Investigations into Russian interference in the 2016 U.S. election has generated high interest in the Foreign Agents Registration Act (FARA), which requires registration and disclosure by those acting “for or on behalf of” foreign governments and entities. Now several bills have been introduced in Congress to strengthen FARA. Such amendments have the potential to create problems for nonprofit organizations (NPOs) and should be closely monitored and analyzed if any move forward. FARA has been cited as a model to justify restrictive legislation in several countries that target NPOs and infringe on their rights of association, assembly and expression. This analysis provides background on FARA, a description of pending bills in Congress and links to summaries of foreign laws that distort FARA’s legitimate aims in order to close civil society space.
Since passage of the PATRIOT Act and other national security measures taken after the 9/11 attacks, nonprofit organizations may face government enforcement action that is based, in whole or part, on classified information. This creates due process problems in civil enforcement cases, such as terrorist listing or economic sanctions enforcement, where the protections afforded criminal defendants in the Classified Information Procedure Act (CIPA) (18 USCS Appx. § 6(e)) do not apply. Because civil enforcement can effectively close a U.S. nonprofit, this proposal calls or adapting CIPA standards and procedures for government action against NPOs.
- Survey: Counterterrorism Laws Impede Aid Delivery in Syria
- UN HLR Highlights Impact of Sanctions on Humanitarian Work
- Treasury's Informational Licensing Guidance for Humanitarian NGOs Falls Short
- New Portal for Humanitarian Negotiation Resources
- Somalia: The 2011 Famine and its Response
- The Impact of Counterterrorism Measures on Charities and Donors After 9/11 (Printable handout)
- Sphere Handbook for Humanitarian Responders
- Understanding Humanitarian Exemptions
- Talking to the Other Side - Humanitarian Negotiations with Al-Shabaab in Somalia
- Study: Hanging by a Thread - The Ongoing Threat to Somalia's Remittance Lifeline
- Counterterrorism Laws Impede the Delivery of Medical Care in Armed Conflict
- Counterterrorism Measures Stifle Humanitarian Action, by UN OCHA and the NRC
Prior to its revision in 2016, the Financial Action Task Force's Recommendation 8 referred to nonprofit organizations as "particularly vulnerable" to terrorist abuse. As a result, many countries implemented laws and policies designed to curb this perceived risk. As a result, NPOs have faced increased scrutiny and legal constraints, shrinking the space for charitable work.
A report from Spaces for Change in Nigeria, Closing Spaces for Civil Society and Democratic Engagement in Nigeria, examines the impact of Recommendation 8 on civil society in that country. The first part, Beyond FATF: Trends, Risks and Restrictive Regulation of Non-profit Organisations in Nigeria, is the product of systematic review of that country's legal framework for combating money laundering and the financing of terrorism to understand the connection between Nigeria's implementation of Recommendation 8 and shrinking space for civil society there. The second part, Closing Spaces for Civic Engagement and Civil Society in Nigeria, assesses the effectiveness of these policies and created a database of closed spaces, highlighting 100 incidents of overbroad application of these laws.
Like their American counterparts, British NGOs working in or near areas where non-state armed groups are active increasingly face restrictions on their access to the financial system, according to a 2017 report from Chatham House, Humanitarian Action and Non-state Armed Groups: The Impact of Banking Restrictions on UK NGOs. This may include delayed transfers, the freezing of funds, and closure of bank accounts.
The report, like many before it, tie the perception of NGOs as high-risk to the Financial Action Task Force's Recommendation 8. In addition, the global financial crisis has made banks subject to tougher regulatory and enforcement regimes, decreasing their appetite for risk. It notes, "Humanitarian NGOs generally accept the need for regulation and due diligence, but the current weight of compliance demands by their banking partners is often seen as disproportionate, resulting in a need to spend donor money on additional staff and due diligence tools, increased administration costs, aid delivery and financial transfer delays, and in some circumstances the closure of programmes to which funding cannot be delivered."
In many countries in the Americas, people's rights to organize, protest or speak out are severely compromised, according to a new report from the CIVICUS, Charity & Security Network, the Caribbean Policy Development Centre, the Latin American and Caribbean Network for Democracy (REDLAD), and the Rendir Cuentas initiative, Civic Space in the Americas.
The report, which draws on research submitted to the CIVICUS Monitor, notes that civic space is seriously restricted in more than one-third of countries in the Americas. Obstacles to freedoms of expression, peaceful assembly and association include threats to personal safety, denial of the right to protest, and surveillance and censorship. Between June 2016 and May 2017, the most serious abuses and violations included disruptions of protests through excessive force, violence against journalists (including killings) and censorship of the media, detention and criminalization of activists, and the introduction of legislative restrictions on civic space freedoms (including 19 such bills in the U.S.). Indigenous peoples, Afro-descendants, women, LGBTI people, migrants and other minority groups were particularly affected.
This infographic was developed from presentations given by Shari Crittendon, Constitutional Law Center for Muslims in America, and Julien Schopp, InterAction, in an April 2017 Charity & Security Network webinar, Steps My Organization Can Take to Protect Itself. The webinar is part of the Charity & Security Network's Know Your Rights series, designed to create a defensive shield for nonprofits in the current political environment. (View a PDF of this infographic.)
When a nonprofit organization (NPO) is listed by the U.S. government as a supporter of terrorism its assets within U.S. jurisdiction are generally frozen – or “blocked.” In order to contest the listing NPOs may need to access funds to pay for legal representation. Since December 2010 the Department of Treasury’s sanctions regulations https://www.gpo.gov/fdsys/pkg/FR-2010-12-07/html/2010-30520.htm permit NPOs and other entities and individuals to obtain free legal services and in some cases, to arrange payment for lawyers without first obtaining a license.
The regulation covers legal representation for groups or people listed under EO 12947 (1995), listing designations for those engaged in violence that threatens the Middle East peace process, EO 13224 (2001), which lists Specially Designated Global Terrorists and Foreign Terrorist Organizations listed by the Secretary of State. The rule can be found in Volume 75 Page 75904 of the Federal Register and in 31 of the Code of Federal Regulations Parts 594, 595, and 597.