December 14, 2006 | National Review Online

Misjudging Charity

Authored by Alykhan Velshi & Howard Anglin

The charitable reputation of the American people, much remarked in these pages, is well-deserved. Whether it is to earthquake victims half a world away or the shuffling poor of their own cities, Americans give in numbers and amounts unmatched among nations. Unfortunately, some beneficiaries of America’s eleemosynary zeal are terrorist organizations masquerading as legitimate charities. Because of this, Congress has authorized the president to identify “specially designated global terrorist” groups (SDGTs) and to criminalize the provision of money and services to them.

In a recent decision, however, a federal district-court judge in California declared this system unconstitutional. The case was brought by the Humanitarian Law Project on behalf of a group of plaintiffs challenging the government’s right to proscribe support for SDGTs. The plaintiffs contend, among other things, that Executive Order 13224, which was signed by President Bush in the wake of the September 11 attacks pursuant to a 1977 federal statute, is unconstitutional because it gives the president “unfettered discretion” to designate SDGTs.

Though the plaintiffs disavowed any intent to fund terrorist activities (naturally), they were keen that their aid for “human-rights advocacy,” “engineering services and technological support,” and “psychiatric counseling” be funneled through the Liberation Tigers of Tamil Eelam (LTTE) and the Kurdistan Workers’ Party (PKK) — organizations that are, between them, responsible for the deaths of tens of thousands of civilians, and that have been designated as terrorists by both the United States and the European Union.

Though the ruling’s effect is limited to these two organizations, its reasoning is not so easily confined, for it applies equally to al Qaeda, Hamas, and every other SDGT, and thus threatens an important weapon in America’s foreign-policy arsenal. In fact, earlier this week, attorneys for the Holy Land Foundation, an organization linked to Hamas that was designated an SDGT in December 2001, asked a federal judge in Dallas to dismiss their client’s SDGT classification.

Apparently, the murderous sidelines of these “charities” are irrelevant: humanitarian assistance is humanitarian assistance, whosoever the provider. Thus did Judge Collins, echoing the plaintiffs’ submissions, describe the LTTE and PKK as “political organization[s]” involved in “political organizing and advocacy, providing social services and humanitarian aid,” and “defending [their] people from human rights abuses” — and, oh yes, something about “using military force against the government of Sri Lanka,” and “engaging in military combat with Turkish armed forces.”

There is, however, a compelling basis for a government ban on any assistance — even self-described humanitarian aid — to terrorists. Because terrorist organizations are not known as models of corporate transparency, there is no way of knowing whether a terrorist entity’s humanitarian arm is funneling money to its militant one. What is more, the fungible nature of money means that donations to the peaceful arm free up money to be spent by the militant arm.

It is similarly absurd to believe that a terrorist organization’s political and humanitarian services can excuse its terrorist activities. Hezbollah is the exemplar of this strategy. Although it holds itself out as a legitimate political party, because its political demands are backed by the threat of force, its political wing has a symbiotic relationship with its military one. Without their heavies in the hills, Hezbollah politicians would be street-corner Cromwells, guilty of their country’s blood but powerless to spread their poison inside the Lebanese government.

Moreover, terrorist organizations like Hezbollah regularly use social and political activities — such as funding social services, schools, orphanages, and hospitals — to raise their profiles and build loyalty in their communities. And now that the entire system for anathemizing SDGTs and proscribing support for them has been called into question, groups like the plaintiffs in this case may soon be able to lend their support to this insidious process.

To be fair to Judge Collins, her opinion is nothing like the hatchet job performed by Judge Anna Diggs Taylor on the NSA’s terrorist-surveillance program earlier this year. Judge Taylor’s opinion was roundly — and rightly — condemned as poorly reasoned and unworthy of the legal craft by lawyers from across the political spectrum. Judge Collins’s decision, by contrast, is neither overtly partisan nor irrational. With one exception it is a workmanlike application of precedent to fact. Unfortunately, that one exception has catastrophic potential.

Judge Collins was apparently so exercised by the self-evident evil of “unfettered presidential discretion” (the phrase “unfettered discretion” recurs with obsessive frequency throughout her opinion) that she overlooked important Supreme Court precedent supporting the process she precipitously invalidated. But this baldly stated concern is not a legal argument. The opinion does not consider whether the president was exercising his discretion contrary to the express or implied terms of any statute (he was not), nor does it consider that the president is granted “unfettered discretion” to carry out his constitutionally appointed duties in other contexts (the president’s unreviewable discretion to grant pardons is an obvious example).

Had she explored the issue further, Judge Collins might have found Supreme Court precedent supporting the president’s broad authority to designate terrorist groups. In the 1981 case Dames & Moore v. Regan, the Supreme Court explained that “the enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility.’” The Court also quoted Justice Jackson’s celebrated concurrence in Youngstown Sheet & Tube Co. v. Sawyer in its conclusion that, where “the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress[, and i]n such a case the executive action ‘would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.’”

These Supreme Court decisions admonish modesty when a federal court is asked to interfere with powers delegated to the president by both the Constitution and Congress. Not only does Judge Collins’s opinion spurn such counsel, it mistakes alarmist rhetoric for legal inquiry. Indeed, it is difficult even to tell whether the opinion’s objection to “unfettered discretion” is grounded in separation of powers or due process concerns.

Despite its obsession with “unfettered discretion,” the opinion also fails to consider the historical reality and the structural advantages of the executive branch in carrying out its duties under the Constitution, which include the conduct of foreign affairs and the commander-in-chief powers. This is a curious, if unsurprising, omission given that the nature and experience of the executive branch also invite judicial deference.

Unlike the federal courts, which rely on facts presented by the parties under the constraints of the federal rules of evidence, the executive branch has virtually unlimited access to experts and other sources of information to inform its decision-making. The executive branch, because charged by the Constitution with the faithful execution of the law, has also developed expertise in the case-by-case application of complex statutes and treaties. Finally, the president, as the unitary head of the executive branch, is accountable to the people through quadrennial elections; thus, unlike a judicial decision, an application of the law by the executive branch is subject to democratic revision.

The Justice Department has not yet indicated whether it will appeal this decision. Palpably, the government must not let a flawed judicial decision that relaxes restrictions on terrorists stand unchallenged. Nor can it afford to be passive in defense of our foreign policy while the cold, lacertian eyes of our enemies watch for any flicker of hesitance.

Alykhan Velshi, manager of research at the Foundation for the Defense of Democracies , is a lawyer in its Center for Law & Counterterrorism. Howard Anglin is an appellate attorney in Washington, D.C. The opinions expressed are their own.


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