ACLU and Diverse Coalition of National Non-Profits Win Major Victory in Challenge to Misguided CFC Government Watch List and Contribution Policies

November 9, 2005 12:00 am

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NEW YORK – The American Civil Liberties Union and 12 other national non-profit organizations today said they have successfully challenged Office of Personnel Management’s Combined Federal Campaign (CFC) requirements that all participating charities check their employees and expenditures against several government watch lists for “terrorist activities” and that organizations certify that they do not contribute funds to organizations on those lists.

“This is a major victory for non-profit organizations that refused to be subjected to vague government requirements forcing us to become law enforcement officers for the federal government,” said ACLU Executive Director Anthony D. Romero. “”We feel vindicated. List checking is not and has not been required by law.””

Romero was referring to the Office of Personnel Management’s final regulation posted in the Federal Register earlier this week, saying that it is dropping list-checking requirements. The regulation states: “”Under the final rule, effective for 2006 and subsequent campaigns, OPM does not mandate that applicants check the Specially Designated Nationals (SDN) List or the Terrorist Exclusion List (TEL).””

“”The government’s actions did not make Americans any safer, and actually served to punish them – invading their privacy and hobbling vital charitable work,”” Romero added. “”The administration cannot be proud of thwarting the ability of federal employees to contribute to organizations they support, and the administration’s pull-back this week makes it clear we were right.””

This final regulation represents OPM’s third version of the certification CFC charities are required to sign. The first not only required list-checking, but also prohibited charities from certain hiring and expenditure decisions that were completely legal under U.S. law. The changes implemented this week are widely acknowledged to have occurred because of the lawsuit filed by the 13 organizations, as well as continued pressure on the OPM to change its policies.

In 2003, the CFC generated more than $248 million from approximately 1,345,000 federal employees, according to the ACLU. The funds went to more than 10,000 participating non-profits that support our country’s health and education systems, the arts and the environment, childrens’ services and religious life. CFC contributions earmarked for the ACLU typically totaled about $500,000 per year; as a result of the policy, the organization lost more than $1 million in contributions.

“”Watch list requirements and other misguided policies of today remind us of the now- discredited anti-Communist list checking of the early 1950’s,”” said Romero. “”It is no more justified now than it was then.””

A lawsuit, filed on Nov. 10, 2004, is pending in the U.S. District Court for the District of Columbia but may now be withdrawn. It charged that the government did not follow appropriate procedures in instituting the policy, that the policy was vague and misleading, and that it violated the First and Fifth Amendments to the U.S. Constitution. The ACLU and many of the organizations in the lawsuit withdrew from the CFC rather than accept the terms of the original policy.

In addition to the ACLU, the following organizations are plaintiffs in the litigation: Advocacy Institute; Amnesty International USA; Asian American Legal Defense and Education Fund; Brennan Center for Justice at New York University School of Law; Electronic Frontier Foundation; NAACP Special Contribution Fund; NAACP Legal Defense and Education Fund, Inc.; Natural Resources Defense Council; Focus Project d/b/a/ OMB Watch; Our Bodies Ourselves; People for the Ethical Treatment of Animals; and Unitarian Universalist Service Committee.

At issue in the lawsuit was the CFC’s watch list policy, which it quietly circulated in early 2004 as a new requirement for participants. The policy stated:

“I certify that as of (date), the organization in this application does not knowingly employ individuals or contribute funds to organizations found on the following terrorist related lists promulgated by the U.S. Government, the United Nations, or the European Union. Presently these lists include the Department of the Treasury’s Office of Foreign Assets Control Specially Designated Nationals List, the Department of Justice’s Terrorist Exclusion List, and the list annexed to Executive Order 13224. Should any change of circumstances occur during the year OPM will be notified within 15 days of such change.”

Participating organizations were surprised and confused by this new requirement, which included no additional explanations or definitions to help them better understand the steps necessary to be in compliance.
For instance, the policy did not explain:

  • How frequently participant organizations were required to check to see if employees’ (or prospective employees’) names were on the lists;
  • How close a match between an employees’ (or prospective employees’) name and a name on a list was required to be to be considered a match; (the lists contained names as inexact as “”Ahmed the Tall”” and “”Ahmed the Egyptian.”” With such lack of specificity, how was an organization to determine who was really on the list?)
  • Whether participant organizations were required to take any steps to determine if employees (or prospective employees) belong to organizations named on the lists.

“This policy was equally misguided and ineffective,”” said Romero. “”From ‘No Fly’ lists to the CFC watch list to many of the provisions of the Patriot Act, this administration uses the cloak of national security but they afford little protection to Americans.””

For more information about the case and the groups that challenged the policy, go to

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