The U.S. terrorist listing process is designed to cut off funding to terrorists by freezing their funds and banning financial transactions with them. The President designates terrorist groups by Executive Order and authorizes the Treasury Department to list others that support them. A lack of clear standards, transparency and oversight of the list has raised serious concerns over the due process rights of those listed and the accuracy of the list itself.
Currently, there is no formal review process for those placed on the list. Federal regulations do allow listed organizations or individuals to ask Treasury to reconsider, but there is no deadline for the decision, no independent review and no hearing. In addition, there have been numerous instances of bureaucratic sloppiness and ineptitude and unequal enforcement. No periodic review of the list is required.
The Consequences of Being Listed are Severe
The listing process is classified, and once a U.S. person or organization is put on the list:
- All their assets and bank accounts are frozen and their property is seized indefinitely
- When charities are listed, humanitarian operations are shut down and innocent beneficiaries lose vital services
- It is illegal for any U.S. person to have any economic transactions with them and a travel ban is imposed (no international travel).
Two Federal Courts Have Ruled the Process Treasury Used to List U.S. Charities is Unconstitutional
In the case of two U.S. charities (Al Haramain and KindHearts), the courts found Treasury’s process lacks adequate notice of the reasons for the listing and does not provide an adequate opportunity to respond. Both courts also ruled that Treasury cannot freeze (seize) the assets of a charity without first getting a court order based on probable cause. Both cases were finalized in 2012. To date, Treasury has taken no action to change its regulations to bring the process into line with these court rulings.
Creating a Fair Process: Existing Law and Procedures Provide a Framework
New rules for delisting requests can be based on procedures with proven track records. The Classified Information Procedures Act already provides protocols for handling secret evidence in proceedings similar to those involving listing and delisting. At the UN, an Ombudsperson office was created to hear delisting appeals and the U.S. has endorsed this process.
Updating the current process for listing and de-listing, to better respect due process rights and to allow for adequate reviews will strengthen the U.S. listing regime:
- More transparency and fairness increases public credibility for the listing system
- A more rigorous process will make the lists more accurate
- Shows the world U.S. has respect for the rule of law and human rights
- Innocent beneficiaries of humanitarian aid will not be denied vital services.