The USA Patriot Act and its Impact on Nonprofit Organizations
by Guest Blogger, 9/10/2003
Executive Summary (This report is also available in PDF format.) The Bush administration recently shut down a number of Muslim-based nonprofit organizations using new powers under the USA Patriot Act, which was passed shortly after the 9/11 terrorist attacks. No criminal charges were made against these organizations, nor were they officially designated terrorist supporters. Law enforcement officials simply froze their assets and seized their property “pending an investigation” without producing any evidence, as authorized by the act. Consequently, the burden of proof has shifted to the organizations, which must prove their innocence even though, in many cases, the government has not specified wrongdoing. Moreover, they must do this without access to their own documents, computers, records, or other materials that might make their case. Making matters worse for these organizations, the government controls the information judges see and how they see it; investigators can label evidence confidential for national security reasons and then bring it before a court without the target being represented. This allows the government to present part of the picture most favorable to its case -- which targets are not allowed to confront -- while withholding information that might prove innocence. As one target, the Global Relief Foundation, pointed out, “In fact, [the Treasury Department] has stated in court that it will base its case on evidence GRF may never see.” This secret evidence has also made it difficult to understand how the act is being applied, although the Bush administration appears to be interpreting its mandate broadly. As a result, without respect to the merits of specific cases, some organizations could decide to stop legal charitable activities -- aid to Muslim countries, in particular -- out of fear of being shut down for “material support” to terrorism, a phrase the Patriot Act leaves vague. For example, the government apparently can shut down an organization if aid is given -- even unknowingly -- to a child of a terrorist suspect or suicide bomber. In fact, this may have resulted in the closing of at least one Muslim nonprofit, as described below. For now, only Muslim organizations have been shut down, but the Patriot Act puts others at risk of investigation as well. In particular, the FBI has recently searched the records of hundreds of libraries to see what books people are reading; the exact number is uncertain because the Patriot Act makes it illegal to publicly disclose a search warrant. The new powers of the act also make it possible for the government to conduct secret and wide-ranging surveillance of nonprofit organizations. For instance, if a terrorist suspect repeatedly logs on to an organization’s web site, the organization and other users of its web site potentially can be investigated too -- without anyone knowing. Moreover, although most have focused on individual civil liberties, there are also fears that the administration could use the act to target organizations that oppose its policies, threatening constitutionally protected speech. Public interest groups have started to raise these problems, with the American Civil Liberties Union leading the way. Backed by growing opposition, local governments have passed more than 160 anti-Patriot Act resolutions, and the House recently voted overwhelmingly to block funds for secret searches of homes or offices, as the act authorizes. When the administration first proposed the Patriot Act, many were nervous to challenge it. Attorney General John Ashcroft captured the prevailing mood at the time: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies.” Two years later, it is the Patriot Act that looks un-American. Concerns for Nonprofits Under the Patriot Act, law enforcement officials have increased powers to shut down a nonprofit organization or spy on its activities. In this respect, a number of provisions are of special concern: Freezing Assets The Patriot Act gives the executive branch largely unchecked power to designate any group as a terrorist organization. Once designated, a group can have all of its materials and property seized and its assets frozen, “pending an investigation.” Assets can be taken even if the organization faces no criminal charges. Once all assets are seized and frozen, an organization can be denied access to evidence (the organization’s computers, files, documents, etc.) that might prove its innocence; the government has authority to withhold this information for “national security” reasons. “Material Support” to Terrorism Section 805 of the Patriot Act expands the definition of “material support” to terrorism to include “monetary instruments” and “expert advice or assistance,” amending a law passed following the Oklahoma City bombing (the Antiterrorism and Effective Death Penalty Act of 1996). The full definition now reads:
“Currency or monetary instruments or financial securities, financial services, lodging, training, expert advise or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.” (Sec. 2339, Title 18, U.S.C.)
“An activity that involves acts dangerous to human life and are a violation of the criminal laws of the United States or of any state, and appear to be intended:
i) To intimidate or coerce a civilian population;
ii) To influence the policy of a government by intimidation or coercion, or;
iii) To affect the conduct of a government by mass destruction, assassination, or kidnapping, and;
iv) Occur primarily within the territorial jurisdiction of the United States.”
- Holy Land Foundation for Relief and Development (HLF). On Dec. 4, 2001, the FBI, acting on the orders of President Bush, raided the Texas office of the Holy Land Foundation for Relief and Development. During a public appearance with Israeli Prime Minister Ariel Sharon, the president said HLF was diverting funds to Hamas -- which he described as “one of the deadliest terror organizations in the world today” -- and providing funds to families of suicide bombers. HLF denied the charge, saying it only provided humanitarian relief, with a focus on Palestinian refugees and victims of the wars in Bosnia, Kosovo, and Turkey. One HLF representative responded, “I think that Muslims have a duty to feed the orphans and the needy … and it’s not our obligation to ask that orphan who was your father or what did your father do. The only question we should ask is, are you hungry.”(New York Times 12/5/01) In shutting down HLF, the FBI seized more than $5 million, along with all documents and property, which included satellite offices in three states. FBI agents and local police guarded the offices while all property was removed. Two weeks after being shut down, Ghassan Elashi, HLF’s founder and co-chair, and three of his brothers were arrested on a 33-count indictment, which charged that they used an Internet services company to make investments for a Hamas leader. Elashi’s trial has not yet taken place.
- Global Relief Foundation (GRF). Ten days after closing HLF, the FBI raided the Global Relief Foundation’s headquarters in Chicago, freezing all of its assets “pending an investigation” and taking computers, filing cabinets, furniture, pictures, and more. On the same day, the Immigration and Naturalization Service arrested GRF’s director, Rabih Haddad, and raided his home. The INS cited visa violations as the reason for Haddad’s imprisonment and potential deportation. In the past, these violations would have resulted in small fines or other minor punishment. Yet for the next 14 months, Haddad was transferred from one jail to the next, without notice to his family. Haddad’s deportation trials were held in secret, were not listed on the courthouse docket, and were closed to the press and Haddad’s family. Eventually, Haddad sued to open his deportation hearings, and won. However, the government pressed forward without ever accusing Haddad of a serious crime -- just visa violations -- or linking him directly to terrorism. Nineteen months after the day of his arrest, Haddad was deported, again without notice to his family. Two weeks later, on July 28, Haddad’s wife and four children (ages 5-13) flew to Kuwait after being deported by the INS. The story of Rabih Haddad and his family is not unique, as scores of Muslims have been deported since 9/11 on minor visa violations, without open trials, or any factual evidence associating them with terrorism.
- Benevolence International Foundation (BIF). On the same day as the GRF raid, the FBI raided Benevolence International Foundation, another Muslim nonprofit based in Illinois that describes its mission as providing humanitarian relief services worldwide. In 2002, Enaam Arnauout, BIF’s chief executive officer, was indicted on racketeering charges for misleading donors and using funds to provide material support to terrorist organizations, including al Qaeda. In February, Arnauout pled guilty to a lesser fraud charge -- using charitable donations to fund fighters in Chechnya and Bosnia. In August he was sentenced to 11 years in prison. Prosecutors had sought a 20-year sentence, but Judge Suzanne B. Conlon said they had “failed to connect the dots” to prove the al-Qaeda ties. Arnaout had contact with al-Qaeda leader Osama bin Laden during the Afghan war against the Soviet Union during the 1980s, but the FBI could not establish subsequent contact.
- Safa Trust. In March 2002, Customs agents raided Safa Trust -- a Herdon, Va., group founded by major Republican decision makers and Bush associates -- and the headquarters of what the Washington Post (10/7/02) called some of the nation’s “most respected Muslim leaders,” including the Institute for Islamic Thought and the Graduate School of Islamic and Social Sciences. The government did not reveal the reasons for its actions, but “sources familiar with the investigation said the agents were looking for evidence of money laundering and tax evasion as well as possible ties to a worldwide private financial empire that Western governments have long suspected of funding terrorist activities,” according to the Post (5/3/02). In May 2002, these organizations sued in U.S. District Court in Alexandria, Va., alleging a government “fishing expedition.” In August the government filed an affidavit claiming the charities gave $3.7 million to BMI Inc., an investment company the government said may have passed money on to terrorists. (BMI founder Soliman Hiheiri has been held as a material witness since July, and was indicted in early August on charges of making false statements to immigration authorities.) This example establishes the government’s willingness to seize assets and shut down a nonprofit based on a financial transaction with an outside party that “may” have had transactions with terrorists.
- Libraries. Under the Patriot Act, the FBI has spied on Americans by searching library records. According to the Library Research Center (LRC) at the University of Illinois, libraries reported 545 visits from federal and local law enforcement --178 from the FBI -- in the year after the 9/11 terrorist attacks. This represented a decline in reported visits from the previous year (when libraries reported 703), but this could have resulted from the Patriot Act’s secrecy provisions. “[T]he USA PATRIOT Act makes it illegal for persons or institutions to disclose that a search warrant has been served,” LRC stated. “A warning about these secrecy provisions on the LRC questionnaire may have served, in some cases, as a deterrent to candid answers. Fifteen libraries acknowledged there were questions they did not answer because they were legally prohibited from doing so.” The Department of Justice has dismissed concerns of librarians that this represents an affront to the Constitution. Mark Corallo, a DOJ spokesman, said -- in spite of facts to the contrary -- that, “This is limited only to foreign intelligence, and U.S. citizens cannot be investigated under this act,” according to Florida Today (9/23/02). He also described librarians’ opposition as “absurd,” wrongly stating that the Patriot Act “doesn’t apply to the average American.” (Journal News, 4/13/03) To further downplay the matter, another DOJ official cited an “informal” survey of field offices, which found that “libraries have been contacted approximately 50 times, based on articulable suspicion or voluntary calls from librarians regarding suspicious activity.” Of course, this was later contradicted by the Library Research Center.
- Women in Black. The FBI visited Women in Black -- an international pacifist groups whose U.S. chapter holds weekly vigils in support of Palestinian rights -- and threatened its members with jail time for refusing to talk about their group. A spokesperson for Women in Black said, “If the FBI cannot or will not distinguish between groups who collude in hatred and terrorism and peace activists who struggle in the full light of day against all forms of terrorism, we are in serious trouble.”
- Muslim student organizations. In December 2001, the Chicago Tribune reported that the former head of the State Department’s counter-terrorism office, now a consultant to the federal government, has advised federal agencies to monitor the Muslim Student Association’s more than 100 nationwide campus chapters, including telephone calls, bank accounts, and fundraising activities. Many of the MSA groups have a history of fundraising for Muslim-based charities, including three that were shut down shortly before the Tribune’s article. (12/22/01)
- Colorado activists. In March 2002, while representing a group working to stop police violence, the Colorado ACLU uncovered police “spy files” on local activists. Mayor Wellington Webb, a former civil rights activist, ordered the files purged after handing them over to the subjects for review. As the information became public, Colorado citizens learned that police had been spying on a wide range of organizations, including peace and environmental groups, American Indian advocates, and pro-gun groups. More than 200 organizations and 3,200 individuals were targeted. Then, in November 2002, two Colorado Springs peace groups -- Citizens for Peace, along with Pikes Peak Justice and Peace Commission -- obtained files revealing that the Denver police were sharing information with other cities. This raised further concerns that this information was shared with federal officials, as authorized by the Patriot Act. Indeed, the act promotes the sharing of intelligence -- information gained through spying -- across government agencies and between the various levels of government. Activists in the Colorado Springs area -- who were tear gassed during an anti-war rally in the fall of 2002 -- quickly organized a community forum in April to discuss the implications of the Patriot Act and local police actions. One speaker, Loring Wirbel of CMP Media, told the overflow crowed, “Local police forces are the bottom-feeders, of course, in a long chain of command that ends with John Ashcroft. Through the USA Patriot Act…Ashcroft is stifling the opportunity for dissent in this country, and using local police as the shock troops for enforcing the new repression.”
- Humanitarian Law Project v. Reno. The Humanitarian Law Project (HLP) is a Los Angeles-based nonprofit organization that urges the “peaceful resolution of armed conflicts” and “world-wide compliance with humanitarian law and human rights law.” HLP filed suit against then-Attorney General Janet Reno seeking declaratory relief for its plans to train the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) -- both designated terrorist organizations -- on how to advocate under international humanitarian standards. Even though it was not aiding terrorist activity, HLP feared it would be charged under AEDPA’s “material support” provision. The court ruled against HLP on most issues, finding that the proposed actions could violate criminal law and that the act’s criminal sanctions did not infringe on the organization’s First Amendment rights. However, the court did find that “two of the components included within the definition of ‘material support,’ training and personnel, were impermissibly vague.” Consequently, the opinion “enjoined the prosecution of any of the plaintiffs’ members for activities covered by these terms.”
- U.S. v. Rahmani. In this case, seven co-defendants were accused of providing “material support” -- specifically, monetary donations between 1997 and 2001 -- to Mujahedin-e Khalq (MEK), which the State Department had designated as a foreign terrorist organization. In a passionate opinion, Judge Robert M. Tukasugi of the U.S. District Court for the Central District of California found that the practice of designating terrorist organizations is “unconstitutional on its face.” “Accordingly, such designation is a nullity and cannot be relied upon in a prosecution,” he stated, adding that “the argument for national security should not serve as an excuse for obliterating the Constitution.” Nonetheless, this decision has gone largely unnoticed and has not been relied on in other courts. As the judge in U.S. v Lynne Stewart declared, “Rahmani is not binding on this Court and is unpersuasive.”
- Detroit Free Press v. Ashcroft. A DOJ memo, known as the “Creppy Memorandum,” ordered judges to conduct certain immigration hearings in secret, affecting hundreds of Muslims accused of visa violations. Rabih Haddad, director of Global Relief Foundation (discussed above), challenged this policy, and was joined in a suit against DOJ by a number of Michigan news organizations and civil liberty groups as well as Rep. John Conyers (D-MI). Specifically, Haddad argued that the closed hearings violated his rights under the Administrative Procedure Act, regulations promulgated under the Immigration and Nationality Act, and the due process clause of the Fifth Amendment. The news organizations argued they were entitled access to the hearings under the First Amendment. Ultimately, the U.S. Court of Appeals for the Sixth Circuit ruled that, as practiced, these closed deportation hearings are unconstitutional, and ordered an open hearing for Haddad. Unfortunately for Haddad, this happened after he and his family were deported.
- Holy Land Foundation v. Ashcroft. Muslim organizations have sought injunctive relief after being raided and having their assets frozen -- citing Constitutional issues. These issues include searches and seizures conducted without warrants, the freezing of assets before any criminal charges are filed, and the withholding of evidence from targeted organizations. To date, no court has decided in favor of the nonprofits. Instead, courts have granted deference to the executive branch, repeatedly referring to their fear of limiting the president’s ability to promote national security. However, in a case brought by the Holy Land Foundation, the U.S. District Court stated that “the government’s entry into HLF’s offices…and seizure of equipment…without a warrant, do raise significant Fourth Amendment [search and seizure] concerns. Indeed, these allegations state a classic Fourth Amendment violation.” The same court also suggested that, “plaintiff may…some day have a credible argument that the long-term blocking order has ripened into vesting of property in the United States.” Yet whether the freezing of assets ever ripens into “vesting,” it will still be too late for the nonprofit, which will have suffered permanent damage.
- U.S. v. Lynne Stewart. Government officials have been monitoring private attorney-client conversations, a practice that impedes an individual’s right to representation and a fair trial. Lynne Stewart, a court-appointed public defense attorney, faced charges of “material support” -- carrying a prison sentence of up to 40 years -- for actions connected to her representation of Sheikh Abdel Rahman, a co-conspirator in the 1993 World Trade Center bombings. For example, the indictment claims: “Stewart actively concealed the conversation between [the interpreter] and Rahman from prison guards by, among other things, making extraneous comments in English to mask the Arabic conversation.” Judge John G. Koeltl of the U.S. District Court for the Southern District of New York dismissed the “material support” charges due to unconstitutional vagueness. Judge Koeltl stated that, “the Government accuses Stewart of providing personnel to [a terrorist organization]. In so doing, however, the Government fails to explain how a lawyer, acting as an agent of her client…could avoid being subject to criminal prosecution.” Judge Koeltl also recognizes that the government’s “evolving” definition of “material support” “reveals a lack of prosecutorial standards that would permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.”
- Studies and articles. The ACLU has closely monitored implementation of the act, which has included requests for information under the Freedom of Information Act. Unfortunately, but not surprisingly, the Bush administration has been less than forthcoming. For instance, the administration refused a FOIA request for the number of detainees held in post-9/11 investigations.
- Litigation. In July, the ACLU, along with the Muslim Community Association of Ann Arbor, Mich., and the Islamic Center of Portland, Ore., filed suit in federal district court in Detroit, challenging Section 215 (which as discussed above authorizes the government to seize records without notifying targets). The groups claim this provision violates their free speech rights and protections from unreasonable searches and seizures. Ann Beeson, the ACLU lawyer representing the groups told the Washington Post (7/21/03), “Because the orders are secret, there is no way to know for sure who has been a target. That is one of the Constitutional arguments against the law.” The Islamic groups also argue that they have been unfairly targeted because of their ethnic and religious identity. The Center for Constitutional Rights also filed suit in Los Angeles, challenging as unconstitutionally vague the provision that makes it illegal to provide “expert advice and assistance” to groups allegedly tied to terrorism.
- Community resolutions. The ACLU has advised communities on local anti-Patriot Act resolutions. So far, three states -- Alaska, Hawaii, and Vermont -- and more than 160 local governments in 27 states have passed such resolutions on behalf of almost 17 million Americans. This demonstrates a resounding unwillingness to sacrifice civil liberties for the illusory benefits of the act. These resolutions are largely symbolic, doing little to legally restrict the actions of federal agents, but one community has taken it a step further. The northern California town of Arcata is the first town to pass an ordinance outlawing compliance with the Patriot Act, according to the Washington Post (4/20/03). For information on this campaign, see the ACLU web site.