^* Editorial Note This section consists of two parts: both relating to Israel's request that the U.S. extradite Dr. Mousa Abu Marzook, head of Hamas' Political Bureau. The first part is the Memorandum that was filed by Dr. Abu Marzook's counsel in support of his petition for a writ of habeas corpus. It is being substan- tially reproduced for its legal value. It was authored by two distinguished lawyers who combined the outstanding scholarship of Professor Cherif Bassiouni of Dc Paul University and the recognized practice of Michael Kennedy of the New York bar. The facts of Dr. Abu Marzook's case are well stated in the Memorandum. However, in this note, it might be useful to provide an update and more background that would shed light on the intricacies of this sensitive case which ultimately led to the conclusion of part two of this report: The Agree- ment. The writ of habeas corpus was denied by Judge Wood on October 9, 1996. The Petitioner filed a notice of appeal on October 21, 1996. At this stage of the proceedings, it became amply clear that the U.S. government counsel and that of the Israeli government intended to procrastinate these pro- ceedings indefinitely. The Petitioner, having deliberated the new U.S.-lsrael techniques with the defence team, instructued his lawyers to withdraw the appeal. On January 28, 1997, a Notice to withdraw the Appeal was filed. The move, which made it imperative on the U.S. government to extradite or release the Petitioner within 60 days; i.e., by March 28, 1997, proved that the opponent parties were indeed abusing the judicial process. It thrcw both the U.S. and the Israeli governments in a chaotic situation. Suddenly, the Israeli government was reluctant to have Abu Marzook extradit- ed. Binyamin Netanyahu intended to discuss with the U.S. officials, during his scheduled visit to the U.S. in February 1997, the alternatives of deporting Abu Marzook to another country (,41-quods, a Palestinian daily, Feb. 12, 1997). The U.S., on its part, got into contact with various governments in the region exploring the possiblity of these governments, hosting Dr. Abu Marzook. The FBI chief visited Israel, Jordan and Egypt in February 1997 for this purpose. While these contacts were under way, the legal battle continued. In a letter to the State Department dated March 25, 1997, counsels for Dr. Abu Marzook stated that the State Department should extra- dite him no later than March 28, 1997, because the extradition statute gives two months for surren- der or release. In a reply letter dated March 26, the State Department rejected March 28 as the end of the 60-day period during which Dr. Abu Marzook would be extradited and, instead, set the date on or before April 6, 1997. Counsels objected and insisted on the earlier position threatening that if the release or extradition of their client does not materialize by March 28, they would file a new writ of habeas corpus.

^* continued The U.S. government, instead of complying with its own laws, commenced a dubious method of coercion against Dr. Abu Marzook. At one point, the government argued that it would not release Abu Marzook unless he declared that he would give up his political activities, accepted to be held under a house arrest in Jordan or another country that might accept to receive him, and not to visit any country that supports "terrorism". All these conditions were rejected by Abu Marzook. The gov- ernment then started another manoeuver. It insisted before the court that Abu Marzook take his objections and arguments to the Immigration and Naturalization Services wherein the government would take the position that Dr. Abu Marzook caunot "consent" to exclusion from the permanent residency in the U.S. without admitting that he is a "terrorist"- Commenting on this abominable argument, Professor Bassiouni said in court that the government is compelling Dr. Abu Marzook, who committed no crime, to admit to be a terrorist in order only to be able to leave the U.S. This is nothing less than outrageous. Dr. Abu Marzook was a permanent resident of the U.S. and was will- ing to voluntarily depart from the U.S. and give up his permanent residency. But the government insisted on terminating his permanent residency instead of allowing him to give it up. Ultimately an agreement was concluded between the government and Dr. Abu Marzook (See text thereof after the Memorandum, infra at 259). By virtue of this Agreement, Dr. Abu Marzook arrived in Amman, Jordan on May 5, 1997, on board of a private U.S. plane on a very secret trip (even his wife and children were not informed). He was accompanied by four American officials from the state and justice departments, in addition to ten security agents from the FBI. Dr. Abu Marzook lives now with his family in Amman-Jordan. One final note. In the Memorandum, all references to page numbers or cross references to other exhibits and documents are kept as they are albeit none of these documents are reproduced. Further- more, footnotes numbers are also kept even though the accompanying text is omitted.

I See "Family Background: The Palestinian Diaspora" Exhibit A to Petitioner's November 16, 1995 Writ of Habeas Corpus and November 16, 1995 Motion for Bail.

2 A superseding warrant was issued on September 27, 1995. 3 Provisional Complaint at pages 1-2, emphasis added. 4 The Provisional Complaint contained 13 factual allegations. The superseded Complaint contained 9 of the original factual allegations and one new [allegation] 5 to murder, attempted murder, manslaughter, causing harm with aggravating intent, harm and wound- ing under aggravating circumstances, and conspiracy to commit a felony. 6 Extradition Complaint at page 4, paragraph 4, emphasis added. 7 Id. at page 5, paragraph 7. 8 Id. 9 Id.

10 Page 2, paragraph 3, Attachment 18 to Extradition Complaint, emphasis added. 11 I Page 6, paragraph 13, Attachment 18 to Extradition Complaint, emphasis added. 12 Page 7, paragraph 16, Attachment 18 to Extradition Complaint, emphasis added. 13 Paragraph 15. 14 Paragraph 4, page 2, emphasis added. 15 Page 5, paragraph 10.

16 See attachments 3-8, and 10-14 to Extradition Complaint, in Volume 1A-I1IB of Documentation in Support of Israeli Request for Extradition. 17 See, for example, Extradition Complaint attachments 16 and 17, and March 21, 1996 affidavit of "Dror" in the 2nd Supplement to Israeli Extradition Request, re "Filistine ALMuslama" article. 18 See statements of Muhamad Salah (Abu Ahmad) attachment 10 to Extradition Complaint. See affi- davits of Salah dated November 8, 1995 and Mohammad H. Jarad dated November 11, 1995, re tor- ture and recantation, Exhibit D to November 11, 1995 Motion for Bail and Petitioner's November 11, 1995 Writ of Habeas Corpus. See also, April 10, 1996, letter of Stanley Cohen, Esq. to the extra- dition magistrate at page 3 excerpting statements of Salah on Israeli cassettes indicating torture. 19 See discussion of bank records infra at pages _- 20 See April 11, 1996, decision of the extradition magistrate. See also Petitioner's February 1, 1996, Motion for Discovery, February 1, 1996 Motion for a Hearing, March 1, 1996, letter re discovery and March 22 and 26, 1996 proffer letters. 21 See note 20, supra.

22 See note 20, supra. 23 See Petitioner's February 1, 1996 Memorandum of Law at 68. 24 See Petitioner's February 1, 1996 Memorandum of Law at 62. 25 See Petitioner's February 1, 1996 Memorandum of Law at 76.

26 Available through the Library of Congress. 27 See page 62-63 of Petitioner's February 1, 1996 Memorandum of Law. 28 See Stanley Cohen, Esq. March 21, 1996, letter to the extradition magistrate. 29 See Rafi Israeli, "Islam's Hamas Cry," Nativ, March 1993. 30 Los Angeles Times, July 29, 1995. 31 Ahmad Rashad, "Politics and Justice: The Case of Musa Abu Marzuq," Occasional Papers Series, No. 9, The Middle East: Politics and Development, October 1995. 32 Ibid., p. 8.

33 Philadelphia Inquirer, April 20, 1994. 34 See "Family Background: the Palestinian Diaspora", at pages 30-32, Exhibit A to Petitioner's November 16, 1995 Petition for Writ of Habeas Corpus and November 16, 1995 Motion for Bail. 35 "Fundamentalist Group Swings Between Radicalism and Pragmatism," April I, 1993, p.5 (emphasis added). See also New York Times, February 4, 1993; Time, February 15, 1993, p.37. 36 See "Family Background: the Palestinian Diaspora", at pages 28-30, Exhibit A to Petitioner's November 16, 1995 Petition for Writ of Habeas Corpus and November 16, 1995 Motion for Bail. 37 "P.L.O. Backers Win Nablus Vote," The New York Times, May 23, 1992. While a hastily-formed coalition of candidates preserved a P.L.O. victory in Nablus, winning nine council seats to Hamas' three, other cities registered Hamas victories. 38 See "A Political History of Palestine: 1882-present" Exhibit A to Petitioner's February I, 1996 Motion for Hearing at p. 7.

39 For this and other information about Dr. Abu Marzook, see "Family Background: The Palestinian Diaspora" Exhibit A to Petitioner's November 16, 1995 Writ of Habeas Corpus and November 16, 1995 Motion for Bail.

40 In pages 46-81 of Petitioner's February 1, 1996, Memorandum of Law, he argues that the request for extradition must be denied as the acts charged in this case are of a political character outside the pur- view of the treaty of extradition. On pages 126-131 of that Memorandum he requests that the extra- dition magistrate order discovery. On page 130 he specifically requests documents in possession of the United States that support his claim that he is charged with a political offense. This Memoran- dum was submitted along with a February 1, 1996, Motion for Deposition and Discovery wherein Petitioner formally moves for documents in possession of the United States that support his claim that he is charged with a political offense and for lettcrs Rogatory requesting oral examination of 13 3 witnesses to this effect 41 See footnote 20, supra.

42 Article 105 of New York State's Penal Law separates conspiracy into six degrees, under New York law "A person is guilty of conspiracy in the [specified] degree when, with intent constituting a class [specifiedl felony be performed, he agrees with one or more persons to engage in or cause the per- formance of such conduct." 43 Israel Penal Law 5737-1977 (2d Ed.) Murder §300. (a) If a person does one of the following, he is guilty of murder and is liable to life imprisonment, and only to that penalty: (1) he willfully causes the death of his father or mother or grandfather or grandmother by an unlawful act or omission; (2) he premeditatively causes the death of any person; (3) in the commission of an offense or while preparing for or facilitating the commission of an offense, he willfully causes the death of a person; (4) having committed another offense, hc causes the death of a person in order to secure the escape or to avoid punishment of himself or of a person who participated in the commission of the offense. (b) A person convicted of murder under section 2(f) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 is liable to the death penalty. 44 Israel Penal Law 5737-1977 (2d Ed.) Attempted Murder §305. If a person does one of the following, he is liable to twenty years imprisonment: (1) hc attempts unlawfully to cause the death of a person; (2) he unlawfully commits any act or unlawfully omits an act which it is his duty to do, with intent to cause the death of another, the act or omission by its nature being likely to endanger human life. 45 Israel Penal Law 5737-1977 (2d Ed.) Manslaughter §298. If a person - by an unlawful act or omission - causes the death of another, he is guilty of man- slaughter and is liable to twenty years imprisonment. 46 Israel Penal Law 5737-1977 (2d Ed.) Harm with aggravating intent §329. If a person does one of the following with the intent to disable, disfigure or cause grievous harm to another, or with intent to resist or prevent the Lawful arrest or detention of himself or of another, then he is liable to twenty years imprisonment: (1) he unlawfully wounds or causes grievous harm to a person; (2) he unlawfully attempts to strike a person with a projectile, knife or other dangerous or offensive weapon; (3) he unlawfully causes an explosive substance to explode; (4) he sends or deliv- ers an explosive or other dangerous or noxious object to a person, or he causes a person to receive such a substance or object; (5) he puts a destructive or explosive substance or a corrosive fluid in any place; (6) he throws any substance or fluid said in paragraph (5) at a person or otherwise applies it to his body. 47 Israel Penal Law 5737-1977 (2d Ed.) Harm and wounding under aggravating circumstances §335. If an offense under section 333 or 334 is committed - (1) while the offender carries a firearm or cutting weapon, he is liable to double the penalty prescribed for the offense; (2) in the presence of two or more persons who have combined for commission of the act by one or some of them, then each of them is liable to double the penalty prescribed for the offense. 48 Israel Penal Law 5737-1977 (2d Ed.) Conspiracy to commit a felony or misdemeanor §499. (a) If a person conspires with another to commit a felony or misdemeanor, or to commit an act in a place outside Israel wbich - if committed in Israel - would be a felony or misdemeanor and which is

48 continued an offense under the Laws of that place, then he is liable - (I) if the offense is a felony, to seven years imprisonment or to the punishment prescribed for that offense, whichever is the lighter punish- ment;...(b) A conspirator shall bear criminal liability also for the offense for which the conspiracy was made or which was committed in order to advance its objective, only if he was party to its com- mission under Title Two, Chapter Five. 49 Other Israeli Law Relevant to the Charges: Israel Penal Law 5737-1977 (2d Ed.) Title Two: Parties to the Offense; Perpetrator §29. (a) Perpetrator of the offense - includes a person who committed it jointly or who committed it through another. (b) Participants in the commission of an offense, who perform acts for its commis- sion, are joint perpetrators, and it is immaterial whether all acts were performed jointly, or some were performed by one person and some by another. (c) A perpetrator of an offense through another is a person who contributed to the commission of the act by others, who acted as his instruments, the other person being in one of the following situations, within their meaning in this Law: (1) he is a minor or mentally incompetent; (2) he lacks control; (3) he has no criminal intent; (4) he misunder- stands the circumstances; (5) he is under duress or has justification. (d) For the purposes of subsec- tion (c), if the offense is conditional on a certain perpetrator, then the person in question shall be deemed to have committed that offense even if the condition is only met by the other person. Israel Penal Law 5737-1977 (2d Ed.) Accessory §31. 1. If a person does anything - before an offense is committed during its commission- to make its com- mission possible, to support or protect it, or to prevent the perpetrator from being taken or the offense or its loot from being discovered, or if he contributes in any other way to the creation of con- ditions for the commission of the offense, then he is an accessory. Israel Penal Law 5737-1977 (2d Ed.) Other or additional offense §34A. (a) If, while committing an offense, a perpetrator also committed another or an additional offense, and if - under the circumstances - an ordinary person could have been aware of the possibility that it would be committed, then - (1) the other joint perpetrator shall also bear liability for it; however, if the other or additional offense was committed intentionally, then the other joint perpetrators shall bear liability for it only as an offense of indifference; (2) person who incited or was an accessory shall also bear liability for it as an offense of negligence, if- with the given factual basis - there is such an offense. (b) If the court found an accused guilty under subsection (a)(I) for an offense for which there is a mandatory penalty, then it may impose a lighter penalty on him.

50 In pages 46-81 of Petitioner's February 1, 1996, Memorandum of Law, he argues that New York State conspiracy law should apply. In pages 5-13 of Petitioner's May 3, 1996, Response to Government's Answer, he further argues that New York State conspiracy law should apply. In a February 1, 1996, Motion For Hearing, Petitioner moves for a "hearing to determine whether or not the government has sustained its burden of proof that the offenses charged are covered by the extradition treaty and satisfy the requirements of dual criminality pursuant to the laws of Israel and New York State." The extradition magistrate denied such a hearing.

51 In a number of motions, memoranda, affidavits and proffers, Petitioner attempted to set forth type of evidence he would produce to show a lack of probable cause. There is a record of what Petitioner would have produced had he been given the opportunity. Petitioner's requests for discovery and hearings were denied.

52 See note 51, supra.

53 See note 51, supra. 54 See Extradition Complaint at pages 2-3.

55 See Affidavits of Muhamad Salah (Abu Ahmad) November 8, 1995 and Mohammad H. Jarad Octo- ber 26, 1995, Exhibit D to November 16, 1995 Motion for Bail and Petitioner's November 16, 1995 Writ of Habeas Corpus. See also, April 10, 1996 letter of Stanley Cohen, Esq. to the extradition magistrate at page 3, excerpting statements of Salah on Israeli cassettes indicating torture. 56 See following "confessions" in Documentation In Support Of Israeli Request For Extradition (Vol- umes IA - IIIB): 57 See affidavit of Assim Moukkasah November 11, 1995, Exhibit F of Petitioner's November 16, 1995, Writ of Habeas Corpus and November 16, 1995, Motion for Bail. See also pages 1-5 of Mouk- kassah January 31, 1996, affidavit, Exhibit C of Petitioners February 1, 1996, Motion for a Hearing. 58 See footnote 55, supra.

59 See attachment 3 to Extradition Complaint. 60 61

62 See pages 1-2 of the August 7, 1995 Provisional Israeli Complaint in Support of Extradition and page 4 of the September 28, 1995 State of Israel Ministry of Justice, Request for the Extradition of Mousa Mohammed Abu Marzook (at the beginning of Volume IA Documentation in Support of Israeli Request for Extradition). See also, extradition magistrate's May 7, 996 Memorandum at page 46. 63 Attachment 17 to Documentation In Support Of Israeli Request For Extradition, Affidavit of "Ayal." See the first two pages of the English transcript AE-1, which is attached to "Ayars" Affidavit. 64 Petitioner's February 1, 1996, Motion for a hearing to determine the admissibility and reliability of various tapes and documents submitted by the State of Israel in support of its extradition request was denied. Exhibit C of said Motion contains an affidavit of Assim A. Mouakkassah, dated January 31, 1, 1996, which attests to problems and inaccuracies in the Israeli translation of Arabic documents in support of extradition including the Al Manar transcript. See also Mouakkassah's November 11, 1 , 1995 affidavit to this effect, Exhibit F of Petitioner's November 16, 1995 Motion for Bail and Petitioner's November 16, 1995 Writ of Habeas Corpus.

65 See Attachment 10 to Extradition Complaint, Nadav 4-4E, contained in Volume IA-II1B of Docu- mentation In Support Of Israeli Request For Extradition. 66 See statements of Muhamad Salah (Abu Ahmad) attachment 10 to Extradition Complaint. See affi- davits of Salah dated November 8, 1995 and Mohammad H. Jarad dated November 11, 1995, rc tor- ture and recantation, Exhibit D to November 16, 1995 Motion for Bail and Petitioner's November 16, 1995 Writ of Habeas Corpus. See also, April 10, 1996, letter of Stanley Cohen, Esq. to the extra- dition magistrate at page 3 excerpting statements of Salah on Israeli cassettes indicating torture.

67 See Petitioner's February 1, 1996, Motion for Hearing and February 1, 1996 Motion for Discovery. See also extradition magistrate's April 11, 1996 opinion. 68 It is common for people in the Arab world to be referred to by the name of their first born son. Thus, contrary to popular impression in America, the use of the word "Abu," followed by a name, is not a "nom de guerre" but is simply a very common and consistent reference to a person. The name Omar is quite common, there are probably thousands of Abu Omars in Gaza alone. Thus, the reference to Abu Omar as having allegedly appointed or recommended the head of the military wing of Hamas does not necessarily mean it is Dr. Abu Marzook, who is also referred to as "Abu Omar." 69 See pages 12-13 of "Family Background: the Palestinian Diaspora," attached as Exhibit A to Petitioner's November 16, 1995 Writ of Habeas Corpus and Petitioner's November 16, 1995 Motion for Bail. 70 See note 69, supra.

71 Dr. Abu Marzook's bank account at First American Bank of Virginia, Acct. # 6816-8179. Extradi- tion Complaint Attachment 12, Aff. of Ephraim Rabin, Appendix 8, in Volume IA-IIIB Documenta- tion In Support Of Israeli Request For Extradition. 72 Petitioner sought to present explanatory evidence concerning the bank records but was denied the opportunity to do so. See prospective testimony of Ismail Selim Elbarasse, page 4 of Petitioner's March 22, 1996 proffer and page 3 of the March 26, 1996 proffer.

73 Attachment 17 to Documentation In Support Of Israeli Request For Extradition, Affidavit of "Ayal." See the first two pages of the English transcript AE-1, which is attached to "Ayal's" Affidavit.

74 Petitioner's February 1, 1996, Motion for a hearing to determine the admissibility and reliability of various tapes and documents submitted by the State of Israel in support of its extradition request was denied. Exhibit C of said Motion contains an affidavit of Assim A. Mouakkassah, dated January 31, 1, 1996, which attests to problems and inaccuracies in the Israeli translation of Arabic documents in support of extradition including the Al Manar transcript. See also Mouakkassah's November 11, 1995 affidavit to this effect, Exhibit F of Petitioner's November 16, 1995 Motion for Bail and Petitioner's November 16, 1995 Writ of Habeas Corpus.

75 See, for example, the following transcripts: October 11, 1995 pages 5-11; December 6, 1995 pages 1, 4-11.