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Executive Order Overturns US Fifth Amendment
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.
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)
It's amazing how often this comes up. The media is -not- controled by the government. It doesn't have to be. All the US media is right now is a platform for whomever seems to know what theyre talking about to speak with the world unchallenged. We dont have a muzzled media, we just have an ignorant 24/7-entertainment-economy driven one. That means, without external control, it happens to coincidentally serve the interests of mobs, governments, and people wishing to dish out misinformation unchallenged (in any serious manner). Who gets to get on the soapbox? Wealthy People Powerful People Pretty People (ie, your old high school popular-kids clique)
If you freeze my assets, I have no use of them. That is the same as seizure. If the Supreme Court has decided otherwise, that's a pretty lousy decision in my opinion.
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.
Your anti-war demonstration scenario is only going to get your property frozen if it's a violent demonstration.
The US government has been violating the Constitution from pretty much the day it was ratified. This is why people need to realize that the Constitution really is "just a piece of paper" in the sense that it can't do anything to defend your rights. Individuals always have the ultimate responsibility for defending themselves, their rights, and their property.
"You have as much Freedom as you are willing to demand, and as you are capable of defending." has never been more true.
// TODO: Insert Cool Sig
Not the Fifth. The Fourth. These are unreasonable searches and seizures, not efforts at self-incrimination.
(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. While this text *does* explicitly mention violence, it includes 'pose a significant risk of committing'. Having done quite a bit of research on that wording for debate, I can say with reasonable certainty (although IANAL so I could be wrong) that 'significant risk' is roughly equivalent to 'reasonable suspicion', which is legally defined as a MUCH lower standard than 'probable cause' - in fact it requires almost no supporting evidence.
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.
I feel obligated to reply.
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.
It still gets worse:
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.
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.
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
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.
Friends don't help friends install M$ junk.
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,
"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."
Computers are useless. They can only give you answers.
-- Pablo Picasso
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.
Lost at C:>. Found at C.
For those folks having a hard time connecting this to the Fifth Amendment, I provide the following:
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
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, because that's the limit, safety-valve, maximum, etc. ( the unabridged version is here (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).
Quo usque tandem abutere, Nimbus, patientia nostra?
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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.
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.
Whence? Hence. Whither? Thither.
The order cites IEEPA (passed 1977 under President Carter) and National Emergencies Act (passed in 1976 under President Ford). Now you may or may not think that these are good laws but please stop making stuff up about how this is all 9/11 overreaction. Emergency powers have a long history and tend to creep up on you.
An attorney's perspective: I have no doubt that at some point the US Supreme court will examine this order and declare that it violates the 5th amendment.
...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Due process is pretty straightforward - its some means or method for an accused person to dispute the charges. It doesn't have to be via a judge and jury, and can be something as simple as a committee appeal process. But, before the government, ie the President or the Treasury Dept, can seize a citizen's assets, they have to provide that citizen due process. I see nowhere in this executive order where it accords a citizen due process before his assets are seized. It appears to be blatantly unconstitutional.
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.
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 and has >4500 diggs, but yours comes close enough.
Ron Paul