So how do you guys feel about the government’s new found ability to seize assets without ANYTHING but mere hearsay or suspicion?
They’ll only use it against terorrists… right? After all, they only use the drug war forteiture laws against drug dealers…
Sure, this is a time of national unity - when we feel like we should give up something to our Benevolent Government for safety - but, I mean, isn’t that how they always sneak stuff past us?
Cite?
As far as I know, there have been no changes in the seizure laws since September 11. I’m not sure if the Administration’s antiterrorism bill (currently being loudly debated in Congress) would affect them or not, but I’m reasonably certain that that bill has not been passed.
Care to explain what you’re talking about, perhaps with citations to illustrate your points?
Er, I don’t have any cites.
I’ve only heard things on the news, repeatedly, about freezing and seizing the assets of suspected terrorists. I also remember a UN resolution which demanded that all member nations did the same.
Countries have always had the power to seize the assets of foreigners for any reasonable cause (such as being involved in an act of war against the nation in which the asset exists).
For example, the United States seized all Iranian assets in the US when the Teheran Hostage Crisis began, and is still holding most of them. We did the same with Iraqi assets during Desert Storm.
This extends not only to assets held by the country itself, but those held by private citizens of that country. Such is the language of diplomacy. Assets seized in this matter are not generally forfeit; rather, they are held in trust by the Secretary of State. If we forfeited them, we would lose their usefulness as a diplomatic tool.
Whether the assets of these suspected terrorists will be forfeited or merely frozen remains to be seen. Seizure only requires an order from the Secretary of State or the Attorney General; forfeiture requires a court order.
The British government has acted to freeze assets:
The United States government has not.
To which government are you referring, SenorBeef?
If it’s the U.S. government, there’s nothing “new” about the ability to freeze foreign assets, as KellyM discusses above.
I don’t know about British laws, but I rather suspect they are not “new” either.
Does that handle your question, SenorBeef?
My bad. They were executive orders. Still sort of vaguely makes me nervous - terrorist is such an ambiguous word when the government wants it to be.
I wouldn’t worry overly much. As a US citizen (I’m guessing) if the government seized your assets you can march into court ASAP and have something done about it. Unless the government had good cause to do so chances are good you’d get your money released in short order. Given that very real possibility my guess is the government wouldn’t seize your assets unless it had a good case against you to begin with.
As others have mentioned diplomacy between nations is a different matter. Presumably you could go to court in the country in question and seek to have your money released but I don’t suppose UbL or the Taliban will be flying to the US anytime soon to file a court case. IF your money was seized by the Afghani government my guess is going to court their would be a decidedly worthless prospect (I’d be surprised if they even had mechanisms there for this kind of thing) and probably not very wise.
Whack-a-Mole wrote:
I think some of the people who had their assets seized in the “war on drugs” might disagree with this.
I agree some of the seizure laws in the war on drugs are pretty draconian. Nevertheless you still have rights and can exercise them in court. If the police followed procedure and the law you may still be SOL but that’s the breaks however shitty it may be.
You also might take your case to the press and see if the court of public opinion would do you any good but our government seems largely immune to that in all but the most extreme cases that gets the vast majority of the US population behind a particular cause. Still, it can be worth a try.
I see.
Well, I assume you’re referring to Executive Order 13224, Blocking
Property and Prohibiting Transactions
With Persons Who Commit, Threaten To
Commit, or Support Terrorism. This is one of only two Executive Orders issued by the President subsequent to September 11th, and the other dealt with activation of military personnel.
In the Order, the President uses the authority granted by Congress in the International Emergency
Economic Powers Act (50 U.S.C. § 1701 et seq)and the National Emergencies Act (50 U.S.C. § 1601 et seq). Under this authority, the President may:
SenorBeef - this is not a new law. It existed before President Bush was even a candidate for the office.
So I guess I’m a little confused about why you’d call it a “new-found” ability. Congress has for years granted the President, in times of national emergency, broad powers to regulate to freeze foreign-owned assets.
Well, the perversion of civil asset forfeiture is the burden of proof. In a criminal case, the burden of proof is placed upon the prosecution to show beyond a reasonable doubt that the accused is in fact guilty of the crime. In civil asset forfeiture, however, the burden of proof is not on the government to prove that the property was used in relation to drigs (and now I suppose terrorist activities) but rather on the owner to prove that the property was NOT.
sigh
Cite?
Let me save you some time.
That’s not so.
A civil in rem forfeiture does, it’s true, use a different standard of proof. But the burden is still on the government to prove, by preponderance of the evidence (or sometimes merely by probable cause) that the property is subject to forfeit.
See, e.g., 21 U.S.C. § 881 et seq, see also *Republic Nat. Bank Miami v. United States, 506 U.S. 80,81 (1992); United States v. One Assortment Of 89 Firearms, 465 U.S. 354 (1984); and about a zillion others.
Why would you post something like this when it’s not true?
Because it makes it easier to justify dissing the law. It’s a lot easier to rationalize a disregard of the law if you make it appear that the law is grossly unfair.
http://www.fear.org/pittpres.html
That’s just one story, printed in a major newspaper…would you care for some others??? There’s many innocent victims of a law that I have to “rationalize iinto disgregard to make it appear unfair”
Ir would seem that RugbyMan is largely correct in regard to asset forfeiture. This link to an ACLU page has a long list of some of the more aggregious cases in which the government seemed to be a bit overzealous (to put it nicely). You also might find this ad from the ACLU on the same topic amusing.
The Detroit News had the following:
Unfortunately I have no more info than that on what the Fed’s are doing and if the new forfeiture law is substantially better than the old forfeiture laws. Still, it seems to leave a gaping hole for the states to ride through with whatever forfeiture laws they see fit so it may be a moot point. I don’t know.
If it doesn’t constitute too much of a hijack I’d be interested to know if there have been any test cases that made it to the US Supreme Court? If not then why not? It sure seems as if the government is out of control on this issue and needs to be reigned in. Heck, the forfeiture laws even make for strange bedfellows…the ACLU (typically very liberal) and the NRA (typically very conservative) both stand on the same side of the fence on this one. Go figure…
No, RugbyMan is not “largely correct,” Whack-a-Mole.
He said:
That’s not true. False. Inaccurate. Incorrect. And, also, wrong.
In his subsequent post, he pastes an article that correctly states the facts:
Now, he may argue, as he appears to do, that this is an unfair standard of proof. For what it’s worth, I agree. In my view, the standard of proof for civil seizures should be uniform, and it should be by preponderance of the evidence.
But his first post claimed that the burden was shifted to the owner of the property to prove that “…the property was NOT…” subject to seizure. That’s a huge jump from simply being dissatisfied with the probable cause standard that the government must use to prove that the property is subject to seizure.
With me?
The original standard of proof that exists may require probable cause, but once the property is * seized * then the burden of proof (and financial burden as well)exists for the owner to prove that the seized property has nothing to do with the crime. Even in a criminal trial, once probable cause (a search warrant and then arraignment) is exhausted, once the criminal trial begins, then the burden of proof moves to the state…no such luxury in asset forfeiture (which I consider an even more extreme measure…taking away a man’s property should not be a trivial matter!)
RugbyMan, think about what you’re saying. If the burden is on the giovernment to show probable cause… and they show probable cause… then they don’t need to do anything more. It’s not that “the burden has shifted” - it’s merely that the government has met its burden. Without any other evidence, then, they will win.
A defendant in this situation must offer some evidence if he wishes to prevail. But the overall burden is on the government.
Now, it’s true, in a criminal trial, that making probable cause for arrest or indictment is only the first step. The accused must still be found guilty beyond a reasonable doubt. This is why, as you suggest, criminal trials don’t end after the government has shown probable cause.
Again, to be very clear: the BURDEN IS ON THE GOVERNMENT TO SHOW, AT LEAST BY PROBABLE CAUSE, that the property is subject to forfeit.
That’s not what you said above. You claimed that the burden is on the accused. It is not. Are we clear on this now?
Another example, if we’re not. Let’s say the charge is robbery, and at the close of the government’s case, they have proven every element of the crime beyond a reasonable doubt - that is, if the defense rested without presenting any evidence, a reasonable finder of fact would return a guilty verdict.
Would you say the accused must “prove his innocence?” No. That’s not our system - it’s just that the government must prove its case beyond a reasonable doubt… and it has.
In the forfeit cases above, same deal - the government must prove its case - and it does.
Where we agree is that the standard of proof needed is too low. I would impose a uniform standard of ‘preponderance of the evidence’ in asset forfeiture cases - I agree that ‘probable cause’ is insufficient.
I would also rule that a criminal acquittal would act as a collateral estoppel bar against subsequent civil forfeiture actions arising from the same transaction – that is, if you’re charged with drug possession and your car is seized as well… if you’re acquitted of the criminal charge, the government could not proceed with the civil action.
But all of this is not why I posted - it was to correct the ignorance of the claim that somehow the law imposed a burden, from the start, on the defendant in civil in rem forfeitures. As should be abundantly clear from the foregoing, it does not.
well, I think it is a matter of how you look at it. The cops interrogate joe blow and decide the $8000 he has on him may be the product of illegal activity so, without further proof or judicial process the cash is forfeited. Now the burden is on Joe Blow to initiate the judicial process to recover the property.
The way i see it, the state needs mere suspicion to take his property and now the burden is on him to recover it.
That is like if the cops could put him in jail without judicial process and it was up to him to start the judicial process to get out.
It is not a question of burden of proof but a question of burden of due judicial process. IMHO it should be the state proves their case (with whatever level of proof, I would say beyond any reasonable doubt) first and then takes the property. The way things are now the penalty is imposed without due process and the burden is on the citizen to recover.
