| Eliminate Unnecessary Barriers to Legitimate Charitable Work |
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I. The Problem: At a time when the humanitarian aid and development programs and conflict resolution and human rights training offered by charities and foundations are needed the most, the combined effect of two U.S. laws has made it far more difficult for nonprofits to provide critical international aid and services. Rather than distributing aid on the basis of where the need and potential for positive impact are greatest, current counterterrorism measures have caused some nonprofits to avoid the very global hotspots that would benefit the most from their work. Indeed, in some cases these measures have damaged charities’ relationships with the communities they serve, damaging the international goodwill and promise for stability that these relationships had helped to create. These laws are the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, amended by the USA PATRIOT Act, which bars material support for terrorism, and the International Emergency Economic Powers Act (IEEPA), which allows the government to designate U.S. charities as supporters of terrorism based on secret evidence and lacks due process protections. Funds of designated charities are frozen indefinitely.[i]AEDPA prohibits any person or organization from knowingly providing, attempting, or conspiring to provide “material support or resources to a foreign terrorist organization,” as designated by the U.S. government, regardless of the character or intent of the support provided. Beginning with Section 805 of the USA PATRIOT Act in 2001, the administration has incrementally expanded the notion of “material support” beyond direct transfers of goods or funds to include legitimate charitable aid to civilian non-combatants that may “otherwise cultivate support” for a designated organization. The Government has extended the notions of “material support,” arguing that even non-monetary legitimate charitable aid is fungible and can support terror by allowing the group to conserve resources. The government has expanded and made vague the prohibition against providing material support to a “terrorist organization” so as to include organizations that are “otherwise associated” with designated terrorist groups; thereby criminalizing aid to any of those groups if the charity “should have known” that the group was associated with a group linked to violent activities. II. Proposed Solutions
The overbroad and discriminatory application of the “material support” laws undermines the ability of humanitarian organizations to provide essential services to those in the most dire straits. The use of designation and asset blocking laws without due process paired with draconian sanctions also impedes operations of grant makers and charities. Reforming the barriers of vague statutes, broad interpretations, and extremely limited redress will allow nonprofit organizations to return to performing their legitimate charitable work.
1. Executive: a. Improve the national security regulation of charities by ending the use of the International Emergency Economic Powers Act (IEEPA) to regulate charities and allowing the Department of State to develop a more effective and appropriate framework. This framework must include fundamental due process rights, procedures and intermediate sanctions for charities and foundations. Process recommendations include: i. Cease and desist orders to charity from Treasury ii. Opportunity to cure: 60-90 days to sever a tie, restructure a program, fire employee, etc. iii. Administrative hearing to challenge designation that includes cross examination, ability to submit evidence, etc. iv. Process for releasing funds to beneficiaries via another charity (including a time limit on frozen funds). v. Ensure charitable funds frozen by the Treasury Department are ultimately released and used for charitable purposes b. Withdraw the Treasury Department’s ineffective “Guidelines” and replace with real guidelines that help charities continue to meet critical needs while ensuring their scarce resources are used for legal and charitable purposes: Withdraw Treasury’s Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S.-Based Charities. These vague and flawed quasi-voluntary guidelines demand burdensome investigation by charities into their partners, but do not serve the purported goal of preventing charities from diverting funds to terrorist or illegal purposes. Rather, the Guidelines prevent charities from delivering critical humanitarian services and provide them with no protection from legal sanction even if the Guidelines are painstakingly followed. i. The Treasury Guidelines Working Group of Charitable Sector Organizations and Advisors’ Principles of International Charity and the Department of State’s Guiding Principles for Government Treatment of NGOs are good starting points for developing guidelines that provide all charities with equal opportunity and access to good faith charitable giving and complement the extensive due diligence already being performed by grantmaking organizations to ensure that their grant funds are being used for charitable and legal purposes. c. Direct the Secretary of State to use his or her authority under 18 USC 2339B(j) to waive the material support prohibition for technical advice and assistance, training and personnel where no violent activity is involved. 2. Legislative a. Amend the “material support” statute to include intent and make it consistent with Red Cross standards for humanitarian aid: Repeal the amendments enacted in Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004, which punishes support to a designated terrorist group regardless of whether the person providing that support intended, or in fact did, further the group’s violent activities, and amend the law to require that the government prove that individuals charged actually intended to further terrorist activity when they provided humanitarian assistance. Further expand the exemptions beyond medicine and religious materials to include medical equipment and services, civilian public health services, food and food, water, clothing and shelter to noncombatants. In addition, human rights training and conflict resolution services should be entirely exempted. i. Amend 18 U.S.C. § 2339B(a)(1) to clarify impermissibly vague language of “expert advice or assistance”: This overly vague language conflicts with First Amendment rights of speech and association by potentially criminalizing virtually all interaction with designated organizations, including Constitutionally-protected political speech and advocacy. ii. Amend 18 U.S.C. §§ 2339A(b)1-2339A(b)(3) to clarify vague language, including the insertion of an intent requirement into the definition of the provision of training and expert advice or assistance III. Allies* American Association of University Professors Bill of Rights Defense Committee (BORDC) Council on American-Islamic Relations (CAIR)
Electronic Frontier Foundation (EFF), Essential Information Government Accountability Project International Justice Network Liberty Coalition Muslim Advocates National Coalition Against Censorship OMB Watch: Charity & Security Network OpenTheGovernment.org South Asian Americans Leading Together Stanford Law School - Mills International Human Rights Clinic U.S. Bill of Rights Foundation * These groups and individuals support the general principles expressed and the general policy thrust and judgments in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposed solution, but they do agree that the proposals reflect the general principles that should govern policy in this area. Please contact the individuals and organizations listed in this section for more information. IV. Counter-Arguments and Rebuttal A. Don’t we need these extreme powers because the Department of Treasury says charities are a significant source of terrorist financing and support? The Bush administration’s has consistently justified its misplaced emphasis on nonprofits in its anti-terrorist financing efforts by claiming the sector is a “significant source of terrorist financing.”[ii] But these broad brush accusations have never been supported by evidence. Instead OFAC cites "open source media reports" and refers to general information on its website.[iii] B. If terrorist organizations are relieved of the financial burden of providing charitable programs won't the dollars saved be used for lethal attacks? The Bush administration has promoted a widely held but never proven assumption that charity dollars are fully fungible. As a result, the government's policy considers an entire organization tainted if any aspect of its work is associated with terrorism. C. Haven’t the courts upheld all Treasury's actions in shutting down charities? In legal challenges to the first wave of designations of U.S. charities took several years the courts consistently deferred to Treasury because of national security concerns. In addition, their scope of review was limited to whether Treasury had acted arbitrarily, and the designated charity was never allowed to present or confront evidence. D. Doesn’t the Terrorism Risk Insurance Act bar Treasury from transferring frozen funds to legitimate charities? No. Section 201(a) of the Terrorism Risk Insurance Act[xi] allows blocked assets to be used to pay judgments from litigation "against a terrorist party." It does not authorize funds to be held where no lawsuits have been filed or judgments rendered. Holy Land is the only designated U.S. organization involved in litigation under TRIA. Treasury has repeatedly said that allowing transfers for humanitarian and disaster aid is not in the national interest. V. Recommended Documents for Further Information: a. OMB Watch, “Collateral Damage: How the War on Terror Hurts Charities, Foundations, and the People They Serve,” July 2008, available at: http://www.ombwatch.org/article/articleview/4290/ b. Ahilan T. Arulanantham, American Constitution Society, A Hungry Child Knows No Politics: A Proposal for Reform of the Laws Governing Humanitarian Relief and “Material Support” of Terrorism (June 2008), available at http://www.acslaw.org/files/Arulanantham%20Issue%20Brief.pdf c. U.S. Department of State, “Guiding Principles for Government Treatment of NGOs,” 14 December 2006, available at http://www.state.gov/g/drl/rls/77771.htm d. Professor David Cole Testimony before U.S. Senate Judiciary Committee on May 4, 2005, available at http://www.bordc.org/resources/cole-materialsupport.php e. Duke Law, Civil Liberties Online: “Prosecutorial Tools: Sharpening the Government’s Prosecutorial Tools Against Terrorism,” available at http://www.law.duke.edu/publiclaw/civil/index.php?action=showtopic&topicid=9 f. Stephanie Strom, Small Charities Abroad Feel Pinch of U.S. War on Terror, N.Y. Times, available at http://query.nytimes.com/gst/fullpage.html?res=9F0DE7DA1E3EF936A3575BC0A9659C8B63&scp=1&sq=small%20charities&st=cse g. Treasury Guidelines Working Group of Charitable Organizations and Advisors, “Principles of International Charity,” available at http://www.usig.org/PDFs/Principles_Final.pdf [i] 50 U.S.C. §§1701-1706 (2000). [ii] U.S. Department of the Treasury, “Screening Tax-Exempt Organizations Filing Information Provides Minimal Assurance That Potential Terrorist-Related Activities Are Identified,” May 21, 2007, available at http://www.treas.gov/tigta/auditreports/2007reports/200710082fr.pdf. The May 2007 report states: “a significant source of terrorist support has been the use of charities and nonprofit organizations…” Also citing the Treasury Guidelines. See fn.13. [iii] U.S. Department of the Treasury, webpage section on terrorism and financial intelligence. See http://www.treas.gov/offices/enforcement/key-issues/protecting/index.shtml,%20Anti-terrorist%20Financing%20Guidelines, Annex at 14-16. [iv] U.S. Department of the Treasury, “U.S. Department of the Treasury Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S. Based Charities,” 2006 version, Annex pp. 14-16, available at http://www.treas.gov/press/releases/reports/0929%20finalrevised.pdfhttp:/www.treas.gov/press/releases/reports/0929%20finalrevised.pdf. [v] U.S. Department of the Treasury, Office of Foreign Assets Control, “Terrorist Asset Report: Calendar Year 2007 Sixteenth Annual Report on Assets in the United States of Terrorist Countries and International Terrorism Program Designees,” available at http://www.treas.gov/offices/enforcement/ofac/reports/tar2007.pdf. [vi] Terrorist Financing Staff Monograph to the 9/11 Commission National Commission on Terrorist Attacks Upon the United States, p. 3 (2004), available at http://www.9-11commission.gov/staff_statements/911_TerrFin_Monograph.pdf. [vii] Ibid, at 9 [xi] 107 P.L. 297, Sec. 201, Reauthorization Act of 2007, signed by President George W. Bush on Dec. 26, 2007
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