Will terrorist prisoners released for Israeli-Palestinian conflict talks be prosecuted in the U.S.?

Sean Savage

JNS.org

On Monday, Israel named the first 26 of the 104 Palestinian terrorist prisoners that it agreed to release as a goodwill gesture for the restarting of Israeli-Palestinian conflict negotiations. But while the Palestinian terrorists will initially earn their freedom in this deal, efforts are underway in the U.S. to bring about the further prosecution of those terrorists whose attacks harmed American citizens in Israel.

With the support of the Endowment for Middle East Truth (EMET), a pro-Israel think tank and policy center based in Washington, DC, U.S. Rep. Matt Salmon (R-AZ) is urging the Department of Justice (DOJ) to work closely with the Israeli government to ensure that no terrorists who have killed or harmed Americans be included in the prisoner release deal.

In an advance copy of a letter being circulated in Congress that was provided to JNS.org, Salmon calls on the DOJ to “immediately intercede in this most recent prisoner release proposal and contact the government of Israel and request that they not release any terrorist who have killed or harmed Americans.”

Additionally, if the Israeli government does release any terrorists, Salmon strongly urges the DOJ to prosecute them under the Anti-Terrorism Act of 1990—which stipulates that whenever an American is killed anywhere around the world, the U.S. has a right to bring the terrorist to the U.S. to stand justice. Enforcement is through the DOJ’s Office of

Justice for Victims of Overseas Terrorism (OJVOT), which was created in 2005 to “ensure that the investigation and prosecution of terrorist attacks against American citizens overseas remain a high priority,” according to the OJVOT website.

Salmon also draws on precedent in his letter. He notes that in the Gilad Shalit prisoner swap deal in 2011, which released 1,027 Palestinian prisoners in exchange for Shalit’s freedom after more than five years in Hamas captivity, “approximately 20 of those released had been involved in terrorist acts where an American citizen was killed.”

At the time of the Shalit prisoner swap, a number of legislators—including U.S. Sen. Jim Inhofe (R-OK), former U.S. Reps. Joe Walsh (R-IL) and Howard Berman (D-CA), and 52 other members of Congress—wrote to U.S. Attorney General Eric Holder on the matter, urging him to prosecute the released Palestinian terrorists.

The congressional appeals on the prosecution of Palestinian prisoners by Rep. Salmon and others, however, face some significant obstacles. In a reply letter sent to Sen. Inhofe dated April 5, 2012, which JNS.org obtained from EMET, U.S. Assistant Attorney General Ronald Weich described “significant impediments” for prosecuting terrorist attacks that occur overseas. In particular, Weich noted that terrorist attacks in Israel, the West Bank, and Gaza “present particular challenges.” According to Weich, these challenges are related to Israel’s crime scene evidence collection.

“For Israeli officials, the focus following an attack is often, understandably, on clearing the crime scene to minimize disruption, taking steps to prevent a further attack, and neutralizing operatives responsible, rather than on collecting evidence consistent with standards required for prosecution in the United States,” Weich wrote in the letter to Inhofe.

Complicating matters further is the U.S. involvement in the effort to restart Israeli-Palestinian conflict negotiations, led by Secretary of State John Kerry. But Sarah Stern, founder and president of EMET, told JNS.org that she believes “if there is a will, there is a way” when it comes to U.S. prosecution of released Palestinian terrorists. Stern added, however, that she does not believe the DOJ has the will to prosecute these cases and is instead pointing to legal and bureaucratic obstacles that can easily be overcome.

“I know there are serious obstacles, but if we really wanted to get these terrorists, we could,” Stern said.

Stern pointed to the case of Ahlam Tamimi, a Palestinian terrorist who was sentenced to multiple life sentences for her participation in the 2001 Sbarro restaurant suicide bombing in Jerusalem that killed 15 civilians, including two Americans. She was later set free as a result of the Shalit deal. Tamimi now lives in Jordan and has become something of a celebrity. She hosts a television show on a Hamas-run satellite TV station about Palestinian prisoners in Israeli jails, according to the Jerusalem Post.

“We have an extradition treaty with Jordan. We could bring her to justice,” Stern told JNS.org.

This sentiment has been echoed by Sherri Mandell, mother of terror victim Koby Mandell, 13, who was brutally stoned to death along with his friend Yosef Ishran, 14, while on a hike outside of their home in Tekoa in the Gush Etzion area of Judea and Samaria in 2001, at the beginning of the Second Intifada. Koby was an Israeli-American and his murder inspired the creation of the DOJ’s Office of Justice for Victims of Overseas Terrorism (OJVOT).

The Koby Mandell Act, a bipartisan bill in the U.S. Congress spearheaded by the Zionist Organization of America, became law after it was incorporated into a larger spending bill in 2005. It required the U.S. Attorney General to establish the OJVOT to monitor acts of terrorism against Americans outside the U.S., and to attempt to bring to justice those terrorists who have harmed Americans.

“While in 2005 the Justice Department established an office in my son Koby Mandell’s name in order to pursue the killers of American citizens in Israel, the office has never done anything to prosecute Palestinian terrorists,” Mandell wrote in an op-ed in the Jerusalem Post in April 2012.

“We feel that we are again victims: the office is an affront to my son’s name,” Mandell wrote.

Stern said that she believes the OJVOT is not living up to its mission.

“They could be a real advocate for the victims of terrorist attacks,” Stern said.

Since 2005, the OJVOT has only prosecuted one terrorist who murdered an American citizen— the killer of a Christian missionary in Indonesia—according to EMET.

Again referring to the Tamimi case, Stern believes that it presents an opportunity for the U.S. to do more for the victims of terrorism as well as to deter future violence against Americans.

“That case could set an excellent example to the world and show terrorists that they will be held accountable for killing American citizens,” Stern concluded.

Arnold Roth, whose 15-year-old daughter Malki was killed in the attack orchestrated by Tamimi, has been highly critical of both the Shalit deal through which Tamimi was freed and the latest deal to free 104 Palestinian terrorists for renewed Israeli-Palestinian conflict negotiations.

“From the standpoint of simple negotiating theory, what Israel has done, even if Israel never actually delivers, is a losing move,” Roth told JNS.org in July. “Even if there were a case for saying Israel ought to concede to a list of pre-negotiating demands from the other side, freeing terrorists ought never to have been one of them.”

“I am emphatically not political, and it does not come naturally to me to be speaking against something the government in its wisdom decided to do,” Roth added. “But the idea to hand over murderers in order to prime some sort of negotiating pump simply enrages me.”

Among the 26 terrorists in the first phase of the prisoner release for Israeli-Palestinian conflict talks, 17 were convicted of murder, and the remaining prisoners were jailed on charges of manslaughter, attempted murder, kidnapping and conspiring to commit murder. Included in the deal are the terrorists who killed Menachem Dadon and Salomon Abukasis in Gaza in 1983, Israel Tenenbaum at the Sironit hotel in Netanya in 1993, Israel Defense Forces reserves soldier Binyamin Meisner in Nablus in 1989, Isaac Rotenberg at a construction site in Petah Tikva in 1994, one of the men involved in the murder of Simcha Levy in 1993, and one of the terrorists involved in the murder of Haim Mizrahi near Beit El in 1993.

Also included in the prisoner release is the terrorist who carried out the 1990 stabbing attack on bus line 66, which was traveling from Petah Tikva to Tel Aviv, Israel Hayom reported.