THE BLOG

Did You Give at the Office?

08/02/2008 05:12 am ET | Updated May 25, 2011
  • William Fisher Formerly served State Department and Agency for International Development

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."

This is the conclusion of a new white paper prepared by two prominent organizations, OMB Watch and Grantmakers Without Borders. 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.

The report charges that the government views nonprofits as "conduits for terrorist funding and a breeding ground for aggressive dissent." It accuses 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. It contends that federal agencies "ignore nonprofits' calls for change," and says, "Congress has not utilized its oversight powers to review counterterrorism programs."

The result, the report says, is that U.S. nonprofit organizations have been forced to "operate within a legal regime that harms charitable programs, undermines the independence of the nonprofit sector, and weakens civil society."

The report says that the U.S. nonprofit community today "operates in fear of what may spark (the government) to use its power to shut them down."

Kay Guinane, Director of Nonprofit Speech Rights at OMB Watch, noted that the current approach to counterterrorism as it relates to nonprofits and foundations is ultimately counterproductive. She told me, "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."

The report -- Collateral Damage: How the War on Terror Hurts Charities, Foundations, and the People They Serve -- asserts that "current counterterrorism policies are based on a flawed legal regime and broad, vague definitions; the policies rely on flawed assumptions about terrorism and nonprofits; and the policies are abused by the government to engage in unconstitutional, political use of surveillance powers."

The Treasury Department's Office of Foreign Assets Control (OFAC) is the target of much of the report's criticism of the government's approach. After the September 11th terrorist attacks on the U.S., Congress gave the government sweeping new powers to crack down on not-for-profit organizations that were 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. Since 9/11, the government has shut down dozens of charitable groups, but only three have ever been charged and brought to trial for supporting terrorist causes. None has been convicted.

The report explains that current counterterrorism financing policy allows the funds of designated charitable organizations to sit in frozen accounts indefinitely. Treasury's 2006 Terrorist Assets Report estimates that $16,413,733 in assets from "foreign terrorist organizations", which include charities and foundations, have been frozen since 9/11. The laws that authorize the designation and freezing of assets do not provide any timeline or process for long-term disposition, so they remain frozen for as long as the root national emergency authorizing the sanctions lasts. To date, no blocked funds have been released for charitable purposes, despite several requests, the report claims.

It also asserts that the government has used its surveillance powers against charitable groups for political purposes. It charges, "In addition to providing aid and services to people in need, charitable and religious organizations help to facilitate a free exchange of information and ideas, fostering debate about public policy issues. The government has treated some of these activities as a terrorist threat. Since 9/11, there have been disturbing revelations about the use of counterterrorism resources to track and sometimes interfere with groups that publicly and vocally dissent from administration policies."

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

The report finds 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."

For aid organizations like the International Red Cross, compliance with U.S. counterterrorism laws can force NGOs to violate standards of neutrality in their work. The Principles of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Response Programmes state, "The humanitarian imperative comes first. Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid priorities are calculated on the basis of need alone."

In some cases, the report declares, counterterrorism laws have caused nonprofits to pull out of programs. For example, in 2003 Rockefeller Philanthropy Advisors suspended funding for a Caribbean program designed to "kick-start a flow of American charity" to that region because of an inability to comply with Treasury Department regulations.

Professor David Cole, a constitutional law expert at the Georgetown University Law Center, said, "The legal regime employed in the name of cutting off terror financing gives the executive branch a 'blank check' to blacklist disfavored individuals and groups, imposes guilt by association, and lacks even minimal attributes of fair process."

He told me, "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," he says.

Other observers believe that the campaign against charities that conduct programs in Muslim areas is part of a larger suspicion of Arabs and other Muslims. Samer Shehata, professor of Arab Politics at Georgetown University, told me Islamophobia "produces an environment that is fundamentally at odds with what the U.S. is supposed to be about; our values for treating everyone fairly and not discriminating on the basis of skin color, race, religion, gender, etc."

He adds, "This is damaging certainly for all Americans and it is also damaging for the reputation of the U.S. overseas. One of the questions I hear the most whenever I am in Egypt and other parts of the Middle East is: how is it like now in the U.S. for Arabs? Have you been the victim of discrimination, bigotry, abuse?"

One of the many "walls" that Barack Obama said in Berlin needs tearing down is the one the Bush Administration has built to paint American Muslims as wild-eyed fanatical bomb-throwing terrorists. It has created this deeply flawed and hateful caricature by creating the environment of fear in which all of us find ourselves - and our politics -- in this election season.

The Bush Administration no doubt believes that its efforts to cut off terrorist funding by U.S. charities are critical to the national interest. And when the national interest, as defined by the president and his aides, is at stake we turn a blind eye to the rule of law. Like much of the so-called "war on terror," this campaign against the not-for-profit sector is a blunt instrument. It produces collateral that robs our country of a wide range of skills and resources that could help build bridges to the very people we need to win this war of ideas.

That no jury has yet to return a guilty verdict against any of the charities the Justice Department has brought to trial is a tribute to the good sense of American citizens.