It is midway through January 2014 and the past few weeks my email inbox has been flooded with messages from a host of organizations about the New Year and their plans and goals. Now it’s my turn! I have been assessing the opportunities in 2014 for strengthening protections for nonprofits whose operations are impacted by counterterrorism laws and looking at the current and growing challenges. What I see makes me optimisitc. There is a unique opportunity to address long standing problems, but it will require the diverse stakeholders in the nonprofit sector to work together across the silos that can limit their vision and effectiveness. This blog takes a look at where we’ve been, where we are and where we need to go.
The Charity & Security Network was launched five years ago as a three-year project. We thought that would be enough time to fix the problems counterterrorism laws create for nonprofits. We were disappointed early on by the Obama administration’s failure to address problems of charities and their beneficiaries. That was followed by the Humanitarian Law Project decision by the Supreme Court in 2010, in which the administration successfully argued that the prohibition on material support of terrorism could bar peacebuilding organizations from training terrorist groups how to use nonviolent conflict resolution methods to address their grievances. In 2011 the Treasury Department’s unwillingness to issue a General License during the Somalia famine kept many groups from providing critically needed food aid, and was a factor in the higher than expected death rate. Then there was 2012 and 2013. A Don’t Ask Don’t Tell phase evolved, where administration officials often rejected proposals to fix the law by pointing out that no charities were being prosecuted for peacebuilding, humanitarian or development work.
This period also saw increasing negative consequences of administrative measures imposed in the name of anti-terrorist financing, both in and outside the U.S. For example, some governments have imposed limits on the funding from foreign sources, targeting human rights defenders that need support from the outside to do their work. This impacts the fundamental human right of freedom of association, both for the grantee and grantor. Restrictive nonprofit laws passed in the name of anti-terrorist financing have also increasingly made it more difficult for organizations to operate, prompting an investigation and report by the UN Special Rapporteur on freedom of peaceful assembly and association in 2013.
A side effect of the counterterrorism laws is the response of the banking sector to providing services to nonprofits that need to transfer funds internationally, especially to places where terrorist groups are present. Banks have closed nonprofit accounts for no apparent reason, delayed fund transfers and imposed burdensome administrative measures. This financial exclusion is having a negative impact on program operation and diverting resources away from program services.
So, after that long litany of problems, why do I say that there is opportunity for progress and reason for optimism?
There are two reasons. First, there is a fundamental and positive shift in the way key public officials, experts and media view the issue of civil society and counterterrorism measures (CTMs). An overarching view is emerging that sees protecting civil society as both a strategic necessity, and a human rights and humanitarian issue. Increasingly government officials recognize that freedom of association, expression and assembly are implicated in counterterrorism laws impacting civil society, and understand that undue infringements on these rights are not in the best interests of security policy.
This emerging school of thought sees appropriate CTMs for civil society as proportionate to risk of harm and designed to ensure that legitimate organizations can continue operation. This moves away from the Bush era framework of zero tolerance, as reflected in current U.S. law. While not all U.S. officials are won over to this view, a growing number are embracing it.
President Obama’s sponsorship of a UN event in September 2014 focused on the importance of protecting and promoting civil society is the best example of this. He spoke on behalf of 24 countries that signed a Joint Statement on the Promotion and Protection of Civil Society, criticized “a growing number of countries that are passing laws designed specifically to stifle civil society... forcing groups to register with governments, eroding human rights protections, restricting NGOs from accessing foreign funding, cracking down on communications technologies...” He noted that “human progress has always been propelled at some level by what happens in civil society -- citizens coming together to insist that a better life is possible, pushing their leaders to protect the rights and the dignities of all people.” Another important indicator is the FATF’s revision of a key document that describe charities as a “vital component of the world economy” that can “play an important role in preventing the causes of radical ideology from taking root and are, therefore, potential allies in the fight against terrorism.”
The second reason for optimism is the introduction of the Humanitarian Assistance Facilitation Act (HAFA) legislation that amends the material support and sanctions laws to permit peacebuilding and humanitarian aid to civilians. This bipartisan bill would allow humanitarian aid to reach civilians much more quickly in areas controlled by blacklisted groups while still providing safeguards against diversion of aid to terrorists. For peacebuilding it allows nonprofits to engage in speech or communications with listed persons “to prevent or alleviate the suffering of a civilian population, including speech or communication to reduce or eliminate the frequency and severity of violent conflict and reducing its impact on the civilian population.” It is sensible, pragmatic and smart security policy as well as consistent with human rights and humanitarian principles.
The question now is how to build on this momentum and move forward. The answer is that stakeholders from across the nonprofit sector must come together and push the administration and Congress to translate this new rhetorical framework of protecting civil society into concrete laws and policies. That means peacebuilders, humanitarians, human rights defenders, civil liberties advocates, grantmakers and religious leaders must reach out to each other and provide active support to advocacy efforts.
The damage counterterrorism laws do are not limited to humanitarian groups or peacebuilding projects or Muslim charities. They have undermined the principles upon which our sector is built- equality, humanity, respect for freedom of association and expression, democratic principles and independence from government. These fundamental rights – human and Constitutional rights – must be supported for example, not only for individuals at Guantanamo but for the charity denied due process when placed on a terrorist list. And not only for Muslim donors who are harassed by the FBI, but for Somali children facing starvation.
In 2014 there will be many opportunities for the nonprofit stakeholders to work together, to pass HAFA, to get changes in regulations and the licensing process and to loosen the grip of repressive governments on our colleagues in other countries. Stay tuned!