Terrorism: Section by Section Analysis of the USA PATRIOT Act

Abstract

2 Statutory forfeitures have often been accomplished through civil proceedings conducted in rem with the offending property treated as defendant.As a result, some came to believe that the necessity of the property owner's criminal conviction constituted the essential distinction between forfeiture of estate and statutory forfeiture.Yet, occasional forfeiture statutes have predicated confiscation upon the owner's conviction throughout our history.Moreover, it defies credibility to claim that forfeiture of estate's only ameliorating attribute is its only essential element. 3The statutory ban, and its successors, remained in effect until 1984 when it was repealed (continued...)of a foreign nation or national responsible for the threat.During war time, the Trading with the Enemy Act (TWEA) gives him the power to confiscate enemy property located in the United States , 50 U.S.C.App. 1 et seq.Section 106 amends section 703 of IEEPA, 50 U.S.C. 1702, to permit the President to confiscate foreign property in response to foreign aggression.The authority becomes available when the United States is engaged in armed hostilities or has been attacked by a foreign country or its nationals.At that time, the property of any foreign person, organization, or nation which planned, authorized, aided or engaged in the hostilities or attack becomes forfeitable.The President or his delegate may determine the particulars under which the property is confiscated, administered and disposed of, subject to an innocent owner defense created by section 316 of the USA PATRIOT Act.Elsewhere, the USA PATRIOT Act gives the President an alternative means to confiscate the same property on similar grounds (section 806).Section 106 is intriguing because on one hand it seems a logical extension of IEEPA and TWEA, but on the other it appears to revive the constitutionally suspect forfeiture of estate.Forfeiture of estate was a creature of the common law. 1 Upon conviction and attainder, a felon or traitor forfeited all of his property.Statutory forfeiture, a more familiar feature of American law, consists of the confiscation of contraband, the fruits of crimes, and the means to commit a crime -untaxed whiskey, the drug dealer's profits, and the rum runner's ship.Three distinguishing features characterize forfeiture of estate.The property is lost solely by reason of its ownership by the felon or traitor; there need be no other nexus to the crime.As a consequence, it works the confiscation of all of a felon's property, not just his crime-related property.Third, it extinguishes his future right to hold property and no title to property may pass through him to his heirs. 2 It is this last feature, this "corruption of the blood", which the authors of the Constitution found most distasteful.They decreed that "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted," U.S.Const.Art.III, 3, cl.2.And when first assembled in Congress, they extended the ban to all federal crimes: "no conviction or judgment for any offences aforesaid, shall work corruption of blood, or any forfeiture of estate," 1 Stat.117 (1790). 3CRS-4 3 (...continued) through misunderstanding as part of comprehensive revision of federal criminal law, 18 U.S.C. 3563 (1982 ed.). 4 Cf., Societe Internationale v. Rogers, 357 U.S. 197, 211 (1958)("this summary power to seize property which is believed to be enemy-owned is rescued from constitutional invalidity under the Due Process and Just Compensation Clauses of the Fifth Amendment only by those provisions of the Act which afford a non-enemy claimant a later judicial hearing as to the propriety of the seizure")(no suggestion that due process likewise condemns forfeiture of estate in cases that do not involve treason).