Blacklisting and Unaccountable Executive Power

By Wendy Kaminer
        One of the most expansive, flexible, and unreviewable appropriations of presidential power in the war on terror is also one of most obscure.  It’s a federal blacklisting scheme that gives the executive branch the power to designate virtually anyone a suspected terrorist. As a recent report from the Lawyers Committee for Civil Rights stresses::

        “An increasing number of private businesses, such as banks, mortgage companies, car dealerships, health insurers, landlords, and employers, now check the names of customers or applicants against a U.S. Treasury Department terrorist list. The Office of Foreign Assets Control(OFAC) list of suspected terrorists, drug traffickers, and other “specially designated nationals” runs over 250 pages long and includes more than 6,000 names. Many Americans who are not on the list face stigma as well as delayed or denied consumer transactions solely because their names are similar to others who are designated. The government has encouraged a wide range of private businesses to screen against the list, resulting in difficulties for ordinary people even where there is no discernible relationship to national security. Moreover, there are few safeguards – such as training requirements for businesses, complaint mechanisms for individuals, or other avenues for redress – to protect against such arbitrary screening.”

        But it’s not just suspected terrorists (or people who have the bad luck to share their names) who are imperiled by this arbitrary blacklisting power.  The imperial presidency has also assumed  authority to impose potentially devastating civil sanctions even on people who engage in innocent transactions with individuals or groups named on the lists. 

        In exercising these powers, the president and his appointees rely on a fairly complicated web of federal laws, which has been challenged, in part, by the Center for Constitutional Rights (CCR.)  While gross abuses of blacklisting authority have increased since 9/11, it's worth noting that some of the relevant legislation was passed during the 1990s and first invoked by President Clinton.  Here’s a very brief summary of the complicated litigation and blacklisting scheme (which I’ve gleaned from CCR court filings in Humanitarian Law Project, et al. v. Mukasey.)

        The 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA,) championed by the Clinton Administration, authorizes the Secretary of State to designate groups as “foreign terrorist organizations.”  It is a crime for anyone to provide “material support or resources” to a designated organization.  The Center for Constitutional Rights represents a group of plaintiffs who want to aid two of these designated groups that engage in peaceful humanitarian, and political activities to aid the Kurds and the Tamils in Sri Lanka.  They’ve raised several constitutional challenges to the material support ban; the litigation history is quite complicated, but as it stands now, the 9th circuit has invalidated a ban on providing training, expert advice or assistance, or services.  The government has appealed.

        But this 1996 law is only one cog in the federal machine.  CCR is also challenging post 9/11 use of the International Emergency Economic Powers Act, (IEEPA.)  This law, passed in 1977, was arguably designed to allow the President to impose sanctions on foreign nations, not groups or individuals.  In 1995, however, President Clinton expanded its reach, invoking it to impose sanctions on 10 Palestinian and two Jewish groups.  Then shortly after 9/11 President Bush issued Executive Order 13224 (EO 13224) – the enabling regulation for much post 9/11 blacklisting. 

        Pursuant to this order, Bush blacklisted some 27 individuals and groups, with no explanation, no finding of wrongdoing, no due process.  EO 13224 also authorizes the Secretary of the Treasury to come up with his own list of foreign or domestic terrorist groups or individuals – specially designated global terrorists (SDGT’s.) If you’re named on the list, you lose access to all property and interests in the U.S or in control of U.S. persons.  And all transactions with any named groups or individuals are prohibited – meaning that if anyone of us unwittingly hires someone named on these very long lists, or buys a pair of shoes from someone on the lists, we have violated federal law.  If the violation is unknowing, you’re subject to potentially substantial civil penalties, and -- get this -- you could even be added to the blacklists, meaning that no one would be permitted to engage in any transactions with you.  Your assets would be frozen; you’d be shut down entirely with no means of support.
        Thanks to this second statutory scheme, under the IEEPA and President Bush’s 2001 executive order, the recent 9th circuit opinion that struck down parts of the 1996 ban on providing material support to designated groups is moot.   The power that the government lost under the 1996 law it retains under the 2001 executive order – which is an even broader and more dangerous assumption of unfettered executive authority.
        Not even the Bush Administration has sought to apply these laws systematically to people who engage in innocent transactions with blacklisted individuals or groups.  But if administration officials want to go after you, for virtually any reason, they could conceivably invoke their blacklisting power to do so.  There are no checks on the power of the president or the Treasury Department to blacklist anyone or any groups -- no due process, no necessary notice of investigation, no chance for people to defend themselves or even be told why they’ve been blacklisted.  It would be hyperbole to claim that we now inhabit a police state; but it’s a fact that pursuant to these laws and regulations, the President has assumed unaccountable power to establish one.

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