New Executive Order Allows Seizure of the Assets of ANYONE opposing the Iraq War

Somehow, this Executive Order has not received much attention in the mainstream news. Hopefully more people will blog about it in the next few days and shame the media and Congress into speaking up about this.

The very short analysis is this, though ostensibly the administration will say it is aimed at terrorists, the language of the EO is sufficiently broad to allow:

the US to seize all of the property of anyone, anywhere in the world IF the White house determines that person (i) disagrees with the President's Iraqi policy, (ii) knows someone who disagrees with the President's Iraqi policy or (iii) has any connection to someone who knows someone who disagrees with the President's Iraqi policy.

That doesn't sound right does it? That can't possibly happen in America can it? OUR President surely can't have signed THAT. That can't happen HERE, can it?

What follows is my line by line analysis of the Executive Order (I have omitted a few bits of boiler plate that are irrelevant to the effect of the EO, in my opinion).

But don't take my word for it. Anyone who so desires, may read the full text of the EO at the White House's own web site.

Section 1(a) begins:

"notwithstanding any contract entered into or any license or permit granted prior to the date of this order,"

This means notwithstanding the rights of any of anyone you owe money to, have promised to work for or sell or lend something to, a church you tithe to, a child who requires child support payments for food and shelter, etc. This effects the rights of any innocent third party you
may have dealt with. But then, if they know you, they probably aren't innocent anyway (see below).

The EO continues:

"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,"

This means all property that belongs to you if you are in the US, regardless of whether you are a born citizen, naturalized citizen, legal immigrant or illegal, if you have been brought here against your will, and even if you are someone the US just decided to take "possession or control of" such as the foreign detainee's in the CIA's "secret" prisons in Europe.

The point here is to make plain that this EO is intended to apply to US Citizens who SUPPOSEDLY have constitutional rights and not only to illegals and non-residents who
generally don't have them.

The EO continues, all such assets:

"are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in"

This means your property can be seized by the US and neither you nor anyone else can do anything to or with any of it.

To summarize the EO so far: regardless of whether any innocent third party may be injured, the US can seize all of the property of anyone, anywhere in the world IF:

"the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense"

i.e., if the White House (but not the Attorney General or the Justice Department), determines that person:

"(i) to have committed, or to pose a significant risk of committing, an act or acts of violence"

We can generally agree that people who commit acts of violence deserve to be punished. There are a wide range of opinions as to what form punishment (or penance, or restitution or etc) should take.

Forefeitures have been approved under federal and state statutes before. And we can sort of all agree that we aren't really unhappy if the US takes all of a mad bomber's assets away from him or her.

Criminal violations and criminal penalties are usually set by statutes enacted by a deliberative body (like Congress or a State Legislature) that has publicly weighed and considered the constitutionality of the legislation, the seriousness of the offense, and the reasonable relationship of the penalty to the crime. They are also usually governed by civil and or criminal procedural rules designed to protect the Constitutional rights of the accused. I can't actually think of any forefeiture penalty in the Country that those two statements do not apply to, except for this EO.

The problem is that the language is so broad it could mean anything. The lack of definitions is particularly troubling in a power so sweeping. Theoretically, at least, a legislative body in which the language would have been vetted by a committee or the consideration of several hundred lawmakers and their aids, there might have been some effort at clarity.

What is an act of violence? Throwing a bomb, certainly. But so would be throwing blood (or simulated blood) on the doors of war profiteers or the president of Halliburton?

Some might argue that trespassing is an act of violence. The modern concept of trespass to land is developed from the common law writ of action trespass quare clausem fregit ("tresspass by which he broke the close"). The action presumes that the act of tresspass "broke" an invisible wall which was assumed to exist at the boundary of your property, regardless of whether such a wall was there. It applied regardless of whether there was any actual injury and regardless of whether there was any knowledge of the boundary on the part of the trespasser.

What about trespassing in a recruitment office to pass out anti-war leaflets? I believe there are sufficient precedents in the law to make at least an arguable case that is an act of violence.

What is a significant risk? Is someone blowing off steam about her anger and frustration at the war a significant risk? How about someone who wears an anti-war t-shirt to a Congressional hearing? How about someone who signs an internet petition against the war? Does Cindy Sheehan pose a significant risk?

Does someone who signed a petition against the war "pose a significant risk" of committing an "act of violence", for example, by joining an unlicensed anti-war demonstration trespassing in Central Park (yes, I am guilty of both of those treasons).

Unfortunately, the EO provides no definitions and gives no reasons to make a distinction between the bomb throwers and the peaceful anti-war demonstrators.

Another problem here is that the person who signs a petition is subject to the same penalty as the person who makes and plants a bomb that kills and injures hundreds or thousands of people. Forefeiture penalties are generally imposed pursuant to statutes created by deliberative, legislative bodies that consider whether the penalty fits the crime.

The only supposed "limitation" on the EO's reach, such as it is, is section 1(a)(i) which
limits the EO's application to those 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;"

This administration believes that any opposition to its Iraqi policy, undermine's the war effort, gives comfort to our enemies and is tantamount to treason. We've heard this dozens of times from Bush himself, and from Cheney, and various generals, not to mention Republican Senators and Representatives, operatives, Fox News, and other talking heads.

It follows then that any act of civil disobedience (such as an unlicensed protest demonstration in Central Park) in opposition to the President's Iraqi policy, threatens to undermine (i) the only right way to bring peace to Iraq (i.e. Pres. Bush's way), (ii) the peace and stability of Iraq and its government and (iii) Pres. Bush's efforts to promote reconstruction, reform and humanitarian assistance in Iraq.

It boils down to this: All of your property can be confiscated if the White House decides that you disagree with the president and might protest his decisions (according to polls, right now that's about 70% of the people in the US).

But it gets worse. wading on: section (a)(ii) provides that this EO also applies to "a person who has committed, or might commit an act of violence" if the White House determines that person:

"(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:

Meaning anyone who has helped commit such an act of violence. Signing a petition might constitute sponsoring the action the petition supports. Running a paid advertisement for a protest rally might constitute material assistance.

The next section though casts a much wider net:

"or any person whose property and interests in property are blocked pursuant to this order;"

In other words, once all of your assets have been frozen under this EO, once you've been thrown out of your house, lost all of your cash and charge cards, and basically everything but the clothes on your back, they can seize the assets of any one who gives you a job. It's guilt by association . . . you might commit an act of violence, they know you, so they might commit an act of violence, They can seize the assets of anyone who gives you a handout of a sandwich or dollar as
you starve in the street. The fact they might not even know you or why you are penniless, will be irrelevant if it is proved that they are themselves anti-war sympathizers.

This interprestation is reinforced by section (1)(b) which states:

"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."

This means not only that the EO applies to anyone who gives something to anyone else for
the benefit of a person who is subject to the EO. This could apply to a soup kitchen giving food to that person's destitute wife (or husband) and children. This could apply to someone who makes a donation to the American Cancer Society at your request.

Worse, it also applies to anyone who receives anything from you. If someone receives a pen with the name of your business on it, he could be subject under this EO to forefeit everything he has if you disagree with the president and are likely to do protest the war.

Boiled down to its simplest terms, the EO can be broadly interpreted to say this:

"regardless of whether any innocent third party may be injured, the US can seize all of the property of anyone, anywhere in the world IF the White house determines that person (i) disagrees with the President's policies, (ii) knows someone who disagrees with the President's
policies or (iii) has any connection to someone who knows someone who disagrees with the President's policies, and is likely to protest them."

Finally, section 5 of the EO provides that:

"there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order."

In other words, they can do this to you without giving you any prior notice and without a hearing in any court of law. There is no requirement in the EO that notice be given even after your assets have been seized. So that once you do find out your accounts have been seized, you may not know who seized them or why. There is no requirement in the EO that you ever receive a hearing or a right to appeal from any action taken against you under this EO.'

Such loose and absolute discretion is bound to be abused. I am, of course, giving the EO a very broad interpretation here. It can be argued that read very narrowly this power will not be abused and will only be applied to "bad people." Unfortunately, the EO doesn't say that. It doesn't say it should be read narrowly. It gives the White House total and unfettered discretion to determine what it means. Complete discretion, by Presidential fiat, to take the assets of anyone at any time on suspicion of disagreeing with the President or even knowing someone who does.

Since this President has in every case taken every opportunity to interpret his own powers more broadly and more expansively rather than less so, there is no reason to believe he will not read this order just as broadly and expansively as he can. An Attorney General (such as Gonzalez) and a President who can argue that waterboarding is permissible under the Geneva Conventions would have no difficulty determining that trespassing at an army recruitment office to counsel children against enlistment, or throwing blood (or fake blood) at the president of Halliburton, etc. are acts of violence intended to disrupt the peace and stability of Iraq.

This is not merely liberal paranoia. Under the President's warrantless seizure program, an attorney was arrested in the State of Washington solely on the allegation that he was a muslim, that he attended his temple, and that he represented, in a divorce case, a muslim who was also under suspicion. The attorney was held for a week without access to a telephone, his family, friends, a lawyer or a court of law. No warrant was issued for his arrest. He was not charged with any crime. His family was not informed that he had been taken or where he was. In South America he would have been referred to as a "disappeared"

Attorney General Gonzalez has admitted there have been abuses under the Patriot Act. The history of similar statutes virtually guaranties that this EO will most often not be applied to serious offenders as originally intended. The federal RICO statute was enacted in the early 1960's to give prosecutors a weapon to use in the war against organized crime syndicates. Today, RICO is most often used by unhappy stock holders to sue brokers, accounting firms, banks and insurance companies.

How many constitutional violations can you find in this EO? Freedom of Association, the Right to Free Speech, Unreasonable Seizure, any number of due process violations, right of notice, right to a fair and impartial hearing before a judicial tribunal. I feel like I'm playing one of those "find the hidden object" games you find on the paper place mats in highway diners. This thing basically asserts the rights of Kings before the Magna Charta was signed in 1215.

Hopefully, Congress will wake up soon and finally tell the President that he is NOT above the law, and he doesn't have any power under the Constitution to write laws. There is a reason that Congress is the "Legislative Branch" and the President is the "Executive Branch" of government. Congress "legislates", it writes laws. America's founders were very clear in their belief that the power to make laws should not rest in one man, for that way leads monarchy and
dictatorship.