Bush's Lingering Blacklist
More than three years ago, KindHearts, a registered charity in Toledo, Ohio, had its offices raided, all its documents and records seized and its assets frozen. The charge against it? There was none. The Treasury Department simply said KindHearts was "under investigation" and invoked a provision of the USA Patriot Act to shut it down. It was never given a trial, a hearing or a statement of reasons. To this day it has not been charged with any wrongdoing, yet its assets are still frozen. The investigation is ongoing, and under the Patriot Act, that is enough to keep the freeze in place.
With all the focus on what to do with the Guantánamo detainees and those who tortured them, the laws governing "material support" to terrorists and terror organizations have received too little attention. The goal of these laws--cutting off funds for terrorist activity--is legitimate. But the means employed impose draconian sanctions on little more evidence than guilt by association and grant virtually no due process. The world, and the US courts, are beginning to stand up and take note. The question is whether the White House will.
In September the European Court of Justice ruled that the United Nations Security Council's resolution for designating individuals and groups as "terrorist" and freezing their assets violates fundamental principles of fairness reflected in the European Constitution and therefore cannot be enforced by the European Community. Under the resolution, the Security Council blacklists alleged terrorist organizations and individuals named by member nations, without a trial or hearing, and generally on the basis of secret evidence and allegations not shared with those designated. In December the UN Human Rights Committee ruled that Belgium violated the International Covenant on Civil and Political Rights by placing two people on the UN terrorist list. And in January the European Union finally took the People's Mujahedeen of Iran off its terrorist list after three court decisions declared the designation unfounded.
The UN process mirrors the domestic procedures President Bush established for listing "specially designated global terrorists." Shortly after the 9/11 attacks, Bush announced, with no explanation, that twenty-seven individuals and groups were "terrorist." He ordered all their assets frozen and made any transaction with them a crime--even if the transaction in question was humanitarian and had no connection to violent or terrorist activity.
At the same time, Bush gave the Treasury Department sweeping authority to designate individuals or groups "terrorist" merely because of associations with those already on the list. Today the list reads like an Arab phone book, with thousands of names. Yet the administration has never published a statement of reasons for any of these "designations," much less afforded anyone a trial. At most, designated individuals or groups receive only a copy of the unclassified evidence on which the Treasury based its decision and an opportunity to submit a written response. But because designations almost always rest on undisclosed classified evidence, the opportunity to respond is a charade. No group has succeeded in overturning a designation.
The consequences for those who associate in any way with a designated group can be severe. In November the Bush administration hailed as a major victory its conviction under these laws of several men associated with the Holy Land Foundation in Dallas. Prosecutors offered no evidence that the men had provided any donations to Hamas, a designated terrorist organization, or had supported any terrorist act. But they argued that the men had nonetheless violated the law by supporting local Palestinian charity committees--none of which were designated as terrorist. Prosecutors claimed after the fact that the charities were fronts for Hamas. Under this theory, a donor acting on purely humanitarian motives who avoids funding anyone on the government's proscribed list is still guilty if the government later says that the group that received funds was connected to others on its list.
US courts initially turned a blind eye to the civil liberties concerns raised by these laws. They upheld the use of secret evidence, rejected arguments that the laws imposed guilt by association and reasoned that because a designated entity's assets were frozen indefinitely rather than permanently forfeited, the Fourth Amendment did not apply. But as in Europe, the tide may be turning.
In November a federal court in Portland, Oregon, ruled that the Treasury had violated a charity's due process rights by failing to notify it of the potential basis for its designation. It also held that freezing a charity's assets for years was a "seizure" that had to be justified under the Fourth Amendment.
In January a federal court of appeals in San Francisco rejected a government appeal from an earlier decision that declared federal prohibitions on providing "services," "training" and "expert advice and assistance" to terrorist groups unconstitutionally vague. And on May 1 a federal judge in Toledo will hear arguments in a constitutional challenge to the extraordinary three-year freeze imposed on KindHearts. The charity contends that being closed down without any judicial process or finding of wrongdoing violates fundamental tenets of due process.
Like the blacklisting tactics of the McCarthy era, today's terror-financing laws allow the government to label groups and individuals as "terrorist" without the most basic elements of due process, and to punish people for associations, regardless of whether their acts contributed to violence. If we are going to pursue our security without abandoning our ideals, as Obama has repeatedly promised, these laws need drastic reform.