Monday, September 26, 2011

Page 3

Ninth Circuit Upholds Designation of Islamic Group as ‘Global Terrorist’

But Panel Says U.S. Violated Fourth Amendment by Freezing Assets Without a Warrant

By a MetNews Staff Writer

The U.S. government had legally sufficient cause to designate an Oregon-based Islamic charitable group as being involved in terrorism, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Al-Haramain Islamic Foundation, Oregon, was properly declared a “specially designated global terrorist,” Judge Susan Graber wrote, because one of its board members had been previously designated as linked to terrorism and the group provided money for terrorist activities in Albania and Chechnya.

But the Office of Foreign Assets Control, the entity within the Treasury Department charged with enforcing international sanctions, violated the charity’s Fourth Amendment rights by using a “blocking notice,” rather than a warrant supported by probable cause, to freeze the group’s assets, the judge said.

“OFAC’s interest in preventing terrorism is extremely high,” the judge wrote. “But we cannot accept OFAC’s contention that its blocking orders are per se reasonable in all circumstances, solely by virtue of that vital mission.”

OFAC froze AHIF-Oregon’s assets in 2004 pending an investigation. The office says just over $20,000 was frozen, but the foundation has claimed that $440,000 in proceeds from the sale of some property in Ashland was also frozen.

There was no need for the appellate court to resolve that issue, Graber said in a footnote, since the amount is irrelevant to the issues before the panel.

Graber rejected the argument that the “special needs” exception to the requirement of a warrant based on particularized suspicion applied.

To apply the exception, the judge noted, the Supreme Court “requires a weighing of the nature and extent of the privacy interest at hand against the nature and immediacy of the government’s concerns and the efficacy of the procedures employed in meeting those concerns.”

Blocking a group’s assets to its funds is a serious action that requires a strong showing of justification, the judge said, because it “effectively shuts down the private entity.”

The high court, the judge said, has applied the exception to more limited intrusions, “such as a one-time drug test, a search of files at a person’s office, a search of a home while on probation, or a brief traffic stop.” In contrast, she said, “there is no limited scope or scale to the effect of the blocking order.”

In addition, Graber explained, the exception has been applied to limited classes of persons, such as probationers, students, drivers, or public safety workers, while OFAC “can issue a blocking order against any person within the United States or elsewhere” and “does so without warning.”

Graber pronounced herself “unpersuaded” that requiring OFAC to obtain warrants to freeze assets would be impractical. She reasoned that “the number of designated persons located within the United States appears to be very small,” and that OFAC may guard against “asset flight” by imposing an “emergency” freezing and promptly seeking a warrant.

OFAC, she added, gave no explanation as to why it would have been impractical to seek a warrant in the specific case of AHIF-Oregon.

The case was sent back to the U.S. District Court for the District of Oregon for a determination as to what remedy, if any, is appropriate.

The case is Al Haramain Islamic Foundation v. U.S. Department of the Treasury, 10-35032.