Article published February 04, 2009
Muslim charity to get access to records
Order opens door for lawsuit defense
By ERICA BLAKE
BLADE STAFF WRITER
Nearly three years after U.S. agents first seized hundreds of documents from a Toledo-based Muslim charity and froze its financial assets, a federal judge issued an order that ultimately allows the organization to defend itself.
U.S. District Court Judge James Carr signed an order Jan. 30 for the government to produce "forthwith" copies of all materials seized during the 2006 search of KindHeart's headquarters and at the home of the organization's president. Attorneys for the Muslim charity say the order is a victory for the organization, which has been labeled by the government as a possible supporter of terrorist groups. Its financial assets have been frozen but it has not yet been criminally prosecuted.
The order opens the door for the organization and its attorneys to gain access to documents that to date have been sharply restricted. Only with this access could the charity have a meaningful opportunity to respond to allegations of terrorism, said Toledo attorney Fritz Byers, one of many attorneys challenging the government's terrorist designation process.
"Judge Carr's ruling is a strong vindication of KindHearts' right to due process and a rejection of the government's efforts to keep the charity in the legal limbo to which it has been subjected for nearly three years," he said."We believe it is a crucial first step toward redressing the grievous wrongs done to KindHearts during those years."
Founded in 2002, KindHearts for Charitable Humanitarian Development Inc. was targeted by federal agents in 2006. According to court documents, the Office of Foreign Assets Control of the U.S. Department of Treasury froze the charity's financial assets Feb. 19, 2006, while it conducted an investigation of whether it should be listed as a "specially designated global terrorist."
In October, after waiting more than two years for charges against the charity, attorneys filed a civil lawsuit in U.S. District Court in Toledo challenging the government's process. The suit - which lists as defendants former Henry Paulson, at the time U.S. Secretary of the Treasury, Adam Szubin, director of the Office of Foreign Assets Control, and then-Attorney General Michael Mukasey - remains pending before Judge Carr.The recent ruling forcing the government to hand over KindHearts' documents resolves one of the concerns raised in the civil lawsuit, said Hina Shamsi, a staff attorney with the American Civil Liberties Union based in New York.
"It is a significant first step toward the restoration of due process … specifically, the right [for KindHearts] to defend itself," she said.
Since the 2006 investigation was initiated, KindHearts attorneys have had limited access to the 150 boxes of documents, paper files, computer hard drives, videotapes, and other media seized.
The restrictions were based on a protective order signed by a U.S. magistrate judge that allowed only lawyers for the organization to access a computer disk of documents but prohibited them from printing out the information or sharing it with their client.
No access was given to any other media seized, such as recordings.
KindHearts attorneys argued that without access to the information, the organization could not defend itself against charges of terrorism by pointing out where its money was spent. The government countered that opening access could compromise its investigation by allowing for obstruction of justice, improper influence of potential testimony, intimidation of witnesses, and the possibility of altering, concealing, or destroying evidence.
Judge Carr's recent order removes those restrictions.
"The government has shown no adequate grounds for refusing to provide copies to KindHearts and its counsel of the materials seized by its agents," the judge concluded. "Its 'ongoing investigation' cannot be impaired, as it will have the originals. It has not supported its concerns about influencing of testimony or intimidation of witnesses with any reason - aside from its own conclusory assumptions - that such would occur."
The judge noted that the situation prevented KindHearts from consulting with and seeking legal advice from its attorneys about former operations.
Judge Carr did allow the government to withhold certain information, citing "reasonable, specific, and individualized restrictions, based on specific and substantial consequences."
The U.S. Department of Justice declined yesterday to comment on the order.
Judge Carr has yet to decide the civil lawsuit filed in October. Ms. Shamsi said both the government and KindHearts have filed documents with the court to present their sides in the civil lawsuit.
Contact Erica Blake at:
eblake@theblade.com
or 419-213-2134.
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