March 15, 2011
On March 9, 2011 the Ninth Circuit Court of Appeals heard oral arguments in Al Harmain v. Treasury, a constitutional challenge to the Treasury Department's (Treasury) process for shutting down charities. During the proceedings an attorney for the government told the court that providing the reasons for putting charities and others on terrorist lists would be “extremely burdensome.”
Al-Haramain Islamic Foundation of Oregon (AHIF) was shut down by Treasury in 2004. In 2008 a federal judge ruled the process used by Treasury violated the organization's Fifth Amendment rights to due process and potentially their Fourth Amendment rights against unreasonable seizure of its assets. The case involved multiple issues, and both sides appealed to the Ninth Circuit Court of Appeals.
The primary questions on appeal, listed in the Appellant’s opening brief:
- Whether Treasury’s “failure to provide Al Haramain Islamic Foundation, Inc. (AHIF Oregon) with notice and a meaningful opportunity to respond in connection with the indefinite freeze of all its assets…was a violation of fundamental due process rights, was excusable as harmless.”
- Whether indefinite freezing of assets without a court order violated the Fourth Amendment
- Whether Treasury’s reliance on classified evidence, without arrangements for AHIF’s attorneys to view it, violated due process.
During the argument, which can viewed on CSPAN, U.S. Attorney David Letter told the court it would be too burdensome (view video at 41:15) to notify every one of the estimated 10,000 people and groups on the terrorist lists of the reasons for the listing. Two of the three judges questioned him about this, with Judge Sidney Thomas asking, “Why should I have to guess?”
In rebuttal, Prof. David Cole, attorney for AHIF, said the “vast majority” of people and groups on the list are not tied to the U.S., and due process requirements do not apply to them. (There are less than 50 charities worldwide on the lists, and only nine U.S. based charities have been shut down.)
Letter also told the court that AHIF is a key supporter of Al Qaida, a claim the group denies. Cole told the court, “All we are seeking is a fair shot.”