Why the Justice Department just filed charges against Hamas leaders who will likely never be arrested

Why? And why now?

Those were the first questions that came to mind on Tuesday when the Justice Department released a criminal complaint against six Hamas leaders for their role in the October 7, 2023, terrorist attack in Israel that killed around 1,200 people, including 40 U.S. citizens. A Justice Department press statement said the attack was “the culmination of Hamas' decades-long campaign of terror and violence against Israel and its allies, including American citizens.”

According to the lawsuit filed in the Southern District of New York, Hamas was founded “to establish an Islamic Palestinian state throughout Israel by destroying the State of Israel through violent holy war.” The lawsuit goes on to say that “Hamas has murdered and injured dozens of Americans as part of its campaign of violence and terror” “in retaliation and in an effort to weaken American support for Israel's right to exist and the defense of that right.” The 38-page document describes decades of brutal attacks and atrocities dating back to 1997, allegedly carried out by a group that the U.S. government has since designated as a foreign terrorist organization.

Let's start with the first question. Why would the Justice Department bring charges against Hamas leaders it will most likely never arrest and bring to trial, especially when three of those leaders have already been killed?

First, the Justice Department has long specialized in holding terrorists who kill American citizens criminally accountable, even when those acts are committed abroad. For example, in 2002, the Justice Department indicted Ahmed Omar Saeed Sheikh for his role in the brutal murder of journalist Daniel Pearl, even though the defendant was still pending trial in Pakistan. In 2017, Ahmed Abu Khatallah was convicted by a U.S. court of helping to plan and carry out the 2012 attack on the U.S. mission in Benghazi that killed U.S. Ambassador Christopher Stevens and three other Americans stationed in Libya.

In some cases, it can take years or even decades to bring defendants to justice, but the Justice Department has relentlessly pursued terrorists across governments. In 2020, the Justice Department brought charges against the alleged maker of the bomb that destroyed Pan Am 103 over Lockerbie, Scotland, 34 years earlier, killing 190 Americans. 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 soldiers in 2008. In 2011, prosecutions for the 1998 bombings of the U.S. embassies in Kenya and Tanzania concluded with the life sentence for the fifth defendant, Ahmad Ghailani.

As Attorney General Merrick Garland noted in his press statement this week, “the Department of Justice has a long memory” and vowed to pursue terrorists responsible for the murder of Americans “to the end of their lives.”

The second reason for filing criminal charges is what the Justice Department and other experts sometimes call “naming and shaming.” Even if an indictment does not lead to conviction and punishment, it can serve as a form of moral condemnation on the world stage, in this case forcing foreign governments to acknowledge Hamas’ terrorist past.

To the extent that Hamas presents itself as a legitimate political organization or a humanitarian organization, the indictment paints a very different picture of a group that perpetrates brutal violence. The indictment describes the October 7 attack as a “massacre” and describes kidnappings, the burning of houses, machine gun shooting at point-blank range, and sexual violence against women, including rape and genital mutilation. It describes brutality toward grandparents and young children.

The complaint also accuses Iran of supporting, supplying, and training Hamas to achieve its own goals of “harming, weakening, and ultimately destroying both the United States and Israel.” Hezbollah, another group the U.S. government designates as a terrorist organization, is also named in the complaint as a Hamas ally that helped in the October 7 attacks. The complaint describes Iran, Hezbollah, and Hamas as the “axis of resistance” and lays out a damning record of their behavior toward the United States and its citizens.

A third reason to file criminal charges against Hamas could be to limit its ability to raise funds. The complaint details how the organization solicited and received $7.7 million in funds to promote terrorist activities through cryptocurrency payments, ostensibly to protect donors' anonymity. By disclosing that the U.S. government can track payments, prosecutors may hope to deter donors from further contributions.

But even if the reasons for filing the complaint may be convincing, the question remains why NowThe announcement of the charges comes at a time when ceasefire talks between Israel and Gaza appear particularly fragile. Over the weekend, Israeli authorities recovered the bodies of six hostages who were recently killed in a tunnel under Gaza. On Monday, Benjamin Netanyahu responded to massive protests and appeared to reiterate his demands. His comments made the chances of an early solution seem even more unlikely.

The complaint provides some clues about the timing of the complaint. The last page of the complaint asks the court to seal the document unless it is necessary “to secure the arrest, extradition or deportation of the defendants or when otherwise required for national security reasons.” This page also indicates that the complaint was filed in February, before the three deceased defendants were murdered. To the extent that authorities had hoped to find and arrest them in a country that allows extradition, their deaths lessen the need to keep the complaint secret.

This is not rogue behavior by the Justice Department. I know from my own experience as a federal prosecutor that policy prohibits bringing charges on a political basis. When a case could touch on national security or foreign policy, coordination between agencies is always required. The White House and the State Department would certainly have been briefed and asked to evaluate this case in light of the United States' goals in the Middle East. Garland himself hinted at that coordination when he spoke of “a whole-of-government effort to bring home the Americans still being held hostage.” State Department spokesman Matt Miller made a similar statement on Tuesday: “As far as U.S. policy is concerned, we have long made clear that our top priority in terrorist cases is to apprehend terrorists and bring the United States to justice for their crimes.”

It's also possible that recent events have actually caused the Justice Department to stop publishing the lawsuit. Hamas's refusal to release hostages will remain a sticking point in any ceasefire solution. This could be the Justice Department's way of reminding Hamas that the U.S. will be fighting for the long haul.

Miller said on Tuesday: “It is time to get this deal done. The Israeli people 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.”

This article was originally published on MSNBC.com.