Charities and the Global Fight Against Terrorism
In the 15 years since the September 11 attacks on the World Trade Centre, subsequent Australian governments have introduced a raft of anti-terrorism legislation to combat the threat of extremist attacks.
When we think about the impact of this legislation, we usually do so in terms of individual protections and liberties. For example, legal scholars and political scientists have raised significant concerns about the effect of control orders, surveillance regimes, indeterminate detention and policing practices on the rights of individuals and their ability to associate and communicate freely.
Yet these same legislative measures also potentially impact upon the activities of political associations and charities. In a comparative research project funded by the British Academy and the Leverhulme Trust, Nicole Bolleyer (University of Exeter) and I analysed just how anti-terrorism legislation affects the everyday operation of voluntary organisations and charities, and how this varies across a range of established democracies.
We did so by establishing a framework that can be used to look at what we called the ‘intersection’ between charity and anti-terrorism law across different legal systems.
For example, since September 11, Australia, Canada, Ireland, New Zealand, the UK and the US have changed the legal conditions under which terrorist organizations (or unlawful organisations more generally) can be proscribed and, more importantly, altered the sanctions against involvement with such groups. While such regulatory changes do not target charities as such, they still apply to them and therefore directly affect them.
And while the prevention of terrorism has not necessarily been the primary trigger for charity law reform, it has clearly fed into debates around the need to assure more transparency in the non-profit sector and to increase the monitoring capacity of the main regulators, especially with regard to organisations’ financial dealings. As O’Halloran (2011) argues, governments have tended to use terrorist threats as an excuse to tighten up surveillance of charities, intensifying the connection between these two areas of law.
So how can we make sense of these legislative developments and their impact on voluntary organisations, both within and across democracies?
We established three different ways in which these laws might intersect and thereby constrain the activities of charitable organisations:
- Legislative overlap
- Direct intersection
- Indirect intersection
The first two of these categories, legislative overlap and direct intersection, enabled us to compare laws that explicitly target and impact on the activities of charities, whether they exist within anti-terrorism measures, or in criminal codes, tax laws or specific laws dealing with charities and non-government organisations.
The third category, indirect intersection, allowed us to systematically compare laws that do not actually mention charities at all, but nevertheless impact upon them and their members by enveloping them in broader legal concepts such as ‘unlawful groups’.
Analysing trends anti-terrorism and charity law
What we found, across the six democracies that we looked at, was that there were relatively few instances of what we termed ‘legislative overlap’. That is, the introduction of anti-terrorism law that had charities as its primary subject, or where charity law was specifically and solely directed at combatting terrorism, was quite rare. Only the US (through its anti-terrorism certification requirements) and Canada (through the Charities Registration (Security Information) Act) introduced such legislation, and did so right after the 2001 attacks. The nature of this type of legislation sends a clear message to charities that their activities are being regulated.
In what is a more common form of regulation, we found that Australia, Ireland, New Zealand and the UK have all, since September 11, implemented legislation that creates a direct intersection between charity and anti-terrorism law. This type of regulation consists of anti-terrorism law that refers to charities as one of its regulatory targets, or charity laws that include the prevention of terrorism as one of its explicit aims.
We found the most continuity when analysing instances of indirect intersection and their evolution, which subsume terrorist organisations or activities under broader concepts. Most countries we looked at had revised, built on or expanded pre-existing norms embedded in criminal codes or public order acts. Canada and New Zealand were the only democracies that did not have existing anti-terrorism legislation before September 11. Canada inserted new provisions in its Criminal Code in 2001, and New Zealand passed the Terrorism Suppression Act in 2002.
What is the impact for charities?
Interestingly, the most visible connections (overlap and direct intersection) are not necessarily the most problematic for charities, particularly if they don’t touch on their day-to-day activities. The Charity Registration (Security Information) Act in Canada, for example, has a very narrow focus. Like charity regulation in Australia and New Zealand, it targets organisations only insofar as their registration as charities is concerned.
In contrast, direct intersections in the UK, Ireland and US go beyond registration to affect charities’ operations as well. Ireland, for example, established provisions in the Charities Act 2009 that give the regulator the right to inspect charities suspected of financing terrorist organisations, while the 2016 Charities (Protection and Social Investment) Act authorises the UK Charity Commission to disqualify trustees convicted of terrorism offences.
The constraints imposed on charities through the mechanism of indirect intersection are perhaps the most problematic for the activities of charities.
This is because anti-terrorism laws in each of the six democracies examined carry substantial penalties for derivative offences (for example, associating with a proscribed group or its members, or dealing with its property) that range from three to 25 years imprisonment. We also found that there was considerable leeway in how offences could be classified, and specific instances where offences were so vague that they could capture any number of otherwise legitimate activities.
Provisions that have received particular criticism refer to the definition of ‘material support’ (in the US), ‘the facilitation of terrorist activities’ (Canada) or what constitutes ‘informal membership’ of a terrorist organisation (in Australia). In contrast, legislation in the US and Ireland specifies exclusions, which provide a more ‘clear cut’ picture of the scope of anti-terrorism offences. For example, the Patriot Act excludes ‘medicines and religious materials’ from what potentially qualifies as ‘material support’. Similarly, the 2005 Criminal Justice (Terrorist Offences) Act in Ireland specifies exceptions to terrorism related activities to permit protest, advocacy or strikes.
Possible ambiguity is compounded in several of the democracies we looked at by the fact that a charity may commit a terrorist offence unknowingly. In Canada and the US this is the case for terrorist financing and the facilitation of a terrorist activity. In Australia, New Zealand and the UK, the burden is on charities to prove that they have made reasonable efforts to determine they are not unwittingly facilitating terrorist activity.
Given that all six democracies we looked at provide for the proscription of terrorist organisations and a wide, and often ambiguous, range of derivative offences that could potentially capture charities’ everyday activities, the scope for legislative uncertainty is significant and has been growing since the September 11 attacks.
And the broader consequences…?
While the existence of legislation that creates extensive scope for authorities to intervene does not necessarily mean that the authorities will use or even exploit this leeway, charities have responded to legal uncertainties by pre-emptively withdrawing from some of the activities that could bring them in conflict with anti-terrorism legislation (Carter 2004; Bloodgood and Tremblay-Boire 2010). This is often called the ‘shadow of the law effect’.
Our comparative study suggests that these effects are magnified in that the regulation that is perhaps the least visible (that which operates through what we call ‘indirect intersection’) carries the most significant implications for the activities of charities on a day-to-day basis. In established liberal democracies, there is an implicit assumption that the state should not intervene to restrict fundamental rights pre-emptively or preventatively (Thiel 2009). The pattern of law-making that we have observed and its consequent impact on charities echoes broader critiques of anti-terrorism legislation having fundamentally changed the relationship between citizens and the state after the September 11 attacks. This applies to both individuals and political and voluntary organisations.
In this blog post we have looked only at the impact of anti-terrorism law on charities after September 11. Our broader project also looks at the ways in which political and voluntary organisations have been constrained by anti-terrorism legislation since 1980.
You can read more about our research here
Anika Gauja is an Associate Professor in the Department of Government and International Relations, University of Sydney
Nicole Bolleyer is a Professor of Comparative Politics in the Department of Politics, University of Exeter
Bloodgood, E.A. & J. Tremblay- Boire (2010) NGO Responses to Counterterrorism Regulations After September 11, The International Journal of Not-for-Profit Law, 12 (4).
Carter, T. S. (2004) Charities and Compliance with Anti-Terrorism Legislation: The Shadow of the Law, National Center on Philanthropy and the Law 16th Annual Conference, New York – October 28-29.
O’Halloran, K. (2011)The Politics of Charity, London: Routledge.
Thiel, M. (ed.) (2009) The ‘Militant Democracy Principle’ in Modern Democracies, London: Ashgate.