Taking Liberties: The War on Terror and the Erosion of American Democracy (10 page)

Bush’s Executive Order 13224, signed on September 23, 2001, extended this kind of economic quarantine to a long list of private United States– based charities and individuals. Declaring terrorism to be a national emergency, the Order announced an immediate freeze of all of the United States–based assets of twenty-seven groups Bush unilaterally designated as terrorist organizations, and authorized the Treasury Department Office of Foreign Assets Control (OFAC) to add to this new blacklist.
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Designation meant that no one was allowed to engage in any financial transaction whatsoever with anyone on the list without applying for and receiving a special license from OFAC authorizing the transaction.

This may have seemed like a good idea in the fall of 2001. Still reeling from the events of 9/11, the Administration was frantically trying to determine whether any other threats were looming. Finding ways to prevent Al Qaeda from raising money to fund future attacks was made a priority and there had not been much time to investigate what networks for terrorist financing might exist. Alarmed officials expressed concern that there was a pipeline of money flowing from Brooklyn mosques to Al Qaeda. The government could use the broad material support laws or other criminal laws to prosecute individuals or organizations who were financing terrorists and could also use forfeiture laws, invigorated by the Patriot Act, to strip a person or individual of assets.
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But the “blockade” approach offered one great advantage: avoidance of due process protections. In a criminal prosecution, the government would have to introduce admissible evidence amounting to proof beyond a reasonable doubt that the person or organization charged actually provided material support to terrorists, and the defendant would be afforded the full panoply of constitutional criminal procedure rights, including the right to confront witnesses and the right to a jury trial. Forfeiture proceedings do not entail as many rights, but do afford some opportunity to be heard. To the Bush Administration, due process was an unwelcome and dispensable hurdle in combating terrorism. Al Qaeda, as a foreign organization, had no constitutional rights and was regarded as our enemy in a war. Therefore, the Administration reasoned, anyone who supported Al Qaeda should also be treated as an enemy combatant and, American or not, should not enjoy any more constitutional rights than Al Qaeda itself. The administration’s preference was to err on the side of overinclusion.

The problem with this reasoning is that it is circular. Without some sort of fair process, it is impossible to know whether someone actually is an Al Qaeda supporter. The Supreme Court rejected the core of this kind of
flawed reasoning in
Hamdi v. Rumsfeld
,
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holding that American citizens have a right to a hearing to determine whether they truly are an “enemy combatant” rather than being unilaterally stripped of rights by a presidential designation on the basis of shadowy and secret evidence.
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Due process means that American citizens may not be detained on a 1 percent chance that they might be terrorists. It should also mean that the government cannot seize an American person’s or organization’s property on a 1 percent chance that their property might be used to support terrorists somewhere down the chain.

The designation of “Specially Designated Global Terrorists” (SDGTs) was as peremptory as the designation of Hamdi as an enemy combatant. The statute did not give the designee the right to notice of the government’s suspicions or any opportunity to be heard before the designation took effect. There were no criteria provided for OFAC to apply in deciding whom to designate, no process for contesting a designation after the fact, for judicial approval, or for any form of oversight. This lack of procedural safeguards is not surprising, as the IEEPA, like the material witness law, was being enlisted in the War on Terror even though it had been designed for other purposes. Why would Congress have provided Libya, a foreign nation not covered by the United States Constitution, the right to a fair hearing before imposition of an economic blockade—a foreign policy decision? Most of the designated SDGTs were foreigners, but a number were Americans. And Americans must be treated differently from the government of Libya because we do have constitutional rights, including the right to due process before the government takes our property. The blockade approach, created as a shortcut alternative to criminal prosecution or forfeiture laws, violates basic constitutional principles and essentially amounts to punishment without due process of law.
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The Campaign Against Charities

The same sense of urgency that led the administration to rely on this emergency designation process also compromised implementation of this program. The campaign unleashed by this executive fiat led to a witch hunt in the world of Muslim charities. The war on terrorist financing became a war on American Muslims, who at times seemed to be presumed guilty of connections with terrorism. It probably seemed logical to investigators to start looking for those who financed Muslim terrorists by looking hard at any Muslim charity. There is no way for us to know whether targets
were selected for investigation on the basis of unreliable tips, or to what extent these decisions were influenced by anti-Muslim bias. Designations of American-based charities and individuals were made behind closed doors on the basis of secret evidence. But even people of good faith anxious to find evidence of wrongdoing can come to see what they expected to see, as the overzealous prosecution of Sami al-Hussayen demonstrates. As the past decade has shown again and again, secrecy, lack of due process, and lack of accountability are a deadly combination, breeding inaccuracy as well as abuse.

Here, those who suffered were law-abiding American Muslims and the entire nonprofit sector. Within a few short months of the declaration of emergency, the three largest Muslim charities in America—the Holy Land Foundation, the Global Relief Foundation, and the Benevolence International Foundation—were blacklisted and had their assets seized in dramatic public raids during the Muslim holy month of Ramadan. These organizations were soon joined by others. Seven of the nine United States– based charities blocked under this program were Muslim; the other two were Tamil organizations providing aid relief in Sri Lanka. In the years since 2001, the government has kept some $20 million of seized assets under this Executive Order,
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holding the assets of some organizations for over seven years despite serious questions about whether the designated charities actually were connected with terrorism financing in any way, and indeed about whether the feared Brooklyn mosque to Al Qaeda pipeline actually existed. Nothing in the applicable statutes or Executive Orders prevents these assets from being held indefinitely—that is, until the president decides that the “emergency” of terrorism has ended.

Some of the designated charities were driven out of business entirely; others were made pariahs, like Muhammad Salah. Well-intentioned donors, who had no way of knowing that their favorite charity would later be deemed to be connected with terrorism financing, found that their contributions sat sequestered for year after year, never getting to any nursery school or back to them.
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Donors were likely to switch charities once the government blacklist besmirched an organization’s reputation, so the targeted charities that remained in business struggled to raise funds for their legitimate charitable purposes and for their own self-defense. More disturbingly, American Muslims were given cause to fear contributing to any Muslim charity, even those not designated, through a persistent pattern of suspicion and harassment. Enforcement efforts infringed First Amendment religious rights as well as due process because, as noted earlier, giving
generously to charity is a religious requirement for Muslims—one of the “Five Pillars of Islam.” Now innocent contributions to domestic charities, not just “foreign terrorist organizations,” might subject people to civil or criminal penalties, to frightening visits from the FBI, or to deportation of anyone who was not a United States citizen. Congress has not explored whether the emergency leading to these abuses continues or whether the power President Bush claimed under the IEEPA goes too far. President Obama’s Administration has continued to defend actions taken under this program. And the courts have been slow to notice that this treatment of American religious rights and property ignores the Due Process Clause, the Equal Protection Clause, the Fourth Amendment’s prohibition of unreasonable seizures, the First Amendment right of association, and the First Amendment right of Muslims to exercise their religion.

Congress’s Patriot Act contribution to this campaign was to allow even organizations not included on the “Specially Designated Global Terrorists” blacklist to have their assets frozen without warning,
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as a Toledo, Ohio–based charity named KindHearts for Charitable Humanitarian Development was to learn.

Having watched organizations focusing on aid in Palestine and other troubled parts of the world being shut down by the American government, the founders of KindHearts were determined to find a way to offer help to suffering people whose needs were not being met, without running afoul of American law. So in 2002, they declared their mission to provide humanitarian aid to refugees and victims of war and natural disaster around the world, especially in Lebanon and Palestine. They provided food, clean water, clothing, and medical treatment to refugees of war and natural disasters in Lebanon, Gaza, Pakistan, and in the United States following Hurricane Katrina. They sponsored health clinics and bought food and toys for needy children. They did everything recommended by the Treasury Department to avoid even the appearance of supporting terrorists. They rejected proposals for aid from groups they regarded as having political agendas. When they discovered that one of their employees was suspected of having ties to Hamas, they asked him to resign in order to show the government how determined they were to steer clear of any designated groups.
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But in February 2006, OFAC notified KindHearts that its assets were being frozen because the charity was under investigation. Why was this charity targeted? A Treasury Department spokesperson announced, “Kind-Hearts is the progeny of Holy Land Foundation and Global Relief Foundation, which attempted to mask their support for terrorism behind the
façade of charitable giving.”
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This may have been a case of guilt by past association or assumption. Some of those involved with KindHearts had indeed been involved with organizations which the government had shut down in December 2001 for their suspected connections with Hamas (the Holy Land Foundation and Global Relief Foundation). But the Kind-Hearts founders themselves were not identified as terrorism supporters. Their experience with the blacklisted organizations was exactly what led them to recognize an unmet need and to commit themselves to complying with American law. Did the government have evidence that someone in the new organization was actually supporting Hamas or terrorists generally? Was the problem that they were suspected of running afoul of the material support law because their well-intentioned contributions of humanitarian aid to refugees in areas where Hamas was active might theoretically have freed up resources for Hamas to engage in terrorism? Was there any way KindHearts could have structured its aid to avoid that problem? We have no way of knowing and neither did KindHearts. OFAC’s evidence, which could include hearsay and classified information, was not revealed at the time the organization’s assets were frozen and was only partly shared in the years to follow. OFAC never offered KindHearts advice about how to avoid breaking the law, or gave them notice that they might be doing something of concern. OFAC might have issued an order to KindHearts to cease and desist from certain activities that might have left the charity able to pursue its central mission in a manner OFAC would find unobjectionable. Instead, OFAC just put KindHearts out of business without providing evidence to back up its suspicions. Just trust us.

Without being allowed to spend its money, the charity could not do anything to help refugees or even to help itself. The charity was not permitted to use its own funds to hire a lawyer—paying a lawyer is, after all, a financial transaction. Lawyers are required to apply to the Treasury Department for a special license before being allowed to represent any designated organization or organization whose assets have been seized.
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KindHearts’ lawyer was granted a license, but he was told that under Treasury Department policy applicable at that time, he could not be paid out of the group’s assets because of the blocking order. The organization had no prospect of raising additional funds (which, because of the blocking order, could only be done outside the United States), so that lawyer resigned—and was replaced by volunteer lawyers, including Lynne Bernabei, David Cole, and the ACLU, all of whom also had to apply for special licenses. In addition to being willing to work without payment, lawyers representing
targeted organizations also have to be willing to explain to OFAC what their representation of the organization will entail, compromising the confidentiality of the lawyer-client relationship.

The government seized all of the organization’s records and then restricted its access to those records. OFAC’s review took fifteen months, but KindHearts was given a deadline of only thirty days to respond, despite being unable to review its own records or pay for legal or other professional help to document its side of the story. Former employees worried that if they helped KindHearts prepare a defense, they might be leaving themselves vulnerable under the material support law for contributing to an organization that was suspected of contributing to terrorist organizations. KindHearts was becoming radioactive.