761-62. Mr.

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Goldstein testified that every statement Dr. Qatanani made in his affidavit regarding the torture

was in keeping with what other detainees had reported to Human Rights Watch during that same

time period. Tr. at 670-75. Even the Government’s witness, Professor Guiora, corroborated Dr.

Qatanani’s account, stating that he would “not be surprised” to hear he reported such treatment.

Tr. at 110-12.

2. The Government’s Argument that the Interrogation Techniques Used Systematically and Against Dr. Qatanani Were Not Considered Torture by Israel in 1993 is Irrelevant to the Issue of Whether his Treatment Requires Exclusion of the Documents the Government Seeks to Admit.

In response to Respondents’ extensive documentation by human rights groups of abuses,

the Government has sought to imply, incredibly, that perhaps Dr. Qatanani was not tortured.

Despite corroboration by its own expert witness, the Government has suggested that because the

expert witnesses, Professor Hajjar, Mr. Kuttab, and Mr. Goldstein, were never allowed to be

present while an interrogation took place, their conclusions regarding the use of torture in the

interrogation centers cannot be relied upon. Tr. at 492-95, 604, 693. The Government has even

resorted to selective quotation to imply that the sample used by Human Rights Watch was

inconclusive, noting at the hearing that the report states, “The experiences described here may be

more or less severe than what most Palestinians endured under interrogation,” Tr. 700, without

including the sentence the follows immediately afterwards: “What the sample 36 strongly

indicates, however, is that severe abuse, including torture, is widespread.” Tr. at 700, see also

HRW at 11, Resp. Exh. 20. The Government even suggested that Dr. Qatanani could not “see

himself to see what it looks like,” in objecting to Dr. Qatanani’s testimony about the Human

Rights Watch report illustrations. Tr. at 766.

Yet indisputably, the Government’s own expert witness, Professor Guiora, corroborated

the use of these techniques, such as being placed in an intentionally uneven kindergarten chair,

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being hooded, being subject to loud music and sleep-deprivation, and being exposed to

extremely cold or hot temperatures. Tr. at 110-12. The State of Israel’s own reports through the

years, including the Landau Commission report and the 1999 decision of the High Court of

Justice, have acknowledged the use of these techniques. Israeli High Court of Justice Decision,

Resp. Exh. 9.

The question of Israeli interrogation techniques was recently dealt with by the United

States District Court of Illinois. In U.S. v. Marzook, 435 F. Supp. 2d 708 (N.D. Ill. 2006), which

involved a defendant who was also stopped and detained by the Israeli military in 1993 at a

checkpoint in Gaza. The U.S. prosecution sought to introduce into evidence various

incriminating statements the defendant, Salah, allegedly made while he was in Israeli custody.

Salah sought to suppress these statements, alleging they had been coerced through torture, with

testimony from various expert witnesses, including Mr. Kuttab. The court “[gave] weight to

their testimony regarding techniques used against Palestinian detainees.” Id. at 760. However,

the court ultimately ruled in favor of the prosecution because of the “credible testimony of

Nadav and Haim,” the Israeli Security Agency agents who had interrogated Salah in 1993, and

who testified that he had been treated differently than other detainees because he was a U.S.

citizen. Id. at 717, 760. The implication from this testimony is an admission that Palestinian

detainees were subjected to coercive interrogations. In this case before the Court, of course, the

Government did not call Dr. Qatanani’s interrogators as witnesses and the Government cannot

claim Dr. Qatanani would have gotten special treatment as a U.S. citizen.

Faced with overwhelming and conclusive evidence that Dr. Qatanani was subject to these

interrogation techniques, the Government ultimately resorted to the semantic argument that what

he suffered does not constitute “torture.” Their witness, Professor Guiora, reiterated in his

55

testimony what he has espoused in his prior writings; namely, that he believes that these

techniques do not constitute “torture,” Tr. at 115, and that “interrogation inherently is not meant

to be a pleasant conversation between friends over coffee and cake.” Amos N. Guiora and Erin

M. Page, “The Unholy Trinity: Intelligence, Interrogation and Torture,” 37 Case W. Res. J. Int’l

L. 427, 446 (2006), Resp. Exh. 10.

In its cross-examination of Professor Hajjar, the Government further attempted to

legitimize these interrogation techniques by drawing parallels to “the five techniques” used by

the British in Northern Ireland, which were deemed by the European Court of Human Rights in

Ireland v. U.K., European Court of Human Rights (1978), to be “inhuman and degrading

treatment” in violation of Article 3 of the European Convention on Human Rights, but not

“torture” in 1978. Tr. at 494; HRW at 80, Resp. Exh. 20. The Landau Commission in Israel

actually used this decision in recommending that the interrogation techniques described in these

proceedings be authorized, euphemistically calling them “moderate physical pressure.” HRW at

82, Resp. Exh. 20.

There are serious problems with using Israel’s definition of torture to determine whether

Dr. Qatanani suffered torture. Israel’s definition of torture does not comply with international

law. And even if Israel agreed that the techniques are torture, it takes the position that it is not

bound by the international covenants it has signed, including the Convention Against Torture, in

the occupied territories. Testimony of Hajjar, Tr. at 453; see also HRW at 75, Resp. Exh. 20.

Similarly, Israel claims that the Fourth Geneva Convention pertaining to the occupation of

conquered territories and treatment of their civilian population does not apply to Israeli rule of

the occupied territories, in direct opposition to the U.S. government’s position that the Fourth

Geneva Convention does apply. Hajjar at 54, Resp. Exh 20; US DOS Country Reports for 1993

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at 1202, Resp. Exh. 11. The Fourth Geneva Convention requires states to act forcefully to

prevent acts of torture. HRW at 76, Resp. Exh. 20.

As Professor Hajjar pointed out in her testimony, torture and other atrocities are not only

defined by judicial rulings. Tr. at 501-02. For example, although there has been no ruling on

genocide since the Nuremberg trials, but the international community is not prevented from

identifying and condemning genocide. Id. The abuse that Dr. Qatanani and other Palestinians

suffered fits under the international definition of torture. As referred to in federal regulations,

CAT defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent and acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 208.18(a)(1).

Furthermore, as Human Rights Watch has pointed out, the precedential value of the British case,

“whose holding has been vigorously contested,” is in question.17 HRW at 82, Resp. Exh. 20.

Importantly, the court’s decision in Ireland v. U.K. was limited to the facts of that specific case,

leaving open the question of whether these techniques in the duration used more commonly in

the Israeli occupied territories would constitute torture. Id. at 82-83. “The fourteen Irish

detainees whose cases were scrutinized had been detained for seven days each. The average

length of time that Palestinians are subjected to GSS interrogation methods is considerably

longer.” Id. at 83. The fact that it did not consider the “five techniques” to be “torture” did not

17In subsequent cases, the same court has deliberately reclassified methods formerly characterized as “inhuman and degrading treatment” to “torture.” In Selmouni v. France, 1999-V Eur. Ct. H.R. at 16, the court stated: “that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future,” and that “an increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”

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stop the European Court of Human Justice from condemning them as a violation of Article 3 of

the European Convention on Human Rights, and accordingly, the UK abandoned these

techniques immediately after the ruling. HRW at 81, Resp. Exh. 20.

More importantly, however, the Government’s semantic argument about whether the

government of Israel considered these techniques torture is irrelevant to this Court’s

consideration of whether the abusive techniques suffered by Dr. Qatanani warrant exclusion of

these military court documents, or alternatively, undermine their reliability. The case law

discussed above does not require a legal finding of “torture” in order for this Court to rule that a

conviction obtained in these circumstances may not be considered as reliable evidence. Dr.

Qatanani has described how the experiences he suffered affected him: “I made the prayer to God.

Please get me rid of this position which is not acceptable. At that time, you feel death is better

than life.” Tr. at 776. To quibble about whether what he suffered was “torture” or merely

“inhuman and degrading treatment” is irrelevant in determining whether conviction records

produced by a system using such techniques in a systematic and widespread manner can be fully

credited by this Court.

Professor Guiora has observed that “one of the significant problems with torture is that a

detainee in order to stop the pain will tell his interrogator what he thinks he wants to hear either

consciously (disinformation) or unconsciously (misinformation),” Guiora, supra, 37 Case W.

Res. J. Int’l L. at 446 (italics in original), Resp. Exh.10, can be applied with equal force to the

physically and mentally abusive interrogation techniques used by the Israeli interrogators in

1993. Professor Hajjar similarly noted that the issue of whether these techniques have been

ruled to be “torture” is significant when considering whether the interrogators can be prosecuted

for human rights violations in an international court of law, not when considering the experience

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from Dr. Qatanani’s perspective to determine whether a confession is voluntary, and whether any

conviction derived from such a confession is valid. Tr. at 498.

IV. DR. QATANANI IS NOT INADMISSIBLE FOR FRAUD AND/OR MISREPRESENTATION.

The Board of Immigration Appeals and the Third Circuit have established that for a

finding of inadmissibility under INA § 212(a)(6)(C), certain elements must be found. First, “the

[government] must show that the alien obtained a visa by fraud (with its concomitant intent

requirement) or by ‘willfully misrepresenting a material fact.’…The element of willfulness is

satisfied by a finding that the misrepresentation was deliberate and voluntary.” Mwongera v.

INS, 187 F.3d 323, 330 (3d Cir. 1999). The State Department regulations provide further

guidance, stating specifically that “willfully” means “knowingly and intentionally, as

distinguished from accidentally, inadvertently, or in an honest belief that the facts are

otherwise ... it must be determined that the alien was fully aware of the nature of the information

sought and knowingly, intentionally, and deliberately made an untrue statement.” FAM, 22

C.F.R.§40.63 n.5.1.

Second, a statement is “material” if “either (1) the alien is excludable on the true facts, or

(2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s

eligibility.” Mwongera, supra, 187 F.3d at 330; see also Matter of S-and B-C-, 9 I & N Dec.

436, 448-449 (BIA 1961).

Dr. Qatanani has neither made a material misrepresentation or a misrepresentation that

shut off a line of inquiry. From the submission of his application in 1999, and throughout the

process of applying for adjustment of status, Dr. Qatanani has testified consistently and credibly

regarding his three-month detention in Israel in 1993. Although Dr. Qatanani disputes the

authenticity of the records provided by Israel and the existence of a conviction against him from

59

the military court in Nablus, it is clear that even if a conviction had been entered against him, Dr.

Qatanani certainly did not make a “willful” misrepresentation.

Furthermore, Dr. Qatanani’s open and forthcoming answers to all questions posed to him

throughout the application process did not “shut off a line of inquiry.” Respondents specifically

request that this Court review the videotape of his May 2006 adjustment of status interview, as

well as the transcript, because the video recording of Dr. Qatanani’s sworn answers under oath

indicate even more clearly than the transcript how forthcoming he was in response to all of the

Government’s questions. See DHS Exh. 13. Even the Government’s own witnesses, Agent

Alicea and Agent Philpott, testified that the information he provided at the FBI interview in

February 2005 led them to seek and obtain records from Israel that are now at the center of this

case. Tr. at 148-50; 360-61.

This court should therefore find that Dr. Qatanani is not inadmissible under INA §212(a)

(6)(C).

A. Dr. Qatanani’s Answer to the Question at Issue on Form I-485 in 1999 Was Entirely Correct.

On Form I-485, Part 3, Question 1b asks,

“Have you ever, in or outside the United States…Been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations?”

A plain reading of this question clearly indicates that the applicant is to provide information

about an arrest “for breaking or violating any law or ordinance, excluding traffic violations,” or a

citation, indictment, fine, or imprisonment “for breaking or violating any law or ordinance,

excluding traffic violations.” In other words, the question does not ask for information on any

stop or detention by law enforcement officials, only those that led to any charges that a law or

ordinance had been violated.

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In 1999, Dr. Qatanani knew that in 1993, he had been detained for questioning by the

Israeli military authorities in the West Bank, and that he had been imprisoned for three months.

As far as he knew, he had never been charged or convicted of violating any law or ordinance.

Tr. at 890. Therefore, his answer of “no” to Question 1b in 1999 was entirely correct.

His updated application, submitted at his adjustment of status interview in April 2006,

stated “yes” to that question because in 2005, he faced charges that were eventually dismissed

regarding the use of an international driver’s license. DHS Exh. 3A; Disposition of Dr.

Qatanani’s NJ Traffic Violation, Resp. Exh. 18. In 2006, as in 1999, Dr. Qatanani sincerely

believed he had never been arrested in Israel for violating any law or ordinance.

B. Dr. Qatanani Did Not Make Any Material Misrepresentations or Commit Fraud in Any Subsequent Communications with the Government, Including Testimony in These Proceedings.

Dr. Qatanani has testified consistently at every opportunity regarding his 1993 Israeli

detention experience. In his May 6, 2006, interview for adjustment of status, he recounted his

experience upon entering the West Bank from Jordan. Adjustment of Status Interview Transcript

at 66, DHS Exh. 13 (hereinafter referred to as “Adj. Tr.”). He explained how he had been given

a paper to present himself at the Israeli military base in about a week, complied with the request

and was detained for a period of about three months. Adj. Tr. at 68. He recounted how he was

not allowed to see an attorney for a period of time, that he was interrogated and threatened, id. at

88, not informed of any charges against him, id. at 93, and that he never saw a judge. Id. at 84,

85, 95. He was not given any papers regarding why he was detained or about any resulting

conviction, id. at 97, 98, 100, nor did he plead guilty to anything. Id. at 101-102. He was told by

his lawyer that there was nothing against him and that he would be released. Id. at 104. When he

attempted to describe the torture he withstood while in Israeli detention, the examiner cut him off

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and prevented him from doing so. Id. at 106-07. He recalled signing a paper upon release

saying that he would work for peace, id. at 97, and could not recall if he signed anything after

interrogation. Id. at 102.

Dr. Qatanani’s testimony at trial was wholly consistent with his account at the adjustment

of status interview. He testified that in October 1993, upon entry into the West Bank, he was

given a paper requiring him to report to an Israeli military base in a week. Tr. at 755. He

explained that for about 30 days he was subject to interrogation and torture. Id. at 768-76. he

recounted how during that time he was asked questions about Hamas and the Muslim

Brotherhood. Id. at 762. He confirmed that he first saw a lawyer at approximately 18 days. Id.

at 778, that he never saw a judge, id. at 782, at he was never told of any charges against him, id.

at 777, nor was ever given any papers. Id. at 777, 780. He could not remember if he had signed

anything, but he recalled it was possible there was a “finishing paper,” stating, “I think I

remember most likely there is paper that has to be signed at that moment.” Id. at 777. If there

was such a paper, the contents were certainly never read to him. Id. at 780. His attorney met

him at the door to the detainees’ waiting room and told him,

“I hope you will be released today. They have nothing against you. You are very clean and I hope it will be so today. I will make anything for you to be released and if any way, I hope with the three months or less you will be – they have no problems against you. You are clean and this is he gave me a very strong hope and that moment I thought I will go home.” Id. at 783.

The lawyer never came back and informed him what had transpired, if anything. Id. As Dr.

Qatanani testified, “Absolutely I am not aware of any deal because he didn’t give back to me at

all. He left and I was waiting for a judge to see me and to say we have a deal so and so, but he

didn’t come [back].” Id. at 901. Therefore, he understood that he had been released because he

62

was innocent: “I understood from that moment that if you are released within three months they

have nothing against you, you are clean and they release you.” Id. at 787.

Although the FBI interview in February 2005 was not recorded, and the specifics of what

was said are in dispute, the Government agents and Dr. Qatanani agree that he told them that he

had been stopped at the border, issued an “invitation” to come to the military authorities, and

detained for three months. Testimony of Philpott, Tr. at 358; Testimony of Alicea, Tr. at 211.

(See Section IV.E. for a more detailed discussion of their testimonies.) Dr. Qatanani specifically

recalled that the reason he provided information about this detention at the FBI interview, after

not indicating it on his 1999 Form I-485, was that after asking the question on the form, Agent

Alicea asked a follow-up question: “[H]ave you been stopped?” Tr. at 891. Although Dr.

Qatanani did not believe he had been arrested, charged, or convicted, he did know that he had

been stopped and he answered the question fully. Id. Tellingly, Dr. Qatanani testified that

afterwards, he and his lawyers “were very comfortable. They said the meeting was very good…

They give me hope from that meeting.” Tr. at 814l; see also Affidavit of Ronald Fava, Resp.

Exh. 22. If, as the agents now allege, he had talked about being “arrested,” “convicted” and

making a “plea bargain” to a conviction in Israel, Dr. Qatanani and his attorneys would not have

felt “comfortable” and hopeful. The fact that Dr. Qatanani did not seek records in Israel after the

FBI interview does not cast doubt on his testimony. If anything, it further supports his

recollection that he did not tell the agents he had been “arrested” and “convicted.” Tr. at 920.

He had no reason to seek documents he did not believe existed.

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C. Dr. Qatanani’s Account Is Credible in the Political, Historical, and Cultural Context of Palestinian Detainees in the Military Court System in 1993.

Dr. Qatanani’s account is credible in the context of the historical events of the time in

Israel and the West Bank, and specifically the role of the Israeli military courts in those events.

Even if a conviction had been entered against him, it is clear that Dr. Qatanani did not make a

willful misrepresentation in understanding the events as he experienced them.

As noted previously, Dr. Qatanani’s account of what happened to him is consistent with

human rights reports, and even the Government expert witness’s account, of how the military

court system works, its procedural deficiencies, and the widespread use of torture and other

abusive interrogation techniques. Dr. Qatanani continues to dispute the authenticity of these

records and to assert that, as far as he knows, he was never charged or convicted of any crime in

the West Bank.

Even if we were to assume that a conviction had been entered against him in Nablus in

1993, Dr. Qatanani’s steadfast belief that he was innocent of any wrongdoing and that he was not

charged and convicted is both credible and plausible. At the outset, Dr. Qatanani would not have

been surprised to have been put into detention and interrogation, given that it was happening to

thousands of Palestinian men. The rate of detention had skyrocketed at that time, due to the

beginning of the first Palestinian intifada in 1987. As noted previously, from 1988 to July 1993,

approximately 100,000 Palestinians were brought into custody, with 83,321 eventually charged

and prosecuted. Hajjar at 107, Resp. Exh. 20. Although the government of Israel did not release

statistics at that time, the Israeli human rights organization, B’Tselem, estimated that roughly

5,000 Palestinians per year had been subjected during interrogation to some combination of the

methods of torture or ill-treatment. HRW at 3, Resp. Exh. 20. As Mr. Goldstein testified, “If

64

you were a young Palestinian male, your chance especially during this intifadeh [sic] was very

high that you would be going through the detention system, including interrogation in your late

teens or early twenties.” Tr. at 651. And particularly as a student in Jordan who was crossing

the border, he would have understood that “For people traveling abroad…it was very common to

require students coming back from studying overseas to come and check in.” Testimony of

Hajjar, Tr. at 513.

Although the word “arrest” has been used by different people to describe what happened

to Dr. Qatanani, it should be noted that the term has different meanings in different contexts. As

stated previously, there is no requirement in Israeli law that a detainee be told of charges against

him at the moment of arrest, which is understandable when one realizes charges are often derived

from evidence developed during interrogation after the detainee is taken into custody. Although

Dr. Qatanani understood he was “stopped” or “detained,” he was never told of any charges. He

therefore did not believe he had ever been “arrested…for breaking or violating any law or

ordinance.” It is also then understandable that upon his attorney’s explanation of the difference

between “arrested” and “detained” at the FBI interview, he would affirm that he had been

“detained.”

It is perhaps surprising to Americans that a man who had been imprisoned for three

months could persist in believing that he had never been charged or convicted, but it was a

frequent occurrence in the Israeli military court system in 1993. Professor Hajjar testified that

based on her interviews with judges, prosecutors and others, it seemed that approximately 50%

of Palestinians arrested were released or perhaps administratively detained but not prosecuted in

the military court system. Hajjar at 185, Resp. Exh. 20. Three months, as attested to by the

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Respondents’ experts, would have been considered very lenient and in keeping with Dr.

Qatanani’s understanding that “there was nothing against him.” Tr. at 565.

Furthermore, Dr. Qatanani had been living in Jordan for the past ten years, and knew

nothing about the military court system, other than that it was very common for Palestinian

males to be “detained or arrested every day, every moment, kids.” Tr. at 758. The

Government’s witness, Professor Guiora, when questioned about “daily prison life and

experience” for people in administrative detention versus those awaiting trial, stated, “[I]n large

part, [for] a detainee, I don’t think there are significant differences between the two.” Tr. at 120.

Mr. Kuttab confirmed that “they are kept in the same facility, those who are awaiting trial and

those under administrative detention.” Tr. at 545-56. Detainees often moved between the two

systems fluidly:

“Many administrative detainees are people who have not confessed or where there is no confession either by them or against them…The opposite is also true. A person who has been detained, brought to court, sentenced, at the end of sentencing, instead of releasing him, they can issue an administrative detention order and keep him in jail for a longer period of time.” Id.

To a detainee who had never experienced being brought before a judge, the experience of

being in pre-trial detention and the experience of being held in administrative detention would

have been indistinguishable.

Even the experience of being taken to the court building in Nablus, but not being taken

into the courtroom itself, would not have been surprising to Dr. Qatanani. As he testified, he was

taken twice to Nablus. Tr. at 782. The first time, the prosecutor was very likely granted an

extension of detention, and it would have been routine for that decision to be made without

bringing the detainee into the courtroom. Tr. at 554-55. Mr. Kuttab noted that extensions were

routinely granted without the presence of the detainee “[d]uring that period [in 1993] because of

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the intensity.” Tr. at 555. From Dr. Qatanani’s perspective, having already experienced being

taken to the court building but not being brought into the courtroom, a second trip to Nablus with

the same outcome would not have seemed strange. Dr. Qatanani could logically assume

detention had merely been extended again. Tr. at 787-88.

The Government witness, Professor Guiora, initially declared emphatically in his

affidavit that Dr. Qatanani was certainly present in the courtroom when the “Protocol” was

executed, and that he had “lied” when he said he had never seen a judge. Affidavit of Guiora,

DHS Exh. 19. But at trial he expressed some doubt whether Dr. Qatanani was actually in the

courtroom, Tr. 82-83, 89, as well as conceding that Dr. Qatanani’s absence would not have

legally invalidated the proceeding. Tr. at 89.

As both Professor Hajjar and Mr. Kuttab testified, many of the procedures described by

Professor Guiora and outlined by Ms. Levush in her report were not followed strictly due to the

increased number of detainees during the first intifada and the ensuing increased pressure on the

system. As Professor Hajjar documented:

Many judges, prosecutors, and defense lawyers whose experiences in the military court predated the intifada expressed an almost nostalgic longing for the past, when the number of cases was lower and more attention could be devoted to each one. Some spoke frankly of the legal compromises they were being forced to make in order to contend with the deluge of arrests. Hajjar at 11.

Mr. Kuttab described how copies of court records were not provided for the defendant, Tr. at

583, and that “during this period, they will not even provide you [the defense attorney] with a

copy. What you will do after the case is complete, you go over to the secretariat and ask to

photocopy it as a lawyer to have it for your records.” Tr. at 584. Although Mr. Kuttab, as a

“conscientious lawyer,” would meet with his client and go over what was on the record, and keep

it in his own records for seven years, id., many lawyers representing Palestinians at that time

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were not well-trained. HRW at 252, Resp. Exh. 20. Many of them did not speak Hebrew,

further limiting their ability to understand what happened and convey it to their clients. Id. at

258. If they did speak Hebrew, the translator frequently would not translate the Hebrew into

Arabic, thereby limiting the detainees’ ability to understand the proceedings. Tr. at 521, 566.

Dr. Qatanani’s own testimony illustrated the pressures on the system, as he described being

brought to Nablus with fifty other detainees for that day’s docket, Tr. at 782, with one judge

overseeing the docket. Testimony of Hajjar, Tr. at 446. Mr. Kuttab articulated,

[T]he occupation system is not made to serve [the] interest of the likes of Mr. Qatanani or the rest of the population. They’re intended to serve [the] interest of the army to make sure they are in control of the area and they will do what is necessary to maintain that control especially in periods when there is a lot of pressure on the system and they’re processing literally tens of thousands of Palestinians through the system. Tr. at 585.

In a period of political difficulties and intense pressure, it is more than plausible that a military

court could have sentenced a Palestinian to a sentence as minor as three months without his

presence or knowledge.

Some question was raised at trial as to why Dr. Qatanani did not pursue information

regarding the legal basis for his detention after his release. Like many of the questions asked by

U.S. government officials in this case, this question is asked from the point of view of an

Americans who are accustomed to the proceedings and protections of our judicial system. An

American detained and held in jail in the U.S. for three months might well demand to know the

legal basis for the detention, and would likely even bring a lawsuit. In contrast, however, Dr.

Qatanani’s detention was not at all out of the ordinary for Palestinians, especially at that time.

In that historical and cultural context, the legal underpinnings of detention were less

relevant to Palestinians than the experience of interrogation and detention, as attested to by

Professor Hajjar. Tr. at 483. Many of the ex-detainees Professor Hajjar interviewed were

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“clueless about anything else…I said tell me about your experience in the military courts and

people had no memory and this was like extremely common.” Tr. at 484; see also Hajjar at 188-

89, Resp. Exh. 20. Even if they were brought into court, their focus was on seeing their families,

Tr. at 568, to the extent that Mr. Kuttab stated one way he had tested Dr. Qatanani’s credibility

was to ask if he had seen his family the day he was taken to Nablus. Tr. at 595.

In Dr. Qatanani’s case, he was not even brought into a courtroom. Given the legal

possibility and even likelihood that he was being released without charge and/or administratively

detained, Dr. Qatanani had no reason to wonder, contrary to all the evidence he had, if he had

actually been charged and convicted and to seek documents he did not believe were ever created.

After becoming aware that the U.S. government thought there was an issue, Dr. Qatanani

did attempt to get a copy of the records himself. Given the difficulty of reaching lawyers in the

West Bank from 1993 in the U.S., he asked his brother who lives in the West Bank to locate both

lawyers and find out if they had any records of his proceedings. Tr. at 922. According to his

brother, the attorneys did not have any records and were actually “afraid…he gives any paper,

his responsibility.” Tr. at 923. When they were pressed further, they stopped returning his

brother’s phone calls. Tr. at 795. Given that any proceedings would have occurred fifteen years

ago, and that even Mr. Kuttab as a conscientious lawyer testified that he keeps records for seven

years, it is not surprising that Dr. Qatanani’s lawyers had little recollection of what happened.

Dr. Qatanani’s undersigned counsel also made independent efforts to obtain records by

contacting lawyers in Israel, but was told by Israeli lawyers that it would be useless to even try.

In any case, it is disingenuous of the Government to imply that Dr. Qatanani was

somehow delinquent in not obtaining records from Israel when its own witness, Agent Alicea,

testified that when he tried to request documents from Israel directly, he was told he could only

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receive records by getting the U.S. Attorney’s office to submit an MLAT request, a procedure

not available to private individuals. Tr. at 229, see also Testimony of Philpott, Tr. at 361. If an

FBI agent and an ICE agent could not obtain records without an MLAT request, a former

Palestinian detainee cannot be expected to have obtained them.

D. The Government’s Allegation that Dr. Qatanani “Lied” About His 1993 Detention in Israel is Countered by Extensive Evidence and Testimony to the Contrary.

1. Professor Guiora’s Opinion that Dr. Qatanani “Lied” Was Not Based on Substantial Evidence, Particularly As He Also Corroborated Many Details of Dr. Qatanani’s Account.

The Government presented the testimony of Professor Guiora in an attempt to establish

that the procedures provided for in the Israeli military court surely proved that Dr. Qatanani

“lied” on his adjustment of status application when he answered that he had not been arrested for

any violation of a criminal law. Tr. at 63-71. Professor Guiora clearly did not have any first-

hand experience with Dr. Qatanani’s case, as he was not even in the West Bank at the time.

Regardless, Professor Guiora confirmed many aspects of Dr. Qatanani’s testimony, as well as

criticisms made of the Israeli court system by human rights organizations and Respondents’

expert witnesses.

On the specific papers in question, Professor Guiora acknowledged that it was possible

the pre-printed word “defendant” was struck from the “Protocol” to indicate he was not present

in the courtroom. Tr. at 80, 82. He also testified that he “would not be surprised” if Dr.

Qatanani experienced position abuse, hooding, exposure to extreme temperatures, and exposure

to loud music and noise. Tr. at 110-11. He agreed that in 1993, prosecutors and judges came

from the same military unit. Tr. at 104. When cross-examined about whether Dr. Qatanani

could have waited eighteen days to see a lawyer, he stated, “It could be.” Tr. at 101. He

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conceded that from the perspective of a prisoner, there would not have been “significant

differences” between administrative detention and awaiting trial. Tr. at 120. The rarity of

challenged confessions in his own experience as a prosecutor and judge coincided with what

Respondents’ expert witnesses all reported. Tr. at 41-42.

His testimony did differ primarily with regard to what would be considered “torture” and

“fair.” Although he acknowledged the use of the interrogation techniques Dr. Qatanani

described, he stated that he would not term them “torture.” Tr. at 115. When defending the

integrity of the system, Professor Guiora argued that it was similar to the U.S. legal system; only

under cross-examination did he admit that the U.S. system he had in mind is the military

commission in Guantanamo, Tr. at 109, a system that was purposefully placed outside the

borders of the U.S. so as not to fall within U.S. constitutional requirements for due process.

As the Human Rights Watch report and Professor Hajjar have documented, Israel has

denied for years that its military court system in the occupied territories is procedurally deficient.

HRW at 46-51, Resp. Exh. 20; Tr. at 453-54. Professor Guiora, as a defender of the military

court system, described how remand hearings “are held in court,” and affirmed that there would

be “a formal presentation.” Tr. at 66. In contrast, Human Rights Watch reported that

“[e]xtension hearings were often held in makeshift chambers located in rooms adjoining the

interrogation wings,” how “lawyers were typically absent from the hearings,” and that “nearly all

persons attending the extension hearing wear uniforms, including the judges, prosecutors and

guards.” HRW at 104, Resp. Exh. 20. As a result, some ex-detainees “were not even aware they

were in a court of law.” Id.

Ultimately, in his declaration that Dr. Qatanani “lied,” Professor Guiora relies wholly on

the documents from Israel: “In the transcript, he testified that he’s never violated any law.

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Clearly, that’s incorrect because based on his own confession, he violated law.” Tr. at 71; see

also Affidavit of Amos Guiora, DHS Exh. 19. When Professor Guiora was asked how he knew

that “all the procedures were followed” in Dr. Qatanani’s case, he stated it was because “the

judge signed” the “Protocol,” Tr. at 124, alluding to a judge whose name is not even legible. As

described in detail above, the additional numerous deficiencies and inconsistencies in the

documents make it difficult to treat them as authentic, accurate, valid and reliable, yet they are

the sole basis for Professor Guiora’s conclusion that Dr. Qatanani “lied.”

2. The Government’s Allegation that Dr. Qatanani Has Made Inconsistent Statements is Inaccurate and Largely Due to the Government’s Misunderstanding of the Israeli Military Court System.

The Government in cross-examining Dr. Qatanani suggested that he had given

information to a reporter that he had not provided to this court. Tr. at 909-10. Setting aside the

absurd notion that a man with something to hide would tell a reporter his secrets, the

Government’s implication requires a particularly narrow view of what Dr. Qatanani testified to

during his hearing and during the adjustment interview. Dr. Qatanani has never tried to hide that

the Israeli interrogators questioned him about the people he knew in Jordan, as well as about

Hamas.18

The Government also suggested that Dr. Qatanani’s statements under oath during the

adjustment interview were inconsistent with his testimony in court, but his statements would

only appear inconsistent to those assuming that the Israeli military court system is similar to the

American court system. ICE counsel asked Dr. Qatanani, “[I]f you were not charged with a

18 Dr. Qatanani testified under direct examination that he was asked questions like, “You want to talk everything about that sharia college. Who are your teachers? Who are your [sic]? What is the relationship between Hamas and Brotherhood? What do you know about those people?” Tr. at 762. During cross-examination, Dr. Qatanani stated, “[W]hen I was in interrogation time they asked me about students in Jordan. I helped them as students humanitarian issues and that interrogation, they said some of them are Hamas. I told them I don’t care Hamas or not because I don’t know the people that are Hamas they are some others. So I help people as people. This is what I said.” Tr. at 911.

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crime, what are you referring to when you say ‘not guilty, not guilty’?...[U]sually when

somebody says they’re not guilty, it’s in response to a charge of a violation of law.” Tr. at 902.

This question incorrectly assumes the use of the term “not guilty” as a pleading in court, not in

the conversational way that Dr. Qatanani used it. He knew he was “not guilty,” “because I did

nothing.” Tr. 902. The ICE counsel also pressed Dr. Qatanani, asking him how “the lawyer [is]

going to finish that story in any manner other than a guilty plea?” Tr. at 905. But as Dr.

Qatanani responded, the lawyer never returned with information about a plea. Id. It was entirely

plausible for Dr. Qatanani, as a Palestinian detainee, to believe “the story” could be finished by

being released without charge.

3. The Government Witnesses’ Accounts of the February 2005 Interview Are Unreliable Due to the Lack of Supporting Contemporaneous Evidence and Inconsistencies in Their Testimonies.

The Government alleges that Dr. Qatanani “lied” on his adjustment of status application

in 1999 and during his adjustment interview in 2006, because he did know he had been arrested

and convicted at that time. As evidence that he knew, the Government has asserted that during

his February 2005 interview, Dr. Qatanani stated he had been arrested and convicted to the FBI

and ICE.

In other words, the Government alleges that Dr. Qatanani intentionally failed to disclose

an arrest and conviction in 1999, and intentionally failed to do so again in 2006, but that in 2005,

he freely stated that he had been arrested and convicted. The USCIS denial of his application

charges that Dr. Qatanani was “willing to admit the conviction to the FBI when there were no

immigration consequences, but deliberately omitted that pertinent information when filing Form

I-485 where this information could materially impact your eligibility for adjustment of status.”

I-485 Denial, DHS Exh. 6. It is absurd to suggest Dr. Qatanani would have sought to hide

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information from USCIS by providing that information to the FBI and ICE. Furthermore, it is

implausible that a man, fully aware of a criminal conviction against him in Israel for a security or

terrorism law violation, would seek to pursue his application for adjustment by requesting a

meeting with the FBI. But as all parties agree, the interview was held at Dr. Qatanani’s request.

Tr. at 135, 341, 808.

But even if the Government’s version of the events were not inherently incredible, the

recollections of Agents Alicea and Philpott cannot be relied upon for several additional reasons.

The Government has not provided any evidence, such as a recording of the interview or

notes taken contemporaneously, to corroborate the agents’ recollections of an event that occurred

over three years ago. The only document submitted was the affidavit of Agent Alicea, executed

on January 31, 2006, about a year after the interview took place on February 7, 2005. DHS Exh.

16. Both agents testified that no recording was made by the FBI or by ICE. Tr. at 208, 377.

Agent Alicea testified that he took notes while simultaneously asking the questions. Tr. at 222.

Although he did not remember whether anyone else took notes, he only reviewed his own notes

in writing the affidavit. Tr. at 206. Agent Philpott testified that she also had reviewed Agent

Alicea’s notes in preparation for her testimony, as she had not taken her own notes. Tr. at 377.

Agent Philpott further testified that Agent Alicea had written a report regarding the interview

shortly afterwards. Tr. at 378. Neither Agent Alicea’s notes nor this report were submitted to

this court, raising questions about the extent to which these notes and report actually corroborate

or contradict the agents’ testimonies of what occurred.

The agents’ assertions that their agencies did not record the interview are also surprising.

Dr. Qatanani’s application had been pending for six years at that point. Three years earlier, on

July 26, 2002, an IBIS hit had marked Dr. Qatanani as a “person of interest” to ICE Agent

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Philpott. Form I-485, filed on April 1, 1999, DHS Exh. 3. As a member of the Joint Terrorism

Task Force, she testified that as part of the investigation following this hit, she notified the FBI

of this hit. She testified that the FBI would be the agency that would make inquiries about

convictions in other countries, and when asked if the FBI did request information from Israel in

2002, she responded, “They probably did but I can’t say for sure.” In any case, when Dr.

Qatanani approached the FBI to determine what was delaying his application, he was already

allegedly a “person of interest.” Yet when he allegedly began talking about a conviction, the

Government still did not see a reason to record the interview. Tr. at 377. It is therefore

particularly surprising that both agencies have averred that they did not record the interview.

Furthermore, Agent Alicea’s testimony was both evasive and inconsistent with Agent

Philpott’s testimony in several key aspects. Although Agent Philpott testified that she had been

in communication with the FBI before the 2005 interview, notifying them about the IBIS hit in

2002 when it first appeared, Tr. at 384, Agent Alicea was evasive in response to questions about

when he first learned about Dr. Qatanani’s application for adjustment of status. Tr. at 187. He

stated that he did not receive any information regarding this IBIS hit in preparation for the

interview. Tr. at 188-89. He even claimed that he didn’t prepare for the interview: “I wouldn’t

say I was prepared other than to know that he wanted to speak about his Immigration matter.”

Tr. at 194. He stated that he did not know about the IBIS hit—clearly marked on the copy of the

I-485 application given to him—and did not inquire about it in preparing for the interview. Tr. at

188-89. It is implausible that an FBI Special Agent and member of the Joint Terrorism Task

Force would make so little effort to learn more about a “person of interest” before interviewing

him. While Agent Philpott clearly testified that the FBI is involved in investigating certain

applicants for adjustment of status, Agent Alicea incredibly disclaimed that “adjustment of status

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is not an FBI matter.” Tr. at 221. It is difficult to believe that an FBI Special Agent on the Joint

Terrorism Task Force, who had been assigned to conduct an interview of an applicant for

adjustment of status, did not know fingerprints are routinely submitted to the FBI for foreigners

to get lawful permanent residence. Tr. at 189.

Agent Alicea was similarly evasive and inconsistent in answering other questions.

Describing what Dr. Qatanani stated at the interview, Agent Alicea’s affidavit states,

“QATANANI acknowledged that he had been arrested by Israeli authorities while crossing from

Jordan into the West Bank in 1993.” Affidavit of Alicea, DHS Exh. 16. But when testifying in

court, he changed his account: “he was crossing from Jordan into Israel…and upon crossing, he

was stopped at the border. He was allowed to continue because his family was with him, but

given the notice to return seven days later.” Tr. at 145. While claiming to remember with

absolute certainty that Dr. Qatanani stated he had been “arrested” rather than “detained,” and that

he used the words “plea bargain,” Agent Alicea had surprising difficulty recalling other events.

He could “not remember” when he had first found out about Dr. Qatanani’s immigration

application, Tr. 191, if other government agents had taken notes, Tr. at 222, how long the

interview lasted, Tr. at 223, or when he approached the U.S. Attorney’s office after the interview

for assistance in requesting documents from Israel. Tr. at 225-27. Agent Alicea’s testimony was

essentially based on his memory, as no contemporaneous records were provided to the court,

while Agent Philpott’s testimony was based on Agent Alicea’s memory as well. Yet Agent

Alicea repeatedly demonstrated that his memory cannot be relied upon.

Both agents’ testimonies were contradicted strongly by the testimony of Dr. Qatanani and

the affidavit of Mr. Ronald Fava, a criminal defense attorney who was present at the February

2005 interview. Mr. Fava attested, “During the interview, Dr. Qatanani explained that he had

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been detained in Israel for three months, that he had been questioned and eventually let go. He

never stated that he had been convicted of any crime.” Resp. Exh. 22. In particular, Dr.

Qatanani testified that Mr. Fava had raised a question about the difference in meaning between

the words “arrested” and “detained,” and that Dr. Qatanani, upon hearing the words defined,

confirmed he had been “detained.” Tr. at 812.

Although Alicea and Philpott both agreed that Mr. Fava did raise this question, they

testified that Dr. Qatanani confirmed he had been “arrested.” Tr. at 144. Agent Alicea, despite

his earlier statement, even later claimed, “There was no detention discussed.” Tr. at 212. They

stated he used the words “plea bargain” and “affidavit” in describing what had happened to him.

Tr. at 144, 359. As was evident during Dr. Qatanani’s testimony before this Court on June 2,

2008, Dr. Qatanani is able to understand and speak elementary English but he is far from fluent,

especially with regard to technical and legal terms. As he testified, until explained to him by his

counsel, he did not even know the meaning of the word “affidavit.” Tr. at 813. It is not only

unlikely that Dr. Qatanani used such terms, it is highly unlikely that Mr. Fava, an experienced

criminal defense lawyer and former prosecutor, would have raised a question about “arrested”

versus “detained,” and then merely sat back as his client admitted to being arrested and

convicted.

Mr. Fava’s affidavit should be considered in deciding this case, as his affidavit was

submitted in accordance with the ten-day rule of the Court and is certainly probative. Resp. Exh.

22. But even if Mr. Fava’s affidavit were not considered, the mere fact of his presence at the

interview alone supports Dr. Qatanani’s recollection of the statements he made, rather than the

faulty recollections of the Government’s witnesses.

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Additionally, both Government witnesses, and Agent Alicea in particular, asserted

allegations of wrongdoing against Dr. Qatanani that were not only unsupported by their own

evidence, but bordered on unprofessional zeal. Agent Alicea testified, for example, “I’m not

aware of any assistance in regards to law enforcement activities,” Tr. at 184, though when cross-

examined, he admitted he knew that ICPC had hosted a job fair for the FBI. Tr. at 241. Agent

Alicea further testified that an FBI official had found fliers at the mosque urging congregants not

to cooperate with law enforcement. Tr. at 185. During cross-examination of Dr. Qatanani, it

became evident that the fliers referenced by Agent Alicea in this manner were actually “Know

Your Rights” fliers urging readers to learn about their constitutional rights. Agent Alicea sought

to discredit Dr. Qatanani for providing $5000 in cash to his brother-in-law, Hussein Sholi, to

carry home to the West Bank, insinuating these funds were for unlawful purposes, when he knew

that there was nothing unlawful about the incident and that Mr. Sholi had been allowed to

continue home with the funds. Tr. at 165. Similarly, he argued that Dr. Qatanani had used a

“fraudulent” international driver’s license, knowing full well that the charges of fraud were

dismissed. Tr. at 170. Even in his own account of what happened, Agent Alicea admitted that

Dr. Qatanani had not solicited assistance himself from the company producing the document and

even that the company was only reprimanded for not printing a disclaimer on the documents. Tr.

at 173-74.

Also, Agent Alicea’s affidavit was written almost a year after the interview took place,

and after at least some of the documents were received from Israel, which include dates as early

as May 1, 2005. Tr. at 149; DHS Exh. 16. It is very possible that his memory of what occurred

on February 2005 as he wrote his affidavit in January 2006 was shaped by the documents he had

reviewed and the conviction they alleged.

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It is possible that Agents Alicea and Philpott faced the same difficulties that most

Americans would in understanding the Israeli military court system, a legal system that is so

different from ours. As Agent Alicea testified, no government agent at the FBI interview was an

expert in the law of the Israeli military court system. Tr. at 204. Given their lack of expertise,

Agents Alicea and Philpott most likely heard Dr. Qatanani’s description of his detention in terms

they could understand, that is, in the framework of an independent court with fair procedural

safeguards. For example, Dr. Qatanani’s belief that he had been detained without charge for

three months would be impossible in the U.S., and so his statement was understood as a

statement that he had certainly been “arrested.” Similar misunderstandings are apparent in the

administrative record between U.S. government officials and Dr. Qatanani. For instance, during

the adjustment interview, DAO Gurka persisted in assuming any discussion of a prosecutor must

also necessarily involve charges:

Gurka: Well, why was there a prosecutor involved?

Dr. Qatanani: Every time the prosecutor office.

Gurka: But why? You were saying you were just being detained for questioning. You weren’t being charged with anything. Adj. Tr. at 99.

As the Respondents’ experts and Dr. Qatanani himself made clear, prosecutors are involved in

requesting pre-charge remand hearings, and the mere presence of a prosecutor would not indicate

charges were filed. Agents Alicea and Philpott, like DAO Gurka, likely faced similar difficulties

with their limited understanding of the Israeli military court system.

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E. Given the Sequence of Events in This Case, Even if Dr. Qatanani Had Misstated What Happened to Him in Israel, It Would Not Constitute Fraud and/or Misrepresentation.

Dr. Qatanani has never made any misrepresentations in the nine-year history of his

application for adjustment of status. It is worth noting, however, that even if Dr. Qatanani had

made a misrepresentation on his 1999 application, he would not be inadmissible. First, it would

obviously not have been willful. Second, the U.S. government has long-recognized that even

when misrepresentations are willful, timely retractions at the time of an interview after a mail-in

application, “serve[s] to purge a misrepresentation and remove it from further consideration as a

ground for INA 212(a)(6)(C)(i) ineligibility.” Foreign Affairs Manual 40.63 Notes, N4.6.

“Timely Retraction.” The Board of Immigration Appeals has recognized this policy as a matter

of law as well. See Matter of M, 9 I & N Dec. 118 (BIA 1960).

Dr. Qatanani raises the doctrine of timely retraction not as a defense, as he never made a

material misrepresentation, but as a point of comparison with those who make outright

misrepresentations that are later retracted. It is disingenuous for the government to characterize

Dr. Qatanani’s open communication with FBI and ICE officials regarding his detention in Israel

as “cutting off a line of inquiry” when the government’s witnesses admitted that it was due to the

information Dr. Qatanani provided that they even looked into the possibility of an Israeli

conviction. See I-485 Denial, DHS Exh. 6. At all interviews with the FBI and immigration

officials, Dr. Qatanani offered information and answered all questions put to him. The fact that

six years passed between the application’s submission and the 2005 FBI/ICE interview was

completely due to delay on the government’s part, as Dr. Qatanani’s previous counsel, Sohail

Mohammed, and Congressman Bill Pascrell actively advocated on his behalf for an interview

and adjudication of his application. See Status Inquiry from Sohail Mohammed, Resp. Exh. 15;

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see also Testimony of Dr. Qatanani, Tr. at 809. Dr. Qatanani has been truthful throughout the

adjustment of status process and has answered fully and forthrightly every question asked of him

about being detained in Israel. He therefore had no need to “correct” anything, but even if Dr.

Qatanani had made actual misrepresentations in the initial Form I-485, any such

misrepresentations would have been timely retracted by his statements at subsequent interviews

and in his amended Form I-485 submitted at the USCIS interview.

CONCLUSION

The Government has failed to make its case that Dr. Qatanani should be denied

adjustment of status. It has not presented authentic or reliable documents to prove to this Court

that a conviction from Israel exists. It has failed to prove that Dr. Qatanani was not truthful and

forthright in all of his representations to the government. And it has not shown that he does not

merit adjustment of status as a matter of law or discretion. Therefore, Dr. Qatanani and his

family respectfully request that their applications for adjustment of status be granted.

Respectfully submitted,

Claudia SlovinskyGrace MengAttorneys for RespondentsLaw Offices of Claudia Slovinsky401 Broadway, Suite 1600New York, N.Y. 10013(212) 925-0101

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