Challenging the legality of section 106 of the USA PATRIOT Act.

• Author: Flint, Charles A.

1. INTRODUCTION

   The attacks of September 11, 2001 have focused our national security efforts on eradicating terrorism. In doing so, the government has enacted legislation to provide law enforcement with powerful tools to combat this imminent threat. One such piece of legislation is the PATRIOT Act, which was signed into law on October 26, 2001. (1) Sectors of the world legal community have criticized the PATRIOT Act because Congress passed it six weeks after September 11th--without committee hearings or substantive debate--even though the Act granted new powers to the federal government affecting privacy and other constitutional rights. (2) Containing ten titles and 342 pages, the PATRIOT Act is so immense that most of its provisions are not well understood. (3) Consequently, the judiciary will be called upon to clear up its ambiguity as the war on terror progresses.

   A primary purpose of the PATRIOT Act is to drain terrorists of their monetary resources. (4) Therefore, many of its provisions are implemented through regulations imposed by the United States Department of the Treasury. (5) One such provision is section 106, contained in the Enhancing Domestic Security Against Terrorism procedures of Title I. Section 106, entitled Presidential Authority, amends section 203 of the International Emergency Economic Powers Act ("IEEPA"). (6) The amendment allows the President to "confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States" once a national emergency has been declared. (7) The President now may freeze assets during a pending IEEPA investigation, as opposed to waiting for the outcome as was previously required. (8) Additionally, this authority may be delegated periodically to any agency or person the President chooses. (9)

   The United States has carefully re-evaluated its national security strategy in the post-September 11th era. The PATRIOT Act has been instrumental in this development because provisions, such as section 106, are allowing the government to dismantle the financial network of terrorists. For example, in 2002 the Secretary of the Treasury froze the assets of two Muslim charity organizations--found to have been supporting terrorists--using the authority delegated to him by the President under section 106. (10) In March 2003, President Bush confiscated Iraqi funds held in the United States after the decision to take military action against Saddam Hussein's government. (11) However, despite its effectiveness, section 106 of the PATRIOT ACT may violate customary international law.

   In Brown v. United States, (12) the Supreme Court addressed, pursuant to the law of nations, whether enemy property found on United States land during wartime could be confiscated as a consequence of a declaration of war. (13) The Court determined that a declaration of war, by itself, was not enough to permit enemy property to be confiscated. (14) In addition to the declaration, there needed to be a specific legislative act authorizing the taking of enemy property. (15) The Court reasoned that a declaration of war merely places two nations in a state of aggression, while the authority to confiscate enemy property is produced by other measures of government. (16) In other words, "war gives the right to confiscate, but does not itself confiscate the property of the enemy." (17)

   Chief Justice Marshall's opinion is filled with references to the theories of English legal scholars. (18) He refers to a passage from Chitty's Law of Nations, stating: '"[I]n strict justice, [the right of seizure] ... can take effect only on those possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities."' (19) The language in Marshall's opinion is very specific. While concluding that Congress is required to produce a specific legislative act to confiscate enemy property, Marshall implies that they do not have the authority to promulgate such an act without a declaration of war. (20)

   Brown has not been overturned in the 190 years since it was decided. The decision outlines the two-step procedure for the government to follow when confiscating enemy property found within its jurisdiction. First, Congress must declare war. Second, it must promulgate a legislative act stating its intent to confiscate the property of enemies found within the United States once war has been declared. Adherence to this process will authorize the right to confiscate enemy property.

   The ability to confiscate the property of foreign nations and nationals is a powerful tool that should be used wisely. According to Marshall, foreign nations will apply to U.S. foreign properties the same rule that the United States applies to other nation's citizens. (21) As a result, we should carefully adhere to the law of nations where circumstances permit us to do so.

   This paper will explore to what extent section 106 of the PATRIOT Act conflicts with Brown and how a court would resolve this issue by examining definitions of enemy and states of warfare, the doctrine of military necessity, international law regarding unlawful expropriations, the application of customary international law in American jurisprudence, and the evolution of the IEEPA.

2. ENEMIES AND WAR

   An enemy is "one seeking to injure, overthrow, or confound an opponent" (22) or "[a] state with which another state is at war." (23) Enemies may be placed in several categories. For example, "[a] person possessing the nationality of the state with which one is at war" is deemed an enemy subject. (24) However, "[a] citizen or subject of a country at war with the country in which the citizen or subject is living or traveling" is an enemy alien. (25)

   War transforms rights and relationships. When the United States declares war on a belligerent nation, foreign nationals of that nation, who reside in a U.S. jurisdiction, are considered enemy aliens. (26) Under international law, a country may confiscate any or all property of such aliens. (27) However, while the United States government can confiscate enemy property during wartime without providing compensation to the enemy owner, it must make available a remedy to protect its own citizens in case their property is erroneously seized. (28) Additionally, a declaration of war has the effect of suspending all commercial intercourse and contracts between subjects of the warring powers for at least the length of the hostilities. (29)

   During peacetime, the rights of foreign nationals become less restricted. For example, both the United Nations and United States recognize that foreign nations and nationals have a right to be compensated when a host government takes their property in peacetime. (30) United States courts will refuse to respect the act of a foreign government that involves a taking of U.S. property or the property of American citizens when there has not been just compensation. (31) This area of international law reveals how rights are affected by war because when a nation classifies another government as an enemy, that government's privileges, along with the privileges of its nationals to own property within the belligerent nation become severely limited.

   Conversely, a country has a duty to make sure foreign persons within its jurisdiction are afforded the protections of the country's laws during peacetime. The country also has the duty to ensure that these laws accord with accepted standards of international law--deriving from either a treaty or principles of customary international law. (32) While war permits a nation to limit the rights of enemy nations and aliens, doing so may affect the economic stability of the belligerent powers because commercial intercourse and trading between subjects of the countries will cease. (33) As a result, considerations outside of national security may heavily influence a nation's decision to go to war. (34)

   During the last half of the twentieth century, the United States failed to declare war against any country in the world despite being engaged in hostilities in Korea, Vietnam, and the Persian Gulf. While these conflicts were more limited in scope than either World War, they were still legally definable states of hostility. (35) This raises the question of what a limited war is and its impact on the legal responsibilities of the countries. These issues are particularly relevant as we examine the consequences of the war on terrorism.

   In Bas v. Tingy, (36) Justice Washington's opinion notes that war can be "perfect" or "imperfect." (37) He stated:

   But hostilities may subsist between two nations, more confined in its nature and extent; being limited as to places, persons and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorized to commit hostilities act under special authority, and can go no farther than to the extent of their commission. (38) Therefore, imperfect war is a public war of limited acts approved by the governments of the belligerent nations. (39) Justice Washington applied this reasoning to conclude that France was an enemy of the United States, within the meaning of an act set into law in March 1799. (40) The act reimbursed persons who were able to re-take American ships from "the enemy." (41) Despite an argument that the language of the act was ambiguous, because it did not specifically state that France was "the enemy," Justice Washington asserted that the act of March 1799 embraced all future war with France or any other nation. (42)

   The Supreme Court's decision in Bas shows that enemy engagement in an imperfect war differs from the case of perfect war. (43) The U.S. air campaign in Kosovo in 1999 exemplifies imperfect war. (44) The goals of the air campaign were limited to specific objectives: ensuring...