Taking Liberties: The War on Terror and the Erosion of American Democracy (11 page)

Two and a half years after the initial blocking order, the investigation was still pending and the confiscated assets were still in the government’s hands. Not only does the law neglect to provide any fair administrative process, it also fails to provide any deadlines or time limits for government action. KindHearts still had not been charged with any crime or even designated as a terrorist group, but it was being put out of business. So KindHearts went to court. The organization’s complaint tells a byzantine tale of blocked documents, denied security clearances, and unresponsive bureaucracy. Early stages of the litigation were dominated by skirmishing over the availability of documents. The Obama Administration came into power, but the government’s arguments did not change and neither, evidently, did the status of KindHearts. In 2009, Ohio federal judge James Carr (a Clinton appointee who is now Chief Judge of his court) wrote a sixty-five-page opinion explaining why he thought this Patriot Act provision’s total disregard for fair process was unconstitutional. This confiscation of assets without any showing of wrongdoing was an unreasonable “seizure” in violation of the Fourth Amendment, he wrote, and KindHearts had been denied due process because the organization had not been given a fair opportunity to understand or respond to the government’s concerns.
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In May 2010, over four years after the initial seizure, Judge Carr ordered OFAC to tell KindHearts the basis for the original blocking order and to explain why they believed that the charity was connected with terrorist financing so that he could determine whether or not there was actually probable cause for the seizure and retention of the group’s resources. He also asked OFAC, now under new management, to reconsider allowing KindHeart’s lawyers to be paid out of the organization’s own funds.
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Although it may have seemed like a good idea in the fall of 2001 to err on the side of overinclusion, a special 9/11 Commission staff report on terrorism financing later found the evidentiary basis for the early designations of charities as terrorist supporters to be weak. Asserted “links” between the designated groups and terrorists—in the form of common contacts, and so forth—were “sufficient to whet the appetite for action” but did not demonstrate that the designated groups were actually funding terrorism.
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There certainly was not strong enough evidence of wrongdoing to justify abruptly putting these charities out of business. One former Treasury official who had been part of the December 2001 designation rush told the Commission staff, “[W]e were so forward leaning we almost fell on our face.”
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Other critics have agreed that this emergency program led to dubious designations, despite the fact that the government enjoyed an unprecedented level of access to financial information from around the world as American and international bankers and companies shared their massive databases with government officials.
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Because the process is secret and there is so little review by Congress or the courts, our chief source of information about the reliability of these designations comes, oddly enough, from other countries which, on being asked to join the United States in blocking particular organizations, evaluated our government’s evidence and publicly announced themselves unsatisfied. On three separate occasions, the U.K. Charity Commission, for example, reviewed OFAC’s assertion that a U.K.-based charity called Interpal was supporting Hamas, and concluded that “[t]he American authorities were unable to provide evidence to support their allegations.”
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This was not the only occasion on which much of the purported evidence against a group consisted of inconclusive newspaper articles which sometimes did not even name the group in question.
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Mistranslation was also a serious problem. The evidence in a criminal trial against the Holy Land Foundation for providing material support to terrorists, for example, included a four-page FBI document which an independent translating service found to contain sixty-seven translation errors. One translation from Arabic to Hebrew to English rendered the statement “we have no connection to Hamas” as “charitable funds were channeled to Hamas.”
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Officials in other countries reached the same disparaging conclusions. As a Canadian Justice Ministry official said of one case, “We looked at the evidence and then it became clear that there was no evidence.”
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The Holy Land Foundation (HLF) is the only one of the blocked organizations the government has had any success in prosecuting, and even that
case has remained controversial. President Bush announced in a December 2001 press conference that “Hamas has obtained much of the money that pays for murder abroad right here in the U.S., money originally raised by the Holy Land Foundation.”
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But the criminal trial against HLF and some of its leaders was not based on the theory that HLF had given money to Hamas, a foreign terrorist organization, for material support purposes. Instead, the government’s theory was that HLF had given money to non-designated charity committees—committees which also received aid from the International Red Cross and the United Nations—and that Foundation officials “should have known” that these committees had connections with Hamas, which might thereby receive indirect benefits from HLF’s aid.
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The 2007 criminal trial of HLF and five of its leaders, which lasted over three months, did not result in convictions on any of 197 counts. One juror at the 2007 trial referred to the prosecution evidence as “strung together with macaroni noodles.”
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Another described the case as “based on assumptions that were based on suspicions.”
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Because the jury did not agree on acquittals on all of the counts, a mistrial was declared and the government got to try again.

Having practiced, the government did better at a 2008 retrial, winning convictions of the charity and five leaders on a number of charges including charges under the material support law—which, as the last chapter showed, is a pushover.
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The defendants appealed what they claimed had been an unfair trial. Procedural wrangling—over fundamental issues like whether an appeal should be allowed and whether HLF could be represented by counsel—persisted for additional years, almost a decade after the initial designation. But the government did not win any convictions against Benevolence International Foundation (BIF) or the Global Relief Foundation,
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the other two of the three largest American Muslim charities, and the other designated organizations were not charged with any crimes.
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The campaign against BIF was an enormous waste of resources on all sides. A court dismissed the 2003 criminal prosecution of BIF after finding that the government simply had not connected the dots. The organization brought a civil case to challenge its designation, but ran out of money and had to drop the litigation.

The dubious American designations had ripple effects throughout the world. The Treasury Department shut down the United States offices of a group called Al-Barakaat (“the Blessing”), with Secretary Paul O’Neill calling the group “quartermasters of terror.” But no actual connection between the group and terrorism was ever established, and the government
eventually returned this group’s money and closed its investigation without bringing any charges.
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Meanwhile, this unsupportable designation evidently led to shutting down a branch of Al-Barakaat in Somalia. This organization had been running what was essentially the central bank of Somalia and its closure disrupted United Nations relief operations, the country’s only water purification plant and an anti-cholera program, and led to the loss of 700 jobs.
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The 9/11 Commission staff could find no corresponding benefit to offset these costs of shutting down this group’s activities, as the United States had “no direct evidence at all of any real link between al-Barakaat and terrorism of any type.”
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With the perspective of hindsight, the 9/11 Commission staff report expressed skepticism about the whole secret and peremptory designation process. The use of emergency economic sanctions against domestic groups “raises significant civil liberty concerns because it allows the government to shut down an organization on the basis of classified information, subject only to deferential after-the-fact review,” the report concluded.
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Ironically, because the president’s emergency blockade program was not anticipated by Congress, American organizations actually have fewer procedural rights than their foreign counterparts who confront a “foreign terrorist organization” designation.
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American charities and their leaders are supposed to enjoy constitutional rights. But when domestic organizations have asked courts to review the constitutionality of their designations under the president’s Executive Order, the courts have almost uniformly rejected their constitutional challenges, citing the need to be deferential to OFAC on matters of national security.
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One court explained that because the premise of the president’s program was that a national emergency exists, designees are not entitled to any due process.
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This level of deference might be appropriate for a presidential decision to place an embargo on goods from Libya, but is simply inconsistent with the constitutional rights of Americans.

Despite its mistakes and the rough nature of its procedures, has this program succeeded in disrupting the financing of terror? Experts have their doubts. The central goal of the program—to disrupt a United States to Al Qaeda financial pipeline—may have been based on a misdiagnosis of the very nature of terrorism financing. Eric Lichtblau, who researched the asset-blocking program in connection with news articles and his book
Bush’s Law
, describes the emergency need to shut down the pipeline of funds to terrorists as “built, in large part, on a myth of the administration’s own making.”
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He quotes a law enforcement official as telling
him that, despite the administration’s confident declarations, the feared pipeline “never really existed.”
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The staff of the 9/11 Commission, which conducted its own investigation of terrorism-financing networks, agreed: “The United States is not, and has not been, a substantial source of Al Qaeda funding.”
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Furthermore, the Commission staff noted, “The premise behind the government’s efforts here—that terrorist operations need a financial support network—may itself be outdated. The effort to find, track, and stop money presumes that it is being sent from a central source or group of identifiable sources.”
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The Congressional Research Service reported to Congress the 9/11 Commission’s recommendation that the U.S. government “shift the focus of its efforts to counter terrorist financing from a strategy based on seizing alleged terrorist assets to a strategy based on exploiting intelligence gathered from financial investigations.”
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Congress has not responded. The administration could point to the convictions it won against Holy Land Foundation as showing that money for terrorists was being raised within the United States. But those convictions were obtained under standard criminal laws, not under the emergency authority now in its tenth year.

Collateral Damage to Freedom of Religion and Association

The search for American mosques and charities feeding money to Al Qaeda has had a devastating impact on American Muslims, creating a climate of fear, self-censorship, and distrust of government. In a 2009 report called
Blocking Faith, Freezing Charity
, based on interviews with 115 Muslims around the country, ACLU researcher Jennifer Turner documented the sources and consequences of that fear. Many Muslims reported that FBI agents interrogated them about their donations to Muslim charities, whether those charities were blacklisted or not.
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A Muslim woman in Detroit reported:

Our whole community was approached by the FBI about our donations. They’ve intimidated our whole community… They’ve been asking about every single Muslim charity. Everyone is aware of this. People aren’t giving as much as they should be giving, because of this.
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A Dearborn lawyer said:

The FBI goes to donors’ work and ask “why do you give money to this charity, what do you know about this charity, how much do
you give”… the government makes the donor feel like he has done something wrong.
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Some reported having been visited by the FBI two years in a row and asked about the same kinds of donations:

It was very obvious to me the second time [the FBI] came [to my clients] it was to say, “If you keep giving, we’ll keep coming back at you”… [T]his was an investigation to make sure people are intimidated and scared, to cut off funding to Muslim children abroad.
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Others have been troubled by FBI agents recruiting informants to report charitable donations and speeches made in their mosques
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or sending undercover agents to infiltrate mosques. One New York Police Department informant, for example, attended some 575 prayer services in mosques, sometimes at the rate of four or five a day, to record who was attending and the “tone” of religious services.
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Federal and local guidelines that used to restrict sending undercover agents into political or religious settings were relaxed after 9/11, allowing more agents to infiltrate mosques or meetings just to fish for information, without any reason to believe the mosque or group is doing anything illegal.
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Some Muslims fear subpoenas, surveillance, or deportation if they get too close to an organization that turns out to be under investigation. And, of course, the frightening breadth of the material support laws has convinced some to stop donating to any Muslim charity at all, even though they believe that is what their faith demands of them. As Kamal J., a Muslim resident of Bedford, Texas, told an interviewer, “Because everything is under scrutiny, I am not able to fulfill my religious obligation to give—because I am just afraid.”
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Many fear that they can be prosecuted for making a contribution to a legal charity which is later designated, a retroactive guilt theory they say Treasury Department agents do not disavow.
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Some have stopped attending mosques for fear of attracting attention; some have resorted to making contributions only in cash, so that they cannot be traced.
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This climate of fear was exacerbated by the government’s habit of announcing decisions to block a charity in the most dramatic way possible—through public raids, sometimes insensitively timed during the holy month of Ramadan. One Muslim leader remarked, “There is a better way than having the counterterrorism Task Force raid the charity with guns drawn and with the media ‘happening’ to show up.”
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