On May 27, 2009, U.S. District Judge Jorge Solis sentenced Shukri Abu Baker, the former chief executive of the Dallas-based Holy Land Foundation for Relief and Development, to 65 years in prison for his role in funneling more than $12 million to Hamas. Abu Baker is one of five defendants who were found guilty on 108 counts by a federal jury in Dallas in November 2008. All were part of the now defunct Holy Land Foundation, which was once the largest Muslim charity in the U.S.
The U.S. charitable sector has been doing its best to provide humanitarian aid, economic development, human rights protection around the world, despite national security laws that have made these efforts increasingly difficult. The disputable legal standards used by the prosecution and sentences handed down in the Holy Land Foundation trial indicate that this situation is likely to get worse.
Three challenges for charities and foundations in the wake of the Holy Land case are:
1. It is virtually impossible for charities to determine what foreign organizations they can legally partner with
At the trial, Robert McBrien from Treasury's Office of Foreign Assets Control testified that it can be illegal to deal with groups that have not been designated as supporters of terrorism and placed on government watchlists. He said that keeping up with front groups "is a task beyond the wise use of resources."
As a result, charities now have to guess about whether or not any local charity or community leader may be considered a supporter of terrorism. "The system is broken," said Kay Guinane, of the Charity and Security Network. "U.S. charities and foundations need clear standards about what is and is not legal, and should have the right to defend themselves when wrongly accused of supporting terrorism."
2. Holy Land's funds should only be used for charitable purposes, but may be confiscated by the government
The government has sought to have Holy Land's funds forfeited to it. But the donors who gave to Holy Land intended their funds to be used for humanitarian purposes. These intentions, and the humanitarian mission cited in Holy Land's organizational charters, should be honored. Charitable funds should be protected and used exclusively for charitable and humanitarian purposes. "Charities and foundations should not have to work with the threat of government confiscation of their funds hanging over them, especially when they cannot rely on Treasury to provide a complete list of organizations it is illegal to work with," Guinane said.
3. There is a contradiction between U.S. law and the International Committee of the Red Cross standards of humanitarian aid
The Holy Land case affirms that it is a crime to provide humanitarian aid if a designated terrorist organization is involved in any way, even if all the funds are used for charitable purposes. But international human rights norms bar discrimination based on religion, political affiliation or any other factor other than need. "Americans are a generous and fair people. Our laws should never criminalize humanitarian works. This contradiction needs to be resolved." Guinane said.