One year after President Obama’s speech at the United Nations on the need to protect civil society globally the White House released two documents that set out an ambitious agenda to strengthen civil society. First, a Presidential Memorandum directed federal agencies that conduct international work to take proactive steps in four concrete areas, and to report back on their progress annually. The second document, a Fact Sheet announced a new project to create Regional Civil Society Centers around the world and new actions as part of the administration’s Stand with Civil Society Agenda. These include a commitment to consult with civil society on revision of the Financial Action Task Force’s update of guidance on anti-terrorist financing regulations for nonprofits. The documents do not address issues of U.S. restrictions on civil society but potentially open the door to make progress on undue counterterrorism restrictions imposed on U.S. nonprofits. This summary provides details on the new commitments, provides commentary and highlights areas that could be most helpful in addressing counterterrorism restrictions.
The Memorandum is directed to heads of Executive Departments and Agencies “engaged abroad,” including the Departments of State, Treasury, Defense, Justice, USAID and others. The subject is defined as “Deepening U.S. Government Efforts to Collaborate with and Strengthen Civil Society.”
The introduction clearly states the importance of civil society in democratic governance and addressing socio-economic problems. In particular, it notes that “by giving people peaceful avenues to advance their interests and express their convictions, a free and flourishing civil society contributes to stability ad helps to counter violent extremism.” It says that regulation of the nonprofit sector to prevent abuse by illicit actors should be “proportionate and targeted.”
Citing last year’s UN High Level Event on Civil Society and the Joint Statement of the Promotion and Protection of Civil Society that came out of it, the Memorandum notes that participants (including the United States) committed to take concrete steps, including “to lead by example to promote laws, policies, and practices that expand the space for civil society to operate in accordance with international law.” The Memorandum cites freedom of expression, peaceful assembly and association “enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”
The Memorandum directs the agencies to take the following specific steps:
● Engage in Consultation with Civil Society Representatives: to build relationships with civil society outside the U.S., seek their perspectives and build partnerships, especially in places where their work is restricted and “may benefit from international support and solidarity.”
● Working With Civil Society Organizations: including opposing foreign government attempts to control U.S. assistance to civil society or communities. Notably, it requires agencies engaged abroad to review regulations and procedures to ensure that rules “do not inadvertently impede civil society operations.”
● Opposing Undue Restrictions on Civil Society and Fundamental Freedoms: agencies shall oppose undue restrictions by foreign governments, support reform efforts, including through international bodies
● Facilitate Exchanges Between Government and Civil Society: including assistance in drafting laws that respect civil society rights.
Nonprofits concerned about the impact of counterterrorism restrictions on their work can draw encouragement from these statements, which are consistent with principles the Charity & Security Network has articulated over the past five years. However, for the U.S. to effectively take global leadership on the issue of strengthening civil society, it must first address its own restrictions that are inconsistent with the fundamental rights of expression, peaceful assembly and association, as well as international humanitarian law, particularly in the area of national security law. U.S. civil society has spelled out a variety of ways this can be achieved, from helping to draft pending legislation to recommending regulatory changes.
On Sept. 15 the Charity & Security Network and 11 civil society groups filed comments with the UN Human Right Commission as part of its periodic review of the U.S. human rights record. The comments lay out examples of how current laws and policies infringe on fundamental civil society rights and recommends that the administration engage in dialog about how to align security and human rights concerns.
Publication of the Presidential Memorandum one week later indicates that both the government and civil society share common goals and agree that the work of a strong, independent civil society is necessary to address causes of violent extremism. This should make dialog that leads to workable solutions possible. The comments to the UN make the case for change. Given the state of the world and the increasing pressures on civil society rights around the world, there is not time to lose.
Specific items in the Presidential Memorandum that the U.S. nonprofit can follow up on include:
- Agencies working on programs to counter violent extremism should be interested in talking with U.S. civil society about how independent nonprofit programs contribute to this goal and how a more enabling legal environment can increase effectiveness.
- Regulators should discuss how to make their counterterrorism rules and policies impacting nonprofits meet the standard of being proportionate and targeted.
- The required review of agency rules and policies is an opportunity to concretely address issues such as the Treasury Dept.’s licensing process, the State Dept. and USAID “vetting” requirements for grant applicants and redress procedures for groups put on Treasury’s terrorist list.
- Agencies responsible for human rights issues should discuss the ways U.S. laws infringe on protected rights of association, peaceful assembly and expression and explore ways to re-align them with human rights standards.
- As a whole, the administration should be interested in addressing these issues in order to fulfill its stated ambition of being a global leader in this area.
The introduction to the Sept. 23 Fact Sheet summarizes U.S. support for foreign civil society over the past year, and notes that the U.S. has spent more than $2.7 billion on this work since 2010. It then supplements the commitments in the Presidential Memorandum by committing to the following:
● Enhance international efforts to protect civil society, in particular with the Financial Action Task Force (FATF), committing to “seek continued consultation” with civil society on the upcoming revision of FATF’s “Best Practices Paper’ on anti-terrorist financing regulation for nonprofits.
● Expand a program to build an enabling legal environment for civil society, including addressing legal restrictions on receipt of foreign funding
● Consult with Civil Society
● A partnership with Sweden and the Aga Khan Development Network to support and connect civil society globally through creation of Regional Civil Society Innovation Centers.
● Provide support to the Community of Democracies and initiate a project to pool resources or projects that build civil society, as well as coordinate with the Open Government Partnership to support civic participation
● Support leadership development programs for civil society.
The Fact Sheet makes an important commitment to engage civil society in the Financial Action Task Force update of anti-terrorist financing guidance on nonprofits. The other projects, especially expansion of the Legal Enabling Environment Program (LEEP), appear to be focused only on civil society outside the U.S. This indicates a blind spot about the problems with U.S. law.
There is strong potential for dialog between U.S. civil society and agencies with activities abroad on ways each of the programs outlined in the Fact Sheet can be implemented so that restrictive measures in U.S. law are not exported. At a minimum the LEEP program should review U.S. law, with the participation and input of the nonprofit sector.
In addition to the Treasury Dept., which represents the U.S. at the FATF, all agencies with activities abroad should be part of this process. This would ensure that U.S. positions at FATF adequately represent the spirit and letter of the Presidential Memorandum and Fact Sheet. U.S. nonprofits have been active in advocacy at FATF for several years, and are prepared to engage in this process.