Ortblad, v. (2008). Criminal Prosecution

Ortblad, V. (2008). Criminal prosecution in sheep's clothing: The punitive effects of OFAC freezing sanctions. Journal. Of Criminal Law & Criminology, 98(4), 1439-1466.

Following the September 11th terrorist attacks, President Bush used his authority under the International Emergency Economic Powers Act (IEEPA) to issue Executive Order 13,224, which permitted the executive branch to use the Office for Foreign Assets Control's (OFAC) asset-freezing power to freeze assets held by people suspected of being involved in terrorist activity. However, the suspicion required to freeze assets is minimal and certainly does not meet the standards applied to criminal prosecution in other areas. Furthermore, there has yet to be a successful criminal prosecution of one of the people or entities who assets have been thus frozen. The freezing of assets is supposed to prevent funds being funneled towards terrorist activity, but there is no way that assets can be frozen in a manner that is not punitive to the individuals involved, since it deprives them of their property. However, abandoning the tool would be foolish, since the rapid manner in which asset-freezing occurs can make it an invaluable tool in the fight against terrorism. The problem is that this deprivation is essentially without due process of law, since the OFAC engages in self-review, and petition to the courts has resulted in a rubber-stamp approval of OFAC actions. The author believes that the OFAC's power to freeze assets is an important tool in the fight against terrorism. However, to remedy the abuses of the OFAC's power, she suggests strengthening congressional oversight over the OFAC, imposing more stringent requirements before assets can be frozen, and ensuring that agency actions are sufficiently reviewed to ensure compliance with those requirements.

Analysis:

One of the important things to keep in mind is that the fact that individuals have not successfully been prosecuted for terrorist activity does not mean that they were not funneling money to terrorist organizations. While at least one entity whose assets were frozen has been cleared of all involvement in terrorist activity, the fact that no others have been successfully prosecuted does not mean that they have not been so involved. Instead, it may simply reflect the fact that the government is choosing to engage in terrorist prevention by blocking the assets rather than prosecuting terrorist actions. While this is a lofty goal, the author correctly states her case for the concept that OFAC seizures fail to adhere to due process requirements. Individuals/entities are not given access to the information that the OFAC used in determining that they were involved in terrorist activity. Moreover, because of the Administrative Procedure Act (APA), there is no meaningful review of the OFAC's activities, even though those activities fall well-outside of traditional APA protections. This is particularly disturbing given that the standard for freezing assets is very low. Once an individual/entity has been designated a national security threat, the President reports it to OFAC, who then places them on a list and freezes their assets. What is significant is that there is no review of the Executive Branch's decision that the impacted party is a threat to national security. Given the link between recent terrorist activity in the United States and worldwide with Islamic extremism, this lax evidentiary standard opens the doorway for discriminatory seizures, as evidenced by the seizure of al Barakaat's assets and the focus on several Islamic charities. While the government contends that the OFAC seizures are strictly preventative, there is no way to avoid coming to the same conclusion as the author and labeling these seizures as punitive, since the impacted parties are deprived of the use of their property. As a stop-gap measure OFAC action seems warranted; however, it seems reasonable to require the government to prove their case against the party within a certain period of time, or to unfreeze the assets. The author addresses remedying the problem with keeping OFAC's standards secret and states a way that they could be kept confidential. However, the reality is that secret standards simply fail to meet due process requirements. If one is unaware of what type of behavior triggers a legal sanction, how can one avoid engaging in that behavior. While the author addresses the civil liberty matter and related post 9-11 abuses of civil liberties, she fails to absolutely condemn the administration for its unconstitutional behavior with these seizures. Her recommendations that Congress provide the OFAC with more clearly-defined standards is meaningless in a scenario where only a small group of Congress people is responsible for oversight. There is a reason that checks- and-balances have traditionally required the involvement of all three branches, and there is no reason to deprive the judicial branch of its ability to meaningfully review these seizures.