Al Haramain Islamic v. U.S. Dept of Treasury

The use of confidential information does not violate due process, however the government must attempt to mitigate the impact caused by using confidential information.

In February 2004, the Office of Foreign Assets (“OFAC”) designated Al Haramain Islamic Foundation (“ALIF”) as a global terrorist entity. As part of the designation, all of ALIF’s assets were frozen, and persons and organizations were prohibited from rendering any services for ALIF based on a “blocking order.” In 2005, ALIF requested reconsideration and after receiving no response they filed the current action. ALIF argues that due process was violated by the use of classified information without disclosure of content, failure to provide adequate notice, and a meaningfully opportunity to respond. The Ninth Circuit noted that while use of confidential information has been previously held to be presumptively unconstitutional, OFAC’s interest in maintaining national security is sufficient to overcome that presumption. The Ninth Circuit held that due process was violated however, because OFAC did not take any measures to mitigate the impact caused by using the confidential information. The Ninth Circuit further held that failure to provide adequate reasons for investigation was an additional due process violation. Nonetheless, although due process was violated, there was no evidence that a different conclusion would result upon remand so ALIF suffered no prejudice. The Ninth Circuit also held that the Fourth Amendment was violated by OFAC as their actions did not meet the special needs exception to the warrant requirement. Additionally, the Multicultural Association of Southern Oregon’s First Amendment rights as a group not designated as a global terrorist entity was violated when they were banned from holding a joint-press conference with ALIF based upon the blocking order. AFFIRMED in part, REVERSED in part, and REMANDED.