In July, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCR) published a report on the violations of due process rights in Treasury Dept’s terrorist designation and delisting process. The report covers the problems caused by the process, the legal framework that has allowed Treasury to violate due process rights, and the legal problems that must be addressed to correct the system.
The OFAC List: Due Process Challenges in Listing and Delisting outlines the legal framework that created the Treasury Dept. Office of Foreign Asset Control (OFAC) procedures. OFAC’s power to designate and delist terrorist organizations was granted by Executive Order 13224, issued by President Bush immediately following the events of 9/11. Under E.O. 13224 the Treasury’s OFAC can freeze assets and forbid transactions with people and groups that they have determined commit or support terrorism.
According to the report, there are many procedural problems with the OFAC process that violate an organization’s or individual’s right to due process. Under the current legislation OFAC has complete control over both the designation and the delisting process with little judicial oversight. OFAC does not have to provide notice or justification of their decision to designate a group or individual as a terrorist. If a group challenges their designation in a federal court, the court is only given the records provided by OFAC, and may only review OFAC’s decision to determine if it was “arbitrary and capricious,” a low legal standard.
LCCR offers 11 recommendations for OFAC to implement in order for their designation and delisting process to respect the basic human right of due process. These recommendations call for OFAC to provide clear criteria for what would cause an organization to be designated, establish deadlines in which OFAC must respond to requests from listed individuals and notify them of reasons for being designated and to designate a third party to review petitions for delisting.
Recommendations include: