B12 Solipsism

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Judge Rejects a Key Tactic in Terror Cases

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Welcome news, some small steps back towards democracy and away from the Bush years and terrorism theatre.

In a ruling that threw into doubt one of the government’s main counterterrorism tools, a federal judge said the Treasury Department acted unconstitutionally three years ago when it froze the assets of an Ohio charity suspected of aiding terrorists.

The ruling challenged a key tactic used by the government under an emergency executive order signed by President George W. Bush two weeks after the Sept. 11 attacks. If upheld, the ruling could severely undercut the government’s authority and ultimately require it to get a warrant and submit to court review in moving against charities.

In the last eight years, the Treasury Department has used its broadened authority to freeze tens of millions of dollars in assets held by eight charities within the United States and hundreds of other groups and individuals outside this country, all without warrants and court approval.

[Click to continue reading Judge Rejects a Key Tactic in Terror Cases - NYTimes.com]

Meteors Hanging in the Gloom

The government should be required to follow all the rules and laws of due process, just like everyone else. Otherwise, we just live in a Constitutional Monarchy. The Fourth Amendment has been around for a while for good reason – remember the British?

A brief refresher of the text and meaning of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In Colonial America, legislation was explicitly written to enforce English revenue gathering policies on customs Until 1750, all handbooks for justices of the peace, the issuers of warrants, contained or described only general warrants. William Cuddihy, Ph.D. in his dissertation entitled The Fourth Amendment: Origins and Original Meaning, claims there existed a “colonial epidemic of general searches.” According to him, until the 1760s, a “man’s house was even less of a legal castle in America than in England” as the authorities possessed almost unlimited power and little oversight.

In 1756, the colony of Massachusetts enacted legislation that barred the use of general warrants. This represented the first law in American history curtailing the use of seizure power. Its creation largely stemmed from the great public outcry over the Excise Act of 1754, which gave tax collectors unlimited powers to interrogate colonists concerning their use of goods subject to customs and permitted the use of a general warrant known as a writ of assistance, allowing them to search the homes of colonists and seize “prohibited and uncustomed” goods.

A crisis erupted over the writs of assistance on December 27, 1760 when the news of King George II’s October 23 death arrived in Boston. All writs automatically expired six months after the death of the King and would have had to be re-issued under the name of the new King, George III, in order to remain valid.

In mid-January 1761, a group of over 50 merchants represented by James Otis, petitioned the court to have hearings on the issue. During the five hour hearing on February 23, 1761, Otis vehemently denounced English colonial policies, including their sanction of general warrants and writs of assistance. However, the court ruled against Otis. Because of the name he had made for himself in attacking the writs, he was elected to the Massachusetts General Assembly and helped pass legislation requiring that special writs of assistance be “granted by any judge or justice of the peace upon information under oath by any officer of the customs” and barring all other writs. The governor overturned the legislation, finding it contrary to British law and parliamentary sovereignty. John Adams, who was present in the courtroom when Otis spoke, viewed these events “as the spark in which originated the American Revolution.” Seeing the danger general warrants presented, the Virginia Declaration of Rights explicitly forbade the use of general warrants. This prohibition became precedent for the Fourth Amendment:

That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted

[Click to continue reading Fourth Amendment to the United States Constitution - Wikipedia, the free encyclopedia]

Eric Lichtblau adds:

[Judge Thomas Carr ]rejected the Justice Department’s contention that the Fourth Amendment, which protects against unreasonable searches and seizures, did not apply to groups suspected of foreign terrorist ties because of the president’s separate national security authority.

Citing British seizures and searches without warrants in colonial America, Judge Carr called the Fourth Amendment “a bulwark against the abuses and excesses of unchecked government authority.”

He said that “nothing in our Fourth Amendment jurisprudence or constitutional tradition supports complete elimination” of the need for the government to establish probable cause, allow judicial review and use court warrants in such cases.

Judge Carr also said that the limited information that the Treasury Department provided to the charity about why its assets were frozen came only after “long, unexplained and inexplicable delay” and repeated requests from the group’s lawyers.

Written by Seth Anderson

August 20th, 2009 at 7:44 am

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