First they came for the Communists, but I was not a Communist so I did not speak out… ?– Pastor Martin Niemöller
They called it “Bloody Sunday,” March 7, 1965. Some 600 people had assembled for a march from Selma to Montgomery protesting the death of Jimmie Lee Jackson, a black Selma resident who had been beaten and shot by police during an earlier demonstration. Marching east on U.S. Route 80, demonstrators were blocked at the Edmund Pettus Bridge, where local and state police gassed and clubbed the marchers, brutally driving them back into Selma.
Two days later, Martin Luther King Jr. led a symbolic march to the bridge, demanding federal protection for a second attempt to march from Selma to the Alabama state capital in Montgomery. Federal District Court Judge Frank M. Johnson Jr. ruled in favor of the demonstrators, finding, “The law is clear that the right to petition one’s government for the redress of grievances may be exercised by large groups…and those rights may be exercised by marching, even along public highways.”
But had Congress heeded the public’s fears of widespread social upheaval, enacting something like the current USA PATRIOT Act to appease segregationist governors and congressmen, our past–and certainly our present–would have turned out very differently. Dr. King and other marchers could have been detained indefinitely without charges, subjected to intense interrogation and denied legal counsel. Assets and equipment could be seized from the offices of the Southern Christian Leadership Conference (SCLC), the National Association for the Advancement of Colored People (NAACP) and other movement groups. Moreover, movement leaders not directly involved in the march might still be charged with criminal conspiracy.
And while some will likely dispute the comparison, our history is replete with instances where policies designed to quell mass dissent were clothed as necessary, if regrettable, measures to insure public safety or protect the national interest.
Beginning with the four Alien and Sedition Acts passed in 1798, the Federalist-controlled Congress used its legislative authority for political advantage to extend the residency requirement for citizenship from five to 14 years, grant executive power to imprison or deport aliens suspected of anti-government activities, and proscribe spoken or printed criticism of the government.
In 1861, following the assault on Fort Sumter, Abraham Lincoln announced a number of wartime emergency measures, including restrictions on speech and press freedoms, trying suspected political criminals before military tribunals, and the suspension of habeas corpus–which prohibits the arrest and detention of individuals without formal charges.
Following World War I, the notorious “Palmer Raids” of 1918-1920 specifically targeted immigrants, “foreign radicals” and radical publications. On the evening of January 2, 1920, agents of the U.S. Justice Department conducted coordinated raids in 30 American cities, rounding up some 3,000 people, deporting at least 600 “bomb-throwing anarchists.” J. Edgar Hoover launched his career as Attorney General A. Mitchell Palmer’s chief investigator.
Today’s USA PATRIOT Act is dubbed “Son of COINTELPRO” by critics, referring to the long-running FBI initiative (1956-1972) designed to “disrupt, misdirect, discredit or otherwise neutralize” the civil rights, anti-war and student movements. Reflecting the fears and suspicions of the Cold War at its height, FBI Director (for life) J. Edgar Hoover justified the bureau’s excesses, claiming:
“The forces, which are most anxious to weaken our internal security, are not always easy to identify. Communists have been trained in deceit…They utilize cleverly camouflaged movements such as peace groups and civil rights groups to achieve their sinister purposes… It is important to learn to know the enemies of the American way of life.”
Notably, bureau documents confirm that destroying “black nationalist hate groups” was the general rubric and rationale for FBI covert intelligence operations against civil rights groups–thus, drawing no distinctions between Malcolm X and Martin Luther King, or between the SCLC, the Student Nonviolent Coordinating Committee (SNCC) or the Black Panther Party.
After 16 years of unfettered operation, COINTELPRO finally came under congressional scrutiny in 1975, following the leaking of confidential FBI files to the media. Led by Sen. Frank Church, the “Church Committee” did not question the need for “lawful” domestic intelligence activities, but found that the FBI had “undermined the constitutional rights of citizens…primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied.”
Riding the wave of post-September 11 anti-Arab hysteria, Congress enacted the USA PATRIOT Act a mere six weeks after the tragedy. On its face, the act abrogated the findings and recommendations of the Church Committee, effectively neutralizing checks on executive branch counter-intelligence actions. Critics of the act decry its barefaced violation of the First and Fourth amendments. (See: Boghosian, Guinane, Nonprofit Quarterly Spring 2002).
Employing greatly enhanced powers to conduct domestic anti-terrorism operations, the U.S. Justice Department immediately launched a sweeping campaign of mass round-ups targeting an estimated 1,500 immigrants of Arab or Palestinian origin–punctuated only by a flood of summary deportations and the persistent rumors of terrorist penetration of American Muslim communities. With increased government discretion to use “secret evidence,” the scope of anti-terrorist investigations has broadened dramatically in recent months to include a growing list of nonprofit organizations.
Looming on the political horizon is the proposed Domestic Security Enhancement Act of 2003, a.k.a., “PATRIOT-II.” If passed, this bill will make it even easier for the government to initiate covert surveillance and wire-tapping of U.S. citizens.1 PATRIOT-II would also shelter federal agents engaged in illegal surveillance activities (Sec.312), authorize secret arrests and “gagging” of federal grand jury witnesses (Secs. 201, 128 and 206), and empower the attorney general to strip citizenship from any American who provides support to a designated “terrorist organization” (Sec. 501).
Of course, this accounting barely scrapes the surface. Fueled by populist appeals to fear, ignorance and prejudice, some of these policies willingly endorsed the use of extortion, perjury, entrapment, and extralegal violence against targeted populations. Moreover, the courts, the media and major social institutions are generally slow to criticize policies criminalizing dissent– tending toward the superficial and after-the-fact.
Charities have been accused of laundering and channeling funds for terrorism for the last 20 years, both in the U.S. and abroad. A recent report by the European Union’s Financial Action Task Force on Money Laundering concluded that nonprofit organizations are “frequently” involved in terrorist financing–either as a means for direct fundraising for terrorist groups or as a cover to launder money in support of terrorism. The report, Money Laundering Typologies, warns charitable organizations that their foreign operations can be infiltrated by terrorists or supporters, who divert the funds collected for proper purposes–often without the direct knowledge of the donors, staff or management of the nonprofit organization itself.2
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In the U.S., the anti-terrorism strategies of the FBI and the Justice Department are increasingly focused on U.S.-based nonprofit organizations with Muslim connections. The past year has witnessed a number of high-profile indictments against nonprofits in Illinois (the Benevolence International Foundation, Chicago), Virginia (the Graduate School of Islamic Thought and Social Sciences and the International Institute of Islamic Thought, Herndon) and, most recently, South Florida (The World and Islam Studies Enterprise and the Islamic Concern Project, Tampa).
U.S. nonprofits are subject to the legal presumption that they know about all of the activities of their foreign partner organizations. U.S. organizations that send funds for charitable activities in other countries are required to check the identity of their foreign partners against a list of terrorist organizations identified in Executive Order 13224 (and similar lists maintained by the U.N. and E.U.).3 To help charities based here stay out of trouble, the U.S. Department of the Treasury has issued “Voluntary Best Practices” for charities as part of its Anti-Terrorist Financing Guidelines,4 though many of the recommended practices will likely prove challenging to execute:
• Organizations should obtain the place and date of birth for key staff at the foreign recipient organization’s principle place of business, as well as for board members and senior employees at the recipient’s other locations.
• Organizations should verify that the financial institutions used by recipient organizations are not licensed in jurisdictions that lack anti-money laundering controls and oversight.
• The charity should “perform routine, on-sight (sic) audits of foreign recipient organizations whenever possible, consistent with the size of the disbursement and the cost of the audit.”
Consulting the terrorist list provided some protection under PATRIOT-I, since a person could only be prosecuted for providing material support for terrorism if the support is provided with the intent to further one of a list of terrorist crimes, or to an organization that is designated by the government as an international terrorist organization. This was intended to provide “fair notice” as to what actions or relationships are prohibited.
However, PATRIOT-II would eliminate even this modest protection, broadening the crime of providing material support to terrorism, regardless of intent and permitting prosecution for supporting activities of an undesignated terrorist organization–that is, an organization not previously identified by the government (Section 402).
Clearly, U.S. nonprofits engaged in foreign assistance risk the greatest legal exposure to anti-terrorism charges; as a result, responsible aid organizations are undertaking extraordinary due diligence to verify the legitimacy of funding recipients. CharityGuardSM, a new global joint venture, will offer comprehensive screening services to ensure that charitable gifts are directed and used appropriately.5
Still, the shifting political landscape, vague or ambiguous legal definitions for actions constituting “support of terrorism,” and the use of secret evidence for searches and detentions, has significantly changed the risk equation. And, owing to the fuzzy legal definitions and overbroad prosecutorial discretion, U.S. nonprofits whose primary mission might be to provide legal advice, job training or placement services to immigrants, or rental assistance and temporary shelter for the homeless might be deemed guilty of providing “material assistance” and subject to legal sanctions.6
Commenting on these provisions, the American Civil Liberties Union has argued that:
Groups such as Greenpeace could arguably be designated an international terrorist organization, because of the overbroad definition, but the government has not so designated them. Under this provision, however, the determination of whether to apply the terrorism definition to protest groups belongs not with high Executive Branch officials, but to the prosecutor who chooses to invoke the new criminal definition.
Returning to the Edmund Pettus Bridge in the spring of 1965: Jimmie Lee Jackson and the Rev. James Reeb, a white Unitarian minister from Boston, died in the course of these demonstrations; therefore the strategy was obviously dangerous to human life. Likewise, mass actions are, by definition, intimidating–whether non-violent or otherwise. Marching on a public highway might reasonably be construed as an attempt to disrupt government operations. And ultimately, the protests were intended to influence government policy (coercing federal authorities to overturn racial barriers to voting rights).
Applying the criteria outlined in PATRIOT-I to the actions of the Selma-Montgomery marchers, it might be argued that civil rights activists were guilty of “domestic terrorism,” as defined under Section 802.
Under the U.S. Constitution, individuals charged with a crime are presumably innocent until proven guilty. However, in the pursuit of “terrorists,” you may now be jailed or deported, your organization closed and its assets seized, all on the basis of undisclosed evidence that may or may not hold up in a court of law–that is, if you are allowed a day in court.
First they came for the Muslims…
1. PATRIOT-II information available online:?Center for Democracy and Technology ?(www.cdt.org)
The White House?(www.whitehouse.gov/news/releases/2003/01/20030128-12.html)
American Civil Liberties Union?(www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11835&c=206)
2. Text of Report on Money Laundering Typologies 2002-2003, Financial Action Task Force on Money Laundering, Paris, France (www1.oecd.org/fatf/pdf/TY2003_en.pdf)
3. Executive Order 13224, including updates to list of terrorist organizations (www.ustreas.gov/offices/enforcement/ofac/sanctions/terrorism.html)
4. U.S. Department of the Treasury Anti-Terrorist Financing Guidelines: Voluntary Best Practices for US-Based Charities (www.ustreas.gov/press/releases/docs/tocc.pdf)
5. CharityGuardSM is a global service combining the resources of GuideStar, Regulatory DataCorp and ChoicePoint. (See news release at www.choicepoint.com)
6. “Anti-Terrorism Bill Could Impact Nonprofits,” an analysis of the USA PATRIOT Act by OMB Watch (www.ombwatch.org)
Jon Pratt is the executive director of the Minnesota Council of Nonprofits and a contributing editor to the Nonprofit Quarterly.
Ty dePass is an associate editor at the Nonprofit Quarterly.