Consider the double standards at work here. The federal government prosecuted the Holy Land Foundation (HLF) for material support for terror; the U.S.-based Muslim charity had supplied funds to charitable Zakat committees in the West Bank that, they argued, are linked to Hamas. It mattered little that USAID, the European Commission and the International Committee of the Red Cross had all funded these very same Zakat committees, or that USAID continued to fund them even after HLF’s assets were frozen and the group was indicted. After a mistrial, federal prosecutor Richard Roper was eventually able to secured a guilty verdict against what was formerly the largest Muslim charity in the United States.
The government’s targeting of Muslim charities has been particularly intense, and not just in the form of criminal prosecutions. The Treasury Department’s Office of Foreign Asset Control (OFAC) has frozen the assets of the several groups deemed funders of terror. Concerns about the soundness of the OFAC process—which entails secret charges, secret evidence presented ex parte and only the most limited judicial review—are not confined to professional civil libertarians but were also strongly voiced by the 9/11 Commission in its 2004 monograph on terror financing and across the board in the humanitarian sector.
On the other hand, a 501(c)(3) charity like the Hebron Fund bankrolls the illegal colonization of portions of the West Bank that Israeli settlers have forcibly cleared of Palestinian inhabitants and owners. The settler groups who take part in this violent process might well meet the State Department’s legal definition of “international terrorist,” but there is zero likelihood that the Hebron Fund or its donors will ever be prosecuted for material support or have their assets frozen by the Treasury.
Double Standards at the Top
The inconsistency in enforcement goes all the way to the top. Not one of the experts at Fordham last month saw fit to bring up the remarkable fact that Rep. Peter King (R-NY), chair of the House Committee on Homeland Security, used to help raise money for what the State Department recognizes as a terrorist group. King’s fundraising for the Irish Republican Army has been widely reported and freely admitted by the congressman; his excuse is that the group never declared war on the United States—which of course is also true of the Tamil Tigers, the FARC, Hezbollah and most of the other groups on the terror list. (The IRA did kill some Americans in their bombings of nonmilitary targets like pubs and post offices.)
I asked Richard Roper, the former federal prosecutor, whether the theory of prosecution that eventually won him a guilty verdict against the Holy Land Foundation might work against Rep. King. “If the IRA persisted in their criminal activity after their designation, well then, yes.” Two IRA splinter groups are currently on the State Department’s Foreign Terrorist Organization list, so King might be, at least in theory, vulnerable to criminal or administrative sanction.
But King can, of course, sleep easy: due to our domestic tribal politics, his terror fundraising will never be prosecuted. “If you give to a group that’s well integrated into the United States—it doesn’t have to be Irish, it could also be Jewish—you won’t have any problem,” said Joshua Dratel, one of the attorneys who defended the Holy Land Foundation. “But if you give to a group that’s marginal–a Muslim group, or the Tamil Tigers–you’ll be prosecuted.” Having a lot of money also helps; if you are a large bank—say, Credit Suisse—and you are implicated in illegally handling Iranian funds in contravention of law-enforcement efforts to prevent Iran from acquiring arms, you will face a stiff fine but no criminal charges.
The side effects of this pattern are not trivial. According to Dratel, a decline in private giving contributed greatly to the famine last summer in Somalia; charity groups simply turned off the tap, fearful of criminal liability should their aid fall into the hands of al-Shabaab, a listed Somali terror group. Though the State Department told aid organizations that they would not zealously enforce the material-support law, Dratel said that Muslim charities had no reason to trust this assurance.