Commentary: Insight into Treasury's View of Terrorist Finance from FOIA Docs

Eric Lichtblau has a piece in the June 23, 2009 New York Times that contains allegations about financial support for terrorism from Saudis, including at least one charity. The article, Documents Back Saudi Link to Extremists, comes at a time when the U.S. Supreme Court declined to consider overturning the sovereign immunity claims of Saudi princes sued by some family members of victims of the 9/11 attacks. It also comes at a time when the Canadian government is challenging an asylum request from an individual solely on the basis that he had been an employee of an (undesignated) Islamic charity. The Times article also states that Stuart Levey, Treasury Under Secretary for Terrorism and Financial Intelligence, has recently led a meeting with 9/11 family members.

The online version of the article contains over 100 pages of documents that were provided to the Times by plaintiffs' attorneys in the 9/11 lawsuit. These documents provide some insight into Treasury's process regarding terrorist finance. I offer the following thoughts:

Heavy redaction of Top Secret documents leaves only Treasury's conclusions. The documents provide no more information than the Department's initial press releases on designations: large masses of black redaction followed by "for these reasons we conclude that X is a terrorist." Consequently, we are still left with the problem that entities cannot defend themselves because they do not know the basis of the allegations.

The material provides hints as to sources of allegations that have been made against designated entities and those under scrutiny:

· The complaint in the 9/11 civil lawsuit is a major source of allegations. Thus, plaintiffs' counsel has created a "self-licking ice cream cone": allegations are made in the complaint, Treasury uses the complaint as evidence in support of a designation, plaintiffs' counsel uses designation as evidence of guilt. The Chief Investigator for plaintiffs’ counsel in the lawsuit is a controversial figure who falsely claimed to have authored a report for the U.N. Security Council, to have worked for a United States Senator, to have been a senior executive of Vivendi and to be a close associate of French Intelligence. Consequently, it is surprising that allegations made in this complaint have been given so much weight by the U.S. government.

· The material cites the government proffer in the Arnaout case as evidence in support of a designation. You may recall that in that case the federal district judge threw out most of the proffer for failing to meet basic evidentiary standards. And Arnaout was not convicted of supporting terrorism. I expect that Treasury has also used David Kane's affidavit in the Biheiri case (Judge Ellis: "this guy may be a terrorist, buy you haven't proved it") and similar prosecutions that were unsuccessful or where the defendant was convicted of a crime not connected to terrorism.

· The material cites news articles, many that are several years old. In some cases allegations in these articles have been refuted or have been proven unreliable by the passage of time. For example, Operation Green Quest, which launched raids on a number of organizations in Northern Virginia and elsewhere, has led to no prosecutions or other enforcement activity. Most observers, including the Senate Finance Committee, have concluded that Green Quest was barking up the wrong tree. A fair process would re-evaluate material on the basis of new information and purge outdated and disproved information. Treasury fails to do this. One egregious example of their failure in this regard is their continued reliance on articles published in USA Today that have been admitted to be fabricated and withdrawn from the archive by the publisher.

· The material does not redact names of non-designed organizations. The listing of these organizations (including some of the unindicted co-conspirators in the Holy Land case) creates a cloud over these organizations.

The package engages in "bait and switch" on terrorism. As the prime example for support of terrorism by charities and other entities they cite a 2003 German report on the activities of an NGO in Bosnia during the 1990s. The report concludes that some money donated to the organization may have gone to support the Bosnian government and even to procure military equipment. While providing military equipment may have violated both the Arms Embargo on the Former Yugoslavia as well as the NGO's charter, providing Bosnians with the means to protect themselves against genocide can hardly be equated with supporting terrorism. Both Bob Dole and Newt Gingrich called for lifting the embargo and arming the Bosnians. The US looked the other way while Iran armed the Bosnians under the guise of humanitarian relief. In fact, some observers cite a Dutch report in support of the notion that the US encouraged and supported the procurement of arms through “Islamist,” Arab and other Middle Eastern sources.

The German report uses a "six degrees of separation" analysis to assert a connection: person A or organization B is a defendant in the 9/11 lawsuit or has been designated years after the Bosnian War, therefore organizations to which they contributed must be terrorist organizations. Furthermore other Muslim organizations that make donations must also be part of the conspiracy. The report concludes that the fact that donations to the NGO came from the entire Muslim world and from many different banks, "suggest[s] an internationally acting financial structure. . ." and a terrorist network. An alternative explanation for this phenomenon would be that Muslims throughout the world, moved by the sight of civilians being massacred and besieged and compelled by religious obligation, donated freely and generously in support of their Bosnian brothers and sisters.

Another document provided to the New York Times illustrates the need for transparency in the Treasury designation process. The Times provides a transcribed interview with “Ali Ahmad Ali Hamad”. This is the sort of material that Lichtblau rightly points out would never be used in the 9/11 lawsuit due to reliability issues. However, it is exactly the sort of material that OFAC routinely uses as the basis for a designation and then hides from the designated party under the guise of national security. The transcription contains a statement that “the Haramayn organization was headed by a man who was a member of al Qaida.” The individual was identified as Mohammad al-Qasimi. The Bosnian branch of Al Haramain Islamic Foundation (AHIF) was designated by the US government as a supporter of terrorism in March 2002. Leaders of that organization have denied any links to terrorism. “Al Haramain” is an Arabic term that means “the two holy places” (referring to Mecca and Medina). The expression is very common – something akin to “Holy Land.” As it turns out, another organization - Al Haramain and Al Aqsa – operated in Bosnia during this period. Mr. al-Qasimi is believed to have headed that organization. Former employees of AHIF state that Mr. al-Qasimi never worked for their former organization and is unknown to them. Of course, their recollections could be faulty or they could be dissembling. The important point to make is that this document – this transcription of a purported interview – may have served as the basis for the designation of AHIF Bosnia. Prior to the Times article, the organization had no way of knowing the basis for their designation. Although the organization no longer exits, it is at least theoretically possible to challenge the designation on the basis of mistaken identity. The circumstances of this case underline the broader arguments for more transparency and due process in the civil designation process.

One positive aspect of the article is the news that Treasury is responding to FOIA requests. If they can provide document to plaintiffs’ counsel in the 9/11 lawsuit, why can they not provide similar – and potentially exculpatory – material to designated entities?

By Wendell Belew, Belew Law Group, Washington, DC. Mr. Belew represents the Friends of Charity Association, an association of Islamic charities that operate globally (www.foca.net)

Source: Charity and Security Network

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