America’s Top Exports: Counterterrorism Policy and Barriers to Charities?

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September 5, 2012
Nathaniel J. Turner

The disquieting trend of governments encroaching on the rights of civil society was discussed by a panel of experts at the Woodrow Wilson International Center for Scholars on Aug. 14, 2012. Front and center was the concern that oppressive dictatorial and near-dictatorial regimes across world are criminalizing freedom of assembly and speech, and imposing a morass of regulations aimed at stifling the work of nonprofits. The speakers made it clear this is also a problem in some democracies, including the U.S.

Examples of what panelist Carl Greshman, President of the National Endowment for Democracy (NED), called “rule by law” were drawn from the recent report released by the International Center for Not-for-Profit Law (ICNL) and NED, Defending Civil Society.  Among  the offenders were Cuba, which fines individuals who are involved with “unauthorized” organizations, Russia, which prohibits participation in organizations with “political” or “extremist” goals, and Ethiopia, which makes  broadly defined “encouragement of terrorism” punishable by 10 to 20 years in prison. Even Hungary, a member of the European Union and the native country of panelist Nilda Bullain, Vice President of Operations at ICNL, has been guilty of trending away from open democracy.
Maina Kiai, UN Special Rapporteur on the rights to freedom of peaceful assembly and association, reiterated Bullain’s comments about Hungary and in doing so made one of the most important observations of the event: “Attacks [on civil society] don’t only happen in the global’s not just about countries seen as undemocratic [and] totalitarian.”
Kiai’s observation was an important one to make, because on its face it seems ridiculous; how could anyone justly compare the atrocious treatment of nonprofits in places like Egypt, North Korea, Uganda and Syria to the treatment of nonprofits in the U.S. and Europe? The U.S. in particular sees itself as a bastion of democratic values, which we attempt to export around the world. How could we be accused of stifling fundamental aspects of democracy?
The fact is, in the years since 9/11, the U.S. government has passed laws and created regulations that continue to stifle the work of nonprofits. What’s more, the U.S. has engaged in a concerted effort to package these barriers to civil society and export them around the world.
Chief among the laws fettering nonprofits is the “material support” prohibition. It makes providing any monetary benefit, along with any “training” “expert advice” or “assistance” to a designated terrorist group a crime punishable by steep fines and prison sentences. This law effectively bars any humanitarian NGO or charity from providing aid to needy civilians trapped in areas controlled by terrorist groups. The impact of this law was seen most notably in Somalia, where the terrorist group Al-Shabaab controlled many of the areas hardest hit by the 2011 famine. It was not until a limited license was granted by the Treasury Department that USAID grantees were able to provide some aid.
The methods the U.S. employs to deal with nonprofits that have been accused of providing support to terrorists have also been called into question.  Two U.S. charities have successfully challenged the constitutionality of the process and advocates have asked Treasury to re-write their rules to conform to basic due process requirements.
While the material support prohibition and the lack of due process for nonprofits should give those concerned about the state of civil society in the U.S. pause, they are hardly the only impact of the post-9/11 counterterrorism regime.
It is the export of these laws and regulations, directly through the U.S. or through multinational bodies like the UN that has created a lasting impact around the globe. Days after 9/11, on Sep. 28 2001, the UN Security Council passed Resolution 1373 calling on all member states to pass all necessary terrorism measures. Between the passing of the resolution and March 2007, 33 countries introduced or passed anti-terrorism legislation. In countries where the legislation was stalled or facing opposition, U.S. ambassadors spoke publically of reducing U.S. investment should the laws not be passed or promising more aid if they were.
Another U.S. supported initiative, the Financial Action Task Force (FATF), is a multinational body that publishes recommendations for anti-money laundering and counterterrorism financing regulations. FATF’s Recommendation 8 states that, “non-profit organizations are particularly vulnerable [to abuse by terrorists]...countries should ensure that they cannot be misused.” According to the report Legalising Surveillance, Regulating Civil Society, there is 1) little evidence that nonprofits are actually abused by terrorists and 2) many countries are using Recommendation 8 as an excuse to clamp down on civil society.
When Special Rapporteur Maina Kiai said that “Attacks [on civil society] don’t only happen in the global south” he was not trying to downplay those horrendous abuses. Rather, he was asking the audience realize that oppressive laws are not passed in a vacuum. Even the supposed bastions of liberal democracy, like the U.S., are guilty of impeding civil society. And more troubling is that those countries that already have a propensity toward limiting freedoms look to our own laws as justification. The U.S. should export the ideals of freedom of assembly, association and speech, not laws and regulations that limit the space for civil society.