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Executive Order Overturns US Fifth Amendment
Posted by
kdawson
on Thu Jul 19, 2007 12:03 PM
from the deprived-of-life-liberty-or-property-without-due-process-of-law dept.
from the deprived-of-life-liberty-or-property-without-due-process-of-law dept.
RalphTWaP writes "Tuesday, there wasn't even a fuss. Wednesday, the world was a little different. By executive order, the Secretary of the Treasury may now seize the property of any person who undermines efforts to promote economic reconstruction and political reform in Iraq. The Secretary may make his determination in secret and after the fact." There hasn't been much media notice of this; the UK's Guardian has an article explaining how the new authority will only be used to go after terrorists.
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Hello! (Score:5, Funny)
The short version... (Score:5, Insightful)
Here's the short version with a lot of legalese stripped out:
Yes, there is a bunch of other stuff in there, but I don't see anything stopping the Secretary of the Treasury from using this for political purposes. If you go to an anti-war demonstration, you just might be undermining efforts to promote political reform in Iraq (as defined by the Bush administration).
Just for the sake of argument, let's say that you're a die-hard Republican George Bush fan, and you honestly think that this would never be used for such blatant political purposes. Would you say the same thing about Hillary Clinton, who stands a very good chance of being elected in 2008? Because guess what. She's going to have the same powers when she takes office.
People who support the creation of this kind of crap based on their trust of the Guy (or Gal) In Charge right now, whether that person is a Democrat, Republican, or whatever, are idiots. You should never ask yourself what something like this will be used for, you should ask yourself what it can be used for, and then imagine that the politician you hate the most holding the reigns. Then, and only then, can you decide whether a law, executive order, or whatever is good or bad.
Re:The short version... (Score:5, Insightful)
People, please donate to the ACLU [aclu.org]. Put your money where your mouth is, and give it to the people whose job it is to question this stuff full time.
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Re:The short version... (Score:5, Insightful)
But make sure you donate a lot all at once, before your assets are frozen for supporting a political organization that's "undermining" Bush's Iraq War effort.
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Re:The short version... (Score:4, Informative)
Your anti-war demonstration scenario is only going to get your property frozen if it's a violent demonstration.
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Re:The short version... (Score:5, Insightful)
Or, rather, if executive branch officials without outside review decide that your demonstration suggests some potential future inclination toward violence.
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Re:The short version... (Score:5, Informative)
Since that clause includes multiple uses or "or", any one of those conditions can cause you to get screwed, since the language is so purposely vague. That would include donating money or items to a charity that the US Gov't labels as an organization that undermines economic reconstruction or political reform in Iraq. Or, even just giving "emotional support" to such organizations through your words on a blog or on Slashdot.
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Actually No, its worse. (Score:5, Insightful)
In this section the President specifically states that he is aware that the U.S. Citizens affected by this may have Constitutional rights that this order violates. However, because of the ongoing (6+ years now) "National Emergency" said rights are nullified in the interests of efficiency.
So basically what he's doing is selectivly removing consitutional rights by executive order because the present circumstances, in his opinion alone, demand it.
He's explicitly and clearly attacking our rights because he says that he feels its necessary, no oversight, no checks, no balances, nothing.
If this is accepted it means that any president at any time can strip legal rights from U.S. Citizens, even if those rights are literally embedded in the Constitution just because he wants to. This means that the rule of law, the rule of the Constitution, is null and void.
And in this part:
They explicitly grant themselves the right to expand this power to anyone else they wish to. That is, the proactive seizure could be handed over to the DEA, the IRS, the ATF, etc if they feel necessary. No future executive order, no public record, will be necessary. Anyone up for proactive seizure of property because you may have cheated on your taxes? Keep in mind that the no fly list includes a large number of people who have committed the crime of having the same or similar sounding names as 'bad' people and no mechanism exists to get them removed from the list. How'd you like to have your house and money taken because you look kind of like a bad person only to have no means of picking back up because that's someone else's department?
What to do:
In all cases make it clear why you oppose this and why it is fundamentally wrong. It isn't a guarantee that they will rethink it but unless this stuff is exposed, discussed, and ultimately attacked then nothing will happen. And it won't be unless we spread this off
Democracy dies when noone is looking.
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What the ... ? (Score:5, Insightful)
We recognize those acts as wrong.
Our government recognizes those acts as wrong.
Our government has issued reparations to the people who suffered them. Because they were wrong.
Now you're using those as a yardstick? Wrong is wrong. How about we just stick to the Constitution and the Amendments? Is that too much to ask?
Is there some reason that you advocate we commit ANOTHER crime other than the fact that we had committed one before?
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Re:What the ... ? (Score:5, Insightful)
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Sounds like... (Score:5, Insightful)
The new authority will only be used ... (Score:5, Insightful)
Uh-huh. And the FBI isn't going to spy on ordinary Americans.
Where's the outrage?
Re:The new authority will only be used ... (Score:5, Insightful)
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Except (Score:5, Insightful)
Ofcourse, who is and who isn't a terrorist will be determined by the Secretary in secret after the fact.
We're in a national emergency? (Score:5, Interesting)
Uh Huh. (Score:4, Insightful)
Right, until they redefine "terrorist." Or change the rules. Or just break the rules they have, and then label anyone who calls them out on it as "un-American." This sucks; Something's gotta give eventually, right?
Inter Arma, Enim Silent Leges (Score:5, Insightful)
Sad to say.
The root password on the U. S. Constitution is "The Global War on $SUBJECT"
I hate to say it but... (Score:5, Insightful)
Allow a government to get away with as much shit as this current Bush administration has been allowed to, from Guantanamo Bay onwards, and this is what you get.
I guarantee you that if people had kicked up more of a fuss about the rights of POWs (they're POWs, denying that they're POWs and calling them detainees is just an easy way to avoid giving them basic rights) at Gitmo then you wouldn't be seeing stuff like this today.
Right now, the winners in the "War on Terror" are Al Qaeda (they have what they wanted: open conflict with the West) and oil companies. The losers are average citizens, not just in the West but in Iraq, Afghanistan, Lebanon, the occupied territories, etc.
It's not too late to change things. But it probably is too late to leave it to others and just hope for the best. Get out the pen, get out the paper and write to your representatives. It's your government, so take it back.
just shoot me (Score:5, Insightful)
Fourth Amendment (Score:5, Informative)
Re:Fourth Amendment (Score:5, Informative)
That should have read:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
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As a law student... (Score:5, Informative)
An executive order has absolutely no precedence over established law. I'm pretty sure it was in Youngstown Sheet & Tube (343 U.S. 579 if anyone wants to read it), it was Justice Frankfurter who said it in his concurrence that the executive, when issuing an order, operates in one of three potential spheres of power.
The first is when the order is complimentary to legislative intent, that is, Congress has already passed law(s) that further an objective and the executive order is in agreement with that. The executive order is in good standing here.
The second is an executive order upon an issue which Congress is silent. Absent congressional intent for or against, the executive order is valid law. This remainds until the order is rescinded or overruled.
The last is an executive order that is contrary to the law as passed by Congress. In this case, the executive order is not valid law.
So the headline here is quite misleading. The President can issue any executive order he or she wishes, but that does not make it valid.
Stop using the term "executive order" (Score:5, Interesting)
Unfortuntaely, somebody didn't tell this to George Bush. Reading the order you can see that he really thinks that he can tell the Treasury department to seize people's money. It's surreal to see this, because I really think that the guy just doesn't know that he doesn't have this power. And it's weirder because people seem to pretend like he does, and actually follow them. Indirectly, I guess that means he does have the power. It's very weird.
What would help, is if people (including the press) would stop acknowledging them as "executive orders" because they aren't. Call them "strongly worded requests" or "presidential demands" or something. George Bush writing this has no more relevance than if I wrote it. The press should be making him a laughing stock.
Legal Analysis (Score:5, Informative)
As others have pointed out, an executive order is not a law, it is merely a directive to an agency of the executive branch. The President has the right to tell the Treasury Department, which is a part of the executive branch, to do whatever he believes is consistent with the Constitution and the law. But the Supreme Court ultimately gets to decide if what the executive branch does is consistent with the Constitution.
The Fifth Amendment provides, "No person shall
Here's how it will happen: the treasury department will seize someone's assets, that someone will get an attorney and sue the US government, the case will go to the supreme court, and the supreme court will strike down the executive order.
Keep in mind the 5th amendment doesn't apply to non-citizens living outside the United States, but it might arguably be applied to non-citizens with assets here. Remeber, the 5th amendement says, "No person" not "No citizen". Constitutional rights have been afforded to legal aliens residing in the United States by the Supreme Court before. I'm not sure the Supreme Court would extend those rights to people who don't live here and don't have assets here, though, because that would be a matter of foreign policy beyond the purview of the Supreme Court, arguably.
Re:Inflammatory misleading headline (Score:5, Interesting)
The language is ridiculously broad and does appear to violate the 5th amendment. It appears that if you, say, donate to a charity that the Bush administration determines is trying to undermine the Iraqi government, all of your assets can be frozen. The language is very broad and open to interpretation by the Secretary of the Treasury, who serves at the pleasure of the President. This is absolutely begging to be abused.
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Re:Inflammatory misleading headline (Score:5, Insightful)
The US Government has been freezing the assets of those it determines to be "bad guys" for a long long time now, well before GWB was a twinkle in his mother eye. If this violates the 5th ammendment then we have been doing so for many decades.
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Re:Inflammatory misleading headline (Score:5, Informative)
"You have as much Freedom as you are willing to demand, and as you are capable of defending." has never been more true.
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Re:Inflammatory misleading headline (Score:5, Insightful)
Bingo. Your rights can only be taken if you allow it.
What really surprises me is that anyone thinks this is a new thing unique to this administration. The difference is the reporting on it. Burning people alive in Waco and shooting women in children in Ruby Ridge was "justified force" on "religious fanatics" or "white separatists", government surveillance/harassment of civil rights leaders in the 50s/60s was policing of "subversives" (the few rare times it was actually reported), but people get their panties in a wad about "violating the civil rights" of "terrorists"? I'm not saying they're wrong to be upset, they should be, but where the fuck have they been? Most of the people whining today are old enough to have at least been conscious during waco/ruby ridge/elian gonzales/etc. and yet those incidents are apparently a blank spot in their memory.
Welcome to the real world, folks. If you're worried about your rights being trampled upon, do something about it. I suggest becoming familiar with the phrase "cold dead hands".
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Re:Inflammatory misleading headline (Score:5, Informative)
As for the IRS seizing property, there is at least some sort of process that happens before they do that. They don't just go in without any prior warning and take everything. It's arguable if what they do can be considered "due process" under the law, but it's a lot better than what this order gives the Treasury Department the authority to do.
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Re:Inflammatory misleading headline (Score:5, Insightful)
Here's the relevant portion of the 5th (with my emphasis)...
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Re:Inflammatory misleading headline (Score:5, Insightful)
The Founding Fathers thought those rights were vital for a functioning democracy... and they had been through an actual war on U.S. soil. I'm inclined to trust their judgement on what we can 'afford'.
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Re:Inflammatory misleading headline (Score:5, Insightful)
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Re:Inflammatory misleading headline (Score:5, Insightful)
1) They have a warrant
2) Eminent domain
You are probably right that this happens anyway, in extreme cases like terrorism. But they are expanding "terrorism" into a lot of gray areas.
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Due Process of Law and Tyranny. (Score:5, Informative)
The thoughts and whims of two appointed officials only constitute due process in dictatorships. My browser search seems to have nailed the order rather well:
No matches found for 'democracy'.
I'm glad they did not try to justify this with the worn out phrase, "bringing democracy to Iraq," but saddened that they no longer try to pretend. Democracy and rule of law are not things we are exporting. We are importing tyranny instead.
The list is arbitrary and the enforcement is arbitrary. You would think they would have to at least make some kind of show trial before putting you out of business and on the streets.
This is no longer about terrorism, it's about control. You can only imagine what this will do for free speech. Not only won't you find Al Jazeera on US cable or broadcast TV, they are liable to lose any property the US can get it's hands on. The same thing can be said for any US citizen who would dare raise their voice against the administration.
Arbitrary proscriptions, exile and seizure of property are hallmarks of tyranny and we now have all three and things will get worse without drastic and immediate change. "Terrorist" lists are proscriptions that do everything but murder the proscribed. You can't travel or get a job if you end up on the list or have a name that's similar. This is really a form of exile but you can also be "extraordinary rendered" out on a whim and kept out of the country by the same. Now we have arbitrary property seizure. With these things in place, it won't be long before we have all the freedoms of Citizens of the Third Reich or Stalin's USSR.
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Re:Inflammatory misleading headline (Score:5, Insightful)
Sorry dwm, but I disagree with this as noted below:
Blocking the use of property is not legally the same as depriving someone of it (although, admittedly, practically-speaking it comes pretty close). If this were a violation of the fifth amendment, so would the IRS putting a lien on someone's property for tax purposes.
"Blocking" said use of property is pretty much the same thing... unless of course you think that said property will be magically released before damage to the owner('s life, liberty) occurs.
The "definition" Bush('s writers) are using is:
Which pretty much means "Seized" - and either way is the same as depriving someone the use of.
Of course, either way, you are forgetting one of the most relevant parts in that Amendment - though you did quote that part:
This is the other part of the Amendment that is being "violated" - which you neglected to point out while defending this action as Constitutional.
Sorry that I beg to differ with you. Semantics dont make something right (your claim of this being constitutional) - and the 2nd part of this is quite semantically undisputable (the lack of due process).
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Re:Inflammatory misleading headline (Score:5, Insightful)
Define temporarily. A week? A month? A year? Five years? Ten years? Fifty years?
As this administration is well known to apply new and twisted logic to the common usage of words, temporarily could very well mean indefinitely.
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Re:Inflammatory misleading headline (Score:5, Insightful)
In order to take away his cutters you have to have Probable Cause [wikipedia.org] that he was indeed the one doing the cutting. This executive order makes no such distinction.
If someone gets caught drunk driving, do you wait until he's convicted to stop them from driving?
Yes, you do. I don't know where you live, but here in Minnesota presumption of innocence still applies. As far as the traffic stop itself, the officer has to determine probable cause - e.g. field sobriety test, or smelling alcohol on your breath, or observing errant driving behavior.
As long as the person ultimately gets due process, there is nothing wrong with temporarily blocking access to the tools used to commit a crime.
Justice delayed is justice denied. That's why we have Habeas Corpus [wikipedia.org]
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Re:Inflammatory misleading headline (Score:4, Insightful)
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Re:Slashdot == kdawson's political blog (Score:4, Insightful)
Slashdot == kdawson's political blog
I think he's the love child of michael and timothy. Is there any way we can send him where he belongs: digg.com?
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Two important points that prove Slashdot != digg (Score:5, Interesting)
First, the depth of discussion. People are posting multi paragraph intelligent statements and responding to each other without rancor. People seem to actually have some grasp of the topic. On digg the comments would be, "BUSH TEH DEVIL hax his internets."
Secondly, despite the fact the headline is inaccurate and somewhat inflammatory, on digg the headline would have been, "BREAKING CONFIRMED: Bush tells american public to FUCK OFF"
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Re:Two important points that prove Slashdot != dig (Score:5, Informative)
on digg the headline would have been, "BREAKING CONFIRMED: Bush tells american public to FUCK OFF"
Actually, it was So, as of yesterday, If you protest the war, the Prez can take your stuff [digg.com] and has >4500 diggs, but yours comes close enough.
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Re:Two important points that prove Slashdot != dig (Score:5, Funny)
Actually the comments on digg are more along the lines of "OMG! What does it take for congress to impeach Bush & Co!?!?! Sign my online petition to get the ball rolling!! I'm so voting for Ron Paul. He's the only one who will restore the constitution!"
Buried as innacurate.
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Re:MOD THIS UP, kdawson MUST GO!! (Score:5, Interesting)
Now, I'm not clear how you can view being upset by this executive order a "political rant". This isn't politics, it's a violation of the very principles that this country was founded on. The recent attempts by congress and the executive branch to defeat our constitution's provisions for the rights of US citizens makes me angry. Not that-guy-just-cut-me-off angry; not the-power-went-out-just-as-I-was-about-to-defeat-
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Re:Inflammatory misleading headline (Score:5, Informative)
Where do you live that this happens? I've never lived anywhere where someone picked up for suspected DWI gets his car 'seized'.
If no one can not drive it home for said person, they will often tow it to impound, but, for the towing fee, the person or his designated actor can pay the fee and get the car back.
Maybe it varies from state to state.
Depending on where you live..if you're tanked and pulled over. Best thing (according to the lawyers I've spoken with) is to not say a word, and just hold your hands out for the cuffs. Don't take any field tests...they are just trying to collect evidence on you.
Also, refuse to take any tests at the station...you can start by refusing until your lawyer gets there (risky, even with the extra time, your BAC may still be at the ridiculously low .08)....best to just refuse.
Depends on the state you are in...you will most likely get charged with reckless driving, still lots of fines, and possibly termination of driving privs for a year, but, at least is not a DWI. Often, with good lawyer you can get restricted driving privs back to go to work, etc.
Anyway, as you see...DWI laws can vary greatly from state to state.
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Re:Innaccurate and misleading (Score:5, Insightful)
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Re:"...not much media notice" (Score:5, Informative)
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Re:"...not much media notice" (Score:4, Insightful)
Watch the press for a few years and it's patently obvious that "word comes from above" when anything like this happens.
The medium is the message. If you watch TV, you won't see anything of any real importance. Get out of TVLand and you'll find a wide variety of news and opinion. The fact is, Americans have become fat and lazy. Most of us get our "news" from the medium that is least capable of providing insight and understanding, and most geared toward instant emotional gratification.
As an aside, if you'd ever worked in government, you'd know that there is no Ministry of Information Control. Your "patently obvious" observation is just a way of ducking the real problem. The real problem is the laziness of the American public. We are throwing away our republic. We should be throwing away our televisions.
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Bush just got his "legacy". (Score:5, Interesting)
From the Executive Order:
Yeah, that's a single sentence.
What, specifically, is the "unusual and extraordinary threat to the national security" that he speaks of?
Personally, I find his threat to the Fifth Amendment to be far WORSE than anything anyone in Iraq can do.
Go ahead and mod me down. It's the truth whether you want to hear it or not.
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Re:Summary dishonest (Score:5, Insightful)
The part you quote is just the preamble and carries no legal weight.
The summary is mistaken, yes (though not dishonest). The actual situation is far worse than Slashdot's summary describes.
The actual language refers to persons who "have committed, or... pose a significant risk of committing, an act or acts of violence that have the purpose or effect of" undermining etc.
In other words, you do not have to do anything to be affected by this law. All the Secretary has to assert is that you were probably going to do something that had a bad effect.
Whether you had the intention to undermine Iraqi reconstruction is irrelevant. Whether you actually did anything is irrelevant.
This isn't just overturning the 5th Amendment, it's erasing it and replacing it with thoughtcrime.
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Re:Summary dishonest (Score:5, Informative)
From the section on whose assets can be frozen.
"""
or to have acted or purported to act for or on behalf of, directly or indirectly,
"""
So, if someone accuses you of doing this (she's a witch!), they can freeze your assets. Forget being able to face your accuser, presumed innocence, fair trial, etc. I thought we left Salem a long time ago.
So, what happens after they freeze your assets because your neighbors said they say you at a communist, err... terrorist, meeting?
"""
Sec. 8. This order is not intended to, and does not, create any right, benefit, or privilege, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.
"""
In other words, if we screw up in freezing the assets, we don't give you the right to file a lawsuit or any procedure to get your things back.
Lovely.
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