One more point should be made about the Al Haramain case that I discussed yesterday. And this point should strike fear in the heart of all but the most foolhardy.
In holding that OFAC had sufficient evidence to designate the Al Haramain Islamic Foundation (“AHIF”) as a specially designated global terrorist and block all its funds and assets, the Ninth Circuit said this:
Al-Buthe is a designated person. Al-Buthe exercises control over AHIF-Oregon because he is on its board of directors. EO 13,224 authorizes the designation of an entity that is controlled by a designated person. EO 13,224, § 1(c). It is, therefore, a valid reason to designate AHIF-Oregon based on Al-Buthe’s control. We agree with the district court that substantial evidence supports this reason.
Say what? Al-Buthe exercises control over AHIF because he is on the Board?? It will certainly come as a surprise to many directors (and, no doubt, their boards) that they single-handedly control the boards on which they serve.
Where I wonder does this end? Can OFAC designate an employee of a company and then hold that the company is an SDN because that employee “controls” the Company?
There appears to be other evidence that OFAC relied upon, particularly with respect to an alleged link of AHIF to Chechnyan terrorism, but the court’s language set forth above is both troubling and counter-intuitive.