ACLU Challenges Threat By Government To Designate Charity As "Terrorist"
Statute Gives Government Unlimited Power To Blacklist Any Organization It Wants
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TOLEDO, OH – The American Civil Liberties Union, the ACLU of Ohio and several civil rights lawyers today asked a federal court to block the government from blacklisting an Ohio-based charity, KindHearts for Charitable Humanitarian Development, Inc., without due process. The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze the group's assets more than 31 months ago, without notice or a hearing, based simply on the assertion that KindHearts was "under investigation." OFAC has since threatened to designate KindHearts as a "specially designated global terrorist" based on classified evidence, again without providing KindHearts with a reason or meaningful opportunity to defend itself.
"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.
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. Despite the efforts KindHearts took to implement OFAC guidance and policies and otherwise exercise diligence, OFAC froze its assets in February 2006.
"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."
The ACLU's filing asks the U.S. District Court for the Northern District of Ohio Western Division to temporarily block the designation of KindHearts as an SDGT while the court hears KindHearts' challenges to OFAC's actions. In the past, the government has taken the position that the official designation of a charity as a global terrorist wipes out any constitutional violations the government may have committed against the organization.
The attorneys filing the case on behalf of KindHearts are Shamsi and National Security Fellow Alexander Abdo of the ACLU; Byers of Toledo, Ohio; David Cole of the Georgetown University Law Center; Lynne Bernabei and Alan Kabat of Bernabei & Wachtel, PLLC in Washington; and Jeffrey Gamso and Carrie Davis of the ACLU of Ohio.
The ACLU's complaint is available online at: www.aclu.org/safefree/discrim/37095lgl20081009.html
The ACLU's motion in support of a temporary restraining order is available at: www.aclu.org/safefree/discrim/37096lgl20081009.html