Nonprofits continue move to overturn federal terrorist-screening rule

By Chris Strohm

A coalition of charities vowed this week to continue its lawsuit against a federal rule requiring certification that they do not support or employ people listed on terrorist watch lists.

The charities say fundamental objections still remain to the rule, despite guidance issued on Monday by the government on how groups should comply. The nonprofits object to a new requirement in the Combined Federal Campaign program, which is administered by the Office of Personnel Management and allows federal employees to make direct donations through their paychecks to approved nonprofits.

"We're going to litigate vigorously," Mitchell Bernard, senior counsel for the Natural Resources Defense Council, said Thursday. "This issue will be put before the judge very quickly, and he will rule on whether this is a lawful regulation. That will be the first indication from the judiciary on whether OPM is [allowed] to do this. But we will certainly do everything we can to persuade the courts to invalidate the requirement."

The CFC certification process now requires participating charities to certify that they do not "knowingly employ individuals or contribute funds to organizations" found on government-managed terrorist watch lists.

Thirteen nonprofits filed a lawsuit Nov. 10 against the rule, saying it is vague, difficult to comply with and violates the law. They also contend that OPM did not follow the proper process for amending the rules of the program, and that the watch lists are riddled with errors and common or partial names.

Some of the charities withdrew from the CFC program in response to the new requirement, and federal employees will not be able to make paycheck contributions to them in fiscal 2005. Nearly 10,000 nonprofits participate in the CFC, which distributed almost $250 million in fiscal 2003.

"I think it's in the interest of federal employees to get this resolved quickly because there may be groups that they want to contribute to through this mechanism that they might not be able to," Bernard added.

An OPM spokesman referred questions about the rule to the Justice Department. "OPM just does not comment on matters in litigation," said Michael Orenstein. Justice spokesman Charles Miller said that the government's response to the lawsuit will be delivered to the court on Jan. 18.

The guidance issued this week by OPM says nonprofits must check names against the Treasury Department's Office of Foreign Assets Control Specially Designated Nationals List and the Terrorist Exclusion List, which is maintained by the State Department in consultation with the Justice Department.

OPM said nonprofits are required to check the lists annually, and "may be required to additionally check the lists during the campaign year if the organization has reason to believe that an employee or recipient of funds commits or supports terrorist acts."

The guidance provides background information on the rule, definitions for terms in the rule, and compliance information.

Jennifer Lowe, policy analyst for OMB Watch, said, "There are a lot of questions that the guidelines did not address." OMB Watch, a government watchdog group, is participating in the CFC program this year under the new rule, but also is part of the lawsuit.

Lowe said the guidance does not clarify how to resolve false matches or what information is needed to confirm that someone is the actual person on the lists. For example, the Treasury list includes the name Antonio Romero. Lowe noted that the executive director of the American Civil Liberties Union, another plaintiff in the lawsuit, is named Anthony Romero, and is sometimes known as Antonio.

Lowe added that the rule requires nonprofits to act as quasi-arms of law enforcement, but most charities operate on budgets too small to perform those duties.

"I think that there's real concern throughout the [nonprofit] sector that the government has kind of turned over the responsibility to charities to do the job of policing," she said.

The lawsuit was filed by the NRDC, OMB Watch, ACLU, the Advocacy Institute, Amnesty International USA, the Asian American Legal Defense and Education Fund, the Brennan Center for Justice at the New York University School of Law, the Electronic Frontier Foundation, the NAACP Special Contribution Fund, the NAACP Legal Defense and Education Fund, Our Bodies Ourselves, People for the Ethical Treatment of Animals, and the Unitarian Universalist Service Committee.