By Affan Shaikh
In a change of counterterrorism policy and Bush-era ideology, a Federal Court ruled against government ability to freeze the assets of charities according to terror financing laws without a warrant based on probable cause.
The ruling, issued by Federal Judge James G. Carr of Ohio faulted the Treasury Department in its actions and also made it mandatory for the government to give organizations advanced notices for the basis of the freezing, as well as a chance to defend its self in court, particulars that were overlooked in the last eight years, when the government froze over tens of millions of dollars in assets held by eight US charities and countless other groups and individuals. The ruling came late Tuesday, August 18th in the original lawsuit filed by the ACLU in November 2008 on behalf of KindHearts for Charitable Humanitarian Development.
The Treasury Department claimed that KindHearts provided financial support to Hamas and coordinated with several leaders in the West Bank and Gaza in support of terrorist activities. To date, however, KindHearts has not been specially designated as a terrorist organization.
Judge Carr said the government “effectively shut KindHearts down” when the Office of Foreign Assets Control (OFAC) froze their accounts. As a result of the government’s actions, it became a crime for anyone to do business with KindHearts, and the organization lost access to its properties and accounts.
The judge found the Department had violated the charity’s rights to due process and to challenge evidence presented, rights guaranteed in the Fifth Amendment. He went on to reject the defense’s contention that the Fourth Amendment, which protects unreasonable searches and seizures, did not apply to suspected ties to foreign terrorism.
Georgetown Law Professor David Cole, co-counsel in the case, described the government’s approach as a “blunt sledgehammer,” and commented that “Judge Carr’s decision recognizes that such unchecked power cannot be squared with the Constitution’s Fourth and Fifth Amendments, which were designed […] to restrain official power to seize property arbitrarily.”
“For years the Treasury Department has exercised unchecked power to shut down charities on unfounded charges of terrorist ties,” said Professor Cole, “[The decision] declares that such power can be employed only pursuant to the basic constitutional safeguards of probable cause, judicial oversight and due process.”