Arguing it has a “robust listing and delisting process,” the U.S. Treasury Dept. has declined to conduct a review requested by Rep. Steve Cohen (D-TN). Treasury’s response comes after a letter was sent last year by Rep. Cohen calling on Secretary Jacob Lew to review ways to make the department’s terrorist listing process more in line with constitutional principles. The February 21, 2014 response from Treasury says they have “removed more than 1000 names” from their Specially Designated Nationals (SDN) list, and that they remain “committed to implementing a process that is legal and fair.”
Cohen urged a review their current procedures and a public comment period in light of two court cases that found the current process is constitutionally deficient. In the two cases, charities were put on the SDN list but not given proper notice of the reasons for the action or a chance to present a defense. In addition, the courts found that assets cannot be frozen without a court order based on probable cause.
Cohen’s letter cites Al-Haramain v. Treasury and Kindhearts v. Treasury as examples of Treasury’s “constitutionally flawed” process. In Al-Haramain, the U.S. District Court in Oregon ruled that Treasury violated the organization’s Fifth Amendment due process rights because they waited eight months before giving a reason for freezing the charity’s assets and did not provide a meaningful way for the charity to respond. It also cited asset freezing without a court order as a violation of the Fourth Amendment’s prohibition on unreasonable seizures. In September 2011 the Ninth Circuit Court of Appeals upheld the decision and the government did not ask the Supreme Court to review it.
In the KindHearts case, the court for the Northern District of Ohio similarly found that Treasury violated the rights of the charity for freezing its assets without notice and without an opportunity to appeal. The letter also points out Treasury’s “arbitrary and capricious” refusal to allow the charities to pay for legal services with their frozen assets during the trials.
Cohen argues that a review would demonstrate “respect for the rule of law” and would “increase the credibility and integrity of the terrorist listing process by making it more transparent and accountable.” His request follows a letter sent by civil society leaders to then-Secretary Timothy Geithner in July 2012, calling for a review process with input from nonprofit groups.
Signers Kay Guinane, Director of the Charity & Security Network, Dr. Azizah al-Hibri, Founder and Chair of KARAMAH, and Sharon Bradford Franklin, Senior Council for the Constitution Project argued that the current listing process creates a chilling effect on charities. New procedures “would assure charities that the legal black hole…has been eliminated and replaced by a process they can have confidence in,” said the 2012 letter. It also argued that charities play a role in fighting terrorism and that charities “work hard to ensure that their operations do not benefit terrorists.”