Day 7: U.S. can seize assets, no conviction required

01:00 AM EDT on Saturday, July 10, 2004

BY GERALD M. CARBONE
Journal Staff Writer

 

Section 806 of the USA Patriot Act allows the president of the United States to take the property of anyone who is "perpetrating" or "planning" terrorism against the country, its people or their property.

 

Any person or group found to be planning to commit a criminal and dangerous act to coerce government policy could lose all assets, regardless of whether they actually commit the crime.

 

In an analysis of the Patriot Act written for Congress, Charles Doyle of the Library of Congress wrote: "broad as the president's war powers may be, they would hardly seem to provide a justification for section 806, which . . . is neither limited to foreign offenders nor predicated upon war-like hostilities."

 

This section of the Patriot Act employs "forfeiture of estate," allowing the government to take all property. This is unusual in American legal tradition, which has historically employed "statutory forfeiture," limiting seizure to assets derived from, or used for, a crime.

 

A person whose property is seized under 806 also loses the right to pass property to heirs, creating what the U.S. Constitution calls "the corruption of blood."

 

Article III of the Constitution protects people from punishment for the acts of their ancestors.

 

This is why, Doyle noted in his analysis, "President Lincoln insisted that the confiscated real estate of Confederate supporters should revert to their heirs at death."

 

Waiving the rules

 

The Patriot Act also addresses property forfeiture in Section 106, titled Presidential Authority.

 

This section says that when the United States is "engaged in armed hostilities," the president may seize "any property" within U.S. jurisdiction from "any foreign person" that the president determines has aided in "such hostilities."

 

This section has its roots in a 1917 law called the Trading With the Enemy Act, which gave the president power to seize assets in any national emergency.

 

This power had been weakened under the 1977 International Emergency Powers Act, which limited it to times of war.

 

Section 106 of the Patriot Act amends the 1977 law to restore the president's authority to seize property in any national emergency.

 

The Trading with the Enemy Act once involved President Bush's family.

 

In 1942, the U.S. government seized assets of the Union Bank because it was controlled by Fritz Thyssen, who helped bankroll Adolf Hitler's rise to power. Prescott Bush, the president's grandfather, was a director of that bank when the United States seized it.

 

The government later reimbursed him $1.5 million for his single share in the bank.

 

Section 106 also reinforces the government's authority to make its case for property forfeiture in the secrecy of a judge's chambers, and without the defendant present.

 

This section also lets courts waive the Federal Rules of Evidence to protect national security, permitting hearsay and other evidence that might normally be inadmissible.

 

Sections 106 and 806 do not require conviction of a property owner for the government to seize assets.

 

Section 106 applies only to foreign-owned property, but 806 applies to "any individual," including any American, who the government says is planning to coerce people or government policy through a criminal and dangerous act.

 

Doyle told Congress that besides Article III of the Constitution, these amendments might violate two of the amendments in the Bill of Rights: the Eighth Amendment, barring excessive fines, and the Fifth Amendment's double-jeopardy clause, which applies to forfeitures that are so punitive "as to negate any presumption of remedial purposes."

 

Gerald M. Carbone may be reached at gcarbone [at] projo.com or (401) 277-7434.

 

Tomorrow: Contrary to popular belief, most of the Patriot Act does not automatically expire next year.

 

Editor's Note: The USA Patriot Act -- the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act -- has generated intense debate since it was enacted almost three years ago. This series examines the implications of some of the more controversial sections of the act's 342 pages.