by Mike Kelly
Having a strong case did not guarantee conviction, though. And that was the basic message that Richard had come to the committee to deliver as he read a statement that Breinholt helped to write.
Richard told the committee how he had traveled to Israel and to the Palestinian territories a year earlier, asking for cooperation from Israeli and Palestinian law enforcement officials. He described how FBI agents and federal prosecutors followed up during their three weeks at the American Colony in Jerusalem. Richard then cited the many problems: That most police reports were written in Hebrew, that evidence was collected under “evidentiary standards that are different from our own,” and that while Israeli investigators were willing to give the FBI access to nonclassified information, they were “not prepared to allow joint US-Israeli investigations into terrorist attacks.”
Richard did not mention Salemeh, and he deftly sidestepped the question of whether any case would be prosecuted, although he left little hope. His said the prosecutors on his team would seek an indictment “only when sufficient admissible evidence is developed and available for use at trial, such that we could obtain a conviction.” He added: “Until that point is reached in these cases, there is not a basis for our seeking the transfer of suspects being held in Israeli or Palestinian custody.”
Lautenberg tried to interject a question, but Specter, who chaired the hearing and made no secret of his impatience with the Justice Department’s investigation of the AmCit cases, cut him off.
“Let me move on to the question as to the cooperation which we have had from both Israel and the Palestinians,” said Specter, a former district attorney in Philadelphia. “I am informed that the FBI has encountered difficulties in obtaining Palestinian cooperation.”
He did not wait for an answer but pointed out that at least ten Hamas and Islamic Jihad operatives were believed to be hiding in Palestinian-controlled areas. Then he asked about whether confessions by Palestinians could be used in US courts.
“We have to judge the desirability by our standards,” Richard said. “The question about the voluntariness, the corroboration of that confession . . .”
Voluntariness?” Specter asked.
Richard was using “voluntariness” as a Justice Department code word for possible coercion. He did not elaborate in detail, but his team was concerned that the Palestinians who confessed had been subjected to some sort of physical force. Richard also mentioned “prior treatment” of the Palestinian suspects—another coded phrase that implied the use of force during interrogations.
“Well, what was the prior treatment?” Specter shot back.
Again, Richard did not offer specifics but noted that the issue of prior treatment—or physical force—“becomes relevant” to US prosecutors in weighing whether to use a confession from Israel authorities as evidence.
Lautenberg finally got his chance to speak. Instead of the criminal indictments that Specter asked about, Lautenberg brought up the civil lawsuits—specifically the judgment that Stephen Flatow was trying to collect from Iran. He turned to Martin Indyk, who was still sitting at the witness table with Mark Richard.
“I want to ask Ambassador Indyk, do you think that the civil penalties that we were able to have awarded to Mr. Flatow serve as a deterrent to terrorist groups, for state-sponsored terrorism?”
“Well, I think we have to look at the record since the judgment was made,” Indyk said. “We do not see a direct connection between the judgment and the change in behavior. In this case, we are talking about Iran.”
Lautenberg then raised the issue of whether the Clinton administration was helping Flatow track down Iranian assets.
“The biggest problem seems to be access,” Lautenberg said, adding: “I would ask, please, that you see to the extent you can that the Flatows and their representatives and the Eisenfelds have as much access as possible to records we have. That is the only way we are going to be able to see whether or not we can deter these acts before they occur.”
Indyk said he would help. A few minutes later, he asked if he could interject a comment about the larger concern of the US response to terrorism. “I want to make clear that the issue of bringing to justice terrorist suspects accused of involvement in killing Americans citizens is a high priority for the administration,” he said. “It has been a subject on President Clinton’s agenda.”
As Indyk finished, Specter turned to Mark Richard, who indicated his desire to speak again.
Richard said that “a variety of reasons” had prevented US authorities from extraditing suspected Palestinian terrorists for trial in the US. He even blamed Israel for not turning over terrorists they had imprisoned. “In terms of being able to get them out of custody, Israeli custody, there is no easy mechanism,” Richard said.
Stephen Flatow and Vicki Eisenfeld watched from the back of the hearing room as Indyk and Richard verbally sparred with Specter and Lautenberg. The more they listened, the more their frustrations grew. Just before noon, Specter invited them forward to speak from a witness table with two others—Diana Campuzano, who had survived a Hamas attack, and Nathan Lewin, the noted Washington attorney who had become a major advocate for the extradition of Palestinian operatives after he took on the case of the family of David Boim.
Flatow thanked the committee and Congress for supporting his quest to hold Iran accountable then turned to Indyk’s statement that financial penalties—notably Flatow’s $247 million judgment against Iran—would deter Iran from supporting terrorism.
“Our experts will tell you, senator, quite clearly that recovery on that judgment will be a deterrent to future terrorist attacks and the funding of such terrorist attacks. It is a well-known fact in academic circles and in practical circles in the field,” Flatow said.
He continued, “I now understand what the phrase means that ignorance is bliss.” He said he assumed that his daughter’s killers would be tracked down. But Flatow said he had come to believe that his own government is not interested in pressuring the Palestinian Authority to arrest suspected terrorists and turn them over for trial in America.
“I must then ask what kind of partnership is the United States going to have with the Palestinian Authority,” Flatow said. “Will it continue to turn a blind eye to this cancer?”
Vicki Eisenfeld spoke next. In recent months her admiration of Flatow had grown enormously, especially his unbridled forcefulness in speaking to government officials. He seemed unafraid. She did not want to confront the senators—or even Indyk and Richard—the way Flatow had. That was not her style. But she wanted to leave a clear message with all of them.
“Testifying in front of a Senate subcommittee on foreign operations is not something I would have chosen to have on my ‘list of things to do’ ” before Matthew and Sara were killed, Vicki began. “The events of February 25, 1996 changed my life forever.
“Three years have passed now and with the great love of family and friends, my heart, my husband’s heart and our daughter’s heart, have begun to heal. We were blessed with the gift of Matthew and the example of his life. We were blessed with knowing he was loved, and in love with a wonderful young woman, Sara Duker.”
Vicki told the committee of Matt’s goal to become a rabbi, of Sara’s dedication to environmental biology and how “their dreams were to particpate actively and consciously in healing the wounds of the world physically and spiritually.” But “there are forces that create havoc, chaos, and evil in this world, and they are very strong. Murderous, terrorist attacks strike at the soul and core of humanity and can erase the sanity that rests there . . .
“I have stated that my family has been healing,” Vicki said. “Yet there is no closure.”
Vicki continued as Specter and Lautenberg and other senators listened. Unlike Flatow, she had been careful to restrain her anger and feelings of bitterness. She mentioned the lawsuit against Iran that she and Len had filed along with Arlin
e and asked the senators to pressure the Palestinian Authority to supply evidence of its links to Iranian funding.
“I am not a lawyer or a diplomat or a politician. I am just a mother,” she said. “Terrorists try to force us to their will by threatening all Americans with what happened to Matt and Sara . . .”
Specter cut in. “Could you summarize the balance?” he asked. “I know this is very difficult for you. We are just about out of time.”
Vicki nodded.
“I would just like to say that while I am Jewish and I support and love Israel, I am an American,” she said. “I was born here and raised here, as was my son, and I would just like to ask you to help all of the people here in addressing these issues.”
“Mrs. Eisenfeld,” said Specter, “we will do our very best to get to the bottom of it and bring the murderers to justice.”
Several months later, during the summer of 1999, FBI Special Agent Tom Graney looked into the eyes of Hassan Salameh in a prison in Israel.
It was almost two years since Salameh’s trial and sentencing to forty-six consecutive life terms—more than three years since the Jaffa Road bombing.
Graney, who had been part of the team of agents and prosecutors who stayed at the American Colony in October 1998, had returned to Israel to reexamine evidence in the “AmCit” cases and to interview captured terrorists.
He was curious about Salameh, though. The Israelis had finally turned over transcripts of Salameh’s confessions to the Justice Department team. To the FBI agents and federal prosecutors of the Terrorism and Violent Crime section who studied the transcripts, Salameh provided a remarkable window into a terrorist operation. If Salameh confirmed the details about his training in Iran, his smuggling of explosives into Jerusalem and his recruiting of the suicide bomber, it would be explosive evidence in a trial on US soil. If Salameh pleaded guilty, as he had done in his murder trial in Israel, he could be sentenced to life in prison or perhaps given the death penalty.
Graney did not merely want to interview Salameh; he wanted to assess how Salameh might behave in a US trial.
Salameh was unafraid to speak. To Graney, he was not the braggart that Israeli authorities had said he would be. “He looked at himself as a combatant, more or less as a prisoner of war,” Graney said afterwards. “He didn’t have any problems discussing the facts of the case.”
Graney asked Salameh how he felt about killing innocent civilians like Matt Eisenfeld and Sara Duker.
The answer would bother Graney for years afterward.
“They were just in the wrong place at the wrong time,” Salameh said.
Chapter 13
Courtrooms invariably raise our hopes. When a trial begins, we expect justice of some sort—that the guilty will be punished and the innocent protected, or perhaps that a complicated legal dilemma can be unraveled and made clear.
Many trials don’t live up to such high-minded standards. And, certainly, Arline Duker and Len and Vicki Eisenfeld harbored many misgivings when they walked into Judge Royce Lamberth’s courtroom at the US District Courthouse in Washington, DC, for the trial of their lawsuit against the Islamic Republic of Iran. They dutifully carried their hopes for justice. They also brought a healthy dose of self-protective skepticism.
It was May 1, 2000. Six months earlier, while visiting Washington, Vicki met with Tom Fay, who was again joining Steve Perles to present the Duker-Eisenfeld lawsuit before Judge Lamberth as they had done in Stephen Flatow’s case. Like any seasoned litigator preparing for a trial, Fay wanted to gauge Vicki’s state of mind.
“This isn’t going to be an easy thing,” he said, deliberately trying to needle her. “Are you sure you want to go ahead with this?”
Vicki wondered what prompted Fay to ask such a question. She knew, as he did, that their lawsuit was risky, with no guarantee of receiving compensation even if they won. After all, it had been more than two years since Flatow’s victory, yet he was still waiting for the money Lamberth ordered Iran to pay him. But Vicki felt angry at the thought of giving up.
“You’re not going to hear me back off,” she shot back.
Fay was pleased. He had shepherded hundreds of lawsuits into courtrooms like Lamberth’s and he knew the importance of having clients who were not merely going through the motions of a case—especially one that involved international terrorism and an Iranian government that had not even bothered to respond to accusations raised in the lawsuit. Along with her husband and Arline Duker, Vicki wanted to win the case, of course. But she also hoped to send a message.
“We want to let it be known that American citizens will not let this be ignored without some actions being taken,” Vicki told a reporter for the Associated Press a day before the trial. “You want these settlements to make it uncomfortable for Iran to sponsor terrorism.”
Yet as the trial began, Vicki harbored an uneasy feeling, along with Len and Arline, about the aftermath. Would her family and the Dukers face the same fate as Stephen Flatow: Awarded a substantial financial penalty by Lamberth, but stymied by the White House and other branches of the administration from collecting even a penny?
The thought was maddening to Vicki. One branch of her government blocking the action of another branch to protect a foreign government that did not even have the courtesy to show up in court. What kind of message was that?
It was no secret, as media commentators had increasingly noticed, that the Clinton administration was sending mixed, often confusing signals over the terrorism lawsuits. The president had not tried to rescind or amend the law he signed four years earlier that permitted the lawsuits. But one of Clinton’s key advisors on the lawsuits, Stuart Eizenstat, had now taken an even more public and forthright role in arguing that Flatow and others who won their lawsuits should not be allowed to draw on Iranian assets. Eizenstat’s belief that those assets could be used as bargaining chips in future diplomatic negotiations took on greater importance now as the Clinton administration had stepped up efforts to improve diplomatic relations with Iran. The administration had already publicly apologized in March to Iran for the CIA’s attempts to meddle in Iranian affairs years before.
More than four years had passed since Hassan Salameh’s bomb tore through the Number 18 bus on Jaffa Road. While Arline, Vicki, and Len found themselves still very much emotionally frozen by that Sunday morning in February 1996 when Matt and Sara were killed, they were also keenly aware of how much had changed in America and elsewhere.
Bill Clinton had survived an impeachment trial over his sexual affair with a White House intern. His wife, Hillary Rodham Clinton, was running for the US senate seat in New York. Texas Governor George W. Bush, the son of the incumbent president who was defeated by Bill Clinton in 1992, was leading the race for the Republican presidential nomination and the chance to succeed Clinton. Meanwhile, Clinton’s vice president, Al Gore, had nearly sewn up the Democratic presidential nomination and was preparing for the fall campaign.
In Israel, Prime Minister Benjamin Netanyahu had been ousted ten months earlier in an election and replaced by the former defense minister and military chief of staff, Ehud Barak. Elsewhere in the Middle East, Terje Roed-Larsen, still in his role as the United Nations special envoy to the Palestinian Authority, was trying to save the Oslo accords he had worked so hard to shape a decade earlier. Larsen never directly confronted Yasser Arafat about his cryptic warning to stay away from Jerusalem on the morning the Number 18 bus was blown up. He had slowly come to believe that Arafat would never tell him the truth about that day.
“He was a very secretive guy,” Larsen said years later of Arafat. “He would never have told me that he knew the bombing was going to happen. He would never discuss things like that.”
In the years following the Jaffa Road bombing, Larsen pushed Arafat to crack down on Hamas and Palestinian Islamic Jihad. But Arafat never followed through. By 2000, Larsen gave up hope on Arafat a
nd rarely spoke to him.
Nevertheless Arafat’s message to stay away from Jerusalem on the day the Number 18 bus was attacked bothered Larsen greatly. He eventually told US Middle East special envoy Dennis Ross about it. But Ross was also mystified—and hamstrung.
By the summer of 2000 and with Bill Clinton in the final months of his presidency, Ross, was assembling plans for a meeting at Camp David between Arafat and Ehud Barak to finally settle the Israeli-Palestinian conflict. To Ross, Arafat was still seen as a key to making the Oslo accords work. At the same time, Ross had begun to lose trust in Arafat too, especially when it came to the Palestinian leader’s promise to stop terrorist attacks.
Stephen Flatow continued his pursuit of Iranian assets. So far, he had not collected a penny. And while he was still in contact with Stuart Eizenstat, who had been promoted by Clinton a year earlier to be deputy secretary of the Treasury, Flatow increasingly wondered if his legal victory would be merely symbolic.
On Capitol Hill, Senator Frank Lautenberg had not given up on the notion of prying loose some of those protected Iranian assets. In October 1999, a month before Vicki Eisenfeld told Tom Fay she was not backing off her lawsuit, Lautenberg co-sponsored a new piece of legislation. Called the “Justice for Victims of Terrorism Act,” the bill would allow Flatow, the Dukers and Eisenfelds, and others, if they won their lawsuits, to have access to Iran’s blocked assets in US banks or its embassy in Washington and other diplomatic property that had been seized by the federal government. The bill would also restrict the president from stopping US citizens from laying claim to foreign assets by citing national security concerns, as Clinton had done in 1998. Perhaps most notably for Lautenberg—and for Flatow and the other families—was the addition of another senator’s name to the sponsorship of the legislation.
In writing the new bill, Lautenberg enlisted the help of a Republican senator from Florida, Connie Mack, the grandson of the legendary baseball manager. Like Lautenberg, Mack had taken up the cause of a group of constituents from his state—the families of the Brothers to the Rescue pilots—in their case against Cuba. And like Flatow in his effort to gain control of some of Iran’s holdings, the families of the Brothers pilots were still waiting for permission to lay claim to some of Cuba’s frozen assets in the US. Like Lautenberg, Mack had become convinced that, outside of an unlikely US military strike, the most effective punishment against Castro was a financial penalty.