Watchlists: Bad for Muslim-American Charities, Great for Employee Screening at the ACLU

This week, the American Civil Liberties Union released a report condemning the heavy-handed enforcement of federal laws intended to prevent charities from providing "material support" for terrorism.

The laws prohibiting material support for terrorism are in desperate need of re-evaluation and reform. These laws punish wholly innocent assistance to arbitrarily blacklisted individuals and organizations, undermine legitimate humanitarian efforts, and can be used to prosecute innocent donors who intend to support only lawful activity through religious practice, humanitarian aid, speech, or association.  

Focus on "arbitrarily blacklisted individuals." An essential part of the ACLU's complaint is that poorly managed terrorism watchlists make it easier for the government to abuse or destroy innocent Muslim-American charities. It's worth noting these specific criticisms, because a few years ago the ACLU agreed voluntarily to screen its own employees using the federal terrorism watchlists. According to Wendy Kaminer, a former ACLU board member, the organization has for years been giving what amounts to a paid endorsement of terrorism watchlists. Her new book, Worst Instincts: Cowardice, Conformity, and the ACLU, recycles the story that she originally told in a 2006 HuffPo post:

[I]n early January '06, the ACLU's Board of Directors (of which I am a dissident member,) authorized Executive Director Anthony Romero to sign an entirely voluntary contract with the Bush Administration pledging to comply with federal blacklisting laws. Why? The ACLU is taking this pledge for money - an expected $500,000 per year. A promise to comply with blacklisting laws is required as a condition of participation in the Combined Federal Campaign (CFC), a giving vehicle for federal employees and a soliciting vehicle for qualifying charities. (Every year, federal workers are provided with a list of charities to which they can choose to contribute through the CFC.)

The above describes the tail end of what was actually a two-year controversy at the ACLU (where I worked as an intern for part of 2007). The New York Times first reported on it in July of 2004.

The Combined Federal Campaign's website confirms that, in 2005, participating organizations were required to check their employee lists against government terrorism watchlists—including the same registry of Specially Designated Nationals and Blocked Persons that the ACLU slags in its new report on charities.

Technically, it's illegal to employ anyone on a terrorism watchlist, so the ACLU is obligated to comply with the law even if it isn't part of the Combined Federal Campaign. That doesn't mean, though, that the organization had to sign a contract with the Bush administration, or that (as Kaminer alleges) Romero had to expose the organization and himself to liability. From Worst Instincts:

By volunteering our compliance [with the CFC watchlist requirement], we were risking additional liability for noncompliance, if we were found to have intentionally misled the government when we promised to obey the law…. Romero assured the board, and reportedly informed the government, that he would not check the watch lists, leaving unanswered questions about how he intended to keep his promise to boycott anyone named on them and continue to qualify for CFC funds.

All this for $500,000 a year. A pittance, but apparently enough to override principle.