Due Process

Nine U.S. nonprofits have been shut down by Treasury as supporters of terror­ism. For these nonprofits, lack of basic due process rights and use of secret evi­dence mean there is no protection against unsubstantiated evidence, mistake, or abuse. Organizations are unable to present evidence to an independent review body or hire defense counsel with seized funds. This has created a climate of fear that affects a host of nonprofit operations.

photo by srqpix

 

Due Process

Summary of Economic Sanctions Laws and Regulations Authorizing Treasury to Shut Down Charities

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Date: 
September 15, 2009

The legal authority for the Department of Treasury to designate a person or organization as a Specially Designated Global Terrorist (SDGT) or freeze assets "pending investigation" is based on laws providing for economic sanctions against foreign nations, going back to the Trading With the Enemy Act in 1917 and ending with the Patriot Act.  

Judge Says Shuttered Charity Must Be Given Due Process

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Date: 
October 21, 2008

 

In the first decision of its kind, a federal judge issued a temporary restraining order barring the Department of the Treasury (Treasury) from designating KindHearts for Charitable Humanitarian Development (KindHearts), a U.S. charity, as a supporter of terrorism without affording the organization basic due process. Treasury shut down the group "pending investigation" in February 2006, but the investigation has never been concluded and the group's assets, including about $1 million, remain frozen. The Treasury action against KindHearts is based on a provision of the Patriot Act that expanded economic embargo laws to allow all the sanctions used to seize and freeze assets of Specially Designated Global Terrorists (SDGT) when an investigation is pending. (See 50 U.S.C. 1702(a)(1)(B), 1705 and Executive Order 13224). There are no deadlines for the investigation to be completed.

Kindhearts v. Treasury: Successfully Challenging the Constitutionality of Treasury Shutting Down a Charity

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November 24, 2009

The Aug. 18, 2009 federal court ruling in KindHearts v. Treasury is a positive step forward in the ongoing efforts of U.S. charities to make national security laws fair and ensure they protect vulnerable people that depend on charities for vital aid. The 100 page order found that the Department of Treasury's (Treasury) seizure of KindHearts assets without notice or means of appeal is a violation of the Fourth and Fifth Amendments. 

Al Haramain v. Treasury: Successful Constitutional Challenge to Unlimited Treasury Power to Shut Down Charities

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November 16, 2009

On Nov. 7, 2008 Judge Garr King of the United States District Court in Oregon ruled that the Department of Treasury's action in shutting down the Al Haramain Islamic Foundation, Inc. (AHIF-Oregon) in 2004 violated the organization's Fifth Amendment rights and potentially their Fourth Amendment rights as well. Judge King also ruled that the term "material support" of terrorism in Bush's Executive Order 13,224 (EO 13224), which grants the Secretary of Treasury power to designate Specially Designated Global Terrorists (SDGTs), is unconstitutionally vague.

A Comparison on Due Process Rights of Drug Kingpins and Charities Accused of Supporting Terrorism

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This article, and the chart supporting it, shows that due process procedures used in asset forfeiture proceedings for accused drug traffickers provide more protection than procedures afforded charities accused of supporting terrorism. These asset forfeiture procedures may be a model for developing new rules for charities.

KindHearts Case Timeline

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Date: 
September 15, 2009

On Aug. 18, 2009, a federal judge ruled the Treasury Department’s seizure of a charity’s assets without notice or means of appeal is a violation of the Fourth and Fifth Amendments. KindHearts for Charitable Humanitarian Development was shut down by the Treasury Department "pending investigation" on Feb. 19, 2006.  To date it has not been designated as a supporter of terrorism. This timeline details the issues and procedural history of the case, which illustrates the problems created by using post 9/11 emergency measures for long term regulation of charities in the national security context.

Judicial Review for Charities Working in UK

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November 2, 2009

Demonstrating that judicial review is available to charities operating in the UK, on Oct. 13, 2009, the Charity Commission’s decision  to remove Nagedram Seevaratnam from his post as a trustee was overturned by the First-tier Tribunal of London (Tribunal). 

Court Orders Treasury Not to List KindHearts as Supporter of Terrorism Pending Outcome of Litigation

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Date: 
November 2, 2009

On Oct. 26, 2009 U.S. District Court Judge James G. Carr issued a temporary restraining order against the Department of Treasury (Treasury) barring further action against KindHearts for Charitable Humanitarian Development (KindHearts), which was shut down in February 2006 "pending investigation" into whether it is a supporter of terrorism. The court said the action is necessary for it to consider a remedy to the constitutional violations against KindHearts, as found in its August 2009 ruling.  It ordered the parties to submit briefs on the remedy issue by Jan. 11, 2010.

Summary of KindHearts Ruling Requiring Due Process and Probable Cause to Shut Down Charities

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September 16, 2009

The Aug. 18, 2009 federal court ruling in KindHearts v. Treasury is a positive step forward in the ongoing efforts of U.S. charities to make national security laws fair and ensure they protect vulnerable people that depend on charities for vital aid. The 100 page order found that the Department of Treasury's (Treasury) seizure of KindHearts assets without notice or means of appeal is a violation of the Fourth and Fifth Amendments. This summary reviews the court order and notes issues to be addressed in developing better procedures. 

New Guidelines for State Secret Privilege

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September 30, 2009

On Sept. 23, 2009, Attorney General Eric Holder issued a memorandum instituting new Department of Justice policies and procedures for using the Executive state secrets privilege. The policy, which parallels several related recommendations from the Moving Toward a 21st Century Right-to-Know Agenda, will be implemented on Oct. 1.  Despite some critics who feel it does not sufficiently limit the privilege, others see the changes as a good start.