Bus on Jaffa Road

by Mike Kelly

  Despite those obstacles, Graney and the others from the Justice Department team had already focused much of their attention on one case and one suspect—the bombing of the Number 18 bus by Hassan Salameh.

  Of all the possible crimes assessed by the Americans, Salameh’s role in the Jaffa Road bombing seemed to have the most definitive evidence that could lead to a clear conviction in a US court. The FBI agents and Justice Department prosecutors were primarily drawn to the fact that Salameh had already confessed in detail about how he built the bomb, recruited the suicide bomber, and directed the overall plot. They also knew he had asked to be executed. Could the agents and prosecutors collect enough evidence in Israel to convict Salameh of murder and grant his wish?

  By the fall of 1998, Steve Perles and Tom Fay also wanted Salameh in a US court—at least, they wanted his testimony.

  Salameh’s interview on 60 Minutes in August was one of those potentially transformative moments that every lawyer dreams about after filing a lawsuit. As in the lawsuit by Stephen Flatow against Iran, Perles and Fay initially planned to follow a similar strategy with the Duker-Eisenfeld case by turning to Patrick Clawson and his analysis of terrorist funding that linked Iran to Hamas. The emergence of Hassan Salameh changed that strategy, though. With Salameh, Perles and Fay had a potential witness who not only described how he built the bomb that killed Sara and Matt, but admitted that he had learned bomb-making in Iran. Perles and Fay still planned to call Clawson to the witness stand. But as powerful as his testimony had been in the Flatow case, Perles and Fay believed that Salameh’s detailed description of his Iranian training would carry even more weight before Judge Lamberth.

  Salameh had already admitted his Iranian connection to Israeli interrogators—in far greater detail than his 60 Minutes segment. During those interrogations he had even drawn a diagram for them of the bomb he designed for the Number 18 bus. Salameh’s own words had been introduced as evidence in his trial in Israel more than a year before. But neither Perles nor Fay knew anything about Salameh’s confessions to the Israelis—or his public trial in the military court in Beit El. Until the 60 Minutes broadcast in August 1998, Perles and Fay did not even know that Hassan Salameh existed, much less that he was the leader of the team of Hamas operatives in the Jaffa Road bombing. Even though Salameh’s arrest had been major news in Israel and his trial and conviction were also widely covered by the Israeli media, no police officials in Israel—or in the US—notified the Duker and Eisenfeld families that their children’s killer had been brought to justice.

  Adding to the confusion was the fact that Salameh’s appearance on 60 Minutes in August 1998 was actually a rebroadcast of a segment on his suicide bombing operations that first aired in October 1997. So his name and his story had been in the public domain in America for almost a year before Perles and Fay learned of him and what he had done. Len Eisenfeld, of course, had already received the State Department letter with Salameh’s name. But the description of Salameh had been so brief that Len did not consider him a major suspect either. But after the 60 Minutes story was rebroadcast in August 1998, Perles and Fay were determined to learn more about Salameh, and from the man himself if possible.

  They asked for more footage from 60 Minutes, but were turned down. Perles and Fay then turned to another source. From their contacts in Israel, they learned that Salameh confessed extensively to Israeli authorities. ­Perles and Fay asked for a transcript, but Israeli law enforcement authorities balked, claiming that Salameh’s revelations were classified as top secret.

  Perles did not expect much help from the US government, so he decided to try something different. He remembered an old contact of his in Israel—a former spy in the Mossad. Could he help? Perles figured he would take a chance.

  Meanwhile, Flatow turned again to Senator Frank Lautenberg for assistance. Lautenberg had already alerted Clinton’s staffers that he planned to champion Flatow’s efforts to collect on his court judgment against Iran. If those efforts ran counter to White House policies, so be it.

  Lautenberg moved forward with his threat to insert an amendment in an annual Treasury Department appropriations bill that would allow US citizens like Flatow who won court judgments against terrorist-sponsoring nations to seize embassies or other diplomatic properties of those nations. It was a bold step to draw attention to the issue. At the same time, Lautenberg was careful not to embarrass Clinton. So Lautenberg also inserted the clause that allowed Clinton to cancel or waive the amendment “in the interest of national security.”

  It was the political equivalent of an escape hatch for the president. On October 21, 1998, Clinton used it. As the team of Justice Department prosecutors and FBI agents were hard at work in Jerusalem, Clinton exercised that waiver. Stephen Flatow would have to wait still longer to collect on his judgment.

  “The United States has been unrelenting in the fight against terrorism,” the White House said in a statement, noting, “we have also supported efforts to obtain justice on behalf of victims of terrorism, including Alisa Flatow.” But “the struggle to defeat terrorism would be weakened, not strengthened” if the Flatow family was allowed to seize the Iranian Embassy or other properties. “Other countries could retaliate, placing our embassies and citizens overseas at grave risk,” the statement continued. “Our ability to use foreign properties as leverage in foreign policy disputes would also be undermined.”

  The statement ended by noting “the administration stands ready to work with the Flatow family” and “will work to achieve justice for Alisa Flatow.”

  Stephen Flatow did not believe it. He no longer trusted Bill Clinton.

  In Jerusalem, the FBI agents and prosecutors drew up a list of what they needed from their Israeli counterparts. The document ran on for three single-spaced pages and included photographs, police files, names of aliases of Palestinian suspects, video tapes, and requests to interview Israeli investigators. At the top of the list was Hassan Salameh’s name. The US agents and prosecutors wanted records of his “indictment, verdict, and sentence.” They also asked for what they described as the “Hassan Salameh statement,”—the transcripts of Salameh’s four interrogations during a six-month period in 1996.

  The American team already had obtained but could not read copies of statements from five other Hamas operatives who helped Salameh in the Jaffa Road bombing; the statements were written in Hebrew and the team was still waiting for Justice Department translators to convert them to English. The Salemeh confessions were more elusive. In reading ­Salameh’s indictment, which they had translated into English, FBI agents and prosecutors knew that Salemeh had confessed to the Jaffa Road bombing and other attacks. But Israeli authorities had still not handed over any of the transcripts of Salameh’s interrogations.

  Meanwhile, other problems loomed. In Washington, the chief of the Terrorism and Violent Crime Section, Jim Reynolds, worried that his team was being forced to develop a case merely for symbolic reasons and to soothe politically charged requests from Congress and advocacy groups such as the Zionist Organization of America. Reynolds was concerned that his team’s efforts to collect evidence might be so bogged down and limited that the Justice Department could not mount a strong criminal case in a US court. The last thing Reynolds wanted was to indict and extradite a high-profile terrorist such as Hassan Salameh and then lose the case on American soil—with US politicians and the media watching. “We only indicted if we felt we could successfully prosecute the case,” Reynolds said years later. “We did not indict for show reasons.”

  One of Reynolds’s prosecutors on the ground in Jerualem, Jeffrey Breinholt, harbored similar concerns. Breinholt had spent weeks assembling files on each of the Americans who had been killed. Now, Breinholt realized that most of the cases were seriously flawed—not necessarily because there was any doubt that a murder had occurred but because the Israeli system of collecting evidence did not come close to matching Justice Department standar
ds.

  “The question was always whether we had admissible evidence,” Breinholt said. “The admissible evidence came from a certainty that what we had could be introduced in an American court.”

  In assessing all the possible prosecutions, however, Breinholt came to believe that the case against Hassan Salameh was the strongest, in part because Salameh had confessed. But even if Breinholt was able to obtain a copy of Salameh’s confession, another question haunted him and the other US prosecutors: How did they know Salameh had spoken freely and that his confession was not coerced in some way by police?

  Breinholt and the others from the Justice Department Team at the American Colony had no idea. Israeli law enforcement officials—and Salameh’s court records, for that matter—did not shed much light on the matter either.

  At that time, Israeli law enforcement authorities occasionally were given permission by judges to use physical force to prod prisoners to divulge information, especially in terrorism cases. In December 1996, after Salemeh had been interrogated four times and admitted carrying out the Jaffa Road bombing and other attacks, the Israel Supreme Court issued a special ruling, granting Shin Bet permission to use force in additional interrogations of Salameh to gain information on future attacks by Hamas. But the Court ordered Shin Bet officials to explain within forty-five days why they felt it was “necessary” to now use physical force against Salameh.

  It was never clear to Breinholt and the others on the US team whether Salameh had been roughed up or forced to talk in those later interrogation sessions—or whether those sessions even took place. No records of additional interrogations of Salameh were introduced in his trial in 1997. (In an interview with this author, Salameh never spoke of being tortured. In later years, Israeli courts also invoked severe restrictions on the use of physical force in police interrogations.)

  The Americans eventually were given only a declassified version of Salameh’s four interrogations that took place before the Israeli Supreme Court granted Shin Bet permission to use physical force against Salameh. There was no mention in the documents about additional interrogations or any use of force.

  But Breinholt foresaw major problems if Salameh was brought to the United States to stand trial. Although the declassified transcripts of Salameh’s four interrogation sessions contained a wealth of information, including detailed descriptions of how Salameh was trained in Iran, how he smuggled explosives into Israel, recruited the suicide bomber, and assembled the explosives that destroyed the Number 18 bus and other buses in two other attacks, Breinholt never was able to obtain a convincing answer to his question of whether any of Salameh’s statements were coerced during any part of his captivity.

  That lack of a clear explanation bothered Breinholt and the other US prosecutors deeply. If there was any hint that Salameh had been subjected to physical coercion—and certainly a ruling by Israel’s Supreme Court granting Shin Bet permission to use force might be viewed as evidence enough—Breinholt feared that an American defense lawyer would pounce and attempt to discredit all of his testimony in a US trial.

  Breinholt eventually surmised that Salameh’s confessions were not coerced, though he couldn’t prove it. It was just a gut feeling he had. But gut feelings do not satisfy the Justice Department’s demanding standards of evidence. If the American team was going to use Salameh’s words against him, they concluded that they could not rely on Salameh’s confession to Israeli police.

  They had to interview Salameh themselves. But when? After three weeks, the team left Jerusalem and returned to Washington.

  Their goal to build a murder case was a long way off.

  When prosecutors collect evidence in a criminal case, they periodically assess what they have and what they still need. The team of prosecutors and FBI agents who went to Jerusalem in October 1998 were no different. The team returned to their offices—a portion of a floor of an otherwise nondescript Washington office building named after Revolutionary War patriot Patrick Henry and just a short walk from the courthouse where Judge Lamberth presided. With other members of the Justice Department’s section on Terrorism and Violent Crime, they began the meticulous process of sorting through the reports and other pieces of evidence they were able to obtain from Israelis.

  On November 18, Jeff Breinholt wrote a twelve-page, single-spaced memo to his section chief, James Reynolds, in which he summarized each potential case the team was trying to build. He described the separate shooting deaths of Americans David Ungar and David Boim in Israeli communities on the West Bank in May and June 1996. He detailed the kidnapping and murder in October 1994 of an Israeli soldier, Nachshon Wachsman, who had dual US and Israeli citizenship. He examined the killing of a visiting Connecticut teacher, Joan Davenny, in August 1995 in a bus bombing in Jerusalem, the killing of Leah Stern in a July 1997 bombing at a market near Jaffa Road and and the death of Yael Botwin in a similar bombing two months later.

  In assessing Alisa Flatow’s case, Breinholt noted that of the nine Palestinian operatives who participated in the bombing of her bus, two had been killed and two more were imprisoned in Israeli jails. Breinholt could not determine the status of five others—including Adnan al-Ghoul, who had previously been linked to Hassan Salameh. Breinholt noted they were “either in PA (Palestinian Authority) custody or at large in Palestinian-controlled areas.”

  It was not a good sign. Breinholt’s brief notation of the status of the five operatives illustrated one of the fundamental obstacles that the team of FBI agents and prosecutors faced in Israel. With the Israeli-­Palestinian conflict still in dispute, the already arduous process of tracking down suspected murderers was even more difficult because of the lack of credible police record keeping by Yasser Arafat’s Palestinian government. At the same time, the American team found it could not even conduct basic interviews with the Israeli police detectives who investigated Alisa Flatow’s murder. “We were not able to speak to any of the police officers assigned to these cases,” Breinholt wrote.

  Breinholt’s assessment of the Duker-Eisenfeld case was slightly more hopeful, though he cited nagging problems. For instance, basic Israeli police reports of the bombing had still not been translated into English. And while Israeli authorities gave the Americans the autopsy reports for Matthew Eisenfeld and Sara Duker, crime scene photos of the bombing, a summary of the chemical analysis of the explosives, and allowed the team to speak with eight police officers assigned to the bombing—including Detective Koby Zrihen—the FBI agents and US prosecutors had not been able to review any statements from an eyewitness.

  Breinholt also pointed out the mystery involving Nafez Mahmoud Sabih. “His role in the attack is not obvious,” he wrote.

  Breinholt then turned his attention to Hassan Salameh. Breinholt felt that federal prosecutors could build a solid criminal case against Salameh if they could convince him to cooperate as the Israelis had done. But Breinholt was concerned about whether Salameh would talk as extensively to FBI agents or a team of federal prosecutors. So Breinhold recommended that Salameh’s interview on 60 Minutes be analyzed by an FBI behavioral scientist who could develop a strategy “on how best to approach him.”

  As for Salameh, Breinholt was not hopeful that he would cooperate. “The Israeli prosecutors are not optimistic about Salameh’s willingness, his braggadocio notwithstanding,” Breinholt noted.

  Four months later, Jeff Breinholt walked into a hearing room in the Dirksen Senate Office Building on Capitol Hill for a Foreign Relations subcommittee meeting. By his side was Mark Richard, the deputy assistant attorney general from the Justice Department’s criminal division. In the world of Washington politics, the hearing was another opportunity for competing political agendas to rub up against the reality of government. In this case, that friction was about whether the Justice Department and FBI would bring Palestinian operatives to America for a trial. Besides Breinholt and Richard from the Justice Department, the former US Ambassador to
Israel, Martin Indyk, who was now the assistant Secretary of State for Near Eastern Affairs, was also there. So were Stephen Flatow and Len and Vicki Eisenfeld.

  At issue before the subcommittee was a proposal to send $400 million in aid to the Palestinian Authority to build roads, improve health-care programs, and hire additional police officers. The financial aid package was viewed by the Clinton administration as a necessary ingredient to help Yasser Arafat build a Palestinian government and, eventually, a nation.

  Indyk urged Senators to approve the $400 million package, noting that future negotiations of the multiple steps in the Oslo peace process depended on Palestinians receiving substantial funds to strengthen their government. But several senators—notably Arlen Specter, the Pennsylvania Republican, and New Jersey’s Frank Lautenberg—wanted to use the $400 million as leverage to gain more cooperation from the Palestinian Authority to prevent terrorist attacks and to track down Hamas and Islamic Jihad operatives who had planned them.

  Unlike Martin Indyk, Jeff Breinholt was not a diplomat. But as he sat in the hearing room that morning on Capitol Hill, he grew uncomfortable as he sensed that the Justice Department had been drawn into the complicated web of Middle East and American politics. Breinholt had concluded privately that most of the so-called “AmCit” cases—the murders of Americans by Palestinian terrorists—were difficult to prosecute. But if the Justice Department wanted to take a shot at prosecuting one of them as a test case, Breinholt felt that indicting Hassan Salameh for murder was a good place to start.

  “I felt we should bring one of the cases to a trial,” Breinholt said years later. “Salameh’s case was the strongest.”