ACLU and Diverse Coalition of National Non-Profits Challenge Misguided Government Watch List Policy

November 10, 2004 12:00 am

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WASHINGTON — The American Civil Liberties Union today joined forces with 12 national non-profit organizations in challenging the Office of Personnel Management’s Combined Federal Campaign (CFC) requirement that all participating charities check their employees and expenditures against several government watch lists for “terrorist activities.”

“We act today on behalf of non-profit organizations across the country that refuse to be subjected to vague government requirements, especially misguided policies that ask us to become law enforcement officers for the federal government,” said ACLU Executive Director Anthony D. Romero. “Forcing charities to check their employees’ names against a watch list will not make Americans any safer. The CFC policy threatens to disrupt a crucial network of charities that are dedicated to promoting and protecting American lives and values.”

In 2003, the CFC generated more than $248 million from approximately 1,345,000 federal employees, according to the ACLU. The funds went to more than 10,000 participating non-profits that support our country’s health and education systems, the arts and the environment, children’s services and religious life.

The lawsuit, filed in the U.S. District Court for the District of Columbia, charges that the government did not follow appropriate procedures in instituting the policy, that the policy is vague and misleading, and that it violates the First and Fifth Amendments to the U.S. Constitution. The ACLU and many of the organizations in today’s lawsuit withdrew from the CFC rather than accept these terms.

In addition to the ACLU, the following organizations are plaintiffs in the litigation: Advocacy Institute; Amnesty International USA; Asian American Legal Defense and Education Fund; Brennan Center for Justice at New York University School of Law; Electronic Frontier Foundation; NAACP Special Contribution Fund; NAACP Legal Defense and Education Fund, Inc.; Natural Resources Defense Council; Focus Project d/b/a/ OMB Watch; Our Bodies Ourselves; People for the Ethical Treatment of Animals; and Unitarian Universalist Service Committee.

At issue is the CFC’s watch list policy, which it quietly circulated in early 2004 as a new requirement for participants. The policy states:

“I certify that as of (date), the organization in this application does not knowingly employ individuals or contribute funds to organizations found on the following terrorist related lists promulgated by the U.S. Government, the United Nations, or the European Union. Presently these lists include the Department of the Treasury’s Office of Foreign Assets Control Specially Designated Nationals List, the Department of Justice’s Terrorist Exclusion List, and the list annexed to Executive Order 13224. Should any change of circumstances occur during the year OPM will be notified within 15 day of such change.”

The new policy, the groups said in today’s lawsuit, violates a Reagan-era law prohibiting CFC from amending the standards for participants. The CFC also failed to notify the public, via the Federal Register, of its intent to add this unprecedented new language to the application.

Participating organizations were surprised and confused by this new requirement, which included no additional explanations or definitions to help them better understand the steps necessary to be in compliance.

For instance, the policy does not explain:

  • How frequently participant organizations are required to check to see if employees’ (or prospective employees’) names are on the lists;
  • How close a match between an employees’ (or prospective employees’) name and a name on a list is required to be to be considered a match;
  • Whether participant organizations are required to take any steps to determine if employees (or prospective employees) belong to organizations named on the lists.

“The charities of America are not qualified and do not have the resources to be police agents,” said Kay Guinane, an attorney with OMB Watch, a government accountability advocacy group and a plaintiff in today’s lawsuit. “This policy sets a dangerous precedent and threatens the civil liberties and rights of Americans to join and participate in organizations. What’s next: checking our membership lists, our client lists, our donors?”

In the legal complaint, the groups note that the lists are fraught with ambiguities and there is no way to verify whether a name on the list is actually the individual encountered. For instance, the list of Specially Designated Nationals (SDN) includes the common name Manuel Diaz. More than 300 people with that name are listed in phone books in New York, Florida, California and Texas, and the name is shared by well-known people such as Manuel A. Diaz, the mayor of Miami.

There are also many incomplete names on the SDN list, such as “Ahmed the Tall” and “Ahmed the Egyptian.” It is not clear whether the person’s actual name appears on the list, or whether only known aliases appear. Even ACLU Executive Director Anthony Romero has found that a version of his own name, Antonio Romero, appears on the list.

For complete information on today’s lawsuit, including a link to the complaint, go to

The attorneys in the case are: Chris Hansen, Steven R. Shapiro, Ben Wizner and Gabrielle Prisco of the ACLU Foundation; Arthur B. Spitzer of the ACLU of the National Capital Area; Mitchell S. Bernard of the Natural Resources Defense Council; Marjorie Heins of the Brennan Center for Justice at NYU; Kathleen M. Guinane of OMB Watch; and Theodore M. Shaw, Jacqueline A. Berrien and Norman J. Chachkin of the NAACP Legal Defense and Educational Fund, Inc.

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