Former Bush adviser Kenneth Wainstein 370.
(photo credit: REUTERS/Joshua Roberts)
A top homeland security adviser to former US president George W. Bush spoke to
The Jerusalem Post on Thursday regarding the battle between Israel and the
families of victims of terror over whether former Israeli government agent Uzi
Shaya can testify in the families’ US terror financing case against the Bank of
Kenneth Wainstein was retained by Shurat Hadin – the Israel Law
Center – on Tuesday to argue the issue before a US Federal Court on behalf of 22
families who hope to prove that the bank knowingly allowed Hamas and Islamic
Jihad to use accounts at the bank to launder money used for perpetrating attacks
in Israel against their loved ones in 2006- 2007.
Shurat Hadin has said
that for years Israel encouraged the families to file their case and assisted
their case by providing information, including a 2008 affidavit by government
agent Shlomo Matalon, which described exactly where and how the money-
It has said that Shaya was provided by the
government for testifying in the case.
But in mid-November the government
filed a motion to block him from testifying
in the US court, with Shurat Hadin
accusing the government of folding under geopolitical pressure from China and
concerns which are external to the case.
The Israeli government has based
its objection to Shaya testifying in the US case mostly on sovereign immunity,
avoiding setting a dangerous precedent in which its officials, including
intelligence officials, can be compelled to testify in foreign courts, and
avoiding revealing national security secrets.
Wainstein explained how he
planned to rebut the government’s objections to letting Shaya testify, he said
that this case involves a “very fact specific analysis since the particular
facts the plaintiffs are seeking to elicit, were already put out in the public
domain” by government agent Shlomo Matalon’s affidavit.
He said that this
fact “greatly diminished” any concerns about setting bad precedents and the
sovereign immunity defense, since few future cases are unlikely to have the same
volume of information already in the public domain.
Wainstein added that
he believed this to be true despite being “highly sensitive to the concern of
creating precedents” which could damage national security following decades of
work not only as Bush’s homeland security adviser, but also as a top official in
the FBI and US Justice Department.
Addressing the issue of state secrets,
Wainstein said that “what we are seeking is not new information and a federal
judge has committed to monitoring [Shaya’s] deposition” which is a “good
guarantee she will make sure it doesn’t wander away from what is relevant” and
there will be no “fishing expeditions” into unrelated “sensitive areas regarding
the Chinese government.”
Asked about a reported comment from former
national security council head Yaakov Amidror that the goal of the case was
already achieved since its filing had ended Chinese facilitation of terror
financing, Wainstein said that “only specific deterrence” has been achieved, but
that there is “a value of general deterrence, making it clear that if anyone
allows financial institutions to use terror financing, they can be expected to
pay a price.”
He also said that besides that, the plaintiffs should be
able to have their rights “vindicated in a court of law.”