Hamas chief Yahya Sinwar, one of six defendants named by the Justice Department in a criminal complaint filed in federal court, is hiding in his Gaza tunnels, using handcuffed hostages as human shields. |
HERSH GOLDBERG-POLIN — the 23-year-old American-Israeli who was one of six hostages found shot to death in a Gaza tunnel last weekend — was laid to rest in Jerusalem on Monday. The day after his funeral, the Justice Department announced criminal charges against six high-ranking Hamas officials for "planning, supporting, and perpetrating" the Oct. 7 terrorist rampage in which more than 40 US citizens were killed and eight, including Hersh, were taken captive.
That criminal complaint, originally filed under seal in the US district court in Manhattan, accurately summarizes the savagery of the Hamas massacre 11 months ago. It outlines Hamas's close ties to Iran. It notes that Hamas does not attack only Israelis but has been engaged in what Attorney General Merrick Garland called "a decades-long campaign to murder American citizens and endanger the national security of the United States." It asks that warrants be issued for the defendants' arrest.
And it will accomplish nothing.
For one thing, three of the six Hamas chieftains named in the Justice Department complaint — Ismail Haniyeh, Mohammed Deif, and Marwan Issa — are dead. Haniyeh was eliminated, presumably by Israeli special forces, during a visit to Tehran on July 31. Deif and Issa were killed earlier in targeted strikes in Gaza. Other than striking a pose, what is the point of filing criminal complaints against three deceased terrorists?
As for the other three, it is a virtual certainty that none will ever see the inside of a US courtroom. Yahya Sinwar, the head of Hamas, is hiding in his Gaza tunnels, using handcuffed hostages as human shields. Khaled Meshaal lives in Qatar, protected by a government that claims to be a US ally yet for years has supported Hamas and shielded its senior cadres. Ali Baraka is based in Lebanon, which is effectively ruled by Hezbollah. They have about as much to fear from a Justice Department filing as Osama Bin Laden did when criminal charges were issued against him.
Clearly the Biden administration has no expectation of ever actually prosecuting Hamas's leaders. Yet in a detailed press release accompanying the criminal complaint, it pretends that the terrorists' fate will be decided in proceedings governed by the Federal Rules of Criminal Procedure. "All defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law," the Justice Department release fastidiously observes. And if Sinwar and his fellow mass murderers are found guilty? In that case, "a federal district court judge will determine any sentence after considering the US Sentencing Guidelines and other statutory factors."
This is farcical. Hamas is not a gang of crooks committing crimes on American soil. Its jihadist masterminds are not going to be arrested, read their Miranda rights, and provided with scrupulous due process of law, complete with free lawyers, discovery of prosecution files, and endless appeals. Hamas is a foreign enemy, violent and fanatical. It is at war with the United States no less than with Israel, both of which, its spokesmen declare, "will cease to exist." The killing and kidnapping of dozens of Americans over the past 11 months have been acts of international terrorism and warfare, not felonies. Hamas will be defeated on the battlefield or it will not be defeated at all.
In its press release, the Justice Department quotes US Attorney Damian Williams, the top federal prosecutor in New York: "We will bring justice to this terrorist organization from the top down for the atrocities they have committed."
But no Palestinian terrorist has ever been brought to justice in the United States for atrocities committed against Americans abroad. There have been scores of such atrocities, including the murder of two Massachusetts natives in 2015. Richard Lakin, a retired Newton school principal, was killed in a terror attack in Jerusalem in October. A few weeks later, Ezra Schwartz of Sharon, a high school graduate spending his gap year in Israel, was cut down when a Palestinian gunman opened fire on the van in which he and other students were riding.
In a 2016 congressional hearing, a senior Justice Department official explained that there are "significant impediments" to prosecuting foreign terrorists in American courtrooms. Among them: "obtaining necessary cooperation from foreign governments, gathering evidence overseas that would be admissible in US court, and apprehending and extraditing defendants."
Eight years later, the only thing that has changed is the number of Americans killed, maimed, and abducted by Hamas and other Palestinian terror groups.
In a heartbreaking moment during the Democratic Party convention last month, Jon Polin and Rachel Goldberg told the story of their son Hersh, who was seized by Hamas terrorists at the Nova music festival and dragged off to captivity in Gaza. "Hersh, if you can hear us, we love you," they said. "Stay strong, survive."
A few days later, Hamas operatives shot their son and five other Israeli captives in the back of the head at point-blank range in a Rafah tunnel, which is where Israeli soldiers found their bodies last weekend. In a strong statement, Vice President Kamala Harris condemned Hamas as "an evil terrorist organization" that now "has even more American blood on its hands." In the face of such "evident and horrifying" depravity, she said, there is only one acceptable goal: Hamas "must be eliminated and Hamas cannot control Gaza."
The way to achieve that outcome is not by filing symbolic criminal complaints in federal court. Nor is it by constantly critiquing Israel's war effort, or by withholding weapons needed to win, or by claiming that raging anti-Israel protesters "have a point," or by putting pressure on Jerusalem to accept cease-fire terms that would leave Hamas in place.
The way to eliminate Hamas and liberate Gaza is to ensure that Israel prevails in this war. Everything else is secondary. Terrorists who kidnap and kill US citizens are America's mortal enemies. The way to advance America's national interests is not to arrest the terrorists, but to destroy them.
Jeff Jacoby is a columnist for The Boston Globe.
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