KindHearts Islamic charity asset freezing case pits politics against national security

Steven Emerson [Founder, The Investigative Project on Terrorism]: "The University of Texas School of Law National Security Clinic, joined by several other advocacy organizations, has filed an amicus curiae brief on behalf of KindHearts for Charitable Humanitarian Development, Inc. (KindHearts) in the US District Court for the Northern District of Ohio. KindHearts, an Islamic charity, is the plaintiff in the pending civil litigation in the case entitled KindHearts for Charitable Development, Inc. v. Paulson et al. The suit challenges the authority of the US Treasury Department, primarily via the Office of Foreign Asset Control (OFAC) to freeze KindHearts' assets (and those of similar supposed charities) based upon an administrative process without judicial review or authority. OFAC froze KindHearts' assets in 2006 as the government pursued what it described as further investigation into allegations showing KindHearts provided support to the terrorist organization Hamas.

The case is pending litigation and essentially the amicus brief argues that Non-Profit Organizations (NPOs) like KindHearts are really allies of the US Government in its counter-terrorism efforts and by OFAC's actions NPOs are discouraged and undermined in their ability to provide humanitarian aid.

The final resolution of this matter will likely occur in the Federal court system. However, a summary of why OFAC is able to take such action against suspected or known supporters of terrorism may be instructive. OFAC's powers are rooted in the International Emergency Economic Powers Act (IEEPA) [PDF file], found at 50 US Code, Sections 1701-1707, which was codified in 1977. It authorizes the President to declare an "unusual and extraordinary the national security, foreign policy, or economy of the United States." OFAC is authorized to take civil enforcement action, primarily in the form of proscribing transactions and freezing and seizing assets, of persons, organizations and countries that are believed to be operating against the security interests of the United States. Under IEEPA, the President can authorize the freeze of assets and block transactions by any individual, organization or country that is determined to be engaged in activities linked to the declared threat. If the US actually is attacked, the President can also confiscate the property of any country, organization or individual who assisted in carrying out the attack. OFAC is the arm that enforces such presidential orders. The threat declaration must be renewed by the President annually for it to remain in effect and the threat declaration can be terminated by a resolution of Congress. Reports concerning the threat declaration are required to be made to Congress. Such Presidential threat declarations under IEEPA related to international terrorism date to the Clinton Administration.

While IEEPA does not confer any specific judicial review process, subsection 1702(c) of the law allows for classified information involved in making a Presidential threat determination to be presented ex parte and in camera to a reviewing court. Such classified information submission must follow provisions found in the Classified Information Procedures Act (CIPA). This subsection is important because it shows Congress anticipated judicial review of decisions and actions taken under IEEPA. In fact, several cases from the early 1980s did just that. Those cases included two Federal Circuit Court cases (Chas. T. Main Int'l v. Khuzestan Water & Power Auth. and American Int'l Group v. Islamic Republic of Iran) and one before the Supreme Court (Dames & Moore v. Regan). Interestingly, all those cases recognized that Presidential authority under IEEPA is "sweeping and broad." Statutorily and historically, IEEPA has anticipated and endured judicial review and such judicial review has upheld the President's authority in these matters.

In further consideration of the administrative enforcement actions taken by OFAC under IEEPA against supposed Islamic charities such as KindHearts, it might also be instructive to look at the recently completed Holy Land Foundation (HLF) trial in Dallas. HLF was once the largest Islamic charity operating in the United States and was linked to numerous other Islamic "charitable" groups overseas. Its assets were frozen by OFAC in December 2001 after being designated a "Specially Designated Global Terrorist" (SDGT). The case was investigated simultaneously by the FBI, IRS and other agencies as a criminal matter. The Dallas trial resulted in convictions against all defendants, including the HLF itself, on 108 charges including material support for a terrorist organization (Hamas).

The investigation and prosecution of HLF lasted more than a decade and received significant public scrutiny. The OFAC designation and seizure action against this Islamic charity ultimately was validated by the criminal trial. Presumably, OFAC would not take its enforcement actions without anticipating potential judicial review. Additionally, as demonstrated by the HLF case, OFAC has a positive record in properly identifying and placing sanctions against supposed Muslim "charities" linked to supporting Hamas.

A potentially noteworthy item is that one of the organizations joining the ACLU in its amicus brief is the Muslim Public Affairs Council (MPAC). MPAC was founded in 1986 as the Political Action Committee of the Islamic Center of Southern California. In 1988 it changed its name to the Muslims Public Affairs Council and received 501c3 non-profit status. Since its inception, MPAC has often appeared to attempt to distract the public from issues pertaining to terrorism and Islamism, mainly by obfuscating the facts concerning terrorist attacks and government actions against terrorists and their financiers.

Aggressive representation on behalf of litigants in a civil suit to achieve justice is laudable. Aggressive litigation to achieve the making of a political statement, particularly when that action may chip away at our country's security, is lamentable."

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