At approximately 6:30 AM on February 26, 2003, upstate New York oncologist Dr. Rafil Dhafir pulled out of his driveway in Fayetteville, heading to his practice in the underserved area of Rome; he has never returned. Just moments later, he was pulled over and arrested by two federal investigators and a New York state trooper on charges that he had violated International Emergency Economic Powers Act (IEEPA) by sending food and medicine for 13 years through his charity Help the Needy (HTN) to sick and starving Iraqi civilians. Back at the house he had just left, Mrs. Dhafir was now standing in her entryway with five guns pointed at her head after government agents broke down the door because she had failed to answer quickly enough.
In this operation code-named Imminent Horizon, four others associated with the charity were simultaneously arrested: two in the Syracuse area, one in Boise, Idaho, and one in Amman, Jordan. From 6 to 10 AM that Wednesday, 150 local Muslimfamilies were interrogated. Immigration agents visited noncitizens, FBI agents visited citizens and IRS agents visited doctors' offices and other businesses.
As Kelly Tubbs, Dhafir's office manager and transcriptionist, pulled into her usual parking spot, government agents in flak jackets with guns immediately surrounded her car. She attempted to introduce herself, but the agents told her there was no need to since they knew exactly who she was. Well trained by Dhafir to take the utmost care of patients, she begged to be allowed to call to tell them not to come to the office. She was not allowed to. (Had the office been raided on a Friday, when staff had their office meeting, no patients would have been present.) Agents seized the office contents - including all the patients' medical records. It took six weeks before patients received their records back.
The arrests were accompanied by a media circus: helicopters hovering over Dhafir's house and all day-reports of the comings and goings of 80 federal agents. Attorney General John Ashcroftannounced that "funders of terrorism have been arrested" and Gov. George Pataki claimed the arrests proved the existence of "... terrorists living here in New York state among us ... who are supporting or aiding and abetting those who would destroy our way of life and kill our friends and neighbors."
Initially, local prosecutors also followed the "terrorism" line and Assistant US Attorney Greg West argued that because HTN defendant Ayman Jarwan had degrees in nuclear and radiological engineering, he was capable of making a dirty bomb and therefore shouldn't receive bail. (He did.) A groundswell of public support after the arrests meant that local prosecutors backed away from "terrorism" charges and instead said that Dhafir was a common thief. Dhafir was still held and denied bail on five occasions.
Seven government agencies had been conducting extensive surveillance on Dhafir and HTN for many years. They intercepted his mail, email, faxes and telephone calls; bugged his home, office and hotel rooms; went through his trash; and conducted physical surveillance. On one occasion, a hotel room in Washington, DC, was bugged and the government had seven translators listening in to the conversation (though none of the translators spoke Dhafir's dialect). Nothing related to terrorism was uncovered and no charges of terrorism were ever brought against Dhafir.
The first indictment against Dhafir contained 14 charges related only to the Iraq sanctions. Later, when Dhafir refused to accept a plea agreement, the government piled on more charges and he finally faced an indictment of 60 counts of white-collar crime at trial. State and national level government officials continued to tar Dhafir with the terrorism brush via the media, and just before his trial began - when he had already been held for 19 months -Governor Pataki described the case as a "money laundering case to help terrorist organizations ... conduct horrible acts." It was an announcement perfectly timed to reach potential jurors.
The trial was conducted on the 12th floor of the Syracuse Federal Building, which was reached after passing two security points.Inside the courtroom, there were two court guards who changed regularly, one at each exit. And because Dhafir would not submit to a strip search (on religious grounds) as he was ferried from prison to the trial, two federal marshals were also always present in the courtroom, one sitting adjacent to the jury and one directly behind Dhafir. There were five of these federal marshals who traded off approximately every 40 minutes in full view of the jury. The changing of the guard took place at least 250 times during the proceedings and was a powerful nonverbal message to the jury.
Three prosecutors sat close to the jury, while behind them, at another table, were three government agents who remained there throughout the trial except when they were testifying. FBI Agent Jim Kolbe testified for 16 days, eight of them as the sole witness and eight of them as one of only two witnesses: it was his testimony that, essentially, convicted Dhafir. Social Security agent Michael McCole testified for about 20 minutes. The Defense Department agent, a young, blonde woman who previously worked at the Syracuse Post-Standard, did not testify.
The defense team of Devereaux Cannick, Philip Gaynor and Joel Cohen sat beyond the prosecution further away from the jury at two separate tables, one in front of the other. Dhafir mostly sat at the front table with whichever lawyer was cross-examining a witness and the other two lawyers sat behind them. Cohen typed the proceeding on his laptop because the defense had no money for transcripts (at 50 cents a page) and the court had denied a request for transcripts at the expense of the court.
A motion granted by Judge Mordue before the trial began meant the defense could not challenge the government's real reason for prosecuting Dhafir during proceedings. Such motions are often used in criminal trials by the defense to shield the jury from information that could be prejudicial to a defendant. Its use in this case had the opposite aim and effect: although prosecutors could hint at more serious (terrorism) charges throughout the trial, the defense team couldn't respond to these inflammatory innuendos head on.
Just days into the trial, FBI Agent Jim Kolbe told of items that had been found in the dumpster of an apartment building where HTN defendant Ayman Jarwan had been living. He described Islamic magazines showing military operations and said there was a gun-cleaning kit also in the dumpster (this was later shown to be from a Thanksgiving hunting trip). When Cannick tried to explore this line of questioning, the prosecution objected because a pre-trial motion it had been granted made this line of questioning inadmissible. The objection was upheld.
The defense objected and asked that the jury (and later Kolbe) leave the courtroom. In their absence, Gaynor argued that the defense should be allowed to follow up the line of questioning because it was the government that had introduced it. The defense aired other concerns about what they believed to be insinuation without proof by the government and then requested a mistrial because Kolbe's testimony "left a ringing bell in the ears of jurors" with its powerful suggestion that Dhafir was still under investigation for more serious charges that were still pending. The request was denied.
At another point in the proceedings, the prosecution referred to the religious group of Islam that Osama bin Laden was a member of, Salafi, and made the court aware that Dhafir was also a member of this particular Islamic religious tradition. (Salafi merely means a Muslim who is a strict adherent of the Koran and looks to the ancestors for guidance. It is comparable to someone in the Christian faith who looks to the Scriptures, church fathers and traditions of the early church for guidance.)
Other testimony also hinted at more serious charges pending. Because the defense was not allowed to respond to these insinuations, the proceedings at times were surreal. This was the case in the testimony of Colleen Williams, a tax preparer Dhafir had hired to help HTN sort out its tax returns and give advice on a 501(c)(3) application for the charity. (Up until then HTN had been under the 501(c)(3) umbrella of another charity, a not uncommon practice among charities. During the trial, it became clear that the government had put a hold on the HTN application, preventing it from moving forward.) The government wanted Williams to inform on HTN and she described how FBI Agent Jim Kolbe, IRS Agent Mark Sweeney and US Attorney Brenda Sannes had spent three days, first individually and then together, asking her to wear a recorder in her meetings with HTN defendant Ayman Jarwan. She described them as "waving the flag" and telling her that, "9/11 may not have happened if people were involved." She felt the HTN people "were being pursued" and got rid of them as a client after only three meetings. She never agreed to wear a wire and refused to refer the case to a government attorney.
The government called more than 50 witnesses to testify, but neglected to call two key people: Kelly Tubbs, Dhafir's office manager of ten years who was proud of the fact that Dhafir's office had never failed an audit; and Maher Zagha, a co-defendant who was the HTN representative in Jordan. Zagha organized for food, clothing and medicine to go by land and sea to Iraq. He also sent money to Dhafir's elder brother (also a physician) in Baghdad, so that animals could be bought, sacrificed and given to the needy, particularly around Muslim holidays.
Arrested in Jordan on the same day as Dhafir's arrest in the US, Zagha was held and questioned for three weeks by Jordanian authorities under FBI direction. In the end, Jordanian authorities released him, satisfied that he had indeed sent aid to sick and starving Iraqi civilians on behalf of HTN. Zagha was presented as a fugitive at trial when, in fact, he was living in the house he had always lived in and would gladly have come to the US to testify on Dhafir's behalf. Neither the prosecution nor the defense asked him to testify.
The government did not call Tubbs because it considered her a "hostile witness," and, sadly, despite Tubbs calling the defense lawyers regularly asking to testify, they did not contact her either. The total extent of government's reach in this case can be surmised by the surveillance conducted on Tubbs alone. Tubbs, who had nothing to do with HTN, had her home bugged and her telephone conversations monitored. On one occasion, government agents even entered her house and copied her computer hard drive. Told of the bugging after Dhafir's arrest, she and her husband began announcing their arrival when they got home, even alerting those "listening in" that they wouldn't be able to hear anything on the evenings her husband's band was practicing. She and her husband have since moved, and although her experience has shaken her trust in the government to the core; her trust in Dhafir remains steadfast.