Section 806 of the USA Patriot Act allows the president of the United
States to take the property of anyone who is "perpetrating" or
"planning" terrorism against the country, its people or their property.
Any person or group found to be planning to commit a criminal and
dangerous act to coerce government policy could lose all assets,
regardless of whether they actually commit the crime.
In an analysis of the Patriot Act written for Congress, Charles Doyle of
the Library of Congress wrote: "broad as the president's war powers may
be, they would hardly seem to provide a justification for section 806,
which . . . is neither limited to foreign offenders nor predicated upon
war-like hostilities."
This section of the Patriot Act employs "forfeiture of estate," allowing
the government to take all property. This is unusual in American legal
tradition, which has historically employed "statutory forfeiture,"
limiting seizure to assets derived from, or used for, a crime.
A person whose property is seized under 806 also loses the right to pass
property to heirs, creating what the U.S. Constitution calls "the
corruption of blood."
Article III of the Constitution protects people from punishment for the
acts of their ancestors.
This is why, Doyle noted in his analysis, "President Lincoln insisted
that the confiscated real estate of Confederate supporters should revert
to their heirs at death."
Waiving the rules
The Patriot Act also addresses property forfeiture in Section 106,
titled Presidential Authority.
This section says that when the United States is "engaged in armed
hostilities," the president may seize "any property" within U.S.
jurisdiction from "any foreign person" that the president determines has
aided in "such hostilities."
This section has its roots in a 1917 law called the Trading With the
Enemy Act, which gave the president power to seize assets in any
national emergency.
This power had been weakened under the 1977 International Emergency
Powers Act, which limited it to times of war.
Section 106 of the Patriot Act amends the 1977 law to restore the
president's authority to seize property in any national emergency.
The Trading with the Enemy Act once involved President Bush's family.
In 1942, the U.S. government seized assets of the Union Bank because it
was controlled by Fritz Thyssen, who helped bankroll Adolf Hitler's rise
to power. Prescott Bush, the president's grandfather, was a director of
that bank when the United States seized it.
The government later reimbursed him $1.5 million for his single share in
the bank.
Section 106 also reinforces the government's authority to make its case
for property forfeiture in the secrecy of a judge's chambers, and
without the defendant present.
This section also lets courts waive the Federal Rules of Evidence to
protect national security, permitting hearsay and other evidence that
might normally be inadmissible.
Sections 106 and 806 do not require conviction of a property owner for
the government to seize assets.
Section 106 applies only to foreign-owned property, but 806 applies to
"any individual," including any American, who the government says is
planning to coerce people or government policy through a criminal and
dangerous act.
Doyle told Congress that besides Article III of the Constitution, these
amendments might violate two of the amendments in the Bill of Rights:
the Eighth Amendment, barring excessive fines, and the Fifth Amendment's
double-jeopardy clause, which applies to forfeitures that are so
punitive "as to negate any presumption of remedial purposes."
Gerald M. Carbone may be reached at
gcarbone [at] projo.com or (401) 277-7434.
Tomorrow: Contrary to popular belief, most of the Patriot Act does not
automatically expire next year.
Editor's Note: The USA Patriot Act -- the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act -- has generated intense debate since it was
enacted almost three years ago. This series examines the implications of
some of the more controversial sections of the act's 342 pages.
ARTICLE TOOLS: 
