Tuesday, July 24, 2007

That executive order

-- by Dave

Sara's post on Bush's recent executive order regarding seizure of property in the "war on terror" has stirred quite a bit of commentary around parts of the blogosphere, as well as a long comment thread.

As I noted in the comments, I remain somewhat skeptical of the gravity of this order. Some of this is reflexive; when I covered the militia movement in the 1990s, a virtual cottage sub-industry among the Patriots emerged that revolved around the claim that various of Bill Clinton's executive orders constituted a nefarious plot to enslave America under the auspices of the New World Order. Seeing similar claims arise regarding George W. Bush raises immediate red flags for me.

That said, I think the bulk of Sara's post was reasonable conjecture, even if the concern over this particular executive order fails to pan out. We won't always agree, but I think she's right to stir the pot in this case anyway. Heaven knows the Bush administration has not given us anything but cause for concern when it comes to the limitations of their lust for power.

Still, not being legally trained, I'll leave it up to actual legal minds to hash out the ramifications of this order. To that end, I'd like to pass along an e-mail from one of our regulars, Den Valdron, who knows a bit more about this than I do. To wit:
I was very interested in Sara Robinson's piece on the recent Executive Order of July 17, 2007.

I was quite concerned to read the comments of 'Rusty Shackleford' suggesting that it wasn't so bad... "I think you're overstating the outrageousness just a bit... I just don't think it helps your argument if you fail to mention the "violence" requirement. You have correctly identified the weasel words - "significant risk." With respect to bloggers, commenters, organizers, and letter-writers, I simply don't think this raises as much of a red flag as you do. The "significant risk" must be of committing an act of violence, not merely inciting it (which itself would be hard to prove)."

With all due respect to Rusty, maybe he does house transactions or something, or he's a wills and estates man, but he's absolutely dead wrong on the subject.

I was also disappointed to read your own comments:

"Actually, I agree with Rusty and Fiat on this. I saw a lot of fearmongering around executive orders by the far right during the '90s and refuse to fall prey to similar fears a decade later. As near as I can tell, this EO doesn't constitute a fascist policy, largely because **any action by authorities is closely tied to acts of violence.**"

In point of fact, it is not closely tied to acts of violence.

I don't normally pull rank, but I am a lawyer, and I believe that both Rusty Shackleford and yourself, David, might be a little too sanguine about the limiter on this one. Both seem to take comfort in this governing clause:

"to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of:"

On statutory interpretation there is room here that you could drive trucks through. Let's break it down:

"to have committed.... acts of violence that have the purpose or effect of."

Okay, that's one thing, there's a clear threshold that 'acts of violence' must be committed. If that was the end of it, we might be very concerned. But we might take some comfort.

But look at this:

"to pose a significant risk of committing... an act or acts of violence that have the purpose or effect"

Excuse me? What the hell does 'significant risk of' mean? This is an anticipatory clause. No act of violence needs to be committed. No act of violence needs to be imminent. No act of violence needs to be planned or conceived.

All that is required is an assessment that a person 'poses a significant risk of committing' an act of violence, and bob's your uncle.

Think about that. How does law enforcement rate and register threats and risk potential?

a) Personality profiling... remember what happened to Richard Jewell? A great deal of money is being sunk into statistical profiling models. Profiling, for better or worse, is a recognized investigative tool which is used to narrow or zero in on suspects. I believe that there may be cases where profiling has been accepted as probative evidence in criminal or civil courts in the United States.

b) Association directly or indirectly with persons known or suspected to have committed acts of violence... a potentially very broad net that encompasses not only family, neighbors and people at the workplace, but also potentially the charities you donate to, and the people who are writing in to your blog.

c) Certain political activities. For instance, suppose you intend to attend an anti-globalization demonstration. Those things have gotten a reputation for being unruly, windows get broken, jerks throw rocks, etc. The intention to attend a political rally where there may be an expectation on the part of the authorities of violence may be sufficient to trigger the pre-emptive power. This net can be cast very, very widely. Remember that it is documented that the police have conducted surveillance on and even infiltrated all sorts of peace groups, environmental groups, civil rights groups etc. Agents provocateurs are also occasionally documented and much rumoured. The anticipatory nature of this clause creates a situation where it becomes de facto risky to attend or participate in any event or process sponsored by these groups, even in a casual manner. I could anticipate a chilling effect on social activism of any sort.

Ultimately, the anticipatory nature of "significant risk of committing..." is terrifying in its scope.

Significant risk explicitly does not speak to a specific act planned or anticipated. Rather, 'significant risk' speaks to an assessment of potential.

Potential. Think about it.

Who makes the determination of significant risk?

Reading the Executive Order, this risk appears to be assessed by the Secretary of the Treasury, in consultation with state and defense. None of these departments have jurisdiction or interest in law enforcement or domestic peace, they are not qualified to assess what laws are being broken or who is breaking them. State's mandate is foreign affairs, Defence's mandate is foreign aggression, either defending from it or inflicting it.

In short, you've got a terrifying level of discretion being vested in a sector of government which has no particular foundation in assessing or quantifying "a significant risk of committing acts of violence." Think about that.

There is no explicit provision for civil judicial review here. There is nothing in this Order that suggests that you could go to any court and have them set aside the Secretary of Treasury's finding that you pose a significant risk of committing an act of violence.

Assuming that you could argue an inherent or implicit right to civil judicial review (which in fact appears to be the current case, and which has existed or been exercised in the past), there are a couple of problems.

First, this right, even if it exists now, is potentially in danger of being taken away by fiat or legislative action. The termination of this right could be so disconnected from any apparent consequences that only the people victimized by it would ever know what had been done to them.

Secondly, the right to civil judicial review requires financial resources to contest... How are you going to contest when all your resources are seized? Better yet, how are you going to contest when anyone willing to help you may be putting their own resources at risk? Remember, association is potentially one test of "significant risk of committing acts of violence." If you've been found to be of significant risk through persons supporting or associating with you, then by the simple act of association or support other persons may also be deemed to be 'significant risks.'

A little farfetched? Maybe. Maybe not.

Why am I focusing on civil judicial review? Because here's an interesting thing. This Order is divorced from any issue of criminality -- i.e., you do not have to be charged with any criminal offense in order to come under the purview of this order.

It's likely that a criminal conviction would be de facto proof, as far as the secretary of treasury is concerned, either of acts of violence or of significant risk. A criminal charge alone, either in advance of conviction or even with an acquittal, would probably be satisfactory to treasury though. Being a suspect in a criminal investigation, but not charged, might get you nicked by treasury. Or even having a criminal record would be sufficient to justify a finding of 'significant risk.'

Indeed, act or acts of violence in no way connects to any inference of criminal wrongdoing. Conceivably one might destroy one's own property, like burning a flag on your own land as a gesture, and this would be an act of violence.

If we look to civil law, assault is usually a direct physical attack. However, assault also encompasses the verbal threat of a physical attack, or even acting in a manner that leads the victim to believe that a physical attack is imminent. Think about that.

Would graffiti be an 'act of violence'? Given that it could be construed as vandalism or trespass on public or private property without consent with the intention of employing physical action to deface or alter said property... yes it would be.

What about postering? What about unfurling a banner at the campaign rally of an opposing politician?

Expressing or advocating or promoting unacceptable political views in anything but strictly limited channels might potentially be construed as violence or acts of violence...or as evidence of "posing a significant risk of acts of violence" of undefined and unproven nature which might potentially occur at some indefinite point in the future.

Prohibited or unacceptable speech in blogs might be considered to be violence rather than incitement to violence. On a civil basis, there may not be a distinction drawn between incitement and the actual act... or again, writings from blogs may be taken as demonstrating a 'significant risk of acts of violence.' Since the risk may be nothing more than potential.

Violence can be like obscenity. Everyone knows it when they see it. But sometimes the definition can become a bit squishy. And here, it isn't defined at all, except to the extent that the language clearly implies that violence includes but is not limited to criminal activity.

Chew on that.

Now, let's turn to the last part...

"an act or acts of violence that have the purpose or effect of:"

"Purpose *or* Effect of."

That means that there's a twofold test there. Obviously "purpose of" implies that there's a nexus of intention between the act or risk of an act. Your act, or your risk, has to be directed at a specific goal "threatening... the Iraqi government" or
"undermining efforts..."

Okay, that's not so bad. But consider the second test:

"Effect of"?

So your act or significant risk of committing an act has the 'effect of' 'threatening... the iraqi government' or 'undermining efforts...'

This is dangerous. This has the effect of eliminating any element of intention or mens rea from this executive order.

Mens rea, or criminal intention is a vital part of the criminal law. It essentially deals with the issue of choice and decision. For many crimes, to be guilty, you have to actually have intended to commit that crime. You had to have known the law, known that your actions were against that law, and then gone ahead. Volition, while diminished, is still a key element of civil law.

Not necessary here.

It is no longer necessary for you to want to hassle the Iraqi government or undermine efforts. It is not necessary for you to even know that your efforts have this result. It is not necessary for you to be aware of any line that you must not cross. In fact, your state of mind, your intentions, your beliefs, your own interpretations of your actions are utterly unnecessary.

It is only necessary that someone decide that such is the result of your efforts. And who makes that decision? Secretary of the treasury.

Finally, I given my previous comments with respect to 'guilt by association', allow me to refer you to excerpts of the two latter provisions:

"(ii) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of .... any person whose property and interests in property are blocked pursuant to this order; or

(iii) .... 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."

Item (ii) is frightening. The wording that I deleted for effect of course refers to committing acts of violence. However, it is followed by an "or". What this means is that the "materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services" punishment comes about in one of two alternative instances -- you're either assisting the acts of violence, or you have provided it to the person without any connection to the acts of violence.

Essentially, this is 'cooties' law. Once a person is designated under this executive order, any person who has any substantive dealings with them for any reason may also be liable to be designated under this executive order.

This 'cooties' law is reinforced later on at section 4 (abridged):

"Sec. 4. I hereby determine that the making of donations of the type specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) by, to, or for the benefit of, any person whose property and interests in property are blocked pursuant to this order ....I hereby prohibit such donations as provided by section 1 of this order."

And what about notice, another key part of due process? I would also point out section 5, which I reproduce, abridged (for clarity and impact):

"Sec. 5. For those persons whose property and interests in property are blocked pursuant to this order ... there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order."

In other words, the first you might hear of this, is after they've done it to you.

Essentially, in this Executive Order the President is assuming unbelievably vast powers to simply sidestep normal criminal or civil procedure, and to operate quite explicitly on the basis of guilt by anticipation, guilt by pre-emption, guilt by association and guilt for any reason in the mind of the decider. There is literally no limitation on authority, except that the person's actual physical being is unaffected.

However, a person so designated by this Order could be rendered into a non-person literally instantaneously. They could be stripped of every asset, have every financial or commercial opportunity denied to them. Worse, this literally creates a power to shun. Anyone who employs this person, who hires them, who pays them for work, lends them money to tide them over, who rents them an apartment, or allows them to sleep on the couch, who drops them a few coins as they panhandle would be liable to becoming subject to this order. The only protection would be to fire this person, to not hire them, to not pay them, to not lend them money, evict them from your apartment, kick them off the couch, and look away if you see them begging on the street.

If the potential implications of this make you think of Jews in Nazi Germany, think again. The Jews pre-war had it good compared to the potential of this.

The most disturbing thing is that this Executive Order need not be actually used.

Consider it as a weapon of intimidation. Most Americans are not rich. Most people live in apartments, they may have a house that the bank owns, they may have a car they're making payments on, they struggle with credit card debt, live paycheque to paycheque. We all live in these little islands of stability that can be so easy to disrupt.

So imagine that you are a dedicated, committed, politically active person. You're donating to the Green Party, perhaps active in local politics, going to demonstrations...

Then one day, a person from the treasury department comes to visit. He shows you this executive order, and he tells you that you have been identified by your actions and associations as being a 'significant risk to commit acts of violence.' He says that by their lights, you may already be deemed to have committed acts of violence. He tells you that it has been concluded that these acts of violence undermine the Iraqi government and the reconstruction campaign...

You protest of course. He says it doesn't matter, these are the findings of the Secretary of the Treasury under the executive order. You challenge him to prove what act of violence they think you are about to commit. He replies that there's no particular act, only that you're a 'significant risk.'

Then he tells you, in very clear terms, what they can do. That they can and will take your house. That they can and will take your car and your bank account. That you will be fired from your job. That you will find it impossible to get another job, or find another place to live. That anyone who helps you will be similarly punished, so no one will help you. He tells you that if this isn't enough, they are prepared to take the same tactic against your parents, your children, your girlfriend, your friends, based on their association with you making them a 'significant risk of committing violence' or of 'providing support to you.'

He asks you if you are prepared to see your life erased? Are you really that brave? Do you really want to lose your job, your home, your nest, your savings, your income, your retirement...

And if you are that brave, are you really prepared to see this done to your girlfriend, your parents, whoever is close to you...

You could take it to court and fight it, of course. All you need is a lawyer that will work for free, because you won't be able to pay him. And he'll have to be a lawyer willing to risk winding up in the same situation you'll be in. He's sure there's lots of those around.

They have lots of lawyers, he notes, all sorts, and very highly paid, with big budgets and expense accounts, for fighting just these sorts of cases.

Fighting it will take two or three years. That's a long time to spend eating out of dumpsters and sleeping on heating grates. It's possible of course, that you'll win and be vindicated. Or you could lose.

Are you feeling lucky?

So most people in that situation, what would they do? They'll just shut their mouths, stop making waves, they'll do their jobs, collect their paycheques and mind their own business. They'll stay out of trouble.

But sometimes, when they see the Sheriff driving down the street to evict someone, when there's a hiccup in their credit card, when they get a call from the bank, or a call into their boss's office... well, they'll get a cold sweat running down their backs, and their stomach will flutter, and they'll search their memories for anything that they might have done wrong, maybe said the wrong thing to the wrong person, had the wrong friend, went to the wrong place... And of course, most times, it'll turn out to be nothing. They'll recover from the scare, their life will go on. But the fear will remain somewhere, and the cold sweat, and the only choice they have will be to be good little citizens.

As a final thought, my compliments to Spice300 who correctly noted that near identical provisions were struck down on Judicial review, but that it took five years to do so. Clearly, there is an agenda and a strategy at work.

I'll only add this: I'm not thoroughly persuaded, if only because I'd like to see some legal minds involved in civil-liberties law take a look at this order and get their opinions. I'll be writing to a couple of folks I know, but in the meantime, if anyone else wants to advance this conversation, I'm more than happy to play the host.

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