A U.S. citizen who was dragged out of her home and detained by Israeli authorities for over three weeks was released on bail Thursday to wait out the remainder of her trial in the West Bank, the latest in a case attracting international attention for prosecuting an American in Israeli military court.
Samaher Esmail, a 46-year-old mother of Palestinian origin and resident of New Orleans, had been in the West bank for under three months when she was charged with incitement for several photos and messages she posted to social media. Some of them involved images of top Hamas leaders, but did not explicitly call for violence. Esmail, who suffers from cancer and kidney problems, was bruised and sickly when her lawyer visited her at Damon prison, where she was held in the north of Israel before her release.
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Esmail is now allowed to return to her West Bank village. She will only be able to go back to the U.S. once her trial concludes, which could take months, and only if she is found not guilty.
That a U.S. citizen is being tried in military court — a legal system for West Bank Palestinians separate from the civilian courts enjoyed by Israelis — has drawn widespread criticism. Israel says it provides due process and largely imprisons those who threaten its security. Palestinians and human rights groups say the system is awash in violations of due process and almost always renders guilty verdicts, with 95% of military court hearings ending in convictions, according to Israeli watchdog Military Court Watch.
Esmail’s representatives and family celebrated Thursday's decision to release her on bail, but expressed dismay at what they perceive as a tepid U.S. government response to the incarceration of an American by Israel.
“We're ecstatic because we feel like this rarely happens,” said Esmail's son, Suliman Hamed, who lives in New Orleans. “I feel like because of all the media coverage they may have done it fairly this time around. I really thought I might never see her again."
On Feb. 6, Esmail was dragged out of her house by Israeli forces in the middle of the night. A video of the incident provoked outrage on social media. During her arrest, her lawyer alleges Israeli forces beat Esmail, did not give her time put on her hijab — the headscarf worn by some Muslim women — and her Israeli interrogator did not ask properly if Esmail wanted an attorney present.
Little was known publicly about her whereabouts, the charges against her, or her condition.
She was not able to see a lawyer until four days after her arrest, according to court documents from her initial hearing. Esmail reportedly did not have access to her medications for at least the first six days of her detention and fainted in prison, said a letter written to U.S. Secretary of State Antony Blinken by Jonathan Franks, a crisis management consultant who represents Americans detained abroad and is working for Esmail’s family. A consular officer did not visit Esmail until 14 days after her arrest, Franks said Thursday.
“I was extremely frustrated, given the issue of her potentially having been abused in custody, that it took 14 days to get a consular officer to see her,” said Franks, who flew from the U.S. to attend Thursday's hearing. “I would like to see a public statement from the embassy that it’s our expectation that Americans are not going to be put through these military commissions. And I don’t think that that’s too much to ask of a friend.”
The judge ruled Thursday at Israel's Ofer prison that the military court did not have jurisdiction to prosecute Esmail for posts she made while in the U.S., but charged her with incitement for posts she made while in the West Bank. Esmail attended the hearing remotely, via videoconference from Damon prison.
Three of the posts involved a figure resembling Abu Obeida, the spokesman of Hamas’ armed wing. Under two of the images was the inscription “Victory or death of the Saints, God willing,” according to court documents. Esmail also changed her profile picture to a masked man resembling Obeida twirling a ball on his finger, emblazoned with U.S. and Israeli flags.
She also posted a photo of Yahya Ayyash, who built bombs for Hamas and was killed by Israel in 1996, against the backdrop of Al-Aqsa mosque.
No post in question received more than 11 likes.
“The posts constituted incitement and support of an illegal organization, and are therefore not protected speech” the judge said Thursday.
The court’s decision means that Esmail will have to remain in the West Bank until the legal proceedings against her are complete. During that time, Esmail is barred from posting publicly on social media. Her next trial at a military court is set for March 31, according to Franks.
In the meantime, her family is worried that she will not have access to adequate cancer treatment in the West Bank and that Israel may arrest her again.
Thursday's hearings followed a previous military court hearing six days after her arrest in which the military judge assigned to her case openly questioned the wisdom of prosecuting an American citizen and wondered if the court had jurisdiction, according to case files obtained by The Associated Press.
“It is not wise to file indictment against her based on the allegations,” the judge said at the time. "In the substantial sense, nor even in the political sense (in its international sense).”
Despite the judge's recommendation that Esmail be released on bail, the military prosecutor filed an indictment — leading to Thursday’s hearing.
The case comes at a time of high tension between the U.S. and Israel over the war in Gaza, which has claimed over 30,000 lives since Oct. 7, when Hamas militants staged a cross border attack, killing some 1,200 Israelis and dragging 250 hostages back to Gaza.
Since that day, Israel has clamped down on online speech perceived to glorify Hamas or the Palestinian cause. Palestinians have been arrested by Israeli authorities, fired by Israeli employers and expelled from Israeli schools for speech deemed incendiary, rights groups say.
Hamed, Esmail's son, said the family was disappointed that the embassy did not send a high-ranking official to attend Thursday's hearing, despite the family's representatives asking them to.
The U.S. Embassy did not have immediate comment.
Esmail’s family said she often traveled back and forth between the West Bank and the U.S., where she manages a family owned grocery store in the New Orleans suburb of Gretna and worked as a tutor at a nearby high school. She was in the West Bank to see relatives and testify at a hearing about a previous encounter with Israeli forces where she was beaten, her representatives said.
“It’s clear why they’re holding her," said Hamed. "They’re trying to use her as an example and to intimidate Palestinians. Cases like these have people deleting their social media, canceling their trips to Palestine. They’re trying to silence us.”