By William Fisher
As the mid-September Ramadan fast approaches, many American Muslims are in a quandary about how to fulfill their Quranic obligation to contribute to charity - since the US government has closed down and frozen the assets of many of the leading philanthropies that have traditionally championed Muslim causes for providing material support" to terrorist organizations.
Under current US law, the simple act of writing a check to a charity that is on a government watch list could result in a prosecution for supporting terrorist activity - even if the donor is unaware of the charity's designation by the government.
Since the terrorist attacks of September 11, 2001, the government has shut down dozens of Muslim-oriented charitable organizations and frozen millions of dollars of contributions, which languish in US banks. But criminal charges have been brought against only one such organization, The Holy Land Foundation, currently on trial in Dallas. The group was shut down and its assets confiscated in 2001 but the government did not file formal charges until 2004, and the trial did not begin until 2007.
Civil liberties advocates and many legal analysts are calling for changes in the three basic laws that give the government "blank check" authority to target Muslim-oriented charities with virtually no due process for the accused.
One of them, the Georgetown Law Center's David Cole, a widely respected Constitutional scholar, charges that "With our return to a 'preventive paradigm' of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts."
His view is shared by many other civil rights advocates and organizations. For example, Mary Shaw of Amnesty International USA told Truthout, "This is another example of the Bush administration's abuse of power, in this case by using executive orders to skirt established time-tested laws. With the legal process sidetracked by Bush's make-it-up-as-you-go system of prosecution in the war on terror, we may never know whether due cause was established in these cases."
She added, "Ironically, the Bush administration keeps talking about spreading democracy and the rule of law to other parts of the world, while at the same time eroding those same principles here at home."
Kay Guinane, director of Nonprofit Speech Rights for OMB Watch, a not-for-profit government watchdog, says, "The real tragedy behind closure of Muslim charities is the fate of people in need of humanitarian assistance, who are doing without because the funds have been frozen by the US and sit in the bank, benefiting no one."
OMB Watch asserts that such treatment of Muslim charities hurts, not helps, the war on terrorism. "With Muslim-Americans already facing post-9/11 suspicion and bias, both from other Americans and from the government, targeting Muslim charities sends an ugly message: The message that the government is selectively targeting Muslim charities."
And the Heritage Foundation, a conservative think tank, believes there is "nothing much to show" for the government actions against Muslim-oriented charities. According to Dan Mitchell, Heritage's Senior Fellow in Political Economy, the anti-terrorist financing campaign has cost the private sector billions of dollars and has entailed a sweeping invasion of privacy, yet there is "nothing much to show for it."
The government's approach,he says, "defies common sense and has turned the traditional approach to law enforcement upside down." To this end, he says,
the FBI has not been able to develop a financial profile of a terrorist that
was any different from a regular banking customer. In the absence of a way
to target our efforts, the government is overwhelmed with data it cannot use and the banking sector has effectively been "looking for a needle in a haystack."
"Short of reading people's minds," he says, "there is no way to systematically track down terrorists or terrorist financing sources this way, and pursuing such a strategy is a waste of valuable resources."
According to David Cole, there are three main statutory regimes now being employed by the government to combat terrorism - and he says all of them are deeply flawed.
The USA PATRIOT Act Executive Order 13224, which makes it a crime to provide "material support" to an individual or organization on a terror watch list. These watch lists are prepared by the Secretary of State. There is no provision for notifying those being listed. According to Cole, "Material support has been interpreted loosely to include, for example, peacemaking assistance to a group such as the Kurdistan Workers Party or a link on a website, which resulted in the arrest of one individual." This statute, he argues, effectively circumvents due process, which is conspicuously absent from the process of designation."
The International Emergency Economic Powers Act (IEEPA), which was originally designed for embargoes. During the Clinton administration, the government started using it for anti-terrorist purposes, putting "embargoes" on political groups or individuals under suspicion. According to Cole, "In the absence of a hearing or notification of charges, this is a violation of due process."
Immigration Law, says Cole, is the third weapon used by the government. "An immigrant cannot support any group that has threatened to use a weapon. Because this law is retroactive, even support for an organization such as the African National Congress that was legal at the time is an offense that could lead to deportation," he asserts.
Cole, who is currently litigating several cases challenging the material support laws, told Truthout, "What is needed is a requirement that the government show that a supporter intends to support the group's terrorist activities. Without such a requirement, the statute imposes guilt by association. There are also big problems with the procedures by which groups get designated, which afford virtually no process to designated groups."
The exact extent of charitable giving among American Muslims is as imprecise as the number of Muslims living in the US - estimates range from a million adults to seven million adults and children. But for all of them, the tradition of charity, referred to in Islam as Zakat, is a Muslim pillar of faith and thus a religious obligation. At peak times of giving, such as at the end of Ramadan, the month of fasting, Muslims throughout the world contribute to the poorest and neediest.
Where they will direct their contributions during this Ramadan remains unclear.
Arguably the Holy Land case is the highest-profile of the government's moves against charities -- President Bush personally announced the freezing of Holy Land's assets. HLF was the largest Muslim-American humanitarian organization, providing assistance overseas with an annual budget of close to $12 million. HLF provided services in the West Bank and Gaza Strip, Kosovo, Chechnya, and elsewhere. To the average Muslim living in the US, HLF was a trusted name.
But on December 4, 2001, HLF was designated under IEEPA as a terrorist organization because, the government alleged, they were providing assistance to Hamas in the Occupied Territories. The government seized more than $5 million in HLF assets, and all of its records.
The case against HLF primarily revolves around donations to various charity (Zakat) committees throughout the West Bank and Gaza. These committees consist of members of the local Palestinian community and include individuals of various sociopolitical affiliations. Other non-Muslim organizations in the US and elsewhere also fund projects through Zakat committees because, they say, these groups provide an efficient means of disbursing assistance to humanitarian projects.
In the Dallas courtroom, prosecutors and HLF defense lawyers have clashed over whether jurors should see documents that Israeli soldiers seized during raids of Palestinian organizations.
In what could be a 'first' in the US legal system, two Israeli agents testified using pseudonyms that HLF was part of a global network of organizations that raised money from Muslims throughout the world and funneled it to Hamas.
Prosecutors believe the documents seized by Israeli soldiers show that HLF leaders knew they were sending millions of dollars to groups controlled by Hamas.
Defense attorneys have tried to cast doubt on the authenticity and significance of the documents, which included pamphlets, brochures and posters that are presumably pro-Hamas. Prosecutors said documents seized from the security offices of the Palestinian Authority contained information on Hamas' funding, including from Holy Land. Defense lawyers suggested that the evidence did not meet the standards for trial in a US court.
OMB Watch says the HLF prosecution has provided a glimpse into the government's use of evidence to justify seizure and freezing of charitable assets in the name of the war of terrorism. It charges that the case appears to depend on questionable foreign intelligence information and faulty translations.
Prior to the start of the jury trial, HLF brought a civil lawsuit against the government, seeking to overturn the terrorist designation. It was unsuccessful, principally because the appeals court refused to allow review of the Treasury Department's evidence and HLF being unable to present evidence on its own behalf.
In July 2004, HLF requested an investigation by the Department of Justice Inspector General, alleging the FBI used erroneous translations of sensitive Israeli intelligence material as the crux of its case. But later the same day, the Justice Department unsealed an indictment against HLF and its seven top officials, charging them with money laundering and providing material support to Hamas.
In pre-trial filings in the criminal case, the prosecution disclosed it has 21 binders with over 8,000 pages of Israeli intelligence information, according to the Los Angeles Times, which noted that the Israeli government effectively controls what prosecutors can reveal to the public.
In a major error, 14 volumes of classified material were released to defense attorneys by mistake, and the judge refused the prosecution's motion to compel return of the documents. Instead, they now sit in the judge's office. While defense attorneys are forbidden from commenting on the contents of the files, the Dallas Morning News reported that "the information bolstered their case."
The FBI documents rely on the Israeli material to establish two claims central to the prosecution: grants were made to local charities that support Hamas, and funds were earmarked for families of suicide bombers. But none of the local charities named in the indictment have been designated as supporters of terrorism by the Treasury or State Departments.
The FBI claim is apparently based on a Bureau memo quoting the manager of HLF's Jerusalem office as saying the money was "channeled to Hamas." However, HLF attorneys say the Arabic to Hebrew to English translation should correctly say there is "no connection."
The indictment also claims that funds were earmarked for families of suicide bombers, but HLF's defenders say the allegations are based on faulty translations and incorrect use of the term "martyr." In the Middle East, defense attorneys explain, the term "martyr" refers to a broad category of people who die an early and unnatural death, not just suicide bombers.
In a related development, the Council on American-Islamic Relations (CAIR), which was named as an "unindicted co-conspirator" in the HLF prosecution, asked the court to remove the Washington-based group's name, and those of several hundred other similarly named Muslim individuals and institutions.
And the National Association of Muslim Lawyers and the National Association of Criminal Defense Attorneys wrote to Attorney General Alberto R. Gonzales objecting to the list and saying it could lead to increased discrimination against American Muslims.
The CAIR brief charges that "The Fifth Amendment was violated because the public naming of the unindicted co-conspirators damaged their reputation, good name, and economic well-being, without offering a forum for vindication, and without a legitimate governmental reason for doing so. The First Amendment was violated because the governmental action of publicly naming the unindicted co-conspirators chilled the expressive associational activities of the unindicted co-conspirators and the government does not have a substantially related compelling interest for their action"
It said the practice of naming unindicted co-conspirators should be proscribed from the outset. "Such a practice should be per se unconstitutional, because once the government publicizes the names of the unindicted co-conspirators, the damage to their reputations, economic well-being, and expressive associations is done. . ."
Legal analysts say designating an "unindicted co-conspirator" makes it easier for the government to gain access to their records.
Most civil liberties advocates believe that the principal problems with the government's actions against Muslim-oriented charities stem from US law and its application by the government. For example, as David Cole points out, "The use of secret evidence means that the government never has to show that the groups engaged in any illegitimate activities in a publicly transparent way."
He charges that "Under the PATRIOT Act amendments to general-purpose civil forfeitures, which may apply to IEEPA, the government can even offer evidence that would otherwise be inadmissible if a court finds that complying with the Federal Rules of Evidence would jeopardize national security, and deems the evidence 'reliable'."
In shutting down Muslim charities in United States, he says, the government "invokes an obscure administrative regime that allows it to bypass the criminal process altogether. Under IEEPA, the president has unilaterally banned all transactions with the charities, frozen millions of dollars, and effectively closed them down, all without a criminal conviction, a criminal charge, or even an administrative hearing."
OMB Watch agrees. "Shutting down an organization does not require formal determination of wrongdoing. It requires a single piece of paper, signed by a midlevel government official. Although in practice a number of agencies typically review and agree to the action, there is no formal administrative process, let alone any adjudication of guilt," it asserts.
Cole and many other civil liberties advocates are calling for changes in the enabling legislation when Congress returns from its August recess next week.
But most Congress-watchers believe that Republicans are likely to stand with the Bush Administration on this issue. And they say that Democrats do not see the issue as any kind of vote-winner as the 2008 elections approach, and are fearful that any perceived support of American Muslims will cast them as being "soft on terrorism."
As for American Muslims, awaiting the start of Ramadan, their charitable giving dilemma is summed up by Anwar Kazmi, the owner of a software business in the Boston area.
"We're taught that this is not even our money; God has given you things and others have a share in what you have. If you don't give, it's like saying, 'I'm not going to pray'. "