Al Haramain v. Treasury: Successful Constitutional Challenge to Unlimited Treasury Power to Shut Down Charities

October 1, 2012

In June 2012, the U.S. Solicitor General decided not to file a request for Supreme Court review of the Ninth Circuit Court of Appeals decision in Al-Haramain v. Treasury. The appellate court opinion from September 2011 had upheld alower court’s ruling that said procedures used by the Department of Treasury to shut down the Al-Haramain Islamic Foundation of Oregon (AHIF-OR) violated the organization's Fifth Amendment and Fourth Amendment rights.  In February 2004, federal agents raided AHIF-OR's offices pursuant to a warrant as part of an investigation into financial crimes. The next day OFAC froze AHIF-OR's assets pending an investigation into whether or not the charity would be classified as a Specially Designated Global Terrorist (SDGT). 

The Kadi Case: Court Decisions on Due Process for Terrorist Listing Differ in EU, U.S.

April 3, 2012

Yassin A. Kadi, a businessman and citizen of Saudi Arabia, purused court challenges to being placed on terrorist lists in the European Union (EU) and United States (U.S.). The process and standards used by the EU and U.S. courts differ substantially, leading to different results: the EU courts have ruled the EU listing process lacks fundamental protections, violating EU human rights standards, while the U.S. courts rejected Kadi's constitutional claims.  

Summary: The Fifth Circuit’s Holy Land Foundation Decision

December 20, 2011
By Alan R. Kabat, Bernabei & Wachtel, PLLC
On December 7, 2011, the U.S. Court of Appeals for the Fifth Circuit issued its long-anticipated decision in the Holy Land Foundation prosecution.  United States v. El-Mezain, et al., No. 09-10560, 664 F.3d 467, 2011 WL 6058592 (5th Cir. Dec. 7, 2011). While this decision upheld the jury verdict and judgment against the defendants, the Fifth Circuit did address a number of issues of broader legal significance, and recognized the legitimacy of several arguments raised by the defendants as to the improper use of certain categories of evidence at trial.

Publication of Unindicted Co-conspirator List in Holy Land Case Violated Due Process Rights, Court Rules

April 22, 2011
Since 2004 the criminal prosecution of the Holy Land Foundation (HLF) and its leaders for material support of terrorism has been, and continues to be, a long running legal battle. One unusual twist has been a May 29, 2007 filing by the prosecution that listed 246 individuals and entities as "Un-indicted Co-conspirators and/or Joint Venturers." In a break with DOJ policies, the list was not sealed and the names, which included most major U.S. Muslim organizations, were made public. Both the trial court in Dallas and the Fifth Circuit Court of Appeals ruled that the release violated due process rights under the Fifth Amendment.

Supreme Court Ruling in HLP: Provision of Advocacy and Training in Nonviolent Peaceful Conflict Resolution Violates Material Support Laws

August 31, 2010

On June 21, 2010, the United States Supreme Court in Holder v. Humanitarian Law Project, et al. struck a blow to the American nonprofit sectors’ commitment to resolving international conflicts through peaceful and nonviolent means. In a 6-3 decision, the Court rejected the Humanitarian Law Project's (HLP) claims challenging the constitutionality of provisions of the material support to terrorism law.  As a result, a broad range of interactions with designated terrorist groups, including attempts at peace building and support for non-violence, are prohibited. (See 18 U.S.C. § 2339B). This summary reviews the Court’s majority and dissenting opinions and notes issues to be addressed in developing better procedures.

KindHearts Case Timeline

July 9, 2010

On May 1, 2012, lawyers for KindHearts for Charitable Humanitarian Development, the Ohio-based charity shut down “pending investigation” by the Treasury Department in February 2006, announced a settlement agreement with Treasury ending the litigation on terms favorable to the charity. In 2009 the federal district court for the Northern District of Ohio ruled that the process Treasury used to shut the charity down while investigating alleged ties to terrorism violated the constitution, and ordered further proceedings on what remedy Treasury should provide. The settlement ends the litigation by allowing KindHearts to pay its debts and distribute the remaining funds among a list of approved charities before it dissolves. At that point Treasury will remove KindHearts from its terrorist list and pay its attorneys fees.

This timeline details the issues and procedural history of the case, which illustrates the problems created by using post 9/11 emergency measures for long term regulation of charities in the national security context.

Holder v. Humanitarian Law Project: Addressing the Impact of Material Support Laws on Peacebuilding Programs

June 21, 2010

On June 21, 2010, a divided U.S. Supreme Court upheld a federal statute that bans support to designated terrorist organizations, even when that support involves using international law to resolve disputes through nonviolent means. In Holder v. Humanitarian Law Project (HLP), the court ruled 6-3 that U.S. organizations and citizens teaching nonviolent methods of conflict resolution toward sanctioned terrorist groups could face criminal charges.