In July, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCR) published a report on the violations of due process rights in Treasury Dept’s terrorist designation and delisting process. The report covers the problems caused by the process, the legal framework that has allowed Treasury to violate due process rights, and the legal problems that must be addressed to correct the system.
The OFAC List: Due Process Challenges in Listing and Delisting outlines the legal framework that created the Treasury Dept. Office of Foreign Asset Control (OFAC) procedures. OFAC’s power to designate and delist terrorist organizations was granted by Executive Order 13224, issued by President Bush immediately following the events of 9/11. Under E.O. 13224 the Treasury’s OFAC can freeze assets and forbid transactions with people and groups that they have determined commit or support terrorism.
According to the report, there are many procedural problems with the OFAC process that violate an organization’s or individual’s right to due process. Under the current legislation OFAC has complete control over both the designation and the delisting process with little judicial oversight. OFAC does not have to provide notice or justification of their decision to designate a group or individual as a terrorist. If a group challenges their designation in a federal court, the court is only given the records provided by OFAC, and may only review OFAC’s decision to determine if it was “arbitrary and capricious,” a low legal standard.
LCCR offers 11 recommendations for OFAC to implement in order for their designation and delisting process to respect the basic human right of due process. These recommendations call for OFAC to provide clear criteria for what would cause an organization to be designated, establish deadlines in which OFAC must respond to requests from listed individuals and notify them of reasons for being designated and to designate a third party to review petitions for delisting.
- Provide specific criteria on what activity is proscribed that merits a designation.
- Develop evidentiary standards for determining designations.
- Provide a statement of reasons to the designee for violations that have been allegedly committed.
- Provide access to the evidence that allegedly forms the basis for the designation, including a non-classified summary of any classified evidence or access to classified evidence under procedures established by other laws.
- Establish a deadline by which OFAC must respond to a designee’s petition to be removed from OFAC’s list.
- Establish a deadline by which any investigation must be completed so assets are not frozen indefinitely.
- Establish deadlines for responding to license requests allowing the use of blocked funds for specified purposes and make the process more transparent.
- Make the delisting process more transparent and accessible, including the addition of specific guidance on the delisting process in OFAC’s Frequently Asked Questions on the OFAC website.
- Establish an online redress program in which individuals can submit delisting petitions via a website to facilitate processing.
- Provide for an independent administrative review of OFAC’s designation.
- Designate an Ombudsperson to oversee the processing of delisting requests.