Civil Liberties: Big Victory for Charities

OPINION
The National Law Journal
January 16, 2006

coalition of 13 not-for-profit groups took on the U.S. government and won. By commencing litigation (recently dropped), these organizations — including the American Civil Liberties Union (ACLU) Foundation, the NAACP Legal Defense and Educational Fund Inc. and the Natural Resources Defense Council — persuaded the U.S. Office of Personnel Management (OPM) to rescind its recently adopted requirement that, as a condition of participating in the Combined Federal Campaign (CFC), applicants screen recipients of funds and employees against various official watch lists. In so doing, they struck a significant blow to the administration's hydra-headed 'war on terror' — which has often degenerated into a wrongheaded war on civil liberties.

The CFC, administered by OPM, is the only instrumentality through which charities may regularly solicit federal workers on the job. More than 2,000 such organizations receive money from the CFC; in 2003, it raised almost $50 million. Since 1984, its basic structure has remained the same. But in 2004, OPM adopted a novel certification as part of the CFC's application form: Would-be participants had to attest that they did 'not knowingly employ individuals or contribute funds to organizations' appearing on 'terrorist related lists promulgated by the U.S. Government, the United Nations, or the European Union. ' (For 2005, the latter two sources of lists were omitted.) Issued in the wake of the 9/11 terrorist attacks, the major U.S. governmental schedules, Specially Designated Nationals (SDN) and Terrorist Exclusion List, consist of individuals or groups allegedly linked to terrorism or money laundering, with whom various statutes limit or ban transactions.

While the certification did not mandate inspection of the lists, on July 31 2004, the New York Times quoted Mara Paternoster, CFC operations director, as saying that list checking was required. Notably, by late 2004, the SDN list alone contained about 6,300 names covering 166 pages! Some, like Juan Cruz, are exceedingly common; others, like Ahmed the Tall, are incomplete or aliases. Several lack other identifying data. Predictably, not-for-profits protested against the unprecedented burden placed on them.

Echoes of blacklisting

Yet, as many recognized, not only convenience but also principle was at stake. Perhaps worst, screening donees and employees recalled the notorious 1950s blacklisting of individuals charged with being Communists or otherwise having subversive ties--particularly the blacklists' breadth and vagueness, the likelihood of yielding 'false positives,' the inability to learn the identity of one's accuser and the lack of effective recourse. (Although a party may sue to challenge the government's refusal to remove his or her name, the traditional deference paid to the government on matters relating to national security, the narrowness of the grounds for review and evidentiary limitations will usually render this avenue futile.) Such lists, moreover, tend to sweep in people with controversial religious or political views or merely with foreign-sounding names.

Obnoxious in theory, list inspection is also virtually impossible to administer in practice. Abundance and commonness of names have been mentioned. Further, even when a list contains added information like date of birth or country of origin, a charity cannot ask a prospective employee to reveal his or her own birth date or nationality without violating anti-discrimination laws. The bother of doing the 'due diligence' needed to fulfill the attestation may lead employers simply to refrain from hiring individuals with names resembling those on the list, and thus disadvantage applicants of Arabic, South Asian or Muslim background. That danger is especially acute, given the uncertainty about the amount of investigation required for such vetting. (Among the disturbing ambiguities is how often the burgeoning lists must be consulted.)

Hence, not-for-profits faced a dilemma: forswear substantial amounts of money that would otherwise aid their cause — some, like the ACLU, did so — or agree to be deputized as private police and infringe on the civil liberties of their workers or recipients of funds or services. They also feared the slippery slope. To quote OMB Watch, a not-for-profit government watchdog organization: 'What's next: checking our membership lists, our client lists, our donors? ' Press release, Nov. 10, 2004.

A group of not-for-profits, therefore, challenged the certification requirement on statutory and constitutional grounds. ACLU Foundation v. OPM, No. 1:04cv01958 (D.D.C. Nov. 10, 2004). A year later, OPM caved, issuing a substitute certification that calls on CFC applicants merely to state that they are complying with all relevant legal regulations. List checking, while still 'encourage[d],' is 'not mandate[d].' 70 Fed. Reg. 67,339-40 (Nov. 7, 2005).

OPM was wise to back off. If the government creates 'enemies' lists,' let it enforce them — and let charitable organizations do the work for which they were established.