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 Mike Licht-Notions Capital

 

Due Process

KindHearts Case Timeline

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Date: 
July 9, 2010

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.

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.

Court Announces Unprecedented Remedy for Constitutional Violations of U.S. Charity KindHearts

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Date: 
May 17, 2010

On May 10, 2010, based on his August 2009 ruling that the government violated KindHearts for Charitable Humanitarian Development's (KindHearts) Fourth and Fifth amendment rights in shutting it down "pending investigation" into whether it should be listed as a supporter of terrorism, Judge James Carr of the Federal District Court for the Northern District of Ohio ordered new proceedings to remedy the lack of adequate notice and opportunity to defend and freezing of assets without a warrant. 

Charity and Security Network Principles to Guide New Policies

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The following ten principles should guide the U.S. government's approach to fixing national security rules and policies that create problems for legitimate charities, development programs, grantmakers, peacebuilding efforts, human rights advocacy and faith-based organizations:

Charity's Fourth and Fifth Amendments Violated By Treasury’s Unchecked Investigative Powers

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Date: 
August 21, 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. If the 100 page order is upheld, the ruling challenges the emergency measure passed two weeks after 9/11 that allows Treasury to shut down any organization suspected of financing terrorists without warrants or court approval.  A hearing to address additional issues has been set for Sept. 21.

Charity and Security Network 2008 Reform Proposals

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The following proposals that would allow legitimate charitable work to be completed were submitted to the Obama transition team in late 2008:

Al-Haramain v. Obama Decision Holds Wiretap of Charity Illegal

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Date: 
May 3, 2010

In a decision leaving Attorney General Holder and others in the Obama administration scratching their heads for what to do next, Chief Judge Vaughn Walker of the Northern Federal District of California ruled on March 31, 2010 that the Bush administration illegally wire tapped phone conversations of an Islamic charity and two American lawyers without a warrant. 

Summary of Decision in Al-Haramain v Obama (March 2010) Says U.S. Charity's Phones Were Illegally Wiretapped

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Date: 
May 3, 2010

In a decision leaving Attorney General Holder and others in the Obama administration scratching their heads for next steps, Chief Judge Vaughn Walker of the Northern Federal District of California ruled on March 31, 2010 that the Bush administration had illegally wire tapped phone conversations of an Islamic charity and two American lawyers without a warrant.

KindHearts Decision Opens Door to Reform

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Date: 
August 20, 2009
Author: 
Kay Guinane

Finally, a federal court has taken a reasoned look at how national security laws are applied to charities, and found serious constitutional flaws.  On Aug. 18, 2009, in KindHearts v. Treasury, Judge James Carr ruled that shutting down a charity "pending investigation" and seizing its assets indefinitely violates basic rights. This is especially so because the charity has no real opportunity defend itself.  

KindHearts Ruling Exposed Treasury Department's Unconstitutional Freezing of Muslim Charity Assets

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Date: 
September 4, 2009
Author: 
Sahar Aziz

A recent ruling by a federal district court signifies an encouraging shift for Muslim charities in the United States. For many such non-profits, mere investigation by the Department of Treasury's Office for Asset Control (OFAC) into their humanitarian activities abroad has become a kiss of death.