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Tuesday, June 22, 2010

Do-Gooders Beware of Terrorists in Sheep's Clothing

Here is the Supreme Court's 6-3 decision in Holder v. Humanitarian Law Project which, in this observer's view, puts anyone who gives money or provides services to another person or entity at some potential risk of criminal prosecution and incarceration should the recipient of the services or money be connected to or somehow involved with supporting "terrorism." 

A completely harmless activity, or the most altrustic of acts can, if the recipient of your charity conceals his true intentions (and of course this is possible -- see Madoff, Bernie) can subject you to the intrusive and destructive force of the federal government should it choose to "investigate" you and thereafter prosecute you (either civilly or criminally).   The problem for you is that when you are innocent, it takes time for the government to determine that; what you go through in the meantime is considered acceptable collateral damage, i.e., it's your problem.

 This is the product of a federal law banning "material support" to "terrorists" which is now interpreted to cover entirely innocent and harmless activities or assistance (like money) to organizations which may be deemed -- by some bureaucrat in the State Department, under a dubious standard of review or simply at someone's whim -- to be connected to terrorism.   The problem here is how one defines every subject or verb in the preceding sentence.   How they are defined, and who does the defining, can make the difference between your actions being considered lawful, or criminal.

The vagueness in this and other federal and state laws is susceptible to abuse by unscrupulous bureaucrats, regulators and prosecutors who may use such laws to target people or organizations which they disagree with or find unpopular.  The laudatory goal -- here, of fighting terrorism -- provides the "cover" for official actions which could be argued to violate the First, Fifth, and/or Fourteenth Amendments.

Under the majority's opinion, lawyers who represent nonprofits which are somehow connected (as determined by someone in the government) to an organization which in turn is connected to terrorism could be deemed to be giving "material support" to terrorists!  If you disagree, go find the "safe harbor" in either the various statutes or the opinion (link provided above, statutes' language is provided in the footnotes to the majority opinion).

Of course, the prudent and totally risk-averse course of action for anyone on American soil to do is to have nothing to do with any nonprofit, particularly one which engages in educational or training activities.

This concern is in no way intended - and should not be construed as - to defend or rationalize any terrorist sympathizer.  As the Newark Star-Ledger's Paul Mulshine has set forth with his "Moron Perspective Alerts," criticizing a position does not mean one is supporting the holder (no pun intended) of the opposite view; here, criticism of the Justice Department's view should never be construed as supporting terrorists.  This disclaimer is necessary because America is full of cretins, who watch reality television and believe most of what they are told, have the analytical abilities of a hockey puck and, sadly, both procreate and vote.

One guiding principle of our criminal justice system is that our citizens should be able to determine from the law what the law is, so that we may act with a reasonable certitude that our actions are lawful (unless they are not, of course). 

The Supreme Court decision, inadvertently, places a degree of uncertainty on otherwise, totally benign activities.

A donor to a charity -- which we assume to have satisfied the IRS criteria for classification as a 501(c)(3) or (4) organization and to have been granted such status by the IRS -- must now be totally certain rhat the organization is not connected in any way to terrorism.   If it is, the donor could be considered to be giving material support to terrorists and thus faces possible prosecution...while being totally innocent.

As a practical matter, there may be a small risk.  The risk I have outlined may be discounted for the common sense and "prosecutorial discretion" that most federal prosecutors have.   The problem -- and the risk to you -- is that not all prosecutors have this discretion or share these scruples.

And a small risk -- however much you want to discount certain factors -- is a risk nonetheless.   Anything above zero is a risk.   Giving money to a charity now poses some risk (however remote) of criminal investigation, prosecution, and upon conviction, incarceration.  And the assumption of risk of being prosecuted for an innocent act is not part of being an American.

My initial point may be summed up thusly:   In order to be certain that one is not at risk of being deemed a material assister to terrorists, one cannot give money to any charity.   Such certitude requires knowing -- literally -- where your funds go and how they are actually used.

This cannot be the intended consequence of the law passed by Congress.

One suspects this is a law whose interpretation by the Executive Branch (via the Justice Department and Department of Homeland Security bureaucrats) has gone awry, captive to bureaucrats, regulators and others with a vested interest in either showing off how smart they think they are, or demonstrating that they are doing their job and mucking up plenty of things in the process.

More commentary will follow.

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