Can Civil Society and National Security Co-Exist? The 21st Beirut Exchange Case

From the June 2024 Exchange

Yesterday, Treasury gave a charitable organization permission to host five designated terrorists (among many other invited speakers) at overseas conferences where stakeholders from opposite sides of Middle East and North African conflicts sit down in small groups and listen to each other.  The permission came only after the Foundation for Global Political Exchange, a 501(c)(3), sued Treasury to establish that its conferences do not constitute material support to terrorists, as Treasury initially stated.  True story, it happened just yesterday. The primary documents are linked at the end of this post.

In another post today, I talked a whole lot about HR 9495, a bill that amends IRC 501(p) by requiring minimal pre- and post-revocation process when Treasury wants to revoke tax exemption for organizations designated as "terrorist supporting organizations."  Civil libertarians suspect that Trump will use the Bill to take revenge on Civil Society and lobbied for its defeat. Opponents think the Bill gives Treasury unilateral power to shut down exempt organizations that oppose administrative policies.   I had to get up early this morning  to amend the post because the Bill died late last night after Republicans tried a procedural fast track move requiring two-thirds vote.  

But the Bill is an improvement over current law and I am not sure why people are opposed to it, other than justifiable fear. People trust laws, alright.  They just don't trust the people enforcing the laws.  But sometimes, the laws and the people enforcing them get it right.  Yesterday, Treasury reversed threatened but unspecified criminal and civil sanctions against a charitable organization that intended to host several designated terrorists at the 21st Beirut Exchange. "Exchanges" are regularly occurring conferences, hosted by the Foundation for Global Political Exchange.   Speakers sit and listen to each other about their experiences and their ideas about how to solve conflict and strife.  That's it. No money, no services, no favors exchanged.  Just sitting, talking and listening.  Here is a summary from the Knight First Amendment Institute at Columbia University: 

On December 20, 2023, the Knight Institute filed a lawsuit on behalf of the Foundation for Global Political Exchange challenging the decision of the Treasury Department’s Office of Foreign Assets Control (OFAC) to prohibit the Foundation from including certain individuals in the political discussions that the Foundation hosts. 

The Foundation is a U.S. non-profit organization that promotes professional and academic enrichment through convenings in the Middle East and North Africa called “Exchanges.” Each Exchange involves small-group, immersive dialogues that allow participants—including journalists, human rights advocates, and government officials—to engage with and question thirty to forty of the key stakeholders from across the political landscape of a subject country. In advance of the Foundation’s January 2023 Beirut Exchange, OFAC informed the Foundation that it could not lawfully include in these discussions five prominent political figures who were designated under a U.S. sanctions regime or were members of a designated organization.

The lawsuit argued that OFAC’s decision exceeded OFAC’s statutory and regulatory authority and violated the First Amendment. It asked the court to declare that OFAC’s actions were unlawful and to bar the agency from enforcing its regulations against the Foundation for including designated speakers in its political dialogues.

On November 12, 2024, the parties reached a settlement agreement under which OFAC reversed its position and made clear that including sanctioned speakers in events like the Beirut Exchange is not prohibited by U.S. sanctions law. This welcome result will allow the Foundation and other organizations like it to foster political dialogue between Americans and people abroad without the fear of civil or criminal liability.   

It is not so far-fetched to think that had Treasury not relented, it might have also sought to revoke Global Political Exchange’s tax exemption for supporting terrorism. The conference went on anyway, but GPE did not include the designated terrorists because Treasury stated that the organization’s hosting and listening to them would constitute support for terrorism.  GPE is a serious deep-thinking organization, by the way. It facilitates direct communications between people from hostile populations and has been involved in coordinating people-to-people diplomacy in the Middle East and North Africa since 2008. My brief description hardly paints the accurate picture:

To date, the Foundation has hosted more than fifty Exchanges across the Middle East and North Africa, focusing on Lebanon, Tunisia, Iraq, Syria, Libya, and Yemen. More than 1,500 people from fifty-one different countries have attended at least one of these convenings, with dozens of alumni returning to Exchanges in later years.

. . . 

Over the years, the Foundation’s Exchanges have attracted a diverse group of participants, including officials from the U.S. Department of State, the U.S. Department of Justice, and the U.S. Agency for International Development; officials from the United Nations; ambassadors from Canada and Australia; journalists from CBS News and Christianity Today; and academics from leading universities, such as the Johns Hopkins School of Advanced International Studies, the School of International and Public Affairs at Columbia University, and Oxford University. Participants have met with civil servants, such as representatives of the Office of the Prime Minister of Lebanon and the Tunisian Ministry of Foreign Affairs; politicians, such as the former president of Tunisia and members of parliament; human rights advocates from organizations such as the International Center for Transitional Justice; regional experts from academic institutions such as NYU Abu Dhabi, the European University of Tunis, and Cambridge University; and journalists from a variety of American and international outlets.

In an astonishing but perhaps inevitable about face yesterday, Treasury stated that GPE’s hosting of the conference at which designated terrorists would be allowed to speak, though without any compensation whatsoever, would not constitute support for terrorists.  Just listening and talking is not material support.  You can read the amazing case file at the Knight Institute. The file includes GPE’s application for permission, Treasury’s initial letter denying permission, GPE’s complaint, and Treasury’s letter reversing its initial characterization of the event and allowing GPE’s participation. 

Maybe this is an example proving that people and the law can work to balance the needs of Civil Society and national security. 

darryll k. jones