Looks like the U.S. State Department -- or at least William Brownfield, Assistant Secretary for International Narcotics and Law Enforcement -- didn't get the memo. That is, the September 2014 Presidential Memorandum that makes support for civil society the official policy of the U.S. government, and lists specific steps agencies must take to protect it. Brownfield, however, took a different approach on Dec. 8, 2014 at a Bangladesh conference on anti-terrorist financing in a speech that appeared to endorse harsh new restrictions on Bangladesh nonprofits. The restrictions are similar to laws imposed by repressive regimes that violate protected rights of assembly, association and expression. So why is a U.S. official appearing to support this disturbing global trend? And what can the State Dept. do to repair the damage?
Here is what Brownfield told the South Asia conference on Good Giving - Countering Terrorist Financing and Violent Extremism in the Charitable Community: "Unfortunately, a portion of this [charitable] money, whether by design or through the exploitation of legitimate organizations, is diverted to support acts of terrorism." He did not mention the need for such laws to be proportionate to risk of diversion or to respect fundamental human rights. Instead he referred to the Mumbai bombings and al Qaeda and talked about the need to "strengthen charitable regulation regimes," assuming that whatever regulations are already in place are inadequate.
These remarks are notable for their complete lack of context, proportionality and acknowledgement of the benefits nonprofits provide and the rights they embody: association, assembly and expression. It also makes a broad generalization about nonprofit organizations, essentially blaming the entire sector for misdeeds of a very, very small number of groups. Studies on terrorist financing are clear: instances of terrorist financing by NPOs are extremely rare relative to the size of the sector. For example, a 2010 report from the World Bank says that "Whatever sum of that is diverted towards terrorist purposes, it is only going to amount to a fraction of a percentage of total NPO funds."
The media interpreted the speech as an endorsement of the Bangladesh law, with headlines like "US lauds Bangladesh's efforts in combating terrorist financing." The American Ambassador to Bangladesh, Dan W. Mozena, made matters worse in follow up comments to the Eurasia Review, when he said, "One source of financing terrorism and violent extremism is charity, the vast network of charitable organizations thrives across South Asia and we must fight back against it." What is this alleged "vast network" he is talking about? It sounds like a talking point, but is not a fact.
In contrast to these statements, key global leaders, from President Obama to the UN Security Council, have acknowledged the important role nonprofit organizations play in countering violent extremism.
• President Obama's 2014 Memorandum says, "by giving people peaceful avenues to advance their interests and express their convictions, a free and flourishing civil society contributes to stability and helps to counter violent extremism." It notes that regulation of the nonprofit sector to prevent abuse by illicit actors should be "proportionate and targeted."
• In 2009 the Working Group on Tackling the Financing of Terrorism of the United Nations Counter Terrorism Implementation Task Force recommended that "States should avoid rhetoric that ties NPOs to terrorism financing in general terms, because it overstates the threat and unduly damages the NPO sector as a whole."
• The Financial Action Task Force (FATF) calls for Respect for the Legitimate Activities of NGOs in its guidance for state implementation of nonprofit anti-terrorist finance regulations and goes on to describe charities as a "vital component of the world economy" that can "play an important role in preventing the causes of radical ideology from taking root and are, therefore, potential allies in the fight against terrorism."
Brownfield should have been aware of these statements and policies before going to speak at an event focused on charities. The new Bangladesh law is not unique or sudden. It was first introduced in June 2014. The International Center for Not for Profit Law reported the draft version of the act in 2012. The Observatory for the Protection of Human Rights Defenders issued a statement urging the Bangladesh government to scrap it. The law fits into a growing global trend of restrictions on nonprofit access to foreign donations, onerous registration requirements and government control over operational decisions.
Such laws have been widely criticized. Human rights defenders and political opposition appear to be the primary target of such laws. Maina Kiai, the UN Special Rapporteur on freedoms of peaceful assembly and of association, cited examples of restrictions on foreign funding in Algeria, Egypt, Ethiopia and Russia in a 2013 report. He said "counterterrorism laws are "one of the most common measures used by government to limit access to funding..." While states do have an interest in protecting public safety, Kiai argues that "The onus is on the Government to prove" that restricting the rights of a civil society organization will promote security. Human Rights Watch Asia director Brad Adams notes that in Bangladesh "The government has not shown any serious terror threat arising from 'many' NGOs or why the existing criminal law is insufficient to deal with any problems that may arise. This is just a smoke screen to exert political control over civil society."
President Obama's Stand for Civil Society initiative is an important counterweight to this trend. It specifically notes both the benefits and rights of nonprofits and requires federal agencies engaged abroad to take a number of specific steps to support civil society. These include "Opposing Undue Restrictions on Civil Society and Fundamental Freedoms." It also calls on the U.S. "to lead by example to promote laws, policies, and practices that expand the space for civil society to operate in accordance with international law."
All this makes the myopic view on charities in Brownfield's speech more troubling. Such a high ranking U.S. official should not be unaware of relevant new laws taking effect in a country where he is speaking, and certainly should not imply approval of restrictive laws inconsistent with both the spirit of the Presidential Memorandum and the letter of human rights law. Whether Brownfield took this approach "by design" or otherwise is irrelevant, because the damage is done. The question is now what the State Dept. will do to repair it.
And it must repair the damage. At a minimum the State Dept. should issue a statement calling on the Bangladesh government to respect the rights of civil society and reconsider the law. This should be circulated to all the countries that participated in the December 2014 conference, since Brownfield urged attendees to reach out to neighboring governments. The American Ambassador in Bangladesh should reach out to civil society there and listen to their concerns and press the Bangladesh government to respect their rights.
Finally, the White House should ensure there is no repeat of this episode by making sure all officials at State, Treasury and other agencies engaged abroad get the memo and act accordingly.