A Freeze on Fairness

Wednesday, November 21, 2007

LATE LAST month, officials of the Holy Land Foundation for Relief and Development were carried out of a Dallas courthouse on the shoulders of jubilant friends and relatives after a federal jury largely vindicated them of charges of providing material support to the terrorist group Hamas.

The victory -- the jury acquitted or hung on all charges -- is in many ways a hollow one. Since December 2001, when the Holy Land Foundation was deemed a "specially designated global terrorist" by the Bush administration, the foundation's assets have been frozen by the Treasury Department's Office of Foreign Asset Control. The criminal case has no impact on the freeze. The legal and moral incongruity of the organization's situation highlights the problems inherent in the International Emergency Economic Powers Act -- a statute that was once used exclusively to penalize hostile foreign countries but that was expanded during the administrations of Bill Clinton and George W. Bush to target groups and individuals believed to be supporters of terrorist groups.

In a criminal procedure, such as the trial of the Holy Land officials, prosecutors must provide evidence, and defendants can challenge that evidence or present their own. Only if a jury is convinced beyond a reasonable doubt will the defendants be convicted and punished.

Under the International Emergency Economic Powers Act, the process is turned on its head. The government may designate an organization an aider and abettor of terrorism and freeze the designee's assets. The target is given the chance to challenge the designation before a federal judge, but the process is so heavily weighted toward the government that it is almost meaningless. The government must prove only that its actions were not "arbitrary and capricious." The organization is barred from presenting its own evidence, so the judge must use only information, including hearsay evidence, that the government offers. The government also often shields from view of the target any evidence it deems important to national security or evidence that could reveal the identity of confidential sources.

In 2000, Congress made it harder for the government to prevail in similar forfeiture actions in drug cases by requiring the government to provide more evidence that the forfeiture was needed and to allow targets a chance to demonstrate their innocence. These changes were not applicable to terrorism cases; they should be. Moreover, judges should insist that more of the government's evidence in terrorism-related freezes be scrutinized by the target, even while using well-established techniques to minimize exposure of sensitive material.

The government should be given latitude to thwart funding of terrorist activity. And it should be permitted to protect sources who may be put in jeopardy if their identities are revealed. But the extraordinary flexibility afforded the government must be offset by a process that gives groups labeled "specially designated global terrorists" a fair and meaningful chance to rebut the allegations.

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