The Silence of the Shams

By William Fisher

OK, can we please forget the unforgettable Sarah Palin for five minutes and focus on one of the dozens of issues that obviously look like third rails to candidates of both parties?

Let’s spend a few minutes pretending:

You’re an American Muslim. You live in Dearborn, Michigan. You work at Walmart. You have three kids, two cars and a mortgage. You’re a compulsive voter.

This is the time of the year – the month of Ramadan -- when you traditionally spend a lot of time thinking about what your parents called “zakat” – giving to the less fortunate. It’s a basic tenet of Islam.

This year, you’d like to do something to help Palestinian families in Gaza – that dreadful place where jobs, food, medical help, shelter, education – and just about everything else – is in desperately short supply.

So you whip out your checkbook and send off your hundred bucks to a local charity that has a long record of supporting Palestinian families.

You’ve fulfilled your religious obligation. You feel good about it. Then you get on with the rest of your life.

But, a while later, you pick up your local paper and there’s a front-page story that tells you the charity you wrote the check to has been closed down by the federal government for providing “material support” to a terrorist organization.

Its records and equipment have been seized by the Feds and its assets have been frozen. Among its assets is your hundred bucks.

You phone the charity, but the number has been disconnected. You watch the papers for news about how this happened. There’s almost no reporting on the story. The charity’s lawyer denies that his client supports terrorist organizations. The government holds a press conference where an official repeats the charge but gives no details.

Unusual? Hardly. Millions of generous Americans have had the same experience. And they are still having them.

How does this happen?

In the months following the terrorist attacks of September 11, 2001, the U.S. government launched its "global war on terror" by rounding up thousands of "Middle Eastern-looking" men and women, jailing them without charges or access to lawyers. After months, it had accused none of them of terror-related crimes, convicted no one, and ended up deporting some for non-criminal immigration violations.

At about the same time, the government opened up a second front against charitable organizations it suspected of providing financial or other material assistance to groups the government designates as "terrorist." While the campaign applied to all domestic nonprofit organizations, the lion's share of scrutiny, suspicion, and preemptive action fell on groups that support Muslim causes.

Since 9/11, there has been an exponential increase in government surveillance of the financial practices of charities serving Muslim communities both in the U.S. Numerous charities have been shut down, their records seized and their assets frozen – all with virtually no due process. But only one such organization – the Holy Land Foundation -- has been brought to trial. That trial ended in the exoneration of one of the defendants and a hung jury on the fate of the others. The government is about to re-try the case.

In 2005, the American Civil Liberties Union (ACLU) launched its Spy Files Project and uncovered an intricate system of domestic spying on U.S. nonprofits largely condoned by expanded counterterrorism powers within the USA PATRIOT Act.

Meanwhile, none of the assets frozen by the Treasury Department – which administers the scrutiny of charitable organizations – has been returned, despite numerous requests. These assets include funds the charities require to pay for their legal defense.

The government’s pursuit of not-for-profit groups that support Muslim causes has caused a dramatic decrease in contributions and has left donors and volunteers confused about which organizations and institutions they can trust.

Now, as American Muslims again mark the beginning of Ramadan, charitable organizations serving the American Muslim community are taking what some observers believe is a desperate last step to keep the U.S. government from shutting them down.

Muslim Advocates (MA), a San Francisco-based national educational and advocacy organization established by a 500-plus network of Muslim American lawyers, is teaming with the Better Business Bureau (BBB) Wise Giving Alliance to launch a new initiative to improve the fiscal management and administration of American Muslim charitable organizations.

Aziz Ahmad, an MA staff attorney, told us that sponsors of the program hope it will begin to restore donors’ confidence in charitable organizations that support Muslim causes. He added: “We hope the government will be less inclined to prosecute American Muslim nonprofits and mosques for supporting terrorist causes if they demonstrate that they meet the highest standards of legal compliance, financial accountability and good governance.”

The new initiative combines MA’s legal expertise and the BBB’s reputation as an independent charity evaluator with over 1,200 charities reviewed to date. It will provide charitable organizations with free services including assistance a network of attorneys and accountants to assess their current practices and identify information needed for meaningful review by the BBB’s Wise Giving Alliance.

The Alliance will also conduct evaluations to determine that an organization has met its 20 Standards of Charity Accountability. These are considered by many to be the toughest, most comprehensive governance and fiscal management standards in the nonprofit sector.

At the same time, MA will produce informational materials and host a series of free educational seminars for nonprofit leaders in eight cities across the U.S., beginning in the San Francisco Bay area in October 2008. These seminars will advise Muslim charities on a wide range of issues, including how to improve their governance, increase transparency, and ensure legal compliance with anti-terror financing laws and regulations. Thus far, seven charities have signed on to the program, Ahmad told us.

But the BBB’s Wise Giving standards are applicable to charitable organizations generally and do not specifically address the unique challenges that have been faced by Muslim not-for-profits since the start of the “war on terror.” So what remains unclear is how improvement of these organizations’ professional practices will influence the government’s administration of the “material support” statute and regulations.

A number of authorities in the not-for-profit sector doubt that the government will be deterred by the new MA/BBB initiative. Kay Guinane, director of Nonprofit Speech Rights at OMB Watch, a widely respected government watchdog organization, told us she believes the MA/BBB initiative is “useful first step toward keeping Muslim charities from being shut down.” However, she said, “fundamental change requires a change in the government’s basic approach to interpreting the law” which she says is “ultimately counterproductive.”

She added, “In order to preserve the rights of all nonprofit organizations, and indeed, the rights of all people, all levels of government must conduct their counterterrorism activities in a way that consistently protects liberty and civil society. Otherwise, Americans and others lose safeguards that were designed to protect us all from creeping tyranny.”

(OMB stands for the government’s Office of Management and Budget, the White House office responsible for devising and submitting the president’s annual budget proposal to Congress.)

In a recent report, Guinane’s organization charged that in the name of “global war on terror,” the U.S. government is waging war on non-governmental organizations by applying “shortsighted, undemocratic policies” that are “constraining the critical activities of the charitable and philanthropic sectors, stifling free speech, and ultimately impeding the fight against terrorism.”

The report found that “U.S. counterterrorism laws have made it increasingly difficult for U.S.-based organizations to operate overseas. For example, after the 2004 tsunami, U.S. organizations operating in areas controlled by the Tamil Tigers, a designated terrorist organization, risked violating prohibitions against ‘material support’ when creating displaced persons’ camps and hospitals, traveling, or distributing food and water.”

It concluded that the government views nonprofits as “conduits for terrorist funding and a breeding ground for aggressive dissent.” It accused the courts of being “overly deferential” to the U.S. Treasury Department, which is responsible for conducting programs designed to stem the flow of money to terrorist organizations. And it contended that federal agencies “ignore nonprofits’ calls for change,” and that “Congress has not utilized its oversight powers to review counterterrorism programs.”

The result, the report said, is that the U.S. nonprofit community today “operates in fear of what may spark (the government) to use its power to shut them down.”

The Treasury Department’s Office of Foreign Assets Control (OFAC) was the target of much of the report’s criticism of the government’s approach. After 9/11, Congress gave the government sweeping new powers to crack down on not-for-profit organizations that were allegedly using their charitable status as cover for funneling funds to terrorist groups.

These powers include the authority to designate any charity as a material supporter of terrorism. This action demands virtually no due process from the government, denies the target to see the evidence against it, and can result in freezing of a charity’s assets, effectively shutting it down.

Guinane told us that the OFAC terrorist “watchlist” was originally designed to identify drug kingpins and other more conventional criminals and is of little value due to “questionable accuracy” caused by numerous duplications. Moreover, she said, most not-for-profit groups, especially smaller ones, lack the resources to monitor it.

She added, “I don’t think there should be special rules governing not-for-profits that support Muslim causes. This has evolved into a bizarre regulatory regime that is unduly discriminatory.”

So where do our presidential wannabees – and both parties’ candidates for Congress -- stand on this issue? Nowhere. They may disagree on practically everything, but they appear to be in total agreement that defending the civil rights of Muslim Americans is their ticket to political oblivion.

But this is not just about Muslim Americans. It’s about fundamental fairness. It’s about the injustices that befall ordinary Americans as a result of bad law, poorly administered. And it’s about politicians all too willing to exploit an environment of fear -- or, just as bad, all too willing to remain silent – rather than risking losing an election.