The government’s failure in the Holy Land case suggests that the administrative processes for designating groups as terrorist organizations are flawed. The president has asserted the power to designate any organization or individual he chooses, here or abroad, without formal charges, a trial or hearing of any kind; without a statement of reasons; and on the basis of secret evidence. While full-scale criminal protections are not necessary, surely groups should be afforded a meaningful opportunity to defend themselves before they are shut down.
We’ve seen this kind of regime before. In the McCarthy era, the government, working behind closed doors, created lists of “subversive organizations” and then held individuals responsible for any association with such groups, often using secret evidence to support its charges. Such actions invited abuse, harmed innocents and infringed on the very rights the government claimed to be protecting. As the Supreme Court said in a 1967 decision belatedly declaring unconstitutional the “guilt by association” tactics of the McCarthy period: “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties — the freedom of association — which makes the defense of the Nation worthwhile.” The administration seems to have forgotten that lesson; American juries, thankfully, still remember. [complete article]