Constitutional Principles and the Charity & Security Network

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Date: 
September 17, 2014
Author: 
Kay Guinane

Today, September 17, is the anniversary of the 1787 ratification of the U.S. Constitution.  This is a good time to reflect on the importance of this document and the principles it embodies.  One of the key elements of constitutional democracy is an independent and active civil society that provides a way for people to be heard, hold government accountable, protect rights and provide a means to create and support community institutions.  Democracy does not survive when civil society, in the form of nonprofit organizations, does not have the ability to serve these critical functions.  

The Charity & Security Network was created to address a serious threat to the right of nonprofits to exercise the rights of association assembly and expression: overly broad anti-terrorism laws that infringe on these rights and make it difficult or impossible for nonprofits to carry out peacebuilding projects, humanitarian aid, development and similar work in a manner consistent with Constitutional principles and human rights standards. 

Our immediate goals are to: 

  • Protect freedom of expression and association by removing legal barriers to peacebuilding work. U.S. organizations need to be able to engage armed groups on the terrorist lists in programs aimed at ending violence and humanitarian groups can access civilians in conflict zones. If these behind the scenes diplomacy efforts continue to be prohibited, we will continue to see the constant rise of new terrorist groups in a never-ending cycle of violence.
  • End abuses of power in anti-terrorist law enforcement, including unequal and discriminatory enforcement of the law.
  • Make sure that humanitarian groups can deliver life-saving aid to civilians in conflict areas without fear of prosecution or sanction.
  • Bring transparency to the rules, including the procedures and standards for creating terrorist lists and definitions of prohibited “material support” of terrorism that are consistent with fundamental rights.

Constitutional Issues

The following examples show how current U.S. law for nonprofits is inconsistent with the Constitution:

First Amendment: Freedom of Association

First Amendment: Freedom of Speech and Expression

Fourth Amendment: Freedom from Unreasonable Search and Seizure

Fifth Amendment: Guarantee of Due Process

Fourteenth Amendment: Guarantee of Equal Protection Under the law

 

First Amendment: Freedom of Association

Infringement on the right of people not only to assemble and participate in civil society organizations, but to function and carry out their mission effectively as well. 

Example: The overbroad application of the prohibition on material support of terrorism criminalizes operations that involve association with groups or individuals on the terrorist list even when the association is for the purpose of providing humanitarian aid or mediating an end to conflict. For a full analysis see the report Safeguarding Humanitarianism in Armed Conflict 

First Amendment: Freedom of Speech and Expression

Organizations that engage in dissent, human rights advocacy or function as government watchdogs face increasing regulation and surveillance, inhibiting their ability to fully exercise the right of collective free speech.

The Supreme Court’s ruling the Humanitarian Law Project case allowed Congress to prohibit peacebuilding nonprofits from training members of listed organizations to use peaceful tactics to achieve their political aims.  Congress has failed to pass legislation that would permit these conflict resolution activities and the administration has not responded to requests for exemptions for responsible organizations.

Example: International organizations that support human rights defenders are increasingly subject to excessive disclosure and reporting requirements. The most extreme example is USAID’s Partner Vetting System, which requires personal identifying information on organization’s leadership and key partners to be submitted to the U.S. for vetting by security agencies.  In addition, the Humanitarian Law Project decision continues to chill the activities of peacebuilding organizations.

Fourth Amendment Freedom from Unreasonable Searches and Seizures

Anti-terrorist financing sanctions have been used to summarily shut down charities, freezing funds and seizing all files and assets. Some Muslim charities have had files seized without any warrant or process, and have never been placed on any list or charged with any crime.  One even had to pay copying charges to get its information returned.  Two federal courts have now ruled this process violates the Fourth Amendment, but Treasury has so far refused to change its procedures. 

Example:  On September 23, 2011, the Ninth Circuit Court of Appeals rules that procedures used by the Treasury Department to freeze the assets of the Al Haramain Islamic Foundation of Oregon in 2004 were unconstitutional. The court said that freezing the group’s assets amounts to a seizure under the Fourth Amendment, so that Treasury should have obtained a court order.

Fifth Amendment Guarantee of Due Process

The procedures used to place U.S. charities on the terrorist list lacks the fundamental elements of due process: notice, meaningful opportunity to respond and independent review.  In case of KindHearts for Charitable Humanitarian Development the court ruled that the lack of due process in Treasury’s terrorist listing procedure meant “KindHearts is not only blindfolded, but also has its hands tied behind its back." Criminal proceedings have also been problematic.

Example: The Holy Land Foundation was tried and convicted of the crime of material support of terrorism without being represented in court or having the opportunity to put on a defense. (The leaders of the group were co-defendants and were present and represented in court.) As a result of the conviction, its $5 million in assets was forfeited to the government.

Fourteenth Amendment Guarantee of Equal Protection Under the Law

Unequal and discriminatory enforcement policies have granted leniency to corporations like Chiquita Banana while shutting down charities for similar or less serious infractions, and have targeted Muslim charities and those that serve areas with predominately Muslim populations.

Example: The Holy Land Foundation and its leaders were prosecuted (and imprisoned for long terms) for funding zakat committees in Gaza that are not on the terrorist list, but that the government said were indirectly supporting Hamas.  USAID and non-Muslim charities that supported these same zakat committees were never sanctioned.

 

For a further, in-depth look at Constitutional issues impacting civil society and national security see The Constitution Projects Liberty and National Security Committee’s report on material support, which analyzes many of the constitutional issues and is available here:  http://www.constitutionproject.org/wp-content/uploads/2012/09/355.pdf