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High Alert: the Government's War on the Financing of Terrorism and Its Implication for Donors, Domestic Charitable Organizations, and Global Philanthropy

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High Alert: the Government's War on the Financing of Terrorism and Its Implication for Donors, Domestic Charitable Organizations, and Global Philanthropy William & Mary Law Review Volume 45 (2003-2004) Issue 4 Article 3 March 2004 High Alert: The Government's War on the Financing of Terrorism and Its Implication for Donors, Domestic Charitable Organizations, and Global Philanthropy Nina J. Crimm [email protected] Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the National Security Law Commons Repository Citation Nina J. Crimm, High Alert: The Government's War on the Financing of Terrorism and Its Implication for Donors, Domestic Charitable Organizations, and Global Philanthropy, 45 Wm. & Mary L. Rev. 1341 (2004), https://scholarship.law.wm.edu/wmlr/vol45/iss4/3 Copyright c 2004 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr HIGH ALERT: THE GOVERNMENT'S WAR ON THE FINANCING OF TERRORISM AND ITS IMPLICATIONS FOR DONORS, DOMESTIC CHARITABLE ORGANIZATIONS, AND GLOBAL PHILANTHROPY NINA J. CRIMM* ABSTRACT Within days after the September 11 terrorist attacks, the U.S. government extended its already existing commitment to combat terrorism. President Bush declared a financial war on terrorism, with the aim of depriving terrorists of their necessary financial support. He issued Executive Order 13,224, which ordered the blocking of assets of specially designated global terrorists.' Congress enacted legislation that not only fortified previously existing criminal and civil laws, but also added new ones for use in combating terrorists and terrorism. The Bush Administration dedicated resources to existing and newly created governmental structures that would be responsible for enforcing these laws and for waging the financial war on terrorism. This enhanced legal and structural arsenal contains multiple means by which the U.S. government, as well as citizens injured by activities of foreign terrorists, can pursue economic or criminal sanctions against terrorists and their private sponsors, including individuals, as well as foreign nongovernmental organizations, domestic charitable organizations, and their governing bodies. Awareness of this greatly expanded potential exposure to liability, and even criminal sanctions, has already engendered unforeseen side effects. Some well-intentioned donors reportedly now are * Professor of Law, St. John's University School of Law; LL.M. in Taxation, Georgetown University (1982); J.D. and M.B.A., Tulane University (1979); A.B., Washington University (1972). I wish to thank myresearch assistant, Patricia C. Wolfe, for her invaluable assistance. 1. Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 25, 2001). 1341 1342 WILLIAM AND MARY LAW REVIEW [Vol. 45:1341 reticent to make charitable contributions to domestic charitable organizations. Law-abiding Muslim charities have documented a decline in contributions received, and charitable organizations are struggling to maintain their pre-September 11 levels of commitment to global philanthropy. As the financial war on terrorism evolves and the arsenal of weapons is strengthened, the government's successes not only may starve terrorists financially, but also may have the unfortunate and unintentional consequence of significantly reducing resources committed to legitimate global philanthropy. Such a result, ironically, would contribute to fundamentalists' and radical terrorists' goal of disrupting globalism, which, if otherwise uninterrupted, could help to foster civil liberties and to achieve social and economic security and prosperity abroad that might diminish the intrinsic potency of terrorist groups and could lessen much of their appeal to outsiders. Preventive measures thus are essential to minimize the potential negative consequences of the government's financial war on terrorism. To guard against exposure to liability, donors and leaders of domestic charitable organizations must undertake adequate due diligence. Moreover, the government must take great care to protect against overzealous legislation and enforcement actions. Absent sufficient safeguards, the government's actions may exacerbate, rather than diminish, the ultimate effects sought by terrorists. 20041 HIGH ALERT 1343 TABLE OF CONTENTS INTRODUCTION ...................................... 1345 I. ECONOMIC SANCTIONS-FREEZING ASSETS AND BLOCKING TRANSACTIONS ........................... 1354 A. Background ................................... 1354 1. Statutory Authority for Economic Sanctions ....... 1355 2. Seven Decades of Reliance on TWEA and IEEPA Powers ............................ 1360 B. Executive Order 13,224 .......................... 1364 C. Outcomes ...................................... 1368 1. Background .................................. 1368 2. Foreign Terrorist Organizationsand SDGTs ....... 1369 3. Blocked Assets ................................. 1373 4. Cases Involving Blocked Assets of Domestic § 501(c)(3) Organizations ............... 1374 a. Global Relief Foundation, Inc .................. 1375 b. The Holy Land Foundation for Relief and Development .......................... 1380 c. Benevolence International Foundation, Inc ...... 1386 d. Summary .................................. 1388 D. Permanent Civil Asset Forfeiture .................. 1391 II. FEDERAL CRIMINAL SANCTIONS ...................... 1394 A. Background ................................... 1394 B. Anti-Money Laundering Initiatives ................. 1397 1. The Virginia-BasedSAAR Network .............. 1401 2. Sami Amin Al-Arian ......................... 1403 C. Prohibitionon the Provisionof Material Support to Terrorists and TerroristOrganizations Under 18 U.S.C. §§ 2339A and 2339B .............. 1404 1. Background ............................... 1404 2. Constitutional Challenges. 1407 3. Implications for Donors and § 501(c)(3) Organizations ................................ 1414 a. Section 501(c)(3) Organizationsas "Financial Institutions"forPurposes of 18 U.S.C. § 2339B-31 U.S.C. § 5312(a)(2)(Z) ........................ 1415 b. Section 501(c)(3) Organizationsas "Financial Institutions"for Purposesof 18 U.S.C. § 2339B-Treasury'sVoluntary Best Practices GuidelinesMay Portendthe Future ............ 1417 1344 WILLIAM AND MARY LAW REVIEW [Vol. 45:1341 D. Unlawful and Willful Provision or Collection of Funds to Carry Out TerroristActs .................. 1419 III. SUSPENSION OF DESIGNATED ORGANIZATION'S TAX-EXEMPT STATUS ................................. 1424 IV. PRIVATE CIVIL ACTIONS ............................ 1426 V. DUE DILIGENCE ..................................... 1437 A. Due Diligence by Members of Governing Bodies of§ 501(c)(3) Organizations ................. 1437 B. Due Diligence by Donors ......................... 1447 CONCLUSION ......................................... 1448 20041 HIGH ALERT 1345 [Flew actions are more reprehensible than diverting money intended for charity and using it to support hatred and cruelty. Such abuse corrupts the sanctity of charitablegiving, diverts funds and resources from those in need, betrays the trust and goodwill of donors, and is a danger to us all.2 The most serious threat to our well being was now clean money intended to kill, not dirty money seeking to be rinsed in a place 3 of hiding. INTRODUCTION On May 20, 2003, the nation once again was jolted into high alert after terrorist bombings in Saudi Arabia and Morocco.4 In the wake of the terror attacks of September 11, 2001, anxiety has been building about terrorists' worldwide activities, and for good cause. With increasing regularity, terrorist acts have devastated human lives, destroyed property, and thrown countries' economies into decline. It is clear that the terrorists' deadly goals--on September 11, 2001, and during the two and one-half subsequent years-could not have been achieved without adequate financing.5 Terrorist financing reportedly has involved not only classic money laundering, where the proceeds of illicit activities are washed or layered in order to conceal their origin,6 but also the diversion or skimming of funds 2. See Testimony of Kenneth W. Dam, Deputy Secretary of the Dep't of the Treasury, Before the Senate Comm. on Banking, Housing, and Urban Affairs Subcomm. on Int'l Trade and Fin., Aug. 1, 2002 (attributing statement to former Secretary of the Treasury Paul O'Neill), available at http://www.treas.gov/press/releases/po3315.htm (last visited Mar. 16, 2004). 3. U.S. SENATE SELECT COMM. ON INTELLIGENCE AND U.S. PERMANENT SELECT COMM. ON INTELLIGENCE, JOINT INQUIRY INTO INTELLIGENCE COMMUNITY ACTIVTES BEFORE AND AFTER THE TERRORIST ATTACKS OF SEPEMER 11, 2001, S. REP. No. 107-351, at 117 (2002). 4. See Philip Shenon, U.S. Raises Terror Alert to Next to Highest Level: Orange, N.Y. TIMES, May 21,2003, at A19. 5. Experts repeatedly have stated that Osama bin Laden and al Qaeda could not have succeeded in their September 11 attacks without their financial strength. See, e.g., Matthew Levitt, Iraq, U.S. and the War on Terror: Stemming the Flow of TerroristFinancing: Practical and Conceptual Challenges,27 FLETCHER F. WORLD AFF. 59, 60 (2003). 6. See NBC Evening News, (NBC television broadcast, Dec. 20, 2003) (reporting illegal drug trade and sidewalk vendor sales of illegal merchandise, such as knock-off purses); see 1346 WILLIAM AND MARY LAW REVIEW [Vol. 45:1341 from such legitimate sources as profits from small storefront businesses and charitable donations to domestic § 501(c)(3) organizations and large international nongovernmental organiza- tions. The terrorists' heinous acts and their perverse use of funds donated by
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