Relevant Articles On KindHearts vs. Treasury

"KindHearts is not only blindfolded, but also has its hands tied behind its back."
-Judge James G. Carr, Chief Judge, U.S. District Court for the Northern District of Ohio, Oct. 26, 2009

 
 

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.

Note: Page numbers for quotes refer to text of the court's opinion  in KindHearts for Charitable and Humanitarian Development, Inc. v. Timothy Geithner, et al, Case No. 3:08CV2400.  "OFAC" refers to Treasury's Office of Foreign Assets Control. 

From Freezing Assets "Pending Investigation" to "Provisional Determination"
1/22/2002 KindHearts for Charitable Humanitarian Development incorporated in Todedo, Ohio with the goal of providing humanitarian aid without regard to religion or political affiliation.
2002 to 2006 KindHearts seeks guidance from Treasury and implements Treasury's Anti-Terrorist Financing Voluntary Guidelines.
Jan-Feb 2006 Department of Justice serves grand jury subpoenas on KindHearts board members and accountants Ernst and Young, requiring them to produce all records relating to KindHearts from January 2002 to Feb. 17, 2006.
2/19/2006 OFAC freezes about $1 million in KindHearts assets and executes search warrant seizing all records, computers, equipment, publications from headquarters and residence of President Khaled Smaili
2/19/2006

OFAC sends "blocking notice" to KindHearts stating:

1.) all property blocked "pending investigation into whether KindHearts is subject to designation pursuant to Executive Order 13224 "for being controlled by, a cting for or on b ehalf of, assistningin or providing financial or material support to, andor otherwise being associated with Hamas."

2.) no prior notice provided because OFAC determined assets could be transferred, making block/freeze ineffectual, and

3.) KindHearts could challenge action by sending a letter stating its position and providing evidence to the Director of OFAC
2/19/2006 OFAC releases a press release with more specific information than blocking notice. Alleges "that KindHearts' officials and fundraisers had 'coordinated with Hamas leaders and made contributions to Hamas-affiliated organizations' including such organizations in the West Bank and Lebanon. The press release asserted that KindHearts was founded to replace the Hamas-affiliated Holy Land Foundation for Relief and Development [HLF] and the al-Qaida-affiliated Global Relief Foundations [GRF]." [p. 7]
4/2006 KindHearts' attorney sends letter to OFAC opposing freezing assets, "but OFAC failed to respond to it." [p. 7]
11/29/2006 KindHearts' attorney requests copy of OFAC administrative record in the case, but "It received no response." [p. 7]
5/27/2007 OFAC notifies KindHearts that it had made a "provisional determination" that KindHearts is a Specially Designated Global Terrorist, and "for the first time acknowledged receiving KindHearts' challenge to the block pending investigation." [p. 8] There is no provision for a "provisional determination" in IEEPA or Treasury regulations.

The notice also included 35 unclassified documents OFAC relied on. It indicated classified and privileged information was also used and provided a three page summary of the classified evidence.

The OFAC letter "provided no explanation of the specific charges it was considering against KindHearts or why it though the evidence supported a potential designation." [p. 8] However, it said KindHearts could present additional information before a final determination and that OFAC would forward any new, non-classified information for KindHearts' response.

 

KindHearts' Ongoing Attempted Defense at OFAC
2/2006 to 2/2008 OFAC denies license to allow KindHearts to use blocked funds to pay its attorneys.
6/14/2007 KindHearts requests access to its own records, now held by OFAC and the Department of Justice. It also seeks access to the full classified record used by OFAC.
6/25/2007 KindHearts sends OFAC a 28 page submission "in which KindHearts attempted to, in its words, 'guess at and address OFAC's concerns.' It attached to that a 1369-page submission of supporting evidence. OFAC never responded to this submission." [p. 9]
6/27/2007 KindHearts asks OFAC for declassification review of evidence used in blocking notice.
8/10/2007 FAC agrees to conduct declassificaiton review and says it will give KindHearts 30 days to respond once material is provided. Did not specify when review would be completed.
8/13/2007 KindHearts requests "further clarification of charges against it and an extension of time until forty-five days after the completion of the declassification review. KindHearts stated it needed the extension to receive meaningful process." [p. 10]
8/14/2007 OFAC denies KindHearts request for access to its own documents, saying U.S. Attorneys Office (prosecutors) has most of them.
Ongoing "OFAC claims it 'misplaced' the June 25, 2007, submission. It does not, however, state what consituted 'misplacing,' how it happened, or may have happened, or when, if ever, and how it located the submission." [p. 9, fn 4]
4/2008 U.S. Attorneys Office "provided KindHearts with an electronic copy of a subset of the seized documents, but did so subject to stringent conditions. Under a protective order, KindHearts members and officers could not view the documentys without court approval, and KindHearts counsel could not print or electronically copy and documents." [p. 9, fn 3]
8/16/2007 OFAC tells KindHearts it may contact employees in preparing a defense, but any documents discovered are blocked property that cannot be used with a license from OFAC and counsel must give OFAC identifying information about it. KindHearts' counsel objects in letters in October and December, 2007.

12/26/2007

 OFAC approves license "allowing KindHearts counsel to receive copies of blocked documents necessary for them to provide legal services to KindHearts." [p. 11]
6/2008 OFAC changes policy on attorneys fees after consituttional challenge in another case, allowing KindHearts to use a limited amount of frozen funds to pay for legal fees.

 

KindHearts' Federal Court Challenge
10/9/2008 KindHearts files a complaint in Federal District Court in Ohio seeking a temporary restraining order and preliminary injunction against Treasury final designation and continued enforcement of the blocking order. It subsequently moves for summary judgement on its constitutional claims under the Fourth and Fifth Amendments.
10/9/2008 Judge James Carr issues order barring Treasury and OFAC from designating KindHearts without providing basic due process.
12/2008 OFAC provides KindHearts with declassified version of its blocking and provisional determination memos.
1/2009 OFAC declassifies additional material in blocking memo.
1/30/2009 Judge Carr issues a protective order requiring that "The government shall forthwith commence producing copies at its expense of all seized materials to counsel of record for KindHearts, and as well, as provided herein, to such representatives of KindHearts as counsel shall designate;"
2/27/2009 Ten nonprofits file friend of the court brief supporing due process for KindHearts.
8/18/2009 Judge Carr rules that OFAC and Treasury violated KindHearts rights by seizing its assets without sufficient notice or means of appeal, in violation of the Fourth and Fifth Amendments.
10/26/2009
U.S. District Court Judge James G. Carr issued a temporary restraining order against Treasury barring further action against KindHearts. 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.
5/10/2010 Judge Carr orders a post-seizure probable cause review by the court. To address due process issues he ordered:

1.) an ex parte, in camera meeting with the government to determine what classified evidence will give KindHearts adequate notice, and whether that evidence is capable of further declassification or adequate summarization. In the case where summarization of the classified material is insufficient or impossible, then KindHearts’ counsel will be able to review the documents under a security clearance, but will not be able to discuss them with KindHearts.

2.) KindHearts must then be given a meaningful opportunity to respond to the allegations. If classified documents are at issue, the hearing will be closed.
 
12/31/2011 In late December 2011 Kindhearts announced it is dissolving, the Associated Press reports.  According to a Dec. 31, 2011 court filing, KindHearts and the government have reached a settlement that “provides for a number of preliminary steps prior to dismissal of this case. The parties anticipate completing those steps by July 1, 2012.”