On Sept. 23, 2011 the Ninth Circuit Court of Appeals upheld a lower court ruling that procedures used by the Department of Treasury to shut down the Al-Haramain Islamic Foundation of Oregon (AHIF-OR) in 2004 are unconstitutional. The court said the Fifth Amendment’s guarantee of due process requires Treasury to give adequate notice of the reasons it puts a group on the terrorist list, as well as a meaningful opportunity to respond.

Click here to view Al-Haramain summary page

In addition, the court ruled that freezing the groups assets amounts to a seizure under the Fourth Amendment, so that a court order is required. The court also ruled that a group that wishes to engage in joint communications with AHIF-OR may do so, distinguishing the facts from the Supreme Court’s decision in Holder v. Humanitarian Law Project.

The court found that:
  • OFAC’s reliance on classified evidence without providing a summary or access to the evidence for counsel with a security clearance violated due process.

  • OFAC’s failure to provide notice of the charges violated due process.

  • OFAC’s freeze was a “seizure” requiring a warrant and probable cause, and therefore violated the Fourth Amendment.

  • The criminal prohibition on “coordinated advocacy” with AHIF-Oregon violated the First Amendment rights of a community group that sought to advocate in coordination with AHIF-Oregon, distinguishing Holder v. HLP largely on ground that AHIF-Oregon is a domestic group with frozen funds and there is no evidence supporting concerns that advocacy with it will undermine the government’s national security concerns.

  • The Due process errors were harmless because there is nothing AHIF could have done to refute the evidence supporting its designation.