After pouring millions of dollars into an unprecedented campaign, the Mujahadin-e Khalq (MEK) was removed from the Department of State’s official list of terrorist organizations on Sept. 28, 2012. Supporters of the Iranian group in Paris and in the U.S. welcomed the news, while others say the long and controversial journey to this decision underscores the fundamental problems with the terrorist listing process at State and at the Treasury Department.
The de-listing of the MEK was not unexpected, since Secretary of State Hillary Clinton was under court order to decide by Oct. 1 whether or not to remove the group from the Foreign Terrorist Organization (FTO) list. With the delisting, the group’s property is no longer blocked and Americans can engage in transactions with it without a license, the State Department said.
But before the MEK was removed from the list, the Treasury Department started an investigation into the payments made to MEK supporters. These included political donations, hiring major Washington lobby groups and payments to former high-level officials for giving speeches supporting de-listing. U.S. law prohibits giving to or receiving funds from a listed terrorist group, and it is also illegal to advocate on behalf of a designated terrorist group if that advocacy is coordinated with them. For those of you wondering, the fact that a group is now removed from the list does not retroactively legalize the providing of material support when it was on the list. This broad interpretation of the “material support” statute was upheld in the widely criticized June 2010 Supreme Court decision in Holder v. Humanitarian Law Project.
Among the dozens of former high-ranking officials identified as receiving between $20-40,000 per speech are former CIA directors James Woolsey and Porter Goss, former Assistant Secretary of State Philip Crowley, former Homeland Security Secretary Tom Ridge, and former National Security Adviser Gen. James Jones. Ed Rendell, the former governor of Pennsylvania, said in March that he had been paid a total of $150,000 to $160,000.
Current members of Congress were not immune to the MEK de-listing campaign. The Guardian reports that Rep. Bob Filner (D-CA), who was “twice flown to address pro-MEK events in France, pushed resolutions in the House” calling for the group to be de-listed. Rep. Ted Poe (R-TX) received “thousands of dollars in donations from the head of a pro-MEK group” in his state, and Rep. Mike Rogers (R-MI), chairman of the House Intelligence committee, “has been among the strongest supporters in Congress of delisting the group.”
While it is refreshing to find an issue where Democrats and Republicans find common ground, it is disheartening to see such a blatant example of how the law seems to be flaunted by the powerful and well connected, and at the same time harshly applied to others. As he does on so many issues, Glenn Greenwald pushes past all the Washington clutter and gets right to the heart of this matter. He writes:
“The past decade has seen numerous "material support" prosecutions of U.S. Muslims for the most trivial and incidental contacts with designated terror groups. It is hardly an exaggeration to say that any Muslim who gets within sneezing distance of such a group is subject to prosecution. Indeed, as I documented last week, many of them have been prosecuted even for core First Amendment activities: political advocacy deemed supportive of such groups.
When they're convicted - and marginalized Muslims, usually poor and powerless, almost always are - they typically are not only consigned to prison for decades, but are placed in America's most oppressive and restrictive prison units. As a result, many law-abiding Muslim Americans have become petrified of donating money to Muslim charities or even speaking out against perceived injustices out of fear - the well-grounded fear - that they will be accused of materially supporting a terror group. This is all part of the pervasive climate of fear in which many American Muslims live.” (emphasis added)
And it is not just American Muslims who are living in this decade-long “climate of fear.” American charities are also targets of the same U.S. terrorist listing regime that undermines protected constitutional liberties and violates fundamental human rights to freedom of assembly and association.
U.S. law permits the government to criminally prosecute charities or individuals associated with charities for providing “material support” to a listed terrorist organization, even when that support involves delivering life-saving assistance to a conflict ravaged community or teaching the listed terrorist group how to address their grievances peacefully. They also give the authority to classify charities as a “terrorist,” shut them down without notice or a trial, and seize their property indefinitely. Of the nine U.S. charities shuttered, three have faced criminal prosecution, and only one was convicted, and it was unrepresented at trial.
Under the current regime, fundamental due process safeguards in the listing process are severely lacking. This is not just our opinion, but the findings of the federal courts. In the cases of KindHearts for Charitable and Humanitarian Development and Al-Haramain Oregon, the courts ruled that Treasury’s action violated their Fifth Amendment rights by not providing sufficient notice of the reasons for shutting them down and then not providing a meaningful opportunity to respond. They courts also said Treasury potentially violated their Fourth Amendment rights by freezing funds without a court order.
The status of the MEK, however, is not where this conversation should focus. Instead, the current process used to list individuals and groups as “terrorist” is in desperate need of sensible re-evaluation and reform. Otherwise, all Americans will remain vulnerable to these capricious laws. And if you think the application of these laws is not arbitrary, just listen to how one Washington analyst described the MEK’s de-listing: “One day, they were feared terrorists; the next day they were not. The “bad guys” became “good guys” with the swipe of a pen.”