The process used by the United States government to “designate,” or list, charitable organizations as supporters of terrorism is controversial, and three federal courts have found key elements of these procedures to be constitutionally deficient.[i] In addition, the U.S. has not implemented due process reforms consistent with the December 2009 United Nations (UN) Resolution 1904, which it supported.
The Charity and Security Network has developed model rules to protect the due process rights of U.S. charities to remedy the constitutional problems, make U.S. practice consistent with international standards and protect the assets of charities for the beneficiaries in need. These model rules can be found here.
This summary chart (below) compares procedures used by the Department of Treasury, Department of State, the UN under Resolution 1904 and the Charity and Security Network proposed model rules to help illustrate the deficiencies in the current system and suggest a way forward.
|Due Process Issue
||IEEPA/Treasury Department||AEDPA/State Department
||UN Resolution 1904||Charity and Security Network's Model|
|Right to Counsel||Yes for pro bono counsel and payment for limited types of cases, otherwise requires a license from Treasury||Yes but only with a licnese from Treasury||Not addressed||Yes and without a license from Treasury|
|Opportunity to Know Evidence Against||Limited to unclassified evidence and post-designation||Limited to unclassified evidence and post-designation||Limited to unclassified evidence and post-designation||Yes|
|Opportunity to Confront Classified Evidence||No||No||No||Yes|
|Opportunity to Present Rebuttal Evidence||Yes, but post-designation||Yes, but post-designation||Yes, but post-designation||Yes, and pre-designation|
|Independent Review||No||No. review is limited to appeal post-designation||yes but limited to post-designation||Yes|
|Judicial Review & Right to Appeal||Yes but limited||Yes but review is limited to administrative record created by State Department||Not applicable||Yes|
|Periodic Review of Designations||None||None unless designated groups seeks revocation after two years||Every year||Every two years|
[i] See, e.g., Kindhearts for Charitable Humanitarian Development v. Geithner, 647 F.Supp. 2d 857 (N.D. Ohio 2009) (finding that block of corporate assets violated nonprofit’s Fourth Amendment rights and statutory rights under the Administrative Procedures Act); Al-Haramain v. U.S. Dept. of Treasury, 585 F.Supp. 2d 1233 (D. Or. 2008) (finding a violation of AHIF-Oregon's due process rights because Treasury failed to provide notice for eight months between the time it froze AHIF's assets "pending investigation" in February 2004, and the designation of the organization as an SDGT in September 2004); People’s Mojahedin Org. of Iran v. U.S., 613 F.3d 220, 225 (D.C. Cir. 2010) (holding that where State relies on unclassified information that is sufficient to designate a group as a FTO, it must provide it in advance of the proposed action and give the group an opportunity to rebut the proposed FTO listing).
[ii] Pursuant to his authority under IEEPA, President Clinton issued Executive Order 12947 in 1995 to extend IEEPA’s reach beyond nation-states to an organization designated as “specially designated terrorist,” making it illegal for anyone to knowingly engage in any transactions of any kind with designated groups.
[iii] Pursuant to his authority under IEEPA, President Bush issued Executive Order 13224 in 2001 to name twenty-seven “specially designated global terrorists” and authorizing the Secretary of Treasury and the Secretary of State to designate more organizations or individuals as SDGTs.
[iv] 18 USC 2339A-C.