WASHINGTON – A coalition of non-profit organizations sued the Office of Personnel Management on Wednesday over a “misguided” rule that forces charities to check their staff lists against government watch lists of suspected terrorists.
The 13 organizations, headed by the American Civil Liberties Union, said the requirement for charities that participate in the Combined Federal Campaign violates federal law, as well as the First and Fifth amendments to the Constitution.
“Our case today is about a misguided regulation that was put in place under a cover of bureaucratic darkness,” said ACLU Director Anthony Romero.
About 10,000 non-profit organizations, including People for the Ethical Treatment of Animals and the United Negro College Fund, participate in the Combined Federal Campaign, through which federal workers can donate to charities of their choosing. The program raised $248 million for participating organizations last year.
Early this year, OPM said that charities would have to check current and prospective staff against more than 14 government watch lists of people suspected of terrorist activity if they wanted to remain in the program.
That led the ACLU and other organizations to withdraw from the program, despite the loss of contributions they could suffer as a result. Some groups remained in the campaign, but joined the ACLU’s efforts to encourage the government to change its policy.
OPM declined to comment Wednesday, citing a policy against commenting on pending lawsuits.
In an August letter to the ACLU, however, CFC Director Mara Patermaster defended the policy. She said that President Bush prohibited Americans from having financial transactions with people suspected of having terrorist ties after the Sept. 11 attacks, and that includes charitable organizations that have been used to transfer funds to terrorists and their supporters.
“OPM feels a responsibility to ensure that it does not facilitate, through the CFC, the transfer of funds donated by federal employees through or to the hands of persons designated for their ties to terrorists or terrorist supporters,” the letter said.
But in its suit, filed Wednesday in U.S. District Court for the District of Columbia, the coalition said the requirement violates a 1984 federal law that prohibits the CFC from changing its standards for participating organizations. OPM also failed to publish the change in the Federal Register before imposing it, as required, the suit said.
The coalition said the requirement also violates the First Amendment right to free speech by limiting the type of people that organizations like the ACLU can represent, and violates the Fifth Amendment right to due process because organizations do not know how to comply.
“It’s essentially a secret blacklist with unclear requirements,” said Kevin Bankston, an attorney for the Electronic Frontier Foundation, one of the groups in the lawsuit.
The watch lists, which are hundreds of pages long, contain thousands of common names but no way to confirm whether someone with the same name is the offending person. Romero noted that there is a Manuel Diaz on the list — as well as in more than 300 phone book listings around the country.
The lists also include nicknames such as “Ahmed the Tall” and “Ahmed the Egyptian,” Romero said.
To comply, the ACLU would have to check its 600 full-time employees and 2,000 attorneys against the lists, as well as any temporary contractors they hire. “It’s a Herculean task,” Romero said.
Many organizations felt a lawsuit was the only option after OPM failed to respond to their request for clarification of the new rules, said Kay Guinane, general counsel for OMB Watch.
“The charities of America are not qualified and do not have the resources to be police agents,” she said.
Other charities said they had never even heard of the new requirement. David Henderson, a spokesman the National 4-H Council, said mention of the new rules “comes as a surprise to me.”
The requirements would have been a topic of discussion at his organization, which is a CFC participant, had it known, Henderson said.
“We’re creating more confusion and complication to the system,” he said.
-30- CNS 11-10-04