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In response to the lawsuit, and without attempting to defend its designation of Mr. Salah, the Department of Treasury unilaterally removed Mr. Salah from the Special Designated Terror list. After 17 years of oppressive restrictions on his ability to undertake basic life activities, Mr. Salah and his family are freed from the burdens placed upon him by the U.S. Government. The decision represents a total victory for Mr. Salah.
On September 5, 2012, in the U.S. District Court for the Northern District of Illinois, plaintiff Muhammad Salah, a U.S. citizen residing in Illinois, filed a lawsuit against the U.S. Department of the Treasury, and Secretary of the Treasury Timothy Geithner and Director of the Treasury’s Office of Foreign Assets Control (OFAC) Adam J. Szubin in their official capacities. The suit challenges Mr. Salah’s designation as a “Specially Designated Terrorist,” which was imposed without notice or an opportunity to be heard and which is unreasonably onerous, as a violation of his basic constitutional rights. Salah is the only United States resident citizen designated as a Specially Designated Terrorist, and his designation represents an unprecedented embargo on a U.S. citizen’s daily activities, prohibiting even the most basic transaction without the licensing or advance approval of OFAC.
The lawsuit stems from Mr. Salah’s classification as a terrorist under the authority of Executive Order 12947 (E.O. 12947), pursuant to the International Emergency Economic Powers Act (IEEPA). On January 23, 1995, then President Clinton issued the order declaring a national emergency to deal with violent acts by foreign terrorists who were considered to be interfering with the Middle East peace process. Six months after Clinton signed E.O. 12947, the Treasury designated Salah as a Specially Designated Terrorist. The U.S. government appears to have targeted him for designation because of alleged connections to Hamas during an earlier period when support to Hamas was not yet prohibited by U.S. law. However, the designation notice, which the Treasury never sent to Salah, simply announced that Salah had been designated and provided no factual or legal basis for the decision. Mr. Salah and his family only learned of the imposition of the designation when Salah’s wife, Maryam, attempted to withdraw funds from her bank account and was told that the account was frozen. To this day, the U.S. government has not informed Salah as to why it designated him as a terrorist.
Defendants imposed the designation’s restrictions on Salah indefinitely without a criminal or civil trial, administrative hearing, or even notice. This deprivation of Salah’s liberty and property interests without notice or a meaningful opportunity to respond effectively denied him due process in violation of the Fifth Amendment. In these circumstances, OFAC’s imposition of such severe sanctions over almost two decades amounts to criminal punishment. Yet, Salah suffered under these punitive measures without first having the opportunity to face a trial by jury with the assistance of counsel or the chance to confront witnesses against him, as guaranteed by the Sixth Amendment. Furthermore, nothing in the statutes, executive order or regulations requires defendants to review or reconsider Salah’s status on any regular basis, or to justify his treatment to a court, leaving Salah in an unbearable limbo for the past 17 years.
The case is also brought on behalf of plaintiffs American Friends Services Committee (AFSC) and American-Arab Anti-Discrimination Committee (ADC) under the First Amendment because Salah’s designation prevents them from meaningfully advocating in coordination with Salah against the unfairness of that very designation. Defendants have taken the position that any “coordinated advocacy” by U.S. entities or persons with and on behalf of a designated entity or person is barred. AFSC, ADC, and ADC’s members are afraid that, if they engage in coordinated advocacy around Salah’s treatment, they may be subject to enforcement action by defendants, including but not limited to designation and civil and criminal penalties.
As a result of the designation, Salah has lived under incredibly onerous restrictions, which bar virtually all economic transactions, even those necessary for survival: Mr. Salah is not permitted to get a job, pay rent, obtain medical care, or even buy a loaf of bread -- without first obtaining approval from the Treasury Department, which has unfettered discretion to impose these harsh sanctions. In April 1998, OFAC granted Salah a limited license requiring that: any employment income must be deposited in a licensed bank account; funds must be withdrawn from the account only for specific, limited purposes; and both Salah and the bank must submit regular reports and documentation. For over two years, Salah approached banks in an effort to open a licensed account, but each bank refused because of the burdensome licensing and reporting requirements demanded by OFAC. Salah also made many attempts to find employment, but the fact that he had to inform prospective employers that he was a "Specially Designated Terrorist" made obtaining a job extremely difficult.
In 2009, OFAC issued a second license that further limited his daily life with requirements so sweeping that they are for all practical purposes impossible to comply with. The license directed that, even for authorized types of expenses, payment could not “originate from a source in the United States,” and therefore Salah’s family and friends were forbidden from helping him to make ends meet. In addition, the license required him to keep records demonstrating that each and every transaction fell within vague criteria of “basic maintenance,” prohibiting him from buying items as simple as a book or newspaper, a ticket to a concert or sporting event, or flowers for his wife. Moreover, the Treasury blocks Salah from donating to a political campaign or volunteering for a political candidate absent prior approval from OFAC, effectively violating his rights to freedom of speech and association. The Treasury also bars Salah from fulfilling his religious obligation to make regular donations to charity, called zakat in Islam, and from making the pilgrimage to Mecca (haj), as prescribed in the Muslim faith, thus imposing a substantial burden on the exercise of his religion and violating his rights under both the First Amendment of the Constitution and the Religious Freedom Restoration Act.
This case is part of CCR’s continuing work to limit the government’s ability to punish, control, and malign Muslims on the basis of vague associational allegations that would not stand up in a court of law. Salah’s OFAC designation is part and parcel of a pattern of sub-legal mechanisms that the government has used increasingly to repress and stigmatize members of Muslim communities.
The Complaint seeks: a declaration that defendants’ designation of Salah as a “Specially Designated Terrorist” has violated multiple constitutional and statutory rights; an injunction requiring defendants to lift the designation and to remove the restrictions upon him; a declaration that the restrictions on the ability of the AFSC and ADC to engage in advocacy in coordination with Salah to challenge his treatment violates their First Amendment rights; and an injunction barring enforcement of restrictions on plaintiffs’ coordinated advocacy.
CCR is counsel on the case with CCR cooperating attorney David Cole of the Georgetown University Law Center, Michael Deutsch of the People’s Law Office, and Matthew Piers of Hughes Socol Piers Resnick & Dym, Ltd. Salah’s co-plaintiffs are the American Friends Service Committee, a national Quaker organization that includes people of various faiths who are committed to social justice, peace, and humanitarian service, and the American-Arab Anti-Discrimination Committee, a civil rights organization committed to defending the rights of people of Arab descent and promoting their rich cultural heritage.