Patriot Qualms

President George W. Bush often proclaims that the most effective defense against terrorism is building democracy overseas and advancing the "rights of mankind." But his administration's implementation of the 2001 Patriot Act is making it increasingly difficult for American organizations to realize this goal.

The Patriot Act and subsequent executive orders aim to stem the flow of funds to terrorist organizations. The government has instituted so-called voluntary rules that ask organizations that receive federal monies – whether through direct Congressional authorization or grants from executive departments like USAID – to prove they do not associate with terrorists. Large humanitarian providers and small human rights organizations alike are checking their overseas colleagues and funding recipients against ever-changing lists provided by the United States Treasury, the United Nations, the European Union and in some instances, the FBI and Interpol.

This policy turns humanitarian principles on their heads. Relief groups have not been in the business of checking political affiliations before they feed starving families. If they agree on little else, conservatives and liberals generally concur that it is the responsibility of those with resources to help the needy.

No longer. Humanitarianism is now a logistics nightmare, and private organizations are being transformed into policemen for public policy. Terrorist financing is already hard to track accurately, and checking every "Joe Smith" or "Mohammed Khan" is inefficient and potentially ineffective. Entrusting humanitarian decisions to competing government intelligence agencies risks the autonomy that democracy and rights groups bring to their work; turning small organizations into bank regulators imposes an inappropriate burden for non-profits whose jobs lie elsewhere.

It's a task that can be done: lists are being consolidated, compliance services can be bought, and the government is gradually making its rules user-friendly. But good business for security firms sets bad precedent for assistance providers. Current guidelines maybe voluntary, but they leave grant-makers and grant-receivers liable to legal action if they don't comply appropriately, whether by mistaking a name on a list or "dealing with" organizations that are even remotely associated with named or implicated terrorist groups.

The fundamental problem lies where principle meets practicality. The patient, complicated work of promoting democracy and protecting rights has long been accomplished by dealing with people who have been labeled – by someone, somewhere – as insurgents, terrorist or enemies of their states. Where would we be today if no one had talked with Vaclav Havel, Nelson Mandela, Eduardo Mondlane, Jawaharlal Nehru, most independence leaders in Africa, half the cabinet of Afghanistan and, for that matter, the ruling councils of Iraq today? What will be Asia's fate tomorrow if no one confers with Sri Lanka's Tamil Tigers or Kashmir's mujahidin? Who is to help turn politics from hatred to civility, fighting to talking, and perhaps, violence to voting?

To build bridges between states and civil society, the US government has historically worked with, and occasionally funded, non-governmental organizations that promote the rule of law overseas. These are the people who keep everyone's feet to the civil rights fire: they help refugees secure their rights in central Africa, foster democracy in the Balkans, and teach Afghans and Iraqis to speak truth to power. Certainly, no one knows the value of prudence in the face of danger more than those who work where violence often rules.

Current anti-terrorist laws compromise the independent judgment and effectiveness of NGOs by turning them into direct instruments of state policy. This risks their mandates and the dynamic cooperation between the public and private sectors. Since some NGOs will not be able to accept these strictures, such policy can potentially undercut the thrust of US foreign policy, too.

The compliance virus is contagious. Not only government regulators but also special interest groups have pushed major private foundations to define terrorism as broadly as US law appears to do, to cancel grants when matches are found with government lists, and to hold private grantees to an unusually high standard of compliance with official anti-terrorism policy. Congress, which oversees foundations, is contemplating more hearings on the subject. The same NGOs that are struggling to maintain their government financing therefore face challenges from their private donors, too.

The existence of these lists bluntly violates the principles of transparency and accountability that Americans have fought long and hard to sustain, and to instill in democratic processes overseas. Those named should at the very least have the right to know they are named, to face their accusers, and to try to prove their innocence. No provisions have been made for this to happen. Instead, voluntary guidelines favor secrecy that compromises justice and fairness for those named, and statesmanship from the US government.

When fear trumps reason, policy crumbles and principle dies. Writing in 1951, between fascism and communism, Hannah Arendt cautioned that "although tyranny, because it needs no consent, may successfully rule over foreign peoples, it can stay in power only if it destroys first of all the national institutions of its own people." History can repeat itself: our democratic responsibility is to protect rights, so that it doesn't.