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Published: Saturday, 5/2/2009

KindHearts and feds battle in court over frozen assets

BY ERICA BLAKE
BLADE STAFF WRITER

A federal judge in Toledo will decide whether the freezing of a local Muslim charity's assets by the U.S. government violated the organization's rights or if it was a proper response to an investigation of a group which the government claims has potential ties to terrorism.

Judge James Carr heard arguments from both government attorneys and those on behalf of KindHearts for Charitable Humanitarian Development Inc. during a daylong hearing yesterday in U.S. District Court. The oral arguments were a step in the process begun in October when KindHearts filed suit against the government challenging the methods used in designating organizations as terrorist groups.

The judge ended the hearing by taking the issue under advisement. He did not say when he would release his decision.

KindHearts, founded in 2002, was targeted by federal agents in 2006, and its financial assets were frozen. According to court documents, the organization was under investigation by the Office of Foreign Assets Control of the U.S. Treasury Department and would potentially be labeled a "specially designated global terrorist."

The attorneys argued several points yesterday, including due process, rights against seizure of property, and issues of classified government documents.

Hani Shamsi, a staff attorney with the American Civil Liberties Union in New York, told Judge Carr that KindHearts immediately began trying to learn what evidence had been collected but was not allowed access to any information, including the group's own seized documents or its funds to hire attorneys.

Earlier this year, Judge Carr ordered the government to produce copies of all materials seized during the 2006 search of KindHearts' headquarters and the home of its president.

KindHearts' attorneys had argued that without access to the information, it could not defend itself against charges of terrorism by pointing to where its money was spent.

The government countered that opening access could compromise its investigation.

Yesterday, government attorneys further argued that because of the government's duty to ensure national security, blocking KindHearts' funds did not violate the group's right to protection against unreasonable search and seizure.

If the judge decided the Fourth Amendment did apply, said Jonathon Zimmerman, a trial attorney for the Justice Department, it should be considered a reasonable seizure or characterized as a "special need" of the government and not a violation of the law.

"If the blocking was reasonable, then the Fourth Amendment does not apply because it bans unreasonable searches and seizures," Mr. Zimmerman argued. "The government has a reasonable basis to believe that the organization is funding terrorists."

Mr. Zimmerman added that it would be "dangerous" for the judge to give the group money to continue.

Ms. Shamsi pointed out that KindHearts has not been criminally prosecuted nor labeled a "specially designated global terrorist."

She noted that in the declassified information released, there is "no indication that a penny of KindHearts' money went to Hamas or any other designated [terrorist] entity."

"The key thing, the critical thing that we come back to, is that there needs to be due process and there needs to be a neutral fact-finder" to oversee the case, Ms. Shamsi told Judge Carr. "We believe you can order the freeze be lifted because there was not a warrant based on probable cause at the time."

Judge Carr's decision may be appealed to the 6th U.S. Circuit Court of Appeals in Cincinnati. The government indicated yesterday if the judge orders the freeze of assets lifted, it would request a stay until the appellate court hears the case.

Contact Erica Blake at:

eblake@theblade.com

or 419-213-2134.



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