by Mike Kelly
Along with Vicki and Len Eisenfeld, Arline Duker had been following Flatow’s battles with the Clinton administration. In the two years since Sara and Matthew had been killed, the families had grown closer, and the prospect of mounting a legal case had been cathartic in some ways, yet also distressing.
“You’re always thinking about it,” said Vicki.
Even as they watched Flatow confront the legal and political roadblocks that emerged after Judge Lamberth’s ruling, Arline, Vicki, and Len felt energized. On August 10, 1998, they formally filed their lawsuit against the Islamic Republic of Iran for the wrongful deaths of Sara and Matt. Their legal strategy was similar to Flatow’s in many respects. Iran was cited as the primary financier and some of the witnesses who testified in Flatow’s case, including Patrick Clawson, had agreed to appear on their behalf.
Thirteen days later, however, Arline, Vicki, and Len received an unexpected gift that would strengthen their case in ways they never expected.
Hassan Salameh, whose name had only seemed like a brief footnote in the letter more than a year earlier from State Department counterterrorism director Kenneth McKune, had decided to speak publicly. In an interview from prison, broadcast on the CBS newsmagazine 60 Minutes for a segment entitled “Suicide Bomber,” Salameh described how he orchestrated the bombing of the Number 18 bus on Jaffa Road.
Salameh drew a diagram of the bomb he assembled. He described why he chose the Number 18 bus and how he recruited the bomber, Majdi Abu Wardeh, from the al-Fawwar refugee camp. Much of what Salameh said mirrored his confession to Israeli authorities and the evidence presented at his trial before the military court in Beit El.
But until that point, Arline, Vicki and Len knew nothing about Salameh’s confession or his trial. No one had ever told them.
Vicki happened to be watching 60 Minutes.
“Oh, my God,” she said. “That’s the guy who did it.”
Chapter 12
Several months after the Duker and Eisenfeld families filed their lawsuit against the Islamic Republic of Iran, two FBI agents arrived in Jerusalem, accompanied by two prosecutors from the US Department of Justice. The group had come from Washington with the permission of the Israeli government but otherwise took great pains not to attract attention.
There was no press conference, no entourage of guards. The FBI agents did not even bring their guns. The four-man team quietly checked into the American Colony Hotel, a former pasha’s villa on Jerusalem’s northeast side that became a Christian pilgrims’ hostel in the late 1880s and was now a favorite hangout for visiting diplomats, academics, journalists, entertainers, and Israeli and Palestinian officials who needed a quiet spot to talk. To many in Jerusalem, the Colony, with its thick walls surrounding a quiet courtyard of olive and palm trees, was considered one of the city’s few neutral meeting spots—so neutral that it hosted secret preliminary sessions of the Oslo peace negotiations. But the mission assigned to the American agents and prosecutors who arrived there had nothing to do with diplomacy or resolving the Israeli-Palestinian conflict. They were in Jerusalem to collect evidence for a murder case.
By the fall of 1998, the hopeful aura of the Oslo accords had been nearly eviscerated by the series of attacks by Hamas and Palestinian Islamic Jihad. Besides Alisa Flatow, Matthew Eisenfeld and Sara Duker, eight other Americans had perished in various attacks across Israel, the West Bank, and the Gaza Strip since the Oslo accords had been signed in 1993. Several dozen others had been injured, along with hundreds of Israelis.
The carnage did not go unnoticed in America. Stephen Flatow’s dramatic court ruling drew attention to the increasing number of attacks and the number of Americans killed or wounded. But in addition to a growing interest by victims’ families in filing civil lawsuits similar to those by the Flatows, the Dukers, and the Eisenfelds, a parallel effort was building to deal with terrorists in a more conventional manner—by arresting them in the Middle East, extraditing them to the US, and putting them on trial for murder, with possible punishments that included lengthy prison sentences and even the death penalty. In essence, these criminal prosecutions of terrorists would extend US laws far beyond the civil lawsuits of the Flatow, Duker, and Eisenfeld families and their uncertain struggle over collecting financial rewards.
Israeli authorities had been conducting trials of alleged terrorists for decades. They filled prisons with hundreds of Palestinians convicted in bombing plots and others detained under controversial security laws that had been harshly criticized by some Israeli legal scholars as violating due process and human rights. Hassan Salameh was already beginning his sentence of forty-six consecutive life terms in an Israeli prison. But as the toll of Americans killed in terrorist attacks rose during the mid-1990s, several Congressional leaders and others pushed for the FBI and Justice Department to examine whether they could prosecute terrorists in criminal trials on US soil.
The Antiterrorism and Effective Death Penalty Act not only gave US citizens the right to file lawsuits against nations that sponsored terrorism but also contained provisions that made it easier for federal prosecutors to file criminal charges against terrorists and even to seek the death penalty. But the legal issues in these types of criminal cases seemed daunting amid the Israeli-Palestinian conflict. How would US investigators collect evidence? Would the Israelis cooperate with the FBI or other US law enforcement agencies in tracking down alleged terrorists, especially if the investigations touched on issues of Israel’s classified military intelligence? Would the Palestinians cooperate? And how would America’s long-standing constitutional standards of due process be applied to alleged acts of terrorism in that part of the world?
Also troubling were the inherent diplomatic issues posed by these cases. With the US government actively trying to salvage the Oslo accords and pursuing a settlement to the Israeli-Palestinian conflict, the prospect of teams of American investigators arriving in that troubled land and charging Palestinian operatives with murder might have seemed counterproductive, especially now that some of these cases could result in a death sentence. US State Department officials worried that future negotiations with Palestinian officials over various pieces of the Oslo accords would collapse. Adding to the complexity was the fact that some Palestinian officials were uncomfortably close to terrorist operatives. As more Americans were killed or injured, such links could not easily be overlooked or forgotten.
For decades, Yasser Arafat was considered a terrorist by many in Israel and throughout the world, including diplomats who were trying to negotiate with him to complete the Oslo accords. America’s special Middle East envoy, Dennis Ross, said he harbored deep suspicions about Arafat’s links to ongoing terrorist attacks. And in light of Arafat’s warning to stay away from Jerusalem on the February 1996 Sunday when Hassan Salameh’s bomb destroyed the Number 18 bus on Jaffa Road, Norway’s Terje Roed-Larsen also came to share Ross’s misgivings about Arafat. Meanwhile, among many Israeli officials, Arafat remained a largely mistrusted figure, but one they nevertheless had to deal with, for now.
Arafat was not the only concern for diplomats. Palestinian security chief, Jibril Rajoub, had also been linked to attacks against Israel years before. His new title within Arafat’s fledgling government initially brought Rajoub some respect with Israelis. But questions about Rajoub were again raised after his cousin Rizzek Rajoub was arrested driving the car that carried Hassan Salameh on the night Salameh was arrested in Hebron. Before capturing Salameh, Israel’s Shin Bet had turned to Rajoub for help in tracking down Salameh. But Rajoub’s security apparatus offered few leads on Salameh’s whereabouts. Now, knowing that Salameh was hiding with one of Rajoub’s cousins—a distant cousin, but nevertheless related—only added to the suspicion about the links of Palestinian leaders to terrorist attacks that were slowly eroding the trust that many felt was critical to the survival of the Oslo peace process.
For US diplomats such as Ross who worked feverishly
to save the Oslo process, the implications of the continued attacks on American citizens and the possibility that US authorities would launch criminal investigations were daunting. How could the US credibly cast itself as a neutral player in the Israeli-Palestinian conflict if it was also trying to arrest Palestinians and bring them back to the US to stand trial?
As the Duker and Eisenfeld families still weighed the pros and cons of filing a civil lawsuit against Iran—and months before Flatow’s case went to trial before Judge Lamberth—the Zionist Organization of America, a pro-Israel advocacy group based in New York City, called on the US government to mount criminal cases against Palestinian operatives involved in attacks that killed Americans. In a letter, the group’s president, Morton Klein, specifically requested that US law enforcement authorities consider arresting a Palestinian activist, Nafez Mahmoud Sabih, who was suspected as playing a role in the attack on the Number 18 bus on Jaffa Road and the killing of Matt Eisenfeld and Sara Duker.
But as US and Israelis law enforcement officials would learn—far too late and after far too many expectations had been raised for the Dukers and Eisenfelds—Sabih was not involved in the Jaffa Road bombing. The story of the brief but occasionally heated campaign to bring him to America for a criminal trial illustrated the complexity in setting up an extradition process with Israel and the Palestinians. It also revealed an even more fundamental problem: How to identify who was a suspect in an attack and who was not.
Soon after the Jaffa Road bombing, Israeli authorities listed Sabih as a suspect. His name also surfaced in several media reports. But the lack of firm evidence of his connection to the bombing should have been a warning.
Israel discovered that Sabih had not only gone into hiding but had escaped to an undisclosed location in either the West Bank or the Gaza Strip—all areas controlled by Arafat. Israeli authorities formally requested that Palestinian police track down Sabih and send him back to Israel for trial. Soon, a variety of American political figures and others raised the question of whether Sabih could also be brought to the US for trial after the Israelis were finished with him in their courts.
Rather than assessing the evidence against Sabih—if there was any—and determining whether it provided a credible link to the Jaffa Road bombings, US and Israeli officials quickly became caught up in another controversy about Sabih. Arafat’s security forces declined to cooperate with Israel in tracking down Sabih. With Sabih still hiding as a fugitive—and Arafat not helping to find him—Israeli and US officials again questioned whether Arafat could be trusted.
Back in the US the pressure to capture and extradite Sabih even emerged when Dennis Ross received an honorary degree in May 1997 from the Jewish Theological Seminary. “This community has been devastated by the loss of our students and we particularly felt the loss of Sara and Matt here,” said the seminary’s vice chancellor and dean, Rabbi William Lebeau, in a statement about Sabih’s status as a fugitive in either the West Bank or in the Gaza Strip. “My own personal message to Mr. Ross will be that [Mr. Sabih] will be extradited to Israel and brought to trial there.”
Morton Klein showed up at the seminary to hand out leaflets demanding Sabih’s arrest and extradition. Attorney Nathan Lewin, who was representing the family of another American victim, David Boim, also called for Sabih’s capture. Asked by seminary students in a question-and-answer session how he felt about Sabih, Ross said: “The Palestinians are required to act if they haven’t imprisoned these people. Our concern is that they be arrested and prosecuted to the fullest extent.”
The issue soon caught the attention of the US Justice Department. Two months after Ross visited the seminary in New York and six months after Morton Klein wrote a letter requesting Sabih’s extradition, Deputy Assistant Attorney General Mark Richard addressed the issue. In a letter of July 31, 1997, Richard, who oversaw the Justice Department’s Terrorism and Violent Crime section, noted that Sabih “is suspected of helping plan” the Jaffa Road bus bombing. “I share your outrage about this cowardly act of violence,” Richard wrote. “The United States is committed to seeing that the perpetrators of these and similar acts are brought to justice, whether in the United States or in another country that has criminal jurisdiction.”
Richard went on to explain that the FBI and federal prosecutors “have been working on this case with Israeli law enforcement authorities,” but that “since this is an open case, I hope you will understand that I am not in a position to provide additional information.”
But what case was Richard actually referring to? If the FBI and Justice Department had done any basic research at that point, they would have discovered that Sabih was no longer considered a major suspect in the Jaffa Road bombing. By late 1996—and certainly by July 1997 when Hassan Salameh had been convicted and sentenced to forty-six life terms in prison—Israeli investigators had begun to doubt whether Sabih was involved in the Jaffa Road attacks at all.
It’s still unclear why Mark Richard did not know that. Nor is it clear why Richard did not mention in his letter that Salameh, the bomb-maker and prime planner of the Jaffa Road bombing had been convicted and sent to prison in Israel. Richard has since died. Decades later, the FBI and Justice Department refused to discuss the investigation into the Jaffa Road bombing, claiming that it is still an open case.
In hindsight, it seems entirely likely that the FBI and Justice Department, despite promising only days after the Jaffa Road bombing to mount an investigation, had done almost no work on the case in 1996 and 1997, preferring to leave the investigation and collection of evidence in the hands of Israeli police and Shin Bet agents. Richard’s letter says as much: “Because the attack occurred in Israel and involved a great many Israeli casualties, we understand that Israeli authorities have brought criminal charges and are seeking the extradition of the alleged perpetrator.”
But a clue to Richard’s erroneous assumption about Sabih might be found in the January 21, 1997, letter from the State Department’s counterterrorism chief Kenneth McKune to Len Eisenfeld, listing the Palestinian operatives who were considered to be suspects in the Jaffa Road bombing. Salameh was mentioned—and his role described in a minimal way. Sabih was also listed, and McKune wrote that he “has been connected” to the Jaffa Road bombing.
In his letter, McKune noted that “Israel requested” Sabih’s “transfer” from the Palestinian Authority in July 1996, but that Sabih “is believed to be at large” in the West Bank or Gaza. “We do not know,” McKune wrote, “if he is considered a fugitive by the PA.”
It’s not clear how McKune assembled the list or his information on Sabih—or Salameh, for that matter. (McKune declined to be interviewed.) Nor is it clear whether he tried to obtain updated information about Sabih from Israeli authorities when he wrote his letter to Len Eisenfeld. If he had, perhaps the campaign to extradite Sabih would have evolved differently—or not at all. But McKune’s assessment of Sabih reflected the belief by US officials at that time that he was involved in the Jaffa Road attack. Unfortunately, it seems to be based on old and incorrect information.
For US authorities, the strategy of looking to Israeli law enforcement officials to take the lead in investigating Palestinian attacks in which Americans had been killed or wounded changed in October 1998 when the team of FBI agents and federal prosecutors moved into the American Colony Hotel. The team was part of the Justice Department’s Terrorism and Violent Crime section, which had been formed five years earlier and had already become involved in several notable investigations, including the Oklahoma City bombing and the growth of the Branch Davidian cult. Before leaving Washington for Jerusalem, the group began assembling case files on each American death in Israel, all under the same heading of “AmCits”—an abbreviation for American citizens. While each case differed, all were linked in the minds of the Justice Department’s team by a singular question: Could the Palestinian operatives involved in these killings be tracked down, arrested, and extradit
ed to the United States to face criminal trials and, if convicted, be given long prison sentences or perhaps the death penalty?
That question yielded no easy answers. The investigative process in Israel sometimes appeared to be as complicated as negotiations for the Oslo accords. Counterterror agents from Israel’s Shin Bet, for example, generally were assigned to collect evidence and interview Palestinian suspects. But Shin Bet agents, who preferred to keep their identities secret so they could retain their undercover status, rarely testified in court. Or if Shin Bet agents took the witness stand, they used false names and spoke from behind a screen to protect their identity. In most cases, Shin Bet investigators passed their evidence to Israeli police who took the witness stand for them. While that process may have suited the Israeli court system, to the FBI and federal prosecutors it was not only cumbersome, but the use of police officers to pass on evidence collected by Shin Bet agents might be considered hearsay in an American court and probably challenged by a judge or a defense lawyer.
Justice Department officials had spent months negotiating with their Israeli counterparts on gaining permission to review case files on the attacks in which Americans had been killed. But even those files could be confusing. Simply finding correct spellings of names of Palestinian suspects or sorting out aliases became an arduous task, along with determining the whereabouts of those suspects or whether they were even connected to a particular attack at all.
Finally, there was the matter of assessing the forensic evidence from crime scenes, which had been collected by Israeli investigators under standards that were far less exacting than those followed by the FBI or the Justice Department. Israeli police, for example, took great pride in how fast they cleared away rubble from a terrorist bombing and reopened a road or an intersection. For the FBI, however, a quickly cleaned site of any crime—especially a bombing—was the hallmark of a flawed case that could be easily challenged and eventually discredited by a skilled defense lawyer. “The kind of crime scene that we would take six or seven days to examine, they would clean in six or seven hours,” said Tom Graney, one of the FBI agents who came to Jerusalem.