DOJ Refuses to Prosecute Palestinian Terrorists

In a prior column, I introduced you to Ahlam Tamimi.  Tamimi is a Palestinian terrorist, responsible for the 2001 suicide bombing at the Sbarro restaurant in Jerusalem that killed 15 people and injured another 132. Among the American victims of this terrorist act: Judith Greenbaum and Malka Roth, who were both killed; and David Danzig, Matthew Gordon, Joanne Nachenberg, and Sara Nachenberg, all of whom were injured. Malka Roth was only fifteen years old at the time of her death, and was one of eight children killed in the bombing. In late 2011, Tamimi was released by Israel as part of the trade of over one thousand Palestinian terrorists for Israeli soldier Gilad Shalit, who was being held by Hamas.  Tamimi is now hosting her own television show for Hamas-affiliated Al-Quds TV station from her new home in Jordan.  Tamimi was released even though she has admitted – on television – that she participated in the Sbarro terrorist bombing.  In the interview, she even expressed her delight at the number of children among the dead.

On March 1, 2012, 52 U.S. Congressmen, acting on a bipartisan basis, sent a letter to the Attorney General, and the Department of Justice (DOJ), calling upon the DOJ to “(1) investigate those cases (in Israel or the Palestinian Territories) involving the murder of or infliction of serious bodily injury on American citizens ; (2) where evidence supports, indict those individuals complicit in the deaths of or infliction of serious bodily injury on Americans, (3) seek the extradition of, (4) try in American federal courts, and (5) punish these individuals.”  (Full disclosure – the organization I work for, the Endowment for Middle East Truth, initiated this letter at the behest of many American victims, and their families.)  This letter referenced the 1991 Anti-Terror Act, which allows the United States to prosecute those who commit acts of terror overseas against Americans, and the large number of American victims of attacks in Israel and the Palestinian territories, which stands at (at least) 54 killed and 83 wounded.  It also castigated the Department for its non-existent record of indictment and prosecution of these terrorists, in both successive Republican and Democratic administrations.  The letter made note that this poor record “is particularly disappointing given that, in 2005, Congress specifically created a unit within the DOJ, called the Office of Justice for Victims of Overseas Terrorism (OJVOT), whose entire purpose “is to ensure that the investigation and prosecution of terrorist attacks against American citizens overseas remain a high priority within the Department of Justice.”  Finally, the letter’s appendix listed several Palestinian terrorists who deserved prosecution, including Ahlam Tamimi.

On April 5, 2012, the DOJ sent its response.  This letter, signed by Assistant Attorney General Ronald Weich, claimed that “there are significant impediments to bringing prosecutions in the United States for attacks that occur overseas.”  The main impediment mentioned was “(t)he crime scenes are located in places that are not under the United States’ control and, therefore, the United States is entirely dependent on the sovereign country where the attack occurred for assistance and cooperation in these investigations.” Therefore, the DOJ could not guarantee that everything would be done by the letter of U.S. criminal law, and that there would be no resulting problems with the chain of custody of the evidence and the admissibility of confessions.  

This DOJ letter echoed a statement that was sent in an email last month to the Parents Forum for Justice, a group of American citizens and parents whose children were killed or wounded by Palestinian terrorists in Israel.   It also echoed what the DOJ and OJVOT have been saying – both on and off the record – to the American victim’s families since 2005, when the OJVOT came into existence.   And it even mirrored the complaints of the DOJ prior to the creation of the OJVOT. Since the DOJ letter never mentioned nor referenced any of the specific terrorist cases that the earlier letter had listed, we have to assume that the DOJ believes it is unable to prosecute all of the Palestinian terrorist cases, including Tamimi’s, for the reasons stated in their response letter.      

Now, I don’t normally give out free legal advice on legal matters. After all, it isn’t considered proper to do so, and, besides which, I am not a practicing attorney. But this Justice Department argument, in reference to the Tamimi case, is patently ridiculous. It is certainly true that Tamimi’s terror attack occurred in Israel, and that the Israelis may not have been as careful with the crime scene, for evidentiary purposes, as the American police would have been. However, remember this video.  Tamimi has actually admitted to her crime!  And under U.S. law, this taped admission is not banned “hearsay” by Tamimi and may be used in court to convict her.  This is because Tamimi, as the defendant in a U.S. criminal prosecution, would meet the definition of a “party opponent,” and thus, under the federal rules of evidence, anything she says would be admissible in court.  See FRE 801(d)(2)(A):

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay …

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: … (2) An Opposing Party’s Statement.  The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity.

In addition, in the video, we can see that Tamimi spends a lot of time smiling when the terrorist attack is brought up, and especially when she learns the true death toll of children from it.  In court, these smiles are not considered “statements,” which may be hearsay, but are instead considered “physical manifestations.”  For this reason, they are admissible even without a hearsay rule exemption or exception.  In a U.S. legal case, all the prosecution would need to do to get all this evidence before the jury is to prove the authenticity of the videotape so that there’s a reasonable basis for the jury to believe that it is, in fact, Tamimi who is making the statement.  The defense will complain about this, but it is not like the tape shows any evidence that Tamimi was forced – by coercion or physical beatings – to admit to her terrorist actions.   Indeed, she was clearly proud of them.

Contrary to the DOJ’s argument in their response letter, there is no credible legal reason that I can see that would bar them from prosecuting Ahlam Tamimi for her 2001 terrorist crime against six American citizens.  And in fact, another American law – 18 USC Chapter 113b Section 2332 – actually demands that they prosecute her:

Sec. 2332. Criminal penalties

-STATUTE-

(a) Homicide. - Whoever kills a national of the United States, while such national is outside the United States, shall - (1) if the killing is murder (as defined in section 1111(a)), be fined under this title, punished by death or imprisonment for any term of years or for life, or both;…

(b) Attempt or Conspiracy With Respect to Homicide. – Whoever outside the United States attempts to kill, or engages in a conspiracy to kill, a national of the United States shall -

(1) in the case of an attempt to commit a killing that is a murder as defined in this chapter, be fined under this title or imprisoned not more than 20 years, or both; and (2) in the case of a conspiracy by two or more persons to commit a killing that is a murder as defined in section 1111(a) of this title, if one or more of such persons do any overt act to effect the object of the conspiracy, be fined under this title or imprisoned for any term of years or for life, or both so fined and so imprisoned.

The time for excuses is past. The Justice Department needs to bring Ahlam Tamimi to justice for her terrorism against Americans.