PATRIOT GAMES The USA Patriot Act1 and its Impact on Nonprofit Organizations By Tim Visser and Kay Guinane Executive Summary The Bush administration recently shut down a number of Muslim-based nonprofit organizations using new powers under the USA Patriot Act, which was passed shortly after the 9/11 terrorist attacks. No criminal charges were made against these organizations, nor were they officially designated terrorist supporters.2 Law enforcement officials simply froze their assets and seized their property “pending an investigation” without producing any evidence, as authorized by the act. Consequently, the burden of proof has shifted to the organizations, which must prove their innocence even though, in many cases, the government has not specified wrongdoing. Moreover, they must do this without access to their own documents, computers, records, or other materials that might make their case. Making matters worse for these organizations, the government controls the information judges see and how they see it; investigators can label evidence confidential for national security reasons and then bring it before a court without the target being represented. This allows the government to present part of the picture most favorable to its case -- which targets are not allowed to confront -- while withholding information that might prove innocence. As one target, the Global Relief Foundation, put it, “In fact, [the Treasury Department] has stated in court that it will base its case on evidence GRF may never see.”3 This secret evidence has also made it difficult to understand the how the act is being applied, although the Bush administration appears to be interpreting its mandate broadly. As a result, without respect to the merits of specific cases, some organizations could decide to stop legal charitable activities -- aid to Muslim countries, in particular -- out of fear of being shut down for “material support” to terrorism, a phrase the Patriot Act leaves vague. For example, the government apparently can shut down an organization if aid is given -- even unknowingly -- to a child of a terrorist suspect or suicide bomber. In fact, this may have resulted in the closing of at least one Muslim nonprofit, as described below. 1 Full Name: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.” 2 2nd Muslim Charity Sues U.S. Officials on Sanctions, Chicago Tribune; Chicago, Ill.; Jan 31, 2002; Laurie Cohen, Tribune staff reporter. 3 Treasury’s Inconsistent Positions on Islamic Charities, GRF Press Release (3/14/02). In the same press release, GRF makes reference to former Treasury Secretary Paul O’Neill’s claim to Gulf Arab allies that, “The United States has not targeted any charity institution in its campaign against terrorism and…has no interest in harming charities.” The statement was made months after the raids on GRF, HLF, and BIF. For now, only Muslim organizations have been shut down, but the Patriot Act puts others at risk of investigation as well. In particular, the FBI has recently searched the records of hundreds of libraries to see what books people are reading; the exact number is uncertain because the Patriot Act makes it illegal to publicly disclose a search warrant. The new powers of the act also make it possible for the government to conduct secret and wide-ranging surveillance of nonprofit organizations. For instance, if a terrorist suspect repeatedly logs on to an organization’s web site, the organization and other users of its web site potentially can be investigated too -- without anyone knowing. Moreover, although most have focused on individual civil liberties, there are also fears that the administration could use the act to target organizations that oppose its policies, threatening constitutionally protected speech. Public interest groups have started to raise these problems, with the American Civil Liberties Union leading the way. Backed by growing opposition, local governments have passed more than 160 anti-Patriot Act resolutions, and the House recently voted overwhelmingly to block funds for secret searches of homes or offices, as the act authorizes. When the administration first proposed the Patriot Act, many were nervous to challenge it. Attorney General John Ashcroft captured the prevailing mood at the time: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies.”4 Two years later, it is the Patriot Act that looks un-American. Concerns for Nonprofits Under the Patriot Act, law enforcement officials have increased powers to shut down a nonprofit organization or spy on its activities. In this respect, a number of provisions are of special concern: Freezing Assets The Patriot Act gives the executive branch largely unchecked power to designate any group as a terrorist organization. Once designated, a group can have all of its materials and property seized and its assets frozen, “pending an investigation.”5 Assets can be taken even if the organization faces no criminal charges. Once all assets are seized and frozen, an organization can be denied access to evidence (the organization’s computers, files, documents, etc.) that might prove its innocence; the government has authority to withhold this information for “national security” reasons. 4 Anthony Lewis, Security and Liberty. A Century Foundation Report (Copyright 2003) 5 Section 106 of the USA PATRIOT Act “Material Support” to Terrorism Section 805 of the Patriot Act expands the definition of “material support” to terrorism to include “monetary instruments” and “expert advice or assistance,” amending a law passed following the Oklahoma City bombing (the Antiterrorism and Effective Death Penalty Act of 1996).6 The full definition now reads: “Currency or monetary instruments or financial securities, financial services, lodging, training, expert advise or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.” (Sec. 2339, Title 18, U.S.C.) In 2000, the U.S. Court of Appeals for the Ninth Circuit ruled that the terms “training” and “personnel” were unconstitutionally vague.7 However, the Patriot Act did not remove or redefine these terms, and the new general category of “expert advice or assistance” only increases the ambiguity. This vague language allows wide-ranging prosecutorial discretion and could chill legally protected activities by nonprofits, which might fear criminal charges. David Cole, professor of law at Georgetown University, suggests that, “The reason material support laws have proven so popular with federal prosecutors is that … these laws do not require proof that an individual intended to further any terrorist activity.” He goes on to note, “Under this law it would be a crime for a Quaker to send a book on Gandhi’s theory of nonviolence -- a ‘physical asset’ -- to the leader of a terrorist organization in hopes of persuading him to forgo violence.”8 “Domestic Terrorism” Section 802 of the Patriot Act creates the term “domestic terrorism,” defined as: “An activity that involves acts dangerous to human life and are a violation of the criminal laws of the United States or of any state, and appear to be intended: i) To intimidate or coerce a civilian population; ii) To influence the policy of a government by intimidation or coercion, or; iii) To affect the conduct of a government by mass destruction, assassination, or kidnapping, and; 9 iv) Occur primarily within the territorial jurisdiction of the United States.” 6 It is interesting to note that AEDPA, which was drafted in response to an act of domestic terrorism, deals mostly with international terrorism, while the Patriot Act, which was drafted in response to an Act of international terrorism, deals mostly with domestic issues. 7 Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133-34 (9 th Cir. 2000), cert. denied, 532 US 904 (2001). 8 David Cole, The New McCarthyism: Repeating History in the War on Terrorism, 38 Harv. C.R.-C.L.L.Rev. 1,9 (Winter 2003) 9 Section 2331, Title 18, U.S.C. This definition is so broad that it could capture vigorous protest, potentially stifling critical free speech rights.10 Traditional civil disobedience -- such as the recent World Trade Center protests -- could be looked at as an attempt “to influence the policy of a government by intimidation or coercion,” falling under the category of “domestic terrorism.” Expanded Surveillance Powers The Patriot Act’s Section 215 -- which amends the Foreign Intelligence Surveillance Act (FISA) of 1978 -- allows investigators greater leeway to conduct domestic surveillance. This runs counter to the intent of FISA, which was created mostly to deter FBI surveillance of American citizens following abuses throughout the 1960s and 70s. FISA established the Foreign Intelligence Surveillance Court (FISC) to oversee domestic intelligence gathering.11 Under this system, DOJ submits requests to the court, which must approve surveillance, such as wiretapping, as well as searches and seizures. These FISA warrants -- as they are widely known -- are issued in total secrecy.12 FISC was meant to serve as a wall between domestic law enforcement and international intelligence gatherers. However, the Patriot Act shatters that wall, allowing FISA warrants to be issued for criminal investigations against American citizens. Previously, such warrants could only be issued with evidence that the subject was an agent of a foreign power. Moreover, the Patriot Act barely acknowledges Constitutional protections. The act merely states that an investigation cannot be conducted on a U.S. citizen “solely” on the basis of activities protected by the First Amendment.13 This allows law enforcement officials to start investigations based primarily on actions protected by the First Amendment, as long as at some point, they cite a reason that is not related to the First Amendment.