…………………………………………………………...........1
…………………………………………………………………4 a.
Statutes…………………………………………………………………...4 i.
International Emergency and Economic Powers Act……………..4 ii.
The Material Support Laws……………………………………….5 iii.
Constitutional Challenges to the Material Support Provisions
Related to Charitable Donations…………………………………..7 iv.
Executive Orders…………………………………………………11
1.
Executive Order 12947…………........................................11
2.
Executive Order 13224……………………………………13 b.
Cases……………………………………………………………………14 i.
American Muslim Charitable Organizations that Have Been
Prosecuted for Terrorism-Related Crimes……………………….14
1.
Holy Land Foundation for Relief and Development……...14
2.
Benevolence International Foundation……………………16 ii.
American Muslim Charitable Organizations that Have Been
Prosecuted for Non Terrorism-Related Crimes………………….17
1.
Global Relief Foundation…………………………………17
2.
Islamic American Relief Agency…………………………18 iii.
American Muslim Charitable Organizations that Have Been Shut
Down Through Executive Order Authority But Never
Prosecuted………………………………………………………..18
1.
KindHearts for Charitable Humanitarian Development…..18
2.
Al-Haramain Islamic Foundation…………………………20
3.
Goodwill Charitable Organization………………………...20 iv.
American Muslim Charities that Have Been Raided or Declared
Under Investigation But Not Designated as Terrorist
Organizations…………………………………………………….21 v.
American Muslim Donors Prosecuted Under the Material Support
Law or Accused of Ties to Terrorism Based on Charitable
Donations………………………………………………………...23
1.
Amina Farah Ali…………………………………………..23
2.
San Diego American Muslim Community Members……..23

3.
Mohamed Shorbagi………………………………………..24
4.
Maher Hawash…………………………………………….24
5.
Jesse Maali………………………………………………...25
………………………………………...26
……………………………………………………………………...31
…………………………………………..38
…………………………………………………………………..39

The United States government has used the material support provisions and executive orders 12947 and 13224 as a tool to unfairly prosecute American Muslim charities and donors.
Since the horrific attacks of September 11, 2001, nine U.S. based charities have been shut down due to asset seizure by the Department of Treasury.
1 Seven of those nine charities were
American Muslim charities, the remaining two were U.S. based Tamil charities (Tamil
Rehabilitation Organization-U.S.A and Tamil Foundation).
2
Two of the American Muslim charities that have been shut down have been prosecuted through the material support provisions
(Holy Land for Relief and Development and Benevolence International), while the remaining five have had their assets frozen, are “pending investigation”, or have been accused of terrorism but then charged with non-terrorism related crimes. These five are Al Haramain Islamic
Foundation in Oregon, Islamic American Relief Agency in Missouri, Goodwill Charitable
Organization in Michigan, Global Relief Foundation in Illinois, and Kind Hearts for Charitable
Humanitarian Development in Ohio.
3
The discriminatory and unfair use of the material support provisions and executive orders
12947 and 13224 to target American Muslim charities contradicts directly with the basic values of this country. Biased prosecution is an insult to religious freedom, a core value protected by the
First Amendment.
4
Biased prosecution and unregulated executive power also lead to violations of the Fifth and Fourteenth Amendments, which state that no person shall be “deprived of life,
1 A MERICAN C IVIL L IBERTIES U NION , B LOCKING F AITH , F REEZING C HARITY : C HILLING M USLIM C HARITABLE
G IVING IN THE
“W
AR ON T ERRORISM F INANCING
” 11 (2009).
2
Id.
3
Id.
4
U.S.
C ONST . amend. I.
1

liberty, or property, without due process of law”.
5
Due process of law is not afforded to
American Muslim charities and donors, because the process used to designate them as terrorists is flawed from beginning to end. This process is deeply flawed because it operates solely under executive power, without any checks and balances, violating a fundamental principle expressed in Articles I, II, and II of the United States Constitution.
6
Two past U.S. presidents, President William J. Clinton and President George W. Bush, have both used this unchecked executive power to issue expansive executive orders that allowed for this unfair terrorist designation process. These executive orders have been used by the
Executive branch to unjustly and unfairly designate American Muslim charities as “terrorist organizations”, and then shut them down based on this designation, in a process filled with opportunities for bias, error, and abuse. American Muslim charities receive no notice of their designation as a “terrorist organization”. They only find out when their assets are suddenly frozen “pending investigation”. There is no process to appeal the “terrorist organization” designation or find out what evidence the government used as a basis for the designation. No due process exists for these organizations because there is no judicial review of the designation, no standard of proof or evidence, and no opportunity to present opposing evidence. Finally, while taking all of the above into account we must ask ourselves: why has the U.S. government used the material support provisions to only prosecute American Muslim charitable organizations and donors who have donated to alleged terrorist organizations, while there have been no investigations or prosecutions of Christian, Jewish, or secular charities that provided financial aid to the same alleged terrorist organizations?
5
U.S.
C ONST . amend. V; U.S.
C ONST . amend. XIV.
6 U.S.
C ONST . art. I, § 1; U.S.
C ONST . art. II, § 1; U.S.
C ONST . art. III, § 1.
2

The main topic of this comment will be the chilling effect that the material support provisions and unchecked executive power has had on American Muslim charitable giving. The comment will be divided into four parts. The first part will discuss the relevant statutes and executive orders that prosecutors and the executive branch use to unjustly shut down American
Muslim charities. This part will also discuss the cases involving American Muslim charitable organizations and donors. These cases are divided into five categories: cases where the U.S. government filed terrorism-related charges against American Muslim charities, cases where the government filed non-terrorism related charges against American Muslim charities, cases where the government froze or blocked American Muslim charitable organization assets using executive orders and did not file any terrorism-related charges, cases where the government raided and investigated charitable organizations without shutting down the organizations, and cases involving individual American Muslim donors.
The second part of this comment will discuss the effects that the unjust application of the statutes and executive orders has had on the American Muslim community. These effects include encouraging the spread of many erroneous beliefs about American Muslims, such as the belief that all terrorists are Muslim, and that the “war on terrorism” is a war on Islam. Furthermore, this biased prosecution of American Muslim charities has led to an increase in anti-Muslim sentiment in America and has encouraged the perception that all Islamic organizations have ties with terrorism, one way or another. In addition, it fosters the belief that American Muslim individuals will never “truly believe in American values”, because violence is an inherent part of their religion.
The third part of this comment will discuss the law and its relationship with American values, explaining how the current application of the law directly contradicts with core values of
3

this country. Finally, the last section will discuss how the terrorist designation process and the application of the law can be changed so that it is applied justly and fairly, in a way that conforms to American values.
i.
International Emergency and Economic Powers Act
The International Emergency and Economic Powers Act (IEEPA) was enacted by
Congress in 1977.
7
Section 1701(a) of IEEPA grants the President authority to enforce economic sanctions under section 1702 “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” 8
IEEPA was used by the executive branch in executive orders 12947 and 13224 as a means of allowing economic sanctions on persons or entities that the Executive branch deems to be a “terrorist threat”. The Supreme Court upheld IEEPA’s broad grant of economic sanction authority to the President in two cases from the early 1980’s : Dames & Moore v. Regan and
Regan v. Wald .
9 In Dames & Moore , the Supreme Court used an analysis from a concurring opinion in a previous landmark case
10
, Youngstown Sheet & Tube Co. v. Sawyer , where Justice
Jackson wrote:
“When the President acts pursuant to an express or implied authorization from
Congress, he exercises not only his powers but also those delegated by Congress. In such a case
7 50 U.S.C. § 1701(a) (2003).
8 Id.
9
See Dames & Moore v. Regan , 453 U.S. 654 (1981); Regan v. Wald , 468 U.S. 222 (1984).
10 Dames & Moore v. Regan , 453 U.S. at 668.
4

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.’ 11
In Dames & Moore , the Court held that President Carter acted legitimately under IEEPA’s congressional grant of power when he “nullify[ed] post-November 14, 1979, attachments and directing those persons holding blocked Iranian funds and securities to transfer them to the Federal Reserve Bank of New York for ultimate transfer to Iran,”
12
The Supreme Court similarly approved the powers granted to the President under IEEPA in the case of Regan v. Wald . In this case the Court upheld IEEPA powers, referring to a 1982 amendment to a 1963 Treasury Department Regulation that prohibited any transaction involving property in which Cuba or a Cuban national had any interest.
13
In upholding the President’s economic sanction power under IEEPA, the Court said that the: “language of [IEEPA’s] grandfather clause, read in conjunction with § 5(b) of TWEA, supports the Government's contention that, in the relevant sense, the “authority” to regulate all property transactions with
Cuba, including travel-related transactions, was being “exercised” on July 1, 1977 and was, therefore, preserved.”
14 ii.
The Material Support Laws
The “Material Support” provision was first enacted under section 2339A of the Violent
Crime Control and Law Enforcement Act of 1994. Section 2339A was amended by section 323 of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, and section 2339B was enacted as part of AEDPA prohibiting material support or resources to designated “foreign
11 Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 637 (1952).
12 Dames & Moore v. Regan , 453 U.S. at 669.
13 Regan v. Wald , 468 U.S. at 232.
14 Id.
5

terrorist organizations” (FTO’s). The original section 2339A prohibited “material support or resources” to terrorists, and defined “material support or resources” as: “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, but does not include humanitarian assistance to persons not directly involved in such violations.”
15
Section 2339A describes the offense of material support to terrorists as: “A person who, within the United States, provides material support or resources…knowing or intending that they are to be used in preparation for, or in carrying out, a violation of… [multiple sections of the act listed]…shall be fined under this title, imprisoned not more than 10 years, or both.” 16
The two key words in this section are “ knowing or intending” , because they open the window that allows for the prosecution of charitable organizations or donors who “knowingly” contribute charitable donations to entities or persons designated as terrorists by the Secretary of State or by executive order. “Knowingly” has been interpreted as intentionally providing the material support, for example: intentionally donating money. A person or organization does not have to specifically intentionally provide the material support to advance or further an alleged terrorist cause to fall within the definition of the section.
17
The 1996 amendment to section 2339A excepted “medicine or religious materials” from the definition of “material support or resources”.
18
Section 2339B prohibited knowingly providing material support or resources to a foreign terrorist organization, or attempting or
15 18 U.S.C.A. § 2339A.
16 Id.
17 IRTPA, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
18 18 U.S.C.A. § 2339B.
6

conspiring to do so.
19
Section 2339B also included language regarding actions that a financial institution must take when it “becomes aware that it has possession of, or control over, any funds in which a foreign terrorist organization, or its agent, has an interest”.
20
The Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (Patriot Act) expanded section 2339A by adding intangible property, service, training, and expert advice or assistance to the definition section of
“material support or resources”.
21 The Patriot Act also increased the sentencing maximum for a violation of both sections 2339A and 2339B to a fine under the statute, imprisonment of not more than 15 years, or both, and if the death of any person results, to imprisonment of any term of years or for life.
22 iii.
Constitutional Challenges to Material Support Provisions Related to
Charitable Donations
The Humanitarian Law Project, a U.S. non-profit human rights organization, challenged the constitutionality of the material support provision in 18 U.S.C. § 2339B in the Ninth Circuit case of Humanitarian Law Project II. The plaintiffs argued that the statute was unconstitutional because it prohibits donating money to designated organizations, even if it is a form of political expression and association, 23 rights protected by the First Amendment.
24 The Supreme Court recently declared in Citizens United v. Federal Election Com’n that even corporations are entitled to these rights, with the majority saying that “ No sufficient governmental interest
19 Id.
20 Id.
21 18 U.S.C.A. § 2339A.
22 Id.
; 18 U.S.C.A. § 2339B.
23 Humanitarian Law Project v. Reno, 205 F.3d 1130, 1134 (9th Cir.2000), cert. denied, 532 U.S. 904 (2001)
(“ Humanitarian Law Project II ”).
24
U.S.
C ONST . amend. I.
7

justifies limits on the political speech of nonprofit or for-profit corporations.
” 25
The Ninth Circuit in Humanitarian Law Project II distinguished charitable donations from political speech, saying that instead of falling under the definition of pure speech, charitable donations were a form of expressive conduct. The court said: “While the First Amendment protects the expressive component of seeking and donating funds, expressive conduct receives significantly less protection than pure speech.”
26
The court then went on to say that: “The government may thus regulate contributions to organizations that engage in lawful-but non-speech related-activities.
And it may certainly regulate contributions to organizations performing unlawful or harmful activities, even though such contributions may also express the donor's feelings about the recipient.” 27
In addition, the plaintiffs argued that the material support provision in 18 U.S.C. § 2339B conflicted with a United States Supreme Court rule in NAACP v. Claiborne Hardware Co., where the Supreme Court said: “[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.”
28
The plaintiffs in Humanitarian Law Project II argued that section 2339B “criminalizes the giving of material support to an organization regardless of whether the donor intends to further the organization's unlawful ends”.
29 The court dismissed this argument, saying that donor intent was irrelevant because: “Material support given to a terrorist organization can be used to promote the organization's unlawful activities,
25 Citizens United v. FEC , 130 S. Ct. 876, 913 (2010) .
26 Humanitarian Law Project II , 205 F.3d at 1134-35.
27 Id. at 1135.
28 Id.
at 1133.
29 Id.
8

regardless of donor intent. Once the support is given, the donor has no control over how it is used.” 30
In addition to the First Amendment constitutional challenges above, several authors of law review articles and parties in numerous federal cases have raised concerns regarding 18
U.S.C. § 2339B and whether it violates the Fifth Amendment’s Due Process Clause principle of
“personal guilt”.
31
The legal basis for this argument is derived from the Supreme Court case of
Scales v. United States , in which the Court held that the First and Fifth Amendments forbid criminalizing membership in a group without proof that a defendant was an active member with the specific intent of furthering the group's unlawful activities.
32
Using the holding from Scales , the parties arguing for the unconstitutionality of 2339B argued that the section imposes “guilt by association” because it does not require that prosecutors prove specific intent in a material support prosecution. In Humanitarian Law Project v. U.S. Dept. of Justice , the plaintiffs argued that nonviolent humanitarian and political aid to a designated terrorist organization should not fall under the definition of material support under 2339B because no personal guilt element was required.
33
The Ninth Circuit first accepted this argument and said: “to attribute the intent to commit unlawful acts punishable by life imprisonment to persons who acted with innocent intent…contravenes the Fifth Amendment's requirement of ‘personal guilt.” 34 However, the
Ninth Circuit later amended its decision after Congress passed the Intelligence Reform and
30 Id. at 1134.
31 See generally B ENJAMIN Y ASTER , N OTE , R ESETTING S CALES : A N E XAMINATION OF D UE P ROCESS R IGHTS IN
M ATERIAL S UPPORT P ROSECUTIONS , 83 N.Y.U. L. Rev. 1353 (2008); D AVID H ENRIK P ENDLE , C OMMENT , C HARITY
OF THE H EART AND S WORD : T HE M ATERIAL S UPPORT O FFENSE AND P ERSONNEL G UILT , 30 Seattle U. L. Rev. 777
(2007); D AVID C OLE , T HE N EW M C C ARTHYISM : R EPEATING H ISTORY IN THE W AR ON T ERRORISM , 38 Harv. C.R.-
C.L. L. Rev. 1, 9 (2003).
32 Scales v. United States , 367 U.S. 203, 224-30 (1961).
33 Humanitarian Law Project v. U.S. Dept. of Justice , 352 F.3d 382, 393 (9th Cir.2003), opinion vacated on rehearing en banc, Humanitarian Law Project v. U.S. Dept. of Justice , 393 F.3d 902 (9th Cir.2004).
34 Id.
9

Terrorism Prevention Act (IRTPA), which revised AEDPA section 2339B to include a knowledge requirement. Writing for the Ninth Circuit, Circuit Judge Pregerson said : “post-
IRTPA, to convict a person for providing “material support or resources” to a designated foreign terrorist organization, the government must prove that the donor defendant “ha[d] knowledge that the organization is a designated terrorist organization, that the organization has engaged or engages in terrorist activity, or that the organization has engaged or engages in terrorism.” The
Ninth Circuit no longer felt that there was a violation of the personal guilt requirement. The case then went up to the Supreme Court where the plaintiffs used a different argument, instead arguing that 2339B was impermissibly vague. The majority of the Supreme Court did not find any merit in this argument: “plaintiffs' claims of vagueness lack merit…the knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement.”
35
Other cases discussing this personal guilt requirement include: United States v. Al-
Arian ,
36
United States v. Assi ,
37
United States v. Paracha ,
38
and United States v. Marzook.
39
In
United States v. Al-Arian , the court determined “that Scales implicates personal guilt concerns for § 2339B because a person's liability is determined by the criminal activity of an [Foreign
Terrorist Organization] FTO, and not by the individual.” 40 The court did not want to do
“grievous harm” to 2339B by declaring parts of it unconstitutional 41
, so instead it interpreted the statute as requiring a specific intent requirement: “Because a constitutional concern exists on whether Section 2339B is unconstitutionally vague, this Court is to avoid that constitutional
35 Holder v. Humanitarian Law Project , 130 S.Ct. 2705, 2719-20 (2010).
36 United States v. Al-Arian , 329 F.Supp.2d 1294 (M.D. Fla. 2004).
37 United States v. Assi , 414 F. Supp. 2d 707 (E.D. Mich. 2006).
38 United States v. Paracha , No. 03-cr-1197(SHS), 2006 WL 12768 (S.D.N.Y. Jan. 03, 2006).
39 United States v. Marzook , 383 F. Supp. 2d 1056 (N.D. Ill. 2005).
40 United States v. Al-Arian , 329 F.Supp.2d at 1300.
41 Id.
at 1299.
10

concern. Requiring a specific intent to further the illegal activities of a FTO satisfies that concern.” 42 The three other cases mentioned above declined to follow the specific intent requirement construed by the Al-Arian court and instead concluded “that Scales does not apply to § 2339B, insofar as the material support statute does not apply to associational membership.” 43
1.
Executive Order 12947
Executive order 12947 was issued on January 23, 1995 by President Bill Clinton.
President Clinton declared a national emergency to deal with the “threat to national security” because of the “grave acts of violence committed by foreign terrorists that disrupt the Middle
East peace process”.
44
The order was titled: “Prohibiting Transactions With Terrorists Who
Threaten To Disrupt the Middle East Peace Process”, and granted authority to “the Secretary of the Treasury, in coordination with the Secretary of State and the Attorney General”, to block “all property and interests in property” of:
“(i) the persons listed in the Annex to this order; [12 “foreign terrorist organizations” were designated]
(ii) foreign persons designated by the Secretary of State, in coordination with the
Secretary of the Treasury and the Attorney General, because they are found:
(A) to have committed, or to pose a significant risk of committing, acts of violence that have the purpose or effect of disrupting the Middle East peace process, or
42 Id.
at 1303.
43 D AVID H ENRIK P ENDLE , C OMMENT , C HARITY OF THE H EART AND S WORD : T HE M ATERIAL S UPPORT O FFENSE AND
P ERSONNEL G UILT , 30 Seattle U. L. Rev. 777, 793 (2007).
44 Exec. Order No. 12,947, 60 Fed. Reg. 5079 (Jan. 23, 1995).
11

(B) to assist in, sponsor, or provide financial, material, or technological support for, or services in support of, such acts of violence; and
(iii) persons determined by the Secretary of the Treasury, in coordination with the
Secretary of State and the Attorney General, to be owned or controlled by, or to act for or on behalf of, any of the foregoing persons, that are in the United States, that hereafter come within the United States, or that hereafter come within the possession or control of
United States persons, are blocked;
(b) any transaction or dealing by United States persons or within the United States in property or interests in property of the persons designated in or pursuant to this order is prohibited, including the making or receiving of any contribution of funds, goods, or services to or for the benefit of such persons;
(c) any transaction by any United States person or within the United States that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in this order, is prohibited.” 45
Executive order 12947 gave complete freedom and authority to the Secretary of State, in coordination with the Secretary of the Treasury and the Attorney General (all members of the executive branch), to designate who the United States will consider a “Specially Designated
Terrorist” (SDT). No congressional or judicial oversight was provided as a check on this designation and there is no procedure to provide any of these organizations with due process under the Constitution. The President granted the Secretary of State, in coordination with the
Secretary of the Treasury and the Attorney General, any authority granted to him by IEEPA.
46
45
Id.
§ 1(ii)-(iii), 60 Fed. Reg. 5079.
46 Id . § 4(a), 60 Fed. Reg. at 5080.
12

This meant that these members of the executive branch had exclusive authority and full control of which persons or entities they will determine to be SDT’s.
2.
Executive Order 13224
Executive Order 13224 was issued President George W. Bush on September 23, 2001.
47
This order blocked “all property and interests in property” of all the categories listed in executive order 12947 in addition to 27 designated individuals and organizations.
48
It also included specific language regarding financially sanctioning those persons or organizations designated as terrorists and those who assist them. The relevant language says: “I also find that because of the pervasiveness and expansiveness of the financial foundation of foreign terrorists, financial sanctions may be appropriate for those foreign persons that support or otherwise associate with these foreign terrorists. I also find that a need exists for further consultation and cooperation with, and sharing of information by, United States and foreign financial institutions as an additional tool to enable the United States to combat the financing of terrorism.” 49
The order also includes language specifically aimed at United States individuals and entities, stating: “(a) any transaction or dealing by United States persons or within the United
States in property or interests in property blocked pursuant to this order is prohibited, including but not limited to the making or receiving of any contribution of funds, goods, or services to or for the benefit of those persons listed in the Annex to this order or determined to be subject to this order;
47 Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23, 2001) .
48 Id.
§ 1, 66 Fed. Reg. at 49,079 .
49 Id.
13

(b) any transaction by any United States person or within the United States that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in this order is prohibited;” 50
Again, as in executive order 12947, all of the powers granted to the President under the
IEEPA are delegated to the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General. Finally, “For those persons listed in the Annex to this order or determined to be subject to this order who might have a constitutional presence in the United
States…because of the ability to transfer funds or assets instantaneously… no prior notice of a listing or determination made pursuant to this order” is required.
51
This no notice clause will be especially important when we look at the various American Muslim charitable organizations that have had their assets frozen without prior notice or explanation. This language clearly shows that the application of constitutional due process to these organizations was not important to the leader of the executive branch. It also paves the way for an almost complete lack of due process when it comes to the shutting down of American Muslim charitable organizations.
Holy Land Foundation for Relief and Development
The Holy Land Foundation for Relief and Development (HLF) was the largest American
Muslim charity before it was shut down by the United States government in December of 2001.
50 Id.
§ 2(a), 66 Fed. Reg. at 49,080 .
51 Id . § 10, 66 Fed. Reg. at 49,081 .
14

According to the Treasury Department, HLF raised over $13 million in 2000.
52
On December 4,
2001, the U.S. Treasury Department designated HLF as a “specially designated terrorist” (SDT), a “specially designated global terrorist” (SDGT), and froze all of its assets, effectively shutting down the organization. On July 26, 2004, federal agents arrested five individuals associated with
HLF, four directors of the organization and a volunteer, and charged them with conspiring to support Hamas, an organization designated as a terrorist organization by the State Department in
1995.
53 From 2007 to 2009, HLF and the “HLF five” were put on trial twice. The first trial was declared a mistrial because the jury deadlocked on almost half of the more than 160 total charges brought against the six defendants. The defendants were tried a second time on the charges in which the previous jury had deadlocked. In a trial filled with major errors, including the admittance of secret evidence, allowing a secret witness to testify, and admitting prejudicial hearsay evidence, the five individual defendants were found guilty and received sentences of 15 to 65 years in prison. The government did not prove that the HLF five were in any way connected to Hamas. The five defendants were found guilty of conspiring to support Hamas through providing donations to Islamic charity committees that were “controlled” by Hamas.
These Islamic charity committees were never designated as terrorist organizations by the U.S.
State Department. In addition, the United States government provided financial aid to the same
Islamic charity committees during the same time period. The government’s excuse for this contradiction is found in 18 U.S.C. § 2339A. Prosecutors convinced the jurors that HLF
52 U.S.
D
EPARTMENT OF THE
T
REASURY
, R
ESOURCE
C
ENTER
, T
ERRORISM AND
I
LLICIT
F
INANCE
-P
ROTECTING
C
HARITABLE
O RGANIZATIONS , available at http://www.treasury.gov/resource-center/terrorist-illicit-finance/Pages/protectingcharities_execorder_13224-e.aspx.
53 U.S. v. Holy Land Foundation for Relief and Development , Criminal Action No. 3:04-CR-240-G, 2006 WL
3542685 (United States District Court, N.D. Texas, Dallas Division).
15

“knowingly” conspired to support Hamas through the Islamic charity committees, while the government did not. The HLF case is currently appealed in the Fifth Circuit.
2.
Benevolence International Foundation (BIF)
BIF is another American Muslim charity that was raided and shut down by the U.S. government in December of 2001. The BIF case centered on the organization’s Chief Executive
Officer, Enaam Arnaout. Mr. Arnaout’s home was raided, family photographs were seized, his children’s computers were taken away, and even his wife’s list of personal telephone numbers was taken.
54
Mr. Arnaout was accused of supporting terrorism because of a 1987 or 1988 photo of him taken with Osama bin Laden in Afghanistan, and documents that allegedly gave him authority to sign for Osama bin Laden.
55 These photos were taken at the same time that the
United States was supporting the Afghan Mujahedeen’s fight against the Soviet occupation. Mr.
Arnaout entered a plea agreement in 2003 in which he pled guilty to one count of racketeering.
56
He also issued a statement in which he acknowledged that around $300,000 to $400,000 of the more than $20 million donated to BIF was used to provide boots, tents, uniforms, and an ambulance to fighters in Bosnia and Chechnya.
57 The Bosnian fighters are the same ones that both the UN and the United States assisted during the bombing campaigns of 1995 and 1999.
These bombing campaigns were aimed at keeping the Serbian army out of Kosovo and Bosnia to
54 BENEVOLENCE INTERNATIONAL FOUNDATION, INC., Plaintiff, v. John ASHCROFT, et al., Defendants.,
2002 WL 32452811 (N.D.Ill.).
55 U.S.
D EPARTMENT OF THE T REASURY , R ESOURCE C ENTER , T ERRORISM AND I LLICIT F INANCE -P ROTECTING
C HARITABLE O RGANIZATIONS , available at http://www.treasury.gov/resource-center/terrorist-illicitfinance/Pages/protecting-charities_execorder_13224-e.aspx.
56 D AN E GGEN & J ULIE T ATE , F EW CONVICTIONS ON TERROR SINCE 9/11: M OST ARRESTED NOT LINKED TO
EXTREMISTS , (Washington Post, June 12, 2005).
57 A BOUT .
COM , S TATEMENT OF E NAAM A RNAOUT : BIF CHIEF PLEADS GUILTY TO RACKETEERING , RELEASES
STATEMENT TO MEDIA AND A MERICAN M USLIM COMMUNITY (Feb. 10 2003), available at http://islam.about.com/library/weekly/aa021103b.htm.
16

prevent atrocities against civilians such as the July 1995 Srebrenica massacre in which more than
7,000 Bosnian men and boys were mass murdered.
58
1.
Global Relief Foundation (GRF)
GRF was shut down after its offices were raided on December 14, 2001 pursuant to a
U.S. Treasury Department Office of Foreign Assets Control (OFAC) blocking order pending investigation. The organization and its founders have never been charged under the material support provisions or any other terrorism-related statutes. However, the charity was listed as one of the "Designated Charities and Potential Fundraising Front Organizations for Foreign Terrorist
Organizations" by the U.S. Treasury Department on October 18, 2002.
59
In addition, prosecutors have accused the organization and specifically its founder, Rabih Haddad, of having ties with Al-
Qaeda and Osama bin Laden.
60
Haddad was held on immigration charges for 19 months, most of the time in solitary confinement. His immigration hearings were initially closed to the public and the government refused to release him on bond because he was considered a “flight risk”.
61
Haddad was finally deported to Lebanon on July 14, 2003 for overstaying his tourist visa.
62
58
U.N. GAOR, 54 th Sess., A GENDA ITEM 42: T HE SITUATION IN B OSNIA AND H ERZEGOVINA , U.N. Doc. A/54/549
(Nov. 15, 1999), available at http://www.un.org/peace/srebrenica.pdf.
59 U.S.
D EPARTMENT OF THE T REASURY , R ESOURCE C ENTER , T ERRORISM AND I LLICIT F INANCE -P ROTECTING
C HARITABLE O RGANIZATIONS , available at http://www.treasury.gov/resource-center/terrorist-illicitfinance/Pages/protecting-charities_execorder_13224-e.aspx.
60 A NN M ULLEN , H ADDAD BREAKS HIS SILENCE , (Metro Times, Mar. 17, 2004), available at http://www2.metrotimes.com/editorial/story.asp?id=6041.
61 Id.
62 Id.
17

2.
Islamic American Relief Agency (IARA) (formerly known as
Islamic African Relief Agency)
IARA was shut down on October 13, 2004 pursuant to executive order 13224.
63
The organization was accused of supporting Al-Qaeda, Hamas, and the Taliban.
64
On March 8, 2007, the organization and five of its officers were charged with a non-terrorism related offense: sending humanitarian aid to Iraq at a time when a special license was required due to sanctions on the country.
65 The IARA case sends the same negative and fear-filled message to American
Muslim donors and charitable organizations: if the U.S. government wants to stop your charitable donations, they will accuse you of supporting terrorism and charge you with any offense, even one unrelated to your alleged material support of terrorism.
1.
KindHearts for Charitable Humanitarian Development
(KindHearts)
KindHearts is an American Muslim charity that was shut down through a February 2006
OFAC freezing order. KindHearts is different from the rest of the American Muslim charities because it was established in 2002, after most of the other large American Muslim charities had already been shut down. The organization’s assets were completely frozen while it was “pending
63 U.S.
D EPARTMENT OF THE T REASURY , P RESS C ENTER , (Oct. 13, 2004), available at http://www.treasury.gov/presscenter/press-releases/Pages/js2025.aspx.
64 Id.
65 M USLIM L EGAL F UND OF A MERICA , C ASES : P ROTECTING F REEDOM , available at http://www.mlfa.org/islamicamerican-relief-agency-iara.
18

investigation”. Until today, KindHearts has never been criminally prosecuted and was never designated as a “specially designated global terrorist” (SDGT). The American Civil Liberties
Union (ACLU) filed a lawsuit in 2008 challenging the freezing of KindHearts’ assets. In August
2009 the court ruled that the government cannot freeze an organization’s assets without obtaining a warrant and that the government violated KindHearts' right to due process by freezing its assets without providing it adequate notice of the basis for the freeze or a meaningful opportunity to defend itself.
66
The KindHearts case is one that I find personally disturbing. My wife was one of the donors that supported a Palestinian orphan through monthly donations to KindHearts. In the summer of
2005, my wife and I travelled to Lebanon and personally visited Ayah and her twin sister, Iman, at their apartment in a refugee camp on the outskirts of Beirut. We saw for our own eyes where our money was going and who it was helping. We walked through the rubble, trash, and sewage that the two 11 year old girls endured every day. We did not see anyone who was supporting terrorism, but two innocent little girls whose eyes lit up when they saw their “charitable mom” from America. Ayah and Iman proudly showed us their school work and their toys; we met their grandmother and their older brother, and spoke with them about their parents who had passed away due to illness. They showed us their modest two-bedroom apartment and their neighborhood, where we saw human beings struggling every day to live their lives and achieve something in the direst of living conditions. We saw buildings littered with bullet holes, and trash, raw sewage, and mud everywhere we looked. We took the girls out on a boat ride on the
Mediterranean, where Ayah held my hand and said: “Baba, please hold my hand so I don’t fall in the water”. We only spent a few hours with Ayah and Iman but in those few hours we felt the
66
KindHearts for Charitable Humanitarian Development, Inc. v. Geithner , 647 F.Supp.2d 857, 919 (N.D. Ohio
2009).
19

impact that my wife’s donation was making on their lives. Ever since KindHearts was shut down we have been prevented from helping Ayah and Iman in their struggle to achieve and succeed in life. Are these the terrorists that KindHearts was shut down for assisting?
2.
Al Haramain Islamic Foundation (Al Haramain)
Al Haramain was an Islamic charity based in Saudi Arabia with a branch in Oregon. The organization’s U.S. assets were blocked “pending investigation” on February 19, 2004, and the
Oregon office was designated as a terrorist organization on September 9, 2004.
67 The organization filed a suit against the U.S. government in 2006 and on November 6, 2008, a federal judge ruled that the order freezing Al Haramain’s assets is a seizure under the Fourth
Amendment.
68 This legal victory is little solace however to the organization, its donors, and its recipients, because the organization was completely dismantled and destroyed through the blocking of its assets and the subsequent legal battle.
3.
Goodwill Charitable Organization (GCO)
GCO was an Islamic charitable organization located in Dearborn, Michigan. The organization was designated on July 24, 2007 as a terrorist organization and was accused of supporting Hezbollah through the Martyrs Foundation in Lebanon.
69
No criminal prosecutions were ever brought against the charity, however, all its assets have been frozen and its possessions were seized pursuant to the U.S. Treasury Department terrorist designation.
67 U.S.
D EPARTMENT OF THE T REASURY , R ESOURCE C ENTER , T ERRORISM AND I LLICIT F INANCE -P ROTECTING
C HARITABLE O RGANIZATIONS , available at http://www.treasury.gov/resource-center/terrorist-illicitfinance/Pages/protecting-charities_execorder_13224-e.aspx.
68 Opinion and Order, Al Haramain Islamic Found., Inc. et al. v. U.S. Dep’t of Treasury et al.
, No. 07-1155-K1 (D.
Or. Nov. 6, 2008).
69 U.S.
D EPARTMENT OF THE T REASURY , R ESOURCE C ENTER , T ERRORISM AND I LLICIT F INANCE -P ROTECTING
C HARITABLE O RGANIZATIONS , available at http://www.treasury.gov/resource-center/terrorist-illicitfinance/Pages/protecting-charities_execorder_13224-e.aspx.
20

Another six American Muslim charities have been declared under investigation or raided, but have never been designated as terrorist organizations. These charities are: KinderU.S.A (Texas),
Life for Relief and Development (Michigan), Al-Mabarrat (Michigan), Child Foundation
(Oregon), Help the Needy (New York), and Care International (Massachusetts).
70
None of these charities has been designated as a terrorist organization by the U.S. Treasury Department and their assets have not been frozen. Two of the charities, Help the Needy and Care International, closed after non-terrorism related charges were brought against their officers.
71
For the ones that are still in operation, the raiding of their offices and the media scrutiny that came with it has had a damaging effect on their operations and financial success. In addition, these discriminatory investigative practices have lead to these charities being generally suspected of having ties with terrorism or a fear that donating to these organizations can one day lead to an accusation of material support to terrorism.
One particularly disturbing example is the investigation into KinderU.S.A. The Dallas U.S.
Attorney’s office subpoenaed the charity’s business records in 2004. The charity fully cooperated, no charges were ever filed, and no further requests for documents were made.
72 The organization was never accused of any material support to terrorism. However, media outlets made their own assumptions and linked the investigation to terrorism. Donations to KinderU.S.A
70 A MERICAN C IVIL L IBERTIES U NION , B LOCKING F AITH , F REEZING C HARITY : C HILLING M USLIM C HARITABLE
G IVING IN THE
“W
AR ON T ERRORISM F INANCING
” 64-67 (2009).
71 Id.
72 Id.
21

dropped from $1.6 million in 2004 to $250,000 in 2005, the organization lost many donors, and all donations from mosques ended in 2004.
73 The organization’s executive director stated in a
2008 interview with ACLU: “Often, I see former donors and they feel compelled to apologize to me stating, ‘you have to understand.’ They are just afraid, period.” 74
The investigation into Life for Relief and Development (LIFE) was equally disturbing.
The organization’s offices were raided on September 18, 2006, with local media in attendance.
75
The charity was never designated and none of its assets were ever frozen. However, the FBI seized several of the organization’s computers and nearly 200 boxes of paperwork.
76
According to an attorney who represented the organization, several weeks after the investigation LIFE was nearly shut down because Comerica Bank informed the organization that it was closing its seven bank accounts.
77
After the raid, in-state donations to LIFE declined by about 50 to 60 percent, and the organization’s Board of Directors even considered closing down the charity because of the fear the raid had created.
78
The material support prosecutions and shutting down of the previous largest American
Muslim charities, coupled with Department of Justice Joint Terrorism Task Force raids on many currently operating American Muslim charities, have put almost all of the current functioning
American Muslim charities under a cloud of suspicion. None of the six charities that were raided or declared under investigation has ever been charged with material support for terrorism or any other terrorism-related crime. However, because the FBI and investigators refuse to declare these charities cleared of any wrong-doing, the organization’s, their officers, and their donors live
73 Id.
74 Id.
75 Id.
76 Id.
77 Id.
78 Id.
22

under a constant fear that they can be accused of supporting terrorism at any time without due process.
1.
Amina Farah Ali
Amina Farah Ali is a U.S. citizen of Somali descent who resided in Rochester,
Minnesota.
79
Ali and 13 others were indicted in August 2010 under 18 U.S.C. § 2339B on charges of sending material support in the form of around $8,600 in financial donations to a militant group in Somalia called “Al-Shabab” (The Youth).
80
Ali and the remaining 13 alleged co-conspirators have denied the charges and have asserted they sent the money as a form of humanitarian aid for the people of war torn Somalia, and not to support Al-Shabab.
81
The case is currently pending in the United States District Court for the District of Minnesota.
2.
San Diego American Muslim Community Members
In November of 2010, four San Diego American Muslims were arrested and charged with material support to terrorism. The suspects include Mohamed Mohamud, the Imam of a local mosque, Basaaly Saeed Moalin, Issa Doreh, and Nima Ali Yusuf.
8283
Similar to the Ali case in
Minnesota, the four suspects are accused of material support to Al-Shabab through financial
79 United States v. Amina Farah Ali, CR 10-187, available at http://www.waagacusub.net/index10/1355.pdf.
80 Id.
81 K AVITHA R AJAGOPALAN , C HARITABLE DONATION OR MATERIAL SUPPORT FOR TERRORISM ?, (Need to Know on
PBS, Aug. 18, 2010), available at http://www.pbs.org/wnet/need-to-know/voices/charitable-donation-or-materialsupport-for-terrorism/2905/.
82 BBC N EWS , US MEN CHARGED WITH AIDING S OMALIA ' S AL -S HABAB , (BBC News, Nov. 3, 2010), available at http://www.bbc.co.uk/news/world-africa-11681920
83 N ICOLE S ANTA C RUZ , S AN D IEGO WOMAN ACCUSED OF AIDING S OMALIA TERRORIST GROUP , (L.A. Times, Nov.
28, 2010), available at http://articles.latimes.com/2010/nov/28/local/la-me-terror-indictment-20101128.
23

donations.
84
Their cases are now pending in the United States District Court for the Southern
District of California.
3.
Mohamed Shorbagi
Mohamed Shorbagi is a Palestinian-American and a former Imam of a mosque in Rome,
Georgia.
85
In August of 2006 Mr. Shorbagi was charged with material support to terrorism because of donations he made to the HLF from 1997 to 2001.
86
Shorbagi pled guilty to providing material support to terrorism through financial donations and was sentenced to 7 years, 8 months in federal prison.
87
According to the Justice Department, Mr. Shorbagi’s sentence was reduced from 15 years “because of the substantial cooperation he has provided in other terrorism-related investigations and prosecutions.” 88 Mr. Shorbagi was on the list of potential witnesses for the government in the HLF case.
4.
Maher Hawash
Maher Hawash was a Palestinian American who worked for Intel in Hillsboro, Oregon.
Mr. Hawash was arrested in March of 2003, and was held as a material witness by the FBI because of an “ongoing investigation”.
89
Mr. Hawash was detained for five weeks with no charges against him and then prosecutors finally charged him with material support under 18
84 BBC N EWS , US MEN CHARGED WITH AIDING S OMALIA ' S AL -S HABAB , (BBC News, Nov. 3, 2010), available at http://www.bbc.co.uk/news/world-africa-11681920
85 A MERICAN C IVIL L IBERTIES U NION , B LOCKING F AITH , F REEZING C HARITY : C HILLING M USLIM C HARITABLE
G IVING IN THE
“W
AR ON T ERRORISM F INANCING
” 74 (2009).
86
Id.
87
D EPARTMENT OF J USTICE , ROME, GEORGIA MAN SENTENCED TO FEDERAL PRISON FOR MATERIAL
SUPPORT OF FOREIGN TERRORIST GROUP, (USDOJ, Feb. 27, 2007), available at http://www.justice.gov/usao/gan/press/2007/02-27-07.pdf.
88 Id.
89
T IMOTHY E GAN , T ERRORISM T ASK F ORCE D ETAINS AN A MERICAN W ITHOUT C HARGES , (N.Y. Times, Apr. 4, 2003), available at http://www.nytimes.com/2003/04/04/us/terrorism-task-force-detains-an-american-without-charges.html.
24

U.S.C. § 2339B in addition to a few other charges such as levying war on the United States.
90
According to a NY Times article, friends and relatives of Mr. Hawash speculated that he was detained because of a 2001 contribution he had made to Global Relief Foundation, or because prosecutors wanted him to testify against six Oregon Muslims (the “Portland Cell” case) who had been charged with aiding terrorism.
91
In August of 2003, Hawash pled guilty to one count of conspiracy as part of a plea agreement in which he agreed to testify against the defendants in the
“Portland cell” case.
92
5.
Jesse Maali
Jesse Maali is another Palestinian American who was arrested in Orlando, FL in a
November 2002 raid on his home.
93 Mr. Maali was a wealthy entrepreneur who owned different types of businesses in the tourist hub of International Drive in Orlando, FL.
94
Maali was never charged with any terrorism related charges, but during his bail hearing prosecutors claimed he had ties to “organizations that advocate violence” because he donated money to various Middle-
Eastern organizations that provided assistance to victims of the Israeli occupation.
95
Maali died in January of 2005 and was never tried on the non-terrorism related charges.
90 U.S. v. Maher Mofeid Hawash , Criminal Complaint No. 03-M-481, United States District Court District of
Oregon (2003).
91 L AURIE G OODSTEIN , M USLIMS H ESITATING ON G IFTS AS U.S.
S CRUTINIZES C HARITIES , N.Y. Times, Apr. 17,
2003.
92 D EPARTMENT OF J USTICE , OREGON RESIDENT MAHER HAWASH PLEADS GUILTY TO CONSPIRACY
TO SUPPLY SERVICES TO THE TALIBAN IN ‘PORTLAND CELL’ CASE, (USDOJ, Aug. 6, 2003), available at http://www.justice.gov/opa/pr/2003/August/03_crm_449.htm.
93 J EFFREY C.
B ILLMAN , M ALICIOUS PROSECUTION , (Orlando Weekly, Jul. 17, 2003), available at http://www2.orlandoweekly.com/features/story.asp?id=3145.
94 Id.
95 Id.
25

The unjust and biased application of the material support laws and executive orders
12947 and 13224 has had a devastating effect on American Muslims. This devastating effect is caused by the United States government’s use of the laws and orders to only prosecute American
Muslim charities and donors. This biased and unjust application of the law subverts Muslim religious beliefs and leads to a myriad of other negative consequences that harm Muslims in
America. These consequences include: encouraging and increasing Islamophobia in America, creating a lack of trust between American Muslims and law enforcement officials, creating a lack of trust between American Muslims and their government, fueling a false belief by some non-
Muslims that all Muslims are linked to terrorism, causing a rise in hate crimes directed at
American Muslims or those perceived to be Muslim, creating a false perception that American
Muslims will never be truly American, and encouraging the erroneous belief that fighting terrorism equals fighting Islam.
All of the material support prosecutions and shutting down of American Muslim charitable organizations discussed above lead to these far-reaching and negative consequences for American Muslims. This injustice and the hate and intolerance that come as a consequence of it clearly contradicts with American values and is interpreted by American Muslims as one of many methods that the U.S. government has recently used to subvert Muslim religious beliefs.
American Muslims have viewed these prosecutions as an affront to their religious obligation of giving “zakah” (annual charity or alms) and “sadaqah” (voluntary charity). Zakah is one of the five pillars of Islam and is believed by Muslims to be a way of figuratively purifying their
26

wealth. Many American Muslims’ lives have changed drastically due to the U.S. government’s attack on American Muslim charities since 9/11. For example, prosecuting the Holy Land
Foundation, the largest American Muslim charity, and accusing it of material support to terrorism is equivalent to accusing all those who donated to HLF of material support to terrorism.
The HLF case is especially important because the organization’s humanitarian aid mainly went to the Palestinian territories of Gaza and the West Bank. These geographic areas are dear to the hearts of Muslims around the world because of the religious significance of Palestine found in verses in the Quran and the sayings of Prophet Muhammad. Muslims around the world donate to
Palestinians as a way of supporting the Palestinian people in their humanitarian plight against an unjust Israeli occupation. Many Muslims in the U.S. now believe that the U.S. government will go to great lengths to support the Israeli occupation and block humanitarian aid to those suffering under that occupation. These individuals now live in a climate of fear and are afraid to fulfill their religious obligations of providing financial assistance to others who are suffering injustice.
They cannot support those whom they view as defending their land against occupation because they do not want to be accused of funding terrorism. By finding the HLF five guilty, the jury explicitly agreed with the government’s convoluted linking of terrorism to charity. HLF was never charged with providing anything but humanitarian aid to millions in need in Gaza and the
Occupied Territories of the West Bank. The HLF five were found guilty of material support to terrorism because they provided humanitarian aid to Palestinian men, women, and children who lived in the same geographic territory as Hamas, a designated terrorist organization. The current outcome of this case and all the others says to American Muslims: “providing food and clothing to needy persons can now be a crime in the United States”.
27

American Muslims also ask themselves why the United States government completely shuts down American Muslim charitable organizations instead of allowing for a continuation of the organization’s work under new leadership. For example in the case of BIF, the critical question is : why was an entire charity shut down and accused of terrorism when only 2% of its funding did not go to approved charitable purposes, and even that 2% arguably did not go to terrorism but went to persons defending themselves against imminent ethnic cleansing?
96
Does the U.S. government care about the hundreds of thousands all over the world who relied on this charity to survive? In American Muslims’ eyes, the charitable organization cases mentioned above are clear shots in the dark by the U.S. government. These shots in the dark are perceived to be aimed at spreading hate and fear toward Islam and Muslims. In addition, American
Muslims feel like their religious beliefs are being undermined and that the U.S government wants to shut down American Muslim charitable organizations in any way possible.
Another important issue to consider is that war ravaged areas are most in need of charitable contributions. Unfortunately, many war-ravaged areas of the world today are areas with majority Muslim populations such as Palestine, Iraq, Afghanistan, Sudan, and Somalia. In addition, many of these war-ravaged areas are ones where violent ethnic cleansing is a daily reality. This reality leads to the rise of armed resistance for the purpose of self-preservation and self-defense. In some of these cases, the United States foreign policy has been silent, if not complicit, in this ethnic cleansing reality. Many of the groups that have taken up arms in selfdefense are designated as terrorists by the U.S. government. Through this designation, the U.S. government designates those who have taken up arms and, indirectly, those who have not taken
96 As mentioned previously, BIF’s founder admitted to sending around $300,000-$400,000 out of a total of $20 million in donations to fighters in Bosnia and Chechnya. This money was used to buy boots, tents, uniforms, and an ambulance.
28

up arms. Instead of helping those who are suffering from humanitarian disasters, the U.S. government adds to their suffering and does not allow others to assist either. American Muslims, like all those who want to alleviate suffering all over the world, feel that it is their religious obligation to assist those in need no matter what their religion. These Muslims do not want to support terrorism and pointless violence. They want to support those who are struggling and suffering through injustice, occupation, and poverty. Because of the current application of the material support law and executive orders 12947 and 13224, American Muslims will continue to be afraid to support those in need in war torn countries all over the world. This could be a major factor in the continuation and worsening of these conflicts that have led to enormous humanitarian disasters.
The individual donor cases clearly show how the United States government purposefully intimidates and scares members of the American Muslim community into testifying against one another in exchange for reducing the consequences tied to a material support conviction.
Mohamed Shorbagi’s case is a great example. All Mr. Shorbagi did was donate funds to HLF.
The Patriot Act amendments to the material support provisions would have allowed for Shorbagi to spend the rest of his life behind bars, but to escape that possibility, Mr. Shorbagi decided to cooperate in the Justice Department’s unfair and discriminatory targeting of American Muslim charities and donors. Mr. Shorbagi had a choice: help the U.S. government in its unjust war against American Muslim charity, or risk a material support conviction and possibly spend the rest of your life behind bars.
Another case on point is that of Maher Hawash. Hawash also faced the possibility of life in prison if he did not testify for the U.S. government against other American Muslims accused of terrorism. Hawash’s case had a clear chilling effect on Muslim charitable donations. Many
29

American Muslims looked at Mr. Hawash’s case and the above cases with confusion and fear.
One California Muslim named Hasan who was interviewed for a 2003 NY Times article said: ''I want to do something to help innocent civilians, but how am I going to fight the system here if the F.B.I. comes to me and accuses me of something?''
97
Hasan had attended a fund-raising event in Santa Clara, CA held by an Islamic charity raising money to help bring food and medical supplies to the needy in Iraq. Hasan gave $2,000 at the event, but if it wasn’t for the fear of being accused of terrorism he said he would have given $20,000.
98 Many other wealthy American
Muslim donors think the same way. Their donations have been drastically reduced because they fear that large donations will put them on the radar for material support charges. The scaling back of donations by American Muslims only harms the poor and needy who have nothing to do with terrorism. It ruins the relationship between American Muslims and intelligence and law enforcement officials such as the FBI and local police departments, and places a great distrust in
American Muslims’ minds regarding our system of justice. In addition, American Muslims now feel that their religious beliefs are being trampled on, and that they no longer live in a country that abides by laws that are applied equally to all.
Another major issue that concerns American Muslims is that government prosecutors are given free rein to accuse American Muslims of terrorism without ever charging them with any terrorism-related crime. For example, Jesse Maali was never charged with any terrorism related crime. However, prosecutors accused him of terrorism throughout his prosecution and he died with this accusation still attached to his name. Prosecutors explained Mr. Maali’s “connection to terrorism” in the same way as they had explained the HLF defendants’ connection to terrorism.
97 L AURIE G OODSTEIN , M USLIMS H ESITATING ON G IFTS AS U.S.
S CRUTINIZES C HARITIES , N.Y. Times, Apr. 17,
2003.
98 Id.
30

Maali had donated a large amount of money over a period of forty years to various Middle-
Eastern and American Muslim charities, including HLF and BIF. Maali especially donated to organizations that provided humanitarian aid to Palestinians. Some of the money went to organizations that, just like the Islamic charity committees in the HLF case, allegedly had ties to
Hamas and the Popular Front for the Liberation of Palestine.
99
None of these charity committees was designated as a terrorist organization at the time Maali donated to them,
100
but he was still guilty of material support to terrorism in the eyes of the Orlando prosecutors. Just like in the
Hawash case, the high-profile Maali case left a long lasting negative effect on the American
Muslim community and contributed to the chilling effect on American Muslim charitable contributions.
101
This chilling effect on American Muslim charity is in reality a chilling effect on
Muslims’ practice of their religious beliefs. As discussed above, the effects are broad and farreaching, and directly contradict with the values that this country was founded upon.
As the numerous cases above have shown, the U.S. government has unjustly used the material support provisions and executive power as a tool for accusing American Muslim charities and American Muslims donors of supporting or “having ties” with terrorism. The current application of the material support statutes and executive orders 12947 and 13224 causes a major problem which conflicts with core values that this country was founded upon. “No person shall be…deprived of life, liberty, or property, without due process of law.” The Due
Process Clause of the Fifth Amendment has been a part of our constitution since the early days
99 J EFFREY C.
B ILLMAN , M ALICIOUS PROSECUTION , (Orlando Weekly, Jul. 17, 2003), available at http://www2.orlandoweekly.com/features/story.asp?id=3145.
100 Id.
101 P EDRO R UZ G UTIERREZ & J IM L EUSNER , IDRIVE ' S M AALI D IES O F C ANCER , (Orlando Sentinel, Jan. 23, 2005), available at http://articles.orlandosentinel.com/2005-01-23/news/0501230123_1_maali-cancer-jesse/4.
31

of this nation. One major problem with the current application of the material support statutes and the use of executive power to designate terrorist organizations is that it implies that all
American Muslims are guilty of supporting terrorism until proven innocent. American Muslim charitable organizations have had their assets frozen and are shut down without any due process.
The government should not be allowed to deny anyone due process, no matter what the reason for doing so is, because doing so directly violates the Fifth Amendment of our constitution.
Many of the charities have only been accused but have never been charged with committing any crimes. They were deprived of their property without due process through an executive order granting the Department of Treasury authority to block all of their assets. Some of the charities do not even know what evidence the government used to designate them as terrorist organizations, while others only found out the “evidence” against them after lengthy court battles. These organizations’s liberty has been deprived through unchecked executive power that uses secret evidence and a lack of procedural safeguards to deny them due process of law. A vocal minority has even directed hate and intolerance toward an entire community because of this contradiction with a core value of this country. This minority sees the lack of due process afforded to American Muslim charities and donors and applauds it. They ignorantly grant unlimited deference to the executive branch and believe that American Muslims do not deserve due process. This situation is a taint on our country’s reputation. We cannot let an ignorant and closed-minded group of people erode our values by spreading hate and bias toward the American Muslim community. Making sure that American Muslim charities and donors are afforded their due process rights under the Fifth Amendment will help stop the spread of hate toward the American Muslim community.
32

In addition, the sweeping powers that IEEPA and executive orders 12947 and 13224 have given to the Department of Treasury contradict with another basic value of this country. The framers of the Constitution created three branches of government so that no one branch would have too much power. Many founders of this country were so afraid of an executive branch with too much power that they wrote a document titled: “The President as Military King”.
102
They were afraid of abuse of power, a system of oppression of individual rights, and a lack of restraint on the office of President.
103 IEEPA and executive orders 12947 and 13224 do not require any judicial review of “terrorist organization” designations. The Department of Treasury, in coordination with other departments within the executive branch, has complete power to designate any organization or person it sees fit. No notice is provided, and charitable organizations that have been designated only know of the designation after it has occurred. The
Department of the Treasury says on its website that a designated organization “can administratively challenge its designation or seek rescission of a blocking order by filing a petition with OFAC.”
104
However, is OFAC really going to overrule itself? The only realistic option that a charitable organization has is to resort to challenging the designation in Federal
District Court. This challenge is rarely successful because of courts’ highly deferential standard in their review of OFAC’s actions, which is whether the agency acted in an “arbitrary and capricious” manner.
105
102 A NTIFEDERALIST N O .
74, THE PRESIDENT AS MILITARY KING, PHILADELPHIENSIS, February 6 & 20, and April 9 of 1788 in either The Freeman's Journal or, The North-American Intelligencer.
103 Id.
104 U.S.
D EPARTMENT OF THE T REASURY , R ESOURCE C ENTER , T ERRORISM AND I LLICIT F INANCE -P ROTECTING
C HARITABLE O RGANIZATIONS F REQUENTLY A SKED Q UESTIONS (Jun. 4, 2010), available at http://www.treasury.gov/resource-center/terrorist-illicitfinance/Documents/Treasury%20Charity%20FAQs%206-4-
2010%20FINAL.pdf
105 A MERICAN C IVIL L IBERTIES U NION , B LOCKING F AITH , F REEZING C HARITY : C HILLING M USLIM C HARITABLE
G IVING IN THE
“W
AR ON T ERRORISM F INANCING
” 44 (2009).
33

The current application of the material support provisions and the terrorist designation process also leads us to the broader question of what person or entity should legitimately be classified as a terrorist. This question is also one that has a direct relationship with American values. America is a country that stands up for freedom, justice, democracy, and equality for all.
Our definition of a terrorist must take into account these values and must be clear and unbiased.
We cannot place people defending their land against occupation and injustice in the same category as those who perpetrate purposeless violence. For example, can we place Al-Qaeda under the same umbrella as Hamas? Furthermore, are Israeli settlers who invade Palestinian land terrorists, or is the term “terrorist” reserved only for Palestinians who defend their land against those settlers? Also, shouldn’t we define Christian, Jewish, or Hindu “terrorist organizations” in the same way that we define Muslim “terrorist organizations”? Every true Muslim was horrified by the September 11, 2001 attacks, and abhors those who seek to justify the murder of innocent people through Islam. We cannot accuse every American Muslim of terrorism because fanatics hijacked the religion of Islam and committed the atrocity of 9/11. As New York Mayor Michael
Bloomberg recently said regarding controversy over the proposed construction of a mosque in
New York City: “We would betray our values – and play into our enemies' hands – if we were to treat Muslims differently than anyone else." 106
The roots of this “terrorist classification” problem go back to a two major factors. One of them is the U.S. government’s biased and unflinching support for the Israeli occupation. This biased and unfair loyalty to the Israeli occupation has blinded the U.S. government since the Six
Day War of 1967. This blind support, in addition to biased media coverage, has allowed for the
Israeli-Palestinian situation to be viewed by many Americans in a discriminatory and unfair
106 W ALL S TREET J OURNAL , B LOOMBERG ON M OSQUE V OTE , (Wall Street Journal, Aug. 3, 2010), available at http://online.wsj.com/article/SB10001424052748703545604575407673221908474.html.
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manner. U.S. foreign policy views and treats Palestinians as the aggressor in the Israeli-
Palestinian conflict, while the Israeli side is viewed as the victim who is just trying to defend himself. Any fair reading of the history and progression of the Palestine conflict will show that the exact opposite is true.
107
In addition, this bias has allowed for a blurring of the lines between legitimate occupation resistance groups and clear-cut terrorist groups that have no legitimate resistance goal but only seek to murder and destroy. For example, on its English language website, the Ezzedeen Al-Qassam Brigades (the armed branch of Hamas) states that it:
“considers its effort as part of the resistance movement against the Zionist occupation of
Palestinian lands, which has been ongoing since the British occupation.” 108
Isn’t this a legitimate occupation resistance goal and not a purposeless violent goal?
"Give me Liberty, or give me Death!" These famous and everlasting words were uttered by Patrick Henry during the early days of our nation, at a time when the founders of what was to become the United States of America were viewed as terrorists by the British Empire. Liberty and freedom from foreign occupation is what this country was founded upon. The Palestinian people are fighting for the exact same values that our revolutionary heroes fought for. I believe the founders of this country would fundamentally disagree with the characterization of victims of occupation as terrorists. Hamas considers itself a legitimate organization that uses a variety of methods to support its people, a people who have been living under occupation and apartheid since 1948, when the Israeli occupation declared itself a state. To help reach a fair solution to the current conflict, the U.S. government cannot be critical of Hamas and other groups who are defending their land from occupation while ignoring the Israeli occupation’s continuous and
107 See generally http://ifamericansknew.org for a great resource regarding the facts of the conflict and how it affects the United States.
108
E ZZEDEEN A L -Q ASSAM B RIGADES ,
“A
BOUT U S
”, (Ezzedeen Al-Qassam Brigades-Information Office), available at http://www.qassam.ps/aboutus.html.
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systematic destruction of Palestinian lives. This destruction is carried out through statesponsored terrorism that inflicts death and human rights abuses on Palestinians every day.
Former President Jimmy Carter recently acknowledged the reality of the Palestine conflict in his
2006 book: Palestine: Peace Not Apartheid. The United Nations has also condemned Israeli actions numerous times. From 1955 to 1992, the United Nations passed 65 resolutions against the Israeli occupation.
109
These resolutions condemned atrocities ranging from the murder of civilians to the denial of Palestinian refugees’ right to return to their homeland.
110 From 1970 to
2011, the United Nations passed 42 resolutions against the Israeli occupation.
111112
The United
States vetoed every one of those resolutions.
113
This disgraceful bias in favor of a country built on occupation and apartheid must stop. It is harmful to America and the rest of the world and is one of the major reasons that the
Palestinian humanitarian disaster continues until today. In addition, it causes the United States to define terrorism in a hypocritical and unjust way that is completely contradictory to American values. This inaccurate definition of terrorism has helped foster a false belief in some people’s minds that Arab and Muslim resistance groups are synonymous with terrorist groups.
A second factor that has led to this inaccurate classification of terrorists is Hollywood and the American media’s historical and current dehumanizing portrayal of Muslims, and especially
Arab Muslims. An author named Jack Sheehan investigated this issue and published a book called The TV Arab , in which he documented that in a period of ten years, over 21 major movies
109 I F A MERICANS K NEW , S TATISTICS , UN RESOLUTIONS TARGETING I SRAEL AND THE P ALESTINIANS , available at http://www.ifamericansknew.org/stats/un.html#source.
110 Id.
111 I F A MERICANS K NEW , US INTERESTS , U.S.
V ETOES OF U.N.
R ESOLUTIONS ON B EHALF OF I SRAEL , available at http://www.ifamericansknew.org/us_ints/p-neff-veto.html
112 J EWISH VIRTUAL LIBRARY , U.S.
V ETOES OF UN R ESOLUTIONS C RITICAL OF I SRAEL , available at http://www.jewishvirtuallibrary.org/jsource/UN/usvetoes.html.
113 Id.
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show the United States military killing Arabs.
114
This includes major productions such as Iron
Eagle, Death Before Dishonor, Navy SEALs, Patriot Games, the American President, Delta
Force 3, and Executive Decision.
115
United States mainstream media did not fare any better.
According to a report issued by Gallup in 2009, Media Tenor, a research firm that monitors and analyzes media coverage, found that from January 2007 to March 2008, the tone of media coverage of Islam was negative 40% of the time.
116
Media Tenor also found that two-thirds of television coverage about Islam associated Muslims with extremism.
117
This biased media coverage of Muslims leads to a negative perception of American
Muslims by the American public. In November 2010, the Public Research Institute found that
45% of Americans agree that Islam is “at odds with American values.”
118
An August 2010 Time magazine poll found that 28% of voters do not believe Muslims should be eligible to sit on the
U.S. Supreme Court, and almost 33% believe that Muslims should be barred from running for
President.
119
Finally, a 2010 Gallup report found that 43% of Americans “admit to feeling some prejudice toward followers of Islam.” 120
It is clear that biased media coverage directly shapes
Americans’ view of their Muslim neighbors, and builds a false link between terrorism and the entire Muslim community. American mainstream media’s biased coverage of Muslims contributes to the definitional problem of “who is a terrorist”, and allows for the “terrorist classification” problem that occurs in the Executive branch’s terrorist designation process.
114 M AZIN B.
Q UMSIYEH , 100 Y EARS OF ANTI -A RAB AND ANTI -M USLIM STEREOTYPING , (The Prism, 1998), available at http://www.ibiblio.org/prism/jan98/anti_arab.html.
115 Id.
116 U NIVERSITY OF C ALIFORNIA , B ERKELEY C ENTER FOR R ACE & G ENDER & C OUNCIL ON A MERICAN -I SLAMIC
R ELATIONS , S AME H ATE , N EW T ARGET : I SLAMOPHOBIA AND I TS I MPACT IN THE U NITED S TATES , 23 (January 2009-
December 2010 report).
117 Id.
118 Id.
119 Id.
120 Id.
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The current application of the material support laws and executive orders 12947 and
13224 must be changed so that it can conform to American values. To start with, one major change must be implemented as part of the terrorist designation procedure to help keep a check on broad and uncontrolled executive power. A pre-designation judicial approval must be added as an initial threshold before the terrorist designation process can go forward. This change would add a procedural safeguard to prevent the material support provisions from being used as a tool to unjustly prosecute American Muslim Charities and donors. It would also add a standard of proof and evidence that must be met before the designation process can continue.
However, pre-designation judicial review will not be enough. Because of the current inaccurate and biased classification of what is a terrorist organization, Congress must specifically define what a “terrorist” is, according to the clear American values found in the Declaration of
Independence and the Constitution. This definition must be structured in a clear, detailed, and neutral way so as not to allow for any biased application based on strong lobbying organizations, national or international politics, bias toward a particular religion or ethnicity, “American interests”, “National Security”, or any other incorrect or broad and ambiguous motivation. The definition must also be structured in a way that allows for the inclusion of all types of entities that fit within this neutral standard, including states and military’s that sponsor terrorism.
Redefining terrorism in an accurate and unbiased manner will be the first step toward correcting the injustices toward American Muslims that the material support provisions and unchecked executive power has led to.
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After taking care of this definitional problem and achieving a correct and unbiased definition of terrorism, we must address the procedural problems with the designation process.
The first step would be to implement the pre-designation judicial review threshold discussed above. This would be a major improvement to the current process and would be the first check on the designation process. After that, the process itself must become more transparent and fair.
Notice of a pending designation must be given during or immediately after the judicial review.
Defendants must be informed of the evidence against them, and must be provided with an opportunity to examine that evidence. Defendants must be allowed to present their own evidence prior to the designation. In addition, there must be an immediate process that allows for an appeal of the designation. Finally, the blocking of assets must occur only with final judicial approval and the funds must be released within a specified time frame (for example 30 days) if no charges are brought. Assets should remain in the control of the judiciary and the judicial branch must be the final decision maker regarding whether the organization or person should remain designated if no charges are filed. Implementation of these changes to the current designation process will allow the material support laws and executive orders 12947 and 13224 to be used in a just and unbiased manner.
VI.
The discriminatory and unfair application of the material support laws and executive orders 12947 and 13224 to prosecute and shut down American Muslim charities contradicts directly with American values. These values are a fundamental part of our Constitution. This contradiction with our values undermines the religious beliefs of 1.5 billion people, causes a chilling effect on American Muslim charitable contributions, and encourages the spread of hate and intolerance toward the religion of Islam. America has been through this before. Native
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Americans, Irish Americans, Catholic Americans, Jewish Americans, African Americans,
Chinese Americans, Japanese Americans, and Mexican Americans; Muslim Americans have been added to the long line of groups that have been discriminated against throughout America’s history. We must learn from this country’s historical mistakes and not repeat them. Applying the material support provisions and executive orders 12947 and 13224 in a manner that conforms to
American values will allow us to correct the wrongs being done to American Muslims and allow them to freely fulfill their religious obligation of providing charity to those in need all over the world.
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