October, 09 2008, 01:53pm EDT
ACLU Challenges Threat By Government To Designate Charity As "Terrorist"
Statute Gives Government Unlimited Power To Blacklist Any Organization It Wants
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
The American Civil Liberties Union was founded in 1920 and is our nation's guardian of liberty. The ACLU works in the courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States.
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