Why? And why now?

Those were the first questions that sprang to mind Tuesday, when the Justice Department unsealed a criminal complaint charging six leaders of Hamas for their roles in the Oct. 7, 2023, terrorist attack in Israel that killed around 1,200 people, including 40 U.S. citizens. A DOJ press statement said the attack was the “culmination of Hamas’s decades-long campaign of terrorism and violence against Israel and its allies, including American citizens.”

According to the complaint filed in the Southern District of New York, Hamas was founded “to create an Islamic Palestinian state throughout Israel by eliminating the State of Israel through violent holy war.” The complaint further states that “Hamas has murdered and injured dozens of Americans as part of its campaign of violence and terror,” and has done so “in retaliation for and in an effort to weaken American support for Israel’s right to exist and defense of that right.”  The 38-page document details decades of brutal attacks and atrocities going back to 1997 that were allegedly committed by a group the U.S. government has designated a foreign terrorist organization since.

The Justice Department has long been in the business of using criminal prosecution to hold terrorists who kill American citizens accountable.

Let’s start with the first question. Why would the DOJ file charges against Hamas leaders it is unlikely to ever arrest and bring to trial, particularly when three of those leaders have been already been killed?

First, the Justice Department has long been in the business of using criminal prosecution to hold terrorists who kill American citizens accountable, even when the conduct occurs overseas. For example, in 2002, the Justice Department announced charges against Ahmed Omar Saeed Sheikh for his role in the brutal killing of journalist Daniel Pearldespite the defendant’s pending charges in Pakistan. In 2017, Ahmed Abu Khatallah was convicted in a U.S. court for helping to plan and carry out the 2012 attack on the U.S. Mission in Benghazi that resulted in the death of U.S. Ambassador Christopher Stevens and three other Americans posted in Libya.

In some instances, it can take years or even decades to bring defendants to justice, but the DOJ has pursued terrorists relentlessly across administrations. In 2020, the Justice Department unsealed charges against the accused maker of the bomb that destroyed Pan Am 103 and killed 190 Americans over Lockerbie, Scotland, 34 years earlier. In 2021, the U.S. attorney for the Southern District of New York announced charges against Taliban commander Haji Najibullah for his alleged role in the killing of three American service members in 2008. In 2011, prosecution of the 1998 bombings of the U.S. embassies in Kenya and Tanzania was completed with the life sentence of the fifth defendant, Ahmad Ghailani.

As Attorney General Merrick Garland noted in his press remarks this week, “the Justice Department has a long memory,” vowing to pursue terrorists responsible for murdering Americans “for the rest of their lives.”

The second reason to file criminal charges is to achieve what the DOJ and other experts sometimes refer to as “naming and shaming.” Even when charges do not result in a criminal conviction and penalty, they can serve as a sort of moral condemnation on the world stage, in this case forcing foreign governments to take note of Hamas’ record of terrorism.

To the extent Hamas portrays itself as a legitimate political entity or one engaged in humanitarian efforts, the indictment paints a starkly different picture of a group that engages in vicious violence. The complaint describes the October 7 attack as a “massacre,” detailing abductions, the burning of homes, shootings with machine guns at point-blank range and sexual violence against women, including rape and genital mutilation. It details brutality against grandparents and young children.

The complaint also calls out Iran for allegedly supporting, supplying and training Hamas to achieve its own objectives of “damaging, weakening, and ultimately destroying both the United States and Israel.” Hezbollah, another group the U.S. government designates a terrorist organization, is also named in the complaint as an ally of Hamas that assisted in the Oct. 7 attack. Calling Iran, Hezbollah and Hamas the “axis of resistance,” the complaint lays out a damning account of their conduct against the United States and its citizens.

A third reason to file a criminal complaint against Hamas may be to curtail its fundraising capabilities. The complaint specifies in great detail how the organization solicited and received $7.7 million in funds to promote terrorist activities through cryptocurrency payments, ostensibly to protect donor anonymity. By disclosing that the U.S. government is capable of tracking payments, prosecutors may hope to deter donors from contributing further.

The announcement of charges comes at a time when cease-fire negotiations between Israel and Gaza seem especially fragile.

But even if the reasons for filing the complaint may be compelling, the question remains as to why now. The announcement of charges comes at a time when cease-fire negotiations between Israel and Gaza seem especially fragile. During the weekend, Israeli authorities recovered in a tunnel beneath Gaza the bodies of six hostages who had recently been killed. On Monday, Benjamin Netanyahu responded to massive protests seemed to double down on his demands. His remarks made the odds of a resolution soon feel even less likely.

The complaint offers some tells about its timing. The last page of the complaint asks the court to seal the document except as needed “to secure the defendants’ arrest, extradition, or expulsion, or as otherwise required for purposes of national security.”  That page also indicates that the complaint was filed in February, before the three deceased defendants were killed. To the extent authorities had hoped to find and arrest them in a country that permits extradition, their deaths reduce the complaint’s need for secrecy.

This is not the DOJ going rogue. I know from my own experience as a federal prosecutor that policy prohibits charging decisions on the basis of politics. When a case may affect national security or foreign policy, it always involves interagency coordination. The White House and the State Department most certainly would have been briefed and asked to assess this case in light of the United States’ objectives in the Middle East. Garland himself hinted at this coordination when he referred to “the whole-of-government effort to bring the Americans still being held hostage home.” Similarly, State Department spokesman Matt Miller said Tuesday, “when it comes to U.S. policy, we have long made clear that our first priority when it comes to terrorists is to see terrorists apprehended and brought the United States to stand trial for their crimes.”

It’s also possible recent events actually prompted the DOJ’s decision to unseal the complaint. Hamas’ refusal to release hostages will remain a sticking point to any cease-fire resolution. This may be DOJ’s way of reminding Hamas that the U.S. is in the fight for the long haul.

As Miller said Tuesday, “It is time to finalize that deal. The people of Israel cannot afford to wait any longer. The Palestinian people, who are also suffering the terrible effects of this war, cannot afford to wait any longer. The world cannot afford to wait any longer.”

Barbara McQuade

Barbara McQuade is an BLN columnist and NBC News and BLN legal analyst. She is the author of “Attack from Within: How Disinformation is Sabotaging America,”as well as a professor at the University of Michigan Law School and a former U.S. attorney for the Eastern District of Michigan.