In what appears to be another stunning legal
rebuke to President George W. Bush's policies in the "global war on terrorism,"
a federal judge has blocked the government from blacklisting a Muslim-oriented
charity to give the group a chance to defend itself after its assets were frozen
almost three years ago.
In response to a request filed by the American Civil Liberties Union (ACLU),
the ACLU of Ohio, and several civil rights lawyers on behalf of KindHearts
for Charitable Humanitarian Development, Inc., Judge James G. Carr this week
blocked the government from branding the organization as a "specially
designated global terrorist" "without first affording KindHearts
with constitutionally adequate process," including notice and a meaningful
opportunity to contest the basis for such a designation.
The judge ruled that the government's proposed action prior to a judicial
review will cause KindHearts to "suffer serious and irreparable injury
in the form of loss of reputation and goodwill."
Hina Shamsi, staff attorney with the ACLU National Security Project, said,
"We are gratified that the judge recognized the importance of independent
judicial review of the government's actions toward KindHearts. His decision
also serves the public's interest in ensuring that government action, including
in the name of national security, is subject to the constitutional requirements
of due process."
Lawyers for the Ohio-based charity charged that it was effectively shut down
without due process – "without notice of the basis for the freeze, hearing,
finding of wrongdoing, or meaningful opportunity to respond to the freeze."
They say the U.S. Treasury Department's Office of Foreign Assets Control (OFAC)
froze the group's assets more than 31 months ago "based simply on the
assertion that KindHearts was 'under investigation.' OFAC has since threatened
to brand KindHearts as a 'specially designated global terrorist' based on classified
evidence, again without providing KindHearts with a reason or meaningful opportunity
to defend itself."
One of the lawyers representing the charity, Professor David Cole, a constitutional
law expert at the Georgetown University Law Center, told IPS, "The legal
regime employed in the name of cutting off terror financing gives the executive
branch a 'blank check' to blacklist disfavored individuals and groups, imposes
guilt by association, and lacks even minimal attributes of fair process."
"With our return to a 'preventive paradigm' of preemptively weeding out
threats to national security, guilt by association has been resurrected from
the McCarthy era," he said. "While it was illegal in the 1950s to
be a member of the Communist Party, it is now a crime to support an individual
or organization on a terror watch list, although the government can designate
and freeze assets without a showing of actual ties to terrorism or illegal
Other observers believe that the campaign against charities that conduct programs
in Muslim areas is part of a larger suspicion of Arabs and other Muslims.
Samer Shehata, professor of Arab Politics at Georgetown University, told IPS
that what he termed "Islamophobia" "produces an environment
that is fundamentally at odds with what the U.S. is supposed to be about; our
values for treating everyone fairly and not discriminating on the basis of
skin color, race, religion, gender, etc."
"This is damaging certainly for all Americans and it is also damaging
for the reputation of the U.S. overseas," Shehata said. "One of the
questions I hear the most whenever I am in Egypt and other parts of the Middle
East is: how is it like now in the U.S. for Arabs? Have you been the victim
of discrimination, bigotry, abuse?"
Since 9/11, the government has shut down dozens of charitable groups, but
only three have ever been charged and brought to trial for supporting terrorist
causes. None has been convicted.
"OFAC's authority to shut down a charity based on secret evidence, without
any notice of wrongdoing, any probable cause, any opportunity to defend itself
or any judicial review violates fundamental due process guarantees," said
Hina Shamsi, staff attorney with the ACLU National Security Project.
"KindHearts is asking for nothing more than its day in court before the
government takes the draconian action of unilaterally designating it a terrorist
and inflicting irreparable harm on the charity's most valuable asset, its reputation,"
Under the International Emergency Economic Powers Act (IEEPA) and an executive
order, the president assumed the power to impose economic sanctions on any
organization or individual he or the Treasury secretary designates a "specially
designated global terrorist" (SDGT). A provision of the PATRIOT Act goes
further and authorizes OFAC to freeze an organization's assets without designating
it an SDGT or even finding any wrongdoing.
According to the ACLU's complaint, both the authority to designate SDGTs and
to freeze assets "pending investigation" violate the First, Fourth,
and Fifth Amendments because they give the government the virtually unfettered
ability to shut down an organization even if it has no intent to engage in
or support criminal activity.
The organization's lawyers claim KindHearts' founders established the charity
in 2002 – after the government shut down a number of Muslim charities – with
the express purpose of providing humanitarian aid abroad and at home in the
United States in full compliance with the law.
"Since its assets were frozen more than two and a half years ago, KindHearts
has repeatedly asked the government for the legal and factual basis for OFAC's
actions and for a meaningful chance to defend itself," said Fritz Byers,
an Ohio attorney on the case.
"The government's failure to respond has left KindHearts in limbo, unable
to fulfill its humanitarian mission. It is in the interest not only of KindHearts,
but also the public, for there to be independent judicial scrutiny of the government's
actions in this case," Byers said.
(Inter Press Service)