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September|October 2004
When to Hold 'Em By Thomas F. Powers
Stealing the Show By Emily Bazelon

Stealing the Show

The trial of Marwan Barghouti was supposed to prove that he is a terrorist. Instead, Israel may have created the Palestinian Mandela.

By Emily Bazelon

LATE ONE EVENING IN MARCH 2002, the Sea Food Market restaurant in Tel Aviv was still packed with diners, including several members of Israel's national soccer team. Ibrahim Hasouna began shooting into the crowd at around 2:30 a.m. As people screamed and tried to scatter, some wounded by the gunfire, Hasouna charged into the melee he'd created and stabbed to death three people—a policeman who tried to stop him, and two other men.

Hasouna's rampage ended when he was gunned down by Israeli security forces. This spring, however, an Israeli court convicted a man named Marwan Barghouti for the crime. In June, he was sentenced to five life terms for the Sea Food Market stabbings, two car ambushes, and a thwarted bombing of a Jerusalem shopping mall. Barghouti had not been present at any of the attacks, but the court found that he had approved them, as the leader of the al Aqsa Martyrs Brigades, a collection of terrorist cells loyal to Yasir Arafat's Fatah movement.

At 45, Barghouti is a former peace activist, a member of the Palestinian Legislative Council, and, according to Israel, responsible for "hundreds of Israeli deaths." Palestinians suspected of masterminding terror typically don't have long life expectancies. In just the last year, Israel has killed half a dozen political leaders of Hamas. But rather than have Barghouti's blood on its hands, the government decided to prove that an esteemed member of the Palestinian leadership had Israeli blood on his. Israel could then brand the Palestinian leadership as guilty by association. "We need to tell the story of the Israeli population and what it has been through in the last two years," Gideon Meir of the Foreign Ministry said when Barghouti's trial began in September 2002.

To its credit, Israel recognized that the story should be told in a trial that the international community saw as fair. Israel had something to show, in other words, but this wouldn't be a show trial. The government gave Barghouti the kind of hearing that American civil libertarians have been dreaming of since the United States began filling cells in Guantánamo Bay with alleged terrorists. Instead of bringing him before a military tribunal or leaving him to stew in long-term detention, Prime Minister Ariel Sharon's government opted to try Barghouti in open civilian court.

In the wake of the Supreme Court decisions at the end of June, the United States will similarly have to give its terror suspects their day in court. Yet while Americans might look to Israel for guidance, Barghouti's example warns that such trials risk turning a charismatic defendant into a hero rather than a villain. Barghouti's nationalist claims are of course different from al Qaeda's anti-American jihad. Still, think about Zacharias Moussaoui, the once-believed "20th hijacker." Imagine what a defendant as captivating as he is crazy could do if given a platform. At the moment, al Qaeda's leaders—Osama bin Laden, Ayman Al-Zawahiri—remain at large, forced to spread their message on lo-fi cassette tapes. If they're ever brought to trial, they'd be on broadband and satellite.

Can the United States control the images that will be beamed around the world when it brings terrorists to trial? Israel's experience with Barghouti suggests not. His trial veered off the course that Israel had set for it the day it began in a small Tel Aviv courtroom. Shackled and dressed in a brown prison uniform, Barghouti shouted in his opening statement, "I am a fighter for freedom and for peace between two peoples." The claim galled the presiding judge, Sara Sirota. "Freedom fighters don't turn children into bombs and murder people," she interjected. The implication was that she had already convicted Barghouti in her mind. Arab members of the Israeli parliament called, unsuccessfully, for her to be disqualified.

Sirota's misstep underscored a larger problem for Israel. By casting Barghouti in the role of the lone accused, standing before an array of Israeli prosecutors and judges, the trial showcased the state's power over Palestinians as much as it did the Israeli people's suffering. Barghouti's defense strategy shrewdly aimed to turn Israel's strength against itself. As the commentator Gideon Levy wrote in the Israeli newspaper Ha'aretz, arresting and trying Barghouti "may have been just, but it was not wise."

BARGHOUTI WAS WELL SITUATED to use his trial as a platform. His nationalist credentials date back to 1974, when he joined Fatah, Arafat's then-fledgling movement, at the age of 15. He became Fatah's secretary general in 1994. Barghouti didn't celebrate by buying a fancy car or expensive suits, as has been the wont of many Palestinian officials. Raised in a small village near Ramallah, he is popular for acting like what he calls—"a regular guy from the Palestinian street."

When the Oslo Accords were signed in 1993 by Arafat and former Israeli Prime Minister Yitzhak Rabin, Barghouti was one of the Palestinian leaders most willing to give peace a chance. According to Israel, Barghouti's path toward violence began when he organized the Tanzim, a civil guard that is Fatah's answer to the armed wing of Hamas. While Hamas rejects Israel's existence, Barghouti, even now, advocates a two-state solution to the conflict. But as Oslo's promise dimmed in the late 1990s, his idea of how to achieve that goal changed. "This Intifada will lead to peace in the end," Barghouti said in November 2001 of the uprising he'd helped start 14 months earlier. "We need to escalate the conflict. It will be hard. Many of us will be killed. But there is no choice."

As the Intifada escalated, prosecutors say, Barghouti went on to command the al Aqsa Martyrs Brigades. The group, which the United States lists as a terrorist organization, has claimed credit for more than 300 attacks in its three and a half years of existence. Israel puts the number at 1,500. At first, al Aqsa fighters chose targets outside Israel's pre-1967 borders, to make clear that their complaint was with Jewish settlements in the West Bank. But by the fall of 2001, Barghouti warned that targets inside Israel would become fair game. "Why should you feel safe in Tel Aviv when we don't feel secure in Ramallah?" he asked Levy of Ha'aretz a few months before his arrest.

Barghouti was captured near his home in Ramallah in April 2002. Among other crimes, he was charged with murder, solicitation of murder, and membership in a terrorist organization, 37 counts in all. The evidence against him included two letters, one requesting funds for 15 Tanzim fighters that Israel says Barghouti signed and forwarded to Arafat. "We have reams of documents in which he has been allocating and requesting payment of sums of money—$1,000 per terrorist—for operations against Israeli civilians," Sharon adviser Dore Gold said before the trial. Israel saw the documents as a smoking gun. Blocked from arresting Arafat by American and international objections, the government would settle for making an example of Barghouti.

THREE DAYS AFTER HIS ARREST, Barghouti was allowed to meet with Jawad Boulos, an Israeli-Arab lawyer trained at Hebrew University whom Barghouti has known for 20 years. Boulos says that together they scripted a strategy to counter Israel's, and to appeal to a Palestinian and international audience. Boulos correctly surmised that the government would portray Barghouti as a terrorist who was being shown more deference by the Israeli justice system than the courts of many other democracies would have shown him—and certainly more deference than the Bush Administration was showing its terror suspects.

Boulos devised a strategy that would force Israel off the high road. He told Barghouti to deny that Israel had any authority to try him, a position Boulos outlined in a pretrial brief that cited the Oslo Accords and the Geneva Conventions and that was summarily thrown out by the Israeli court, based on past precedent. Unable to stop the proceedings against his client, Boulos told Barghouti to do the next best thing: Refuse to cooperate.

Before the trial began, Boulos essentially fired himself. In court, Barghouti would neither have counsel nor serve as his own lawyer. He would simply decline to refute the evidence presented or answer in any way the charges against him. Instead, he'd use the court's stage to cast himself as a symbol of Palestinian defiance.

The strategy rattled the court from the beginning. On the first day of the trial in September 2002, parents of terrorism victims were allowed to pack the courtroom. Also present were Barghouti's three young children, who had not seen their father for several months. When the children clambered over the court's benches in a vain effort to reach their father, Avigail Levy held up a photograph of the 17-year-old daughter she had lost and shouted, "Look what your father did!"

Judge Sirota ordered Barghouti out of the courtroom and exited with the two other judges hearing the case. But when the proceedings resumed, so did the discord. "It's not me who should be on trial. It's the State of Israel," Barghouti shouted. "You're just a murderer," another father screamed. Sirota broke in. She scolded Barghouti, "You are not behaving like a leader, but like someone from the shuk," referring to the region's rough-and-tumble outdoor markets. Again, the chief judge had been goaded into apparently betraying her bias.

Trying to prevent the trial from descending too far into chaos, Sirota ordered Israel's Office of the Public Defender to take Barghouti's case. By putting on a standard defense, the OPD could have derailed Barghouti's effort to shift the trial's spotlight. But the Jewish and Arab attorneys who work at the office were intent on doing what was best for their client. When OPD lawyers met with Barghouti, he was polite but adamant: He did not want their services. Representing him against his will, the lawyers decided, would breach their duty to their client. The OPD asked Sirota for leave to withdraw.

Sirota turned down the request, and an appeal to the Israeli Supreme Court went nowhere. So the OPD got around the court's order without openly defying it. Defense lawyer Ronit Robinson attended the trial but neither cross-examined the government's witnesses nor mounted a defense. Initially, she said, the judges were furious. But as the trial wore on, their attitude shifted. "At some point, the judges started respecting Barghouti," Robinson said. "They understood that he was an intelligent person who knew what he was doing."

Barghouti also wooed them with his charm. As the proceedings wore on, he periodically smiled, waved, and called shalom as he left the courtroom. (He honed his Hebrew during an early stint in prison two decades ago; perhaps bin Laden should learn English while he bides his time in hiding.) On the trial's last day, laughter broke out when Barghouti joked that Palestinian women giving birth at checkpoints would soon start naming their babies "Machsom," the Hebrew word for roadblock. Earlier, the judges, including Sirota, had begun intervening on Barghouti's behalf, firing questions at the prosecutor and at witnesses to an unusual degree for an Israeli court, filling the void left by Barghouti's passive representation.

Whenever there was a chance for heavy international press coverage, however, Barghouti made sure to wage a take-no-prisoners public relations war on those same judges. "The Israeli courts are a partner to the Israeli occupation," he said. "The judges are just like pilots who fly planes and drop bombs." The Arab press applauded Barghouti's "great passion," saying it reflected the "unquenchable defiance" of the Palestinian people.

Last May, nine months after the trial ended, the judges found Barghouti guilty of 5 of the 37 counts against him. (There are no juries in Israel.) The court said that there was evidence to show that Barghouti had controlled Ibrahim Hasouna, the Sea Food Market assailant, and the men who undertook three other attacks. But they rejected the prosecution's broader theory of liability, which would have held Barghouti responsible for al Aqsa activities whether or not there was direct proof of his personal involvement.

A month later, Barghouti was sentenced to five life prison sentences plus an additional 40 years. The harsh punishment overwhelmed the verdict's attempt at compromise. Still refusing to cooperate, Barghouti said he would not appeal, preventing the Israeli Supreme Court from putting its imprimatur—and its internationally respected reputation—behind the verdict and sentence.

That left Barghouti's theatrics and his heavy penalty to stand as the trial's enduring images. "This was a case where the state tried to use the justice system in the overall struggle against terror," said Neta Ziv, a law professor at Tel Aviv University. "It was almost impossible to disentangle the criminal and the political aspects of the trial. The truth is, that weakened the justice system."

Barghouti, on the other hand, emerged stronger, at least in political terms. Eight months before his arrest, he was polling at just 2 percent among Palestinians who were asked to identify their most popular and trusted leader—far behind Arafat, several of the PLO chairman's advisers, and Hamas leaders. That number rose to 17 percent after Barghouti's arrest, boosting him to the number two position behind Arafat, who polled at 35 percent. News of Barghouti's sentencing sparked rallies throughout the West Bank, with his supporters connecting his imprisonment to Israel's detention of at least 8,000 other Palestinians.

From his prison cell, Barghouti has started to act like a power broker, with a boldness that he hadn't publicly displayed before. In April, he issued a statement of support for Sharon's plan to withdraw from the Gaza Strip, departing from Arafat's view that the withdrawal had to be negotiated. He earlier played a key role in negotiating a temporary cease-fire that included Fatah and Hamas. Arafat's advisers reportedly had to consult Barghouti after they realized that the al Aqsa brigades were more loyal to Barghouti than to the PLO chairman. "In the eyes of many people, he has become almost the automatic successor to Arafat," said Danny Rubinstein, who covers Arab affairs for Ha'aretz.

BEFORE BARGHOUTI'S TRIAL, THE ISRAELI GOVERNMENT openly bemoaned the growing perception among his followers that Barghouti was the "Nelson Mandela of the Palestinians." Sharon adviser Dore Gold promised that by demonstrating Barghouti's guilt in a court of law, Israel would show that Fatah had turned its back on peace. But though Israel's story did surface in the trial, it was drowned out by the one Barghouti was telling.

Burnishing the reputation of a captured al Qaeda captain, at least among his followers, is a fear of the U.S. government, one that may well prompt it to try its terror suspects before military tribunals rather than civilian courts whenever possible. Israeli leaders are currently dismayed about the benefits that Barghouti reaped from his trial. Yet it is a peculiarity of the Israeli-Palestinian conflict that, in the future, Israel too may benefit from his heightened stature. Someday Ariel Sharon may well claim credit for the Barghouti trial—not because it destroyed Marwan Barghouti, but because it made him.

If peace negotiations resume, Israel will need a new partner to replace Arafat, who has forfeited that role by failing to fulfill Oslo's promise. Barghouti may be the best Israel can hope for: a magnetic leader who advocates coexistence. His courtroom audacity and his sentence will redound to Israel's benefit by enhancing Barghouti's reputation and credibility among Palestinians. The more popular he becomes, the better, perhaps, for both peoples.

This scenario is also probably Barghouti's best hope for release. He's not eligible to be let go under Israel's current policy, which excludes convicts with civilian blood on their hands. But if Israel and the Palestinians are to reach an agreement one day, that policy will likely change—especially if Barghouti brokers the deal. In 1963, Nelson Mandela rejected the authority of a South African court to try him for sabotage. He was sentenced to life. Twenty-eight years later, he negotiated the end of apartheid and walked from his cell in triumph. Barghouti's supporters—and some Israelis—hope for a similar outcome, in less time.

Emily Bazelon is a senior editor at Legal Affairs and a Soros Justice Media Fellow.

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