From: Greg Burch (gregburch@gregburch.net)
Date: Sun Aug 31 2003 - 19:11:47 MDT
> -----Original Message-----
> From: Barbara Lamar
> Sent: Sunday, August 31, 2003 12:01 PM
> Okay, now let's look at the law known as "Uniting and
> Strengthening America
> by Providing Appropriate Tools Required to Intercept and Obstruct
> Terrorism
> Act" aka the USA Patriot Act (signed into law by President Bush in late
> October, 2001).
Barbara, I'm now sandwiching a legislative history review of 50 U.S.C. secs.
1701 et seq. into other stuff I've got going on this weekend. I note that
the original bill was passed in 1977 during adminstration of <humor> that
dreaded imperialist and well-known oligarch, Jimmy Carter </humor>:
http://www4.law.cornell.edu/uscode/50/1701.notes.html
The link above is interesting. As I'm sure you've noted, the entirety of
sec. 1702 is premised on the authority defined in sec. 1701, which in turn
defines at least some limits to the exercise of presidential power. Such
limits are the first (but I'm sure there are many more) bases I see as an
advocate upon which to craft challenges to the application of the law.
Also worth the long, slow download is the complete text of all the Executive
Orders signed under authority of the law since Pres. Jimmy. With this much
material, I see the second element upon which I'd write my brief (if I had
to get one to the courthouse by tomorrow): These supply a body of practice
against which to judge any particular order. It's interesting to note the
wide variety of situations to which this law has been applied, from the
Balkans to Central Africa.
> The specific sections that concern me are:
>
> 106, which expands the circumstances under which the president may issue
> Executive Orders to confiscate the property of non-US citizens,
> by amending
> Section 1702 of the International Emergency Economic Powers Act (Title 50,
> Chapter 35 of the US Code) [I think such a provision may well be useful in
> combating terrorism, but I would like to see more involvement by
> the courts
> here. As written, I think this provision will harm foreign trade.
> An example
> of what can happen was recently reported in the NYT. An importer
> of oreintal
> rugs had already paid for a shipment from China, and the shipment was
> enroute when that State Department published the following notice
> in the May
> 23 Federal Register:
>
> ==================
> SUMMARY: The U.S. Government has determined that a foreign entity has
> engaged in missile technology proliferation activities that require the
> imposition of measures pursuant to Executive Order 12938 of November 14,
> 1994, as amended by Executive Order 13094 of July 28, 1998.
>
> EFFECTIVE DATE: May 9, 2003.
> ================
>
> As this is not considered a "taking" by the U.S. government, the U.S.
> importer will not be compensated and has simply lost the $100,000 he paid
> for the rugs, as they were required to be destroyed by U.S.
> customs agents.
> Note that these particular executive orders were issued under
> prior law, not
> the PA.
How is it not a "taking"? Maybe I missed something (I'm reading quickly, in
between other chores). If it is indeed authorizes the seizure of a
citizen's property with no legal recourse, then you'll see me signing up to
an amicus brief to find it unconstitutional.
> If one could be 100% sure that such provisions would be used ONLY against
> bad guys, I'd say fine, go for it. But people make mistakes, both innocent
> and not so innocent. Even basically good people are often corrupted when
> they're given too much power (I've seen it happen over and over during the
> 16 years I've been a CPA/lawyer).
I agree completely. I want to see legal action to challenge any
unconstitutional law or executive action, and I spend a little here and
there to support public advocacy groups that do just that.
> I'M GOING TO END HERE, SO AS NOT TO TRY THE PATIENCE OF OTHER LIST MEMBERS
> WHO MAY NOT SHARE MY FASCINATION WITH LEGAL CODES.
Since you're almost a *tax lawyer* for crying out loud, you've got an unfair
advantage over an old courtroom ham like me, but I'm now committed to
working my way through this stuff.
GB
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