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Let's Cut W. a Little Slack!

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Poor George!

His administration can't seem to catch a break these days.

As some of you may have heard, Dubya finds himself at the center of an economic meltdown. And neither he, nor his trusted lieutenants, appears to have much of a clue about how to reverse it. (The Presidential candidates don't either.)

Adding more tsouris to this disaster, W's party's presidential candidate and his moose skin running mate appear to be imploding.

And while all that's going on, we learn - thanks to a couple of extraordinary whistleblowers -- that our intelligence folks were having a ball eavesdropping on the XXX pillow talk of American citizens living abroad.

Then there are those pesky "activist" judges, who keep throwing cases back at his Justice Department - the latest being a decision by a federal judge to release the Chinese Uighars from seven years of detention in GITMO into the U.S. (the Feds are appealing that ruling, of course).

Now, in what appears to be yet another stunning legal rebuke to the President's policies in the "global war on terrorism," a federal judge has blocked the government from blacklisting a Muslim-oriented charity to give the group a chance to defend itself after its assets were frozen almost three years ago.

In response to a request filed by the American Civil Liberties Union (ACLU), the ACLU of Ohio and several civil rights lawyers on behalf of KindHearts for Charitable Humanitarian Development, Inc., Judge James G. Carr last week blocked the government from branding the organization as a 'specially designated global terrorist' "without first affording KindHearts with constitutionally adequate process," including notice and a meaningful opportunity to contest the basis for such a designation.

The judge ruled that the government's proposed action prior to a judicial review will cause KindHearts to "suffer serious and irreparable injury in the form of loss of reputation and goodwill."

Hina Shamsi, staff attorney with the ACLU National Security Project, said, "We are gratified that the judge recognized the importance of independent judicial review of the government's actions towards KindHearts. His decision also serves the public's interest in ensuring that government action, including in the name of national security, is subject to the constitutional requirements of due process."

Lawyers for the Ohio-based charity charged that it was effectively shut down without due process - "without notice of the basis for the freeze, hearing, finding of wrongdoing, or meaningful opportunity to respond to the freeze."

They say the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze the group's assets more than 31 months ago "based simply on the assertion that KindHearts was 'under investigation'. OFAC has since threatened to brand KindHearts as a 'specially designated global terrorist' based on classified evidence, again without providing KindHearts with a reason or meaningful opportunity to defend itself."

One of the lawyers representing the charity, Professor David Cole, a constitutional law expert at the Georgetown University Law Center, told us, "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 said, "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 us that what he termed '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?"

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.

"OFAC's authority to shut down a charity based on secret evidence, without any notice of wrongdoing, any probable cause, any opportunity to defend itself or any judicial review violates fundamental due process guarantees," said Hina Shamsi, staff attorney with the ACLU National Security Project.

"KindHearts is asking for nothing more than its day in court before the government takes the draconian action of unilaterally designating it a terrorist and inflicting irreparable harm on the charity's most valuable asset, its reputation."

Under the International Emergency Economic Powers Act (IEEPA) and an executive order, the president assumed the power to impose economic sanctions on any organization or individual he or the Treasury secretary designates a "specially designated global terrorist" (SDGT). A provision of the Patriot Act goes further and authorizes OFAC to freeze an organization's assets without designating it an SDGT or even finding any wrongdoing.

According to the ACLU's complaint, both the authority to designate SDGTs and to freeze assets "pending investigation" violate the First, Fourth and Fifth Amendments because they give the government the virtually unfettered ability to shut down an organization even if it has no intent to engage in or support criminal activity.

The organization's lawyers claim KindHearts' founders established the charity in 2002 - after the government shut down a number of Muslim charities - with the express purpose of providing humanitarian aid abroad and at home in the United States in full compliance with the law.

"Since its assets were frozen more than two and a half years ago, KindHearts has repeatedly asked the government for the legal and factual basis for OFAC's actions and for a meaningful chance to defend itself," said Fritz Byers, an Ohio attorney on the case. "The government's failure to respond has left KindHearts in limbo, unable to fulfill its humanitarian mission. It is in the interest not only of KindHearts, but also the public, for there to be independent judicial scrutiny of the government's actions in this case."

Now I don't know if KindHearts is guilty or not of anything. That's not for me to decide. That's why we have lawyers and courts and judges. And we keep telling the world we are "exceptional" because we live by the rule of law.

The core of that American value is that everyone is entitled to his/her day in court. Though there has been precious little discussion of that quaint concept during this campaign, let us pray that our next president will make its return an important priority.

Whoever wins.

Meantime, maybe we should all cut W. a little slack. After all, he's the one who's going to have to live with his legacy.

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