In the days after 9/11, Bush signed an executive order giving the Treasury Department the power to blacklist individuals and organizations believed to be supporters of or "associated with" terrorists. The order specifically gave Treasury the power to blacklist and freeze the assets of people in the United States entitled to rights under the Constitution -- even before those people are accused of any crime. The dangers of the process were noted in 2004 by the National Commission on Terrorist Attacks Upon the United States, better known as the 9/11 Commission. Using the 1977 law against domestic organizations, the commission warned in a 2004 report on terrorist financing, "raises significant civil liberty concerns because it allows the government to shut down an organization on the basis of classified evidence, subject only to a deferential after-the-fact judicial review." That proved to be a prescient concern.
For those caught up in it, the designation process is a legal nightmare. David Cole and other lawyers who focus on the problem say there is no clear procedure for appealing the terrorist designation, let alone getting removed from the blacklist. Moreover, nowhere in the 1977 law or the Bush administration's post-9/11 counterterrorism edicts is the term "specially designated global terrorist" defined. And because there are no standards for what constitutes a "specially designated global terrorist" who is not charged with a crime, people like Al-Buthe and organizations like Al-Haramain are left to guess why the terrorism charges were made against them. As Bernabei and its other attorneys wrote in a May 8 legal brief, the Oregon foundation "had to defend itself entirely in the dark."
The Treasury Department provided a written statement to Salon on May 2 responding to criticisms of its designation process. Every terrorism designation, the statement said, "undergoes multiple levels of review to ensure that there is a reasonable basis to conclude that the designee meets the criteria" of President Bush's 2001 executive order. Moreover, the Treasury Department "provides designated persons who challenge their designation in court with copies of all releasable information upon which the designation is based."
The agency added that "there has not been a successful judicial challenge to a designation, which we believe is a direct result of the rigor of the designation process, which ensures that sufficient evidence supports every designation."
Yet in a number of cases when the U.S. government has tried alleged terrorists or terrorist supporters, juries have refused to convict. That's what happened in the case of the Texas-based Holy Land Foundation, which was the nation's largest Muslim charity until it was designated a financial front for Hamas, the militant Palestinian group, and shut down by President Bush. In October 2007, a judge declared a mistrial in the Dallas trial of five Holy Land suspects after the charity's top two executives were acquitted on all counts and the jury deadlocked on the other defendants. By that time, of course, the charity had been shut down.
A similar outcome transpired in the case of Sami Al-Hussayen, the Saudi computer programmer who was acquitted in 2004 on charges that included his being the mastermind behind a network of Web sites -- including the Al-Haramain Foundation's -- that allegedly promoted terrorism. While on trial, Al-Hussayen spent more than 17 months in solitary confinement, and he and his family were later deported.
When I met him in Riyadh in March, Al-Hussayen, remarkably, expressed no bitterness about his ordeal. But he voiced fears that the United States was on its way to becoming a police state. "I hope your country doesn't end up like Russia," he said. "America is still young. Don't let Bush and Cheney destroy it so quickly." That may sound extreme from the citizen of a country that still holds public executions; but it also comes from a person who, like Pete Seda, organized vigils and prayer services in his local mosque to express solidarity with America and the victims of 9/11.
Oddly, the Al-Haramain case has not drawn much attention from leading human rights groups, perhaps due to its complexity and murkiness. When I contacted Human Rights Watch to see if it had investigated the government's crackdown on Al-Haramain in Oregon, Christopher Wicke, a New York-based specialist on Saudi Arabia, said no. "Do we see a heavy-handed shutdown of an NGO [nongovernmental organization] and the freedom of civil society being suppressed? I don't quite see that being the case."
"I find that very disturbing," David Cole, the constitutional lawyer, said when hearing of the response. "Of course this is a human rights issue. Due process -- the right to be told why the government is taking action against you, and to have an opportunity to defend yourself -- is about a basic a human right as there is." Similar sentiments are starting to appear in Europe, where several governments, and the United Nations, have adopted the U.S. designation system to go after alleged terrorist supporters. In April, a High Court judge in London declared that unilaterally sanctioning suspects without evidence was "absurd, unfair and a breach of human rights."
The fallout is not limited to the individuals who are blacklisted. In Oregon, the government's crackdown on the Al-Haramain Foundation has palpably affected attitudes toward Muslims. "It has given this community the impression that all Muslims are terrorists," Bauermeister, of the Medford Multicultural Association, told me when we met in a downtown Medford coffee shop. "We had a real opportunity after 9/11 to bring people together and isolate the radicals." But by attacking Pete Seda, a man who tried to break down religious barriers, "the government blew it," he said. "I don't think Pete posed any threat at all," he added. "The investigation was a complete waste of time."
Moreover, under the Bush policy, any organization that provides legal or monetary support to a blacklisted group like Al-Haramain risks being labeled an accessory to terrorism. "Technically we'd be classified as a terrorist organization if we speak out," said Bauermeister. That violates the Medford Multicultural Association's First Amendment rights "to associate with who we want and deprives a nonprofit of freedom of speech, association and religion," he said. (The group is now party to the Al-Haramain Foundation's lawsuit against the U.S. government.) Bauermeister looked out the window for a moment before adding, "This is a really dark era we're in right now."
About the writer
Salon contributor Tim Shorrock's book "Spies for Hire," on the outsourcing of U.S. intelligence to private companies, was published this month by Simon & Schuster.
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