By William Fisher
While President Barack Obama conceded in his speech in Cairo last month that U.S. rules on charitable giving “have made it harder for Muslims to fulfill their religious obligation,” civil rights advocates are pressing the president to turn his words into action.
The Muslim Public Affairs Council has joined other nonprofit organizations in urging Obama to follow up on his commitment to work with Muslim Americans to revise charitable giving rules.
In a letter to the president, the organizations said, “We are seeking a meeting with you and the appropriate representatives of your administration to provide background information on how current national security rules create problems for all U.S. charities and to provide recommendations for change.”
It outlined a set of principles for new rules governing charitable giving and operations, and said government policy “must address systemic problems.”
The government, it said, should “provide clear standards for permissible charitable and development activity that are consistent with long-standing norms for humanitarian operations,” such as the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations (NGOs) in Disaster Relief.
It must provide a fair opportunity for charities accused of supporting terrorism to defend themselves; protect charitable assets from indefinite freezing and allow these resources to further the charitable mission donors intended to support; and withdraw the Treasury Department's Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S.-based Charities.”
For Muslims, charitable giving is a religiously-mandated obligation known as “zakat.”
The “war on terror” has dealt a harsh blow to Muslim charities and interfered with their donors’ religious freedom, according to a report by the American Civil Liberties Union (ACLU).
The report says statutes that it describes as overly broad and enforced in a discriminatory manner, coupled with a lack of due process, have starved Islamic charities of money and impeded Muslims’ ability to fulfill their religious requirement to make charitable donations.
Entitled “Blocking Faith, Freezing Charity,” the report is based on interviews with more than 100 Muslim community leaders as well as experts on antiterrorism laws and regulations. Though it gives no estimate of the decline in donations to Muslim groups, it says a total of nine Islamic charities have closed as a result of government action against them since the terrorist attacks of Sept. 11, 2001.
That action ranges, it says, from declaring a group to be under investigation to designating it a terrorist organization and freezing its assets.
Georgetown Law Center’s David Cole, a widely respected Constitutional scholar, sees a correlation between the McCarthy witch-hunts of the 1950s and the government’s current policies. He told us, “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.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government.”
Last November, five members of the now-defunct Holy Land Foundation for Relief and Development were convicted in federal court in Dallas of funneling money to the Palestinian militant group Hamas and sentenced to prison. The defendants said they only gave much-needed aid to a volatile region.
Two other high-profile terrorism-financing trials, in Chicago and Florida, ended without convictions on the major counts.
Two current court cases may test the limits of the Obama administration's executive authority as well as its commitment to transparency. Human rights lawyers are challenging the government's right to use information obtained through warrantless wiretapping as evidence and to shut down charitable organizations without allowing them to defend themselves.
In one case, the government shut down the Al Haramain Islamic Foundation, a Saudi charity, in 2004, allegedly using information obtained though illegal wiretaps. In the other, also involving a Muslim-oriented charity, the American Civil Liberties Union (ACLU) is challenging the constitutionality of government programs that designate organizations as "terrorists" and close them down without providing these groups a way to contest the decision in court.
In the Al Haramain case, the George W. Bush administration's Treasury Department charged that the group was funneling money to terrorists in Chechnya and shut it down. But the government inadvertently released a classified document to the group's lawyers. Now the lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant.
The organization sued the Bush administration. But when the case came to court, in 2006, the government invoked the so-called "state secrets privilege," claiming that the case could not go forward because it would reveal information that would compromise national security.
The judge in that case, Vaughn Walker of the federal district court in San Francisco, rejected the government's claims. In a first-of-its-kind ruling, the judge said the government had to comply with the Foreign Intelligence Surveillance Act (FISA), which forbids it from obtaining evidence without first obtaining a warrant from the FISA court.
The president, the judge said, could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
And when the Obama administration filed an emergency appeal before the Ninth Circuit Court of Appeals in San Francisco, it hoped for a reversal of the lower court's ruling. But the appeals court surprised government lawyers - and legal scholars - by rejecting their appeal, thus allowing the lower court decision to stand.
The decision was a significant victory for Al-Haramain's lawyers, who said they needed the classified documents to represent their clients.
"I did not expect this from the Obama justice department," Jon Eisenberg, an Oakland, California, lawyer representing Al Haramain, told us. "I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn't jeopardize national security, which I think can be easily done," he said.
In the second case, the Treasury Department threatened to name KindHearts, a Muslim charity, as a "specially designated global terrorist" (SDGT) based on classified evidence, without providing it with a reason or meaningful opportunity to defend itself.
The ACLU is asking a federal court to block the government from blacklisting KindHearts without providing it due process, and to lift the freeze on the organization's assets.
"OFAC's unlimited authority to seize KindHearts' property and shut it down without giving the charity notice or an opportunity to defend itself is unconstitutional," Hina Shamsi, lead ACLU attorney on the case, told us.
"KindHearts has been in limbo for more than two and a half years and is asking for independent judicial scrutiny of what has been, until now, unilateral government action," she said.
In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review.