Executive Order Overturns US Fifth Amendment 853
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.
Innaccurate and misleading (Score:3, Informative)
This isn't about seizure of anything, it's about freezing of assets, something that has been going of for who knows how long (possibly since the 18th century)
Summary dishonest (Score:2, Informative)
Next, the Guardian linked gets it right, however, the link should read the new authority CAN only be used to go after terrorists, [guardian.co.uk] since using acts of violence threatening the peace and stability of Iraq is pretty much a terrorist act. I don't have a problem with the gov't blocking the bank accounts of terrorists!
Re:Uh Huh. (Score:1, Informative)
No, the order pretty much spells it out pretty clearly. Let me help you since you won't bother following the link to read it yourself:
(A) threatening the peace or stability of Iraq or the Government of Iraq; or
(B) undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people;
(ii) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, such an act or acts of violence or any person whose property and interests in property are blocked pursuant to this order; or
(iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.
(b) The prohibitions in subsection (a) of this section include, but are not limited to, (i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order, and (ii) the
receipt of any contribution or provision of funds, goods, or services from any such person.
Sec. 2. (a) Any transaction by a United States person or within the United States that evades or avoids, has the purpose
of evading or avoiding, or attempts to violate any of the prohibitions set forth in this order is prohibited.
(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.
Sec. 3. For purposes of this order:
(a) the term "person" means an individual or entity;
(b) the term "entity" means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization; and
(c) the term "United States person" means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States.
Re:"...not much media notice" (Score:5, Informative)
Re:Summary dishonest (Score:3, Informative)
The language is very broad and wide open to interpretation as to who does or does not fall under the order, and is definitely not just limited to people who commit acts of violence.
Interesting (Score:2, Informative)
That being said, it doesn't really make any difference to any court that has ever heard of the supremacy clause.
Also interesting to note, this is exactly how Lincoln freed slaves in the Civil War. Not that this has much in common with that.
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.
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.
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.
Fourth Amendment (Score:5, Informative)
Re:Inflammatory misleading headline (Score:2, 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.
Re:Summary dishonest (Score:3, Informative)
(A) threatening the peace or stability of Iraq or the Government of Iraq; or
(B) undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people;
(ii) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, such an act or acts of violence or any person whose property and interests in property are blocked pursuant to this order; or
(iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.
The other phrasing that stands out is 'directly or indirectly'. That suggests that any tie, however loosely established, would be sufficient. It sounds unreasonable and unlikely, but this is exactly the sort of standard that FISC - the Foreign Intelligence Surveillance Court - uses to issue secret FBI warrants in entirely closed proceedings. Those warrants can be used to bring you in for trials that are, again, entirely secret; this is a somewhat scary process on its own, but this new XO allows bypass of even that secret court to freeze your assets.
Re:Summary dishonest (Score:3, Informative)
That being said, if the person is a US citizen, the 5th Amendment still applies, and the Supreme Court has a few things to say about it. If the person is not a US citizen, then extradition treaties apply; that situation is a little hairier, but nonetheless fairly straightforward.
Honestly, I don't know what the fuss is. "They" will not break into your room and drag you to a secret prison in Siberia and attach electrodes to your gonads just for being against the war. This executive order simply allows the United States to legally freeze the assets of known violent terrorists, or any person knowingly and materially assisting violent terrorists. I'm not sure if this ability existed before, but if so, this order clarifies the extent of it.
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.
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.
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.
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.
Sample Letter to Congress. (Score:4, Informative)
Sample Letter:
Dear (Congressman|Senator) X.
I am writing to you today regarding A recent Executive Order signed on the 17th by President Bush. Said order entitled: "Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq" represents a blatant violation of the rule of law. And an assault on our Constitution.
Section 5 of the order states:
That is, in the President's determination alone it would be too hard or too slow to actually follow due process. Therefore he has determined that it is unnecessary to follow constitutional law.
This is a very very dangerous precedent. If accepted it would allow any President to simply turn off or ignore selected portions of the Constitution if, in their opinion alone, it is necessary. No oversight from Congress, No Judicial review, nothing. In this case the President himself declared a state of emergency and now is selectively eliminating portions of the Constitution because of that Emergency. Congress you'll note, was not consulted, neither was the Judiciary. Most importantly, neither were the American People.
While the President states that this is only intended for Terrorists, that is not a long-term guarantee. We have already seen PATRIOT act powers used in Tax cases that have nothing to do with terrorism and this order, if accepted would pave the way for many more of its kind. If, for example the IRS found seizure of property too difficult via the courts then they could argue, along the lines of this order that in order for them to be 'effective' they need to proactively seize the belongings of accused violators.
This Order cannot be allowed to stand. It violates the basic structures set forth in the Constitution, a document that both you and the President are sworn to uphold and defend. I refuse to sacrifice our own rule of law, our own basic structures for the sake of "effectiveness".
We cannot allow the Constitution of the United States to simply be declared "Ineffective" and tossed out with the trash.
Sincerely,
Re:Inflammatory misleading headline (Score:4, Informative)
"1. 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.
2. No person shall 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.
3. Private property shall not be taken for public use without just compensation."
Way too fscking vague ... (Score:4, Informative)
So, would that include:
I mean, in the irrational world view of Bush et al, you're either WITH us, or you're FOR the terrorists.
Does thinking that George W. Bush is a criminal, an idiot, an asshole, a thief, and someone who has overstepped his authority both domestically and on the world stage qualify you as someone who seeks to "undermine efforts to promote economic reconstruction and political reform in Iraq"?
How about espousing the point of view that most of the US benchmarks for success in Iraq are hinged upon the Iraqi government passing laws that make it favorable for US oil companies to extract the Iraqi oil reserves for huge profit?
While history will recognize him for what he is, it'll be too fscking late to fix all of the damage he'll have done.
I hope that this gets legally fixed, but I fear it won't. The current administration feels they can do anything they want to and that the parts of the Constitution which say that they can't don't apply to them. Because, really, the POTUS doesn't have the authority to override sections of the Constitution, no matter what he thinks.
If anything, Bush and Gonzales should be hung for treason.
Re:The short version... (Score:3, Informative)
You can also be charged with assault if an officer trips over his clumsy feet, falls down, and hits his head while pursuing you, trying to apprehend you, or forcing you to leave the scene. You could very well be in the right, but if the officer gets hurt while dealing with you, you will be charged with assault.
Re:MOD UP (Score:1, Informative)
Don't know about the others, but your words and the other AC's post made a chill run down my spine. From the above Wiki:
Fifth Amendment and Analysis (Score:4, Informative)
The text of the Fifth Amendment:
"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."
The part that the submitter is focused on is: "nor shall any person . . . be deprived of . . . property[] without due process of law."
The question presented is whether a determination by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense is sufficient process to support such a deprivation. Odds are, it's not. At a minimum, constitutional due process requires notice and an opportunity to be heard (though notice may be given ex post facto in the case of an emergency). As this executive order stands, there is no opportunity for an individual whose property has been seized to challenge the seizure. In fact, there's no procedure for such a hearing to occur.
That's the Fifth Amendment Issue implicated by the Executive Order.
--G
Okay, so I read the thing, and... (Score:4, Informative)
Section 1. (a) Except to the extent provided in section 203(b)(1), (3), and (4) of IEEPA (50 U.S.C. 1702(b)(1), (3), and (4)), or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the date of this order, all property and interests in property of the following persons, that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of United States persons, are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any person determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense,
First off, the IEEPA. read it [wikipedia.org], because that's the limit, safety-valve, maximum, etc. ( the unabridged version is here [treas.gov] (PDF format). It says, in a nutshell, that:
So can we shut down the klaxons now? Or at least show me where (specifically) I may have produced an error (with proof, please).
It doesn't over turn the 5th amendment because... (Score:4, Informative)
---
Welcome to another edition of... Smells Like Republicans!
the Orwellian Special!
Re:Inflammatory misleading headline (Score:2, Informative)
I don't think so. Suppose I am suspected of a crime. The police obtain a warrant, search my house and remove, say, my computer as evidence. They did not freeze my computer, they siezed it, per the 4th ammendment -which actually uses the word siezure. And even though the police have siezed my computer, they cannot, contrary to what you have stated, sell it. If, at the conclusion of my legal troubles, I am found not guilty, or never go to trial, the computer must be returned to me, which cannot be done if it has since been sold by the police.
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.
Re:Inflammatory misleading headline (Score:4, Informative)
I appreciate that nobody in the USA cares about the difference any more in their mad rush to throw away all their liberties, but pedantry compels me to point out:
He gets his car back if he's proven innocent
Nooooo. He gets his car back if he's not proven guilty. It's a very VERY VERY basic part of the infrastructure of the relatively egalitarian society you used to have.
Re:We're in a national emergency? (Score:2, Informative)
Re:Inflammatory misleading headline (Score:2, Informative)
(i) to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of:
(A) threatening the peace or stability of Iraq or the Government of Iraq; or
(B) undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people;
(ii) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, such an act or acts of violence or any person whose property and interests in property are blocked pursuant to this order; or
(iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.
(b) The prohibitions in subsection (a) of this section include, but are not limited to, (i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order, and (ii) the
receipt of any contribution or provision of funds, goods, or services from any such person.
Re:Inflammatory misleading headline (Score:4, Informative)
Re:The short version... (Score:3, Informative)
You can be arrested for assault if you gently place the tip of your index finger on a police officer.
Actually, that's battery. Assault is pointing your finger in, say, the officer's face where he feels threatened. The touch is where battery comes in.
Jury duty can be very informative.
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: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.
Re:Inflammatory misleading headline (Score:3, Informative)
Don't know where you are getting this from, but treasury has had the right to search and seizure without warrant for well over two hundred years. It was initially instituted to prevent smuggling, and the US Coast Guard (then the Revenue Cutter Service) still conducts warrantless searches and seizures.
Re:Inflammatory misleading headline (Score:3, Informative)
There, fixed that for you.
Re:Inflammatory misleading headline (Score:3, Informative)
Which 'emergency' did Bush cite in this order again?
Partial Taking (Score:3, Informative)
Quite the contrary.
Look into the doctrine of "Partial Taking". For instance: If a zoning change reduces the value of property, or rent control prevents a landlord from obtaining a fair rent, part of the value has been "taken" and the owner is entitled to compensation.
A part of the value of property is the ability to use or exchange it in a timely manner. Blocking that is a partial taking.
If this were a violation of the fifth amendment, so would the IRS putting a lien on someone's property for tax purposes.
Nope.
In the latter case the IRS is saying: "We claim this belongs to us. We have started the process of proving this in court and a judge agrees that we are likely to prevail on this claim. So you can't just run away with it (without substituting something of equivalent value) until the outcome has been determined."
Listen to Bruce Fine on this issue. (Score:3, Informative)
Click Here to listen [akamai.net]
Re:Inflammatory misleading headline (Score:3, Informative)
Re:Inflammatory misleading headline (Score:2, Informative)
Re:Inflammatory misleading headline (Score:2, Informative)
I believe the Civil Asset Forfeiture Reform Act of 2000 [lsc.gov] raised the burden of proof to "preponderance of the evidence", which is a positive. But I believe they can still freeze for 60 days, pending a court telling them that they can't. They're just required to tell you about it. I'm not a lawyer, nor do I have time to read the whole thing right now.
However, the law seems to still be all over the place, as the drug laws and organized crime laws frequently have their own provisions for asset freezing/forfeiture. Beyond that, when you throw in terms like "agent of a foreign nation", it seems like the whole book is thrown out the window (see Reagan/Libya, lots/Iran). Throw in "presidential powers during wartime" and you start reading a whole new book.
Oh, and the Treasury dept. freezes and seizes assets all the time. It's just usually foreign assets, or through the IRS (which I don't believe are warrants, just procedural). Think of all the charities [treas.gov] you've possibly [cnn.com] heard of the last few years who's assets were frozen due to "suspected terrorist ties". Of course, those were based on an Executive Order as well. I have yet to read a decision by a court that the funds must be unfrozen (not that it doesn't exist, I just haven't seen it).
Note that the CNN article ends with "The grounds for blocking Global Relief's funds would be disclosed in court, the spokesperson said." That suggests to me that they didn't need to explain it before (i.e. get a warrant).
Oh, and the Coast Guard really was a part of the Treasury (most of the time) until 1967. It's on their web page [uscg.mil]. I didn't know that either.
9/11 and civil rights (Score:2, Informative)
I suggest you read David Ray Griffins excellent book "Debunking 911 Debunking".
He provides a huge amount of logical rebuttal to the official Goverment conspiracy theory, making popular mechanics amongst others look like shills for the Bush government. The conclusion is 911 was bush & co arranged as a pretext to invade two countries (Afgahnistan after the Taliban refused to provide protection for the UNOCAL pipeline) and Iraq (After Saddaam, (who btw the CIA employed to assisinate Qasim the president of IRAQ in 1959) didn't learn his lesson and started selling oil in Euros threatening the $US fiat dominance. It has also been used to erode many rights of US citizens, where it seems you are heading toward capalistic fascism.Re:Inflammatory misleading headline (Score:2, Informative)
So because someone can "go postal" or "do a Columbine" we should forfeit our rights? Just because someone can get drunk and drive and kill a family of five, should everyone be prohibited from owning a car? Twisted my left foot... With the government (under both Democrats and Republicans) getting ever more powerful, now MORE THAN EVER we need to protect the 2nd Amendment.
Our "huge" professional army is to defend us from foreign threats. Our 2nd Amendment rights are to defend us from each other and, more than anything, from our own government.
Not twisted at all. The founding father made the right to bear arms pretty friggin' clear, and they were right on the money. The need for a large standing army has changed over time, but the need to be able to defend one's self from others and our own government has not changed.
Two Words (Score:4, Informative)
Re:The new authority will only be used ... (Score:2, Informative)
I am posting anonymously, because I am from Egypt and have family there still.
In Egypt, an Emergency Law has been in effect since the previous president was assassinated on October 6, 1981. This law allows for arrests and indefinite confinement without a trial, and even when a trial happens, it is under a military court, with no appeal.
The current incompetent president, Hosni Mubarak, has been in power for more than 25 centuries, making him the longest Egyptian ruler in power since 1848.
So, what does this have to do with the USA? That sham of a law in Egypt is renewed every 3 years under the pretext that it is only used against terrorists and drug dealers. In reality it is used against peaceful opposition who advocate the political process for change (e.g. Muslim Brotherhood, Liberals, Communists,
While this is wrong, it is sort of expected from a dictatorship that wants a semblance of democracy as a veneer.
For the US citizens, I say I am deeply disappointed and disillusioned by what is happening in the USA. You used to stand for something good, and now you are going down the tube fast. How quickly will you sink into a banana republic style of government?
Re:Inflammatory misleading headline (Score:2, Informative)
Not a violation of the 5th or due process (Score:2, Informative)