Ortblad, V. (2008). Criminal Prosecution Research Proposal

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Individuals/entities are not given access to the information that the OFAC used in determining that they were involved in terrorist activity. Moreover, because of the Administrative Procedure Act (APA), there is no meaningful review of the OFAC's activities, even though those activities fall well-outside of traditional APA protections. This is particularly disturbing given that the standard for freezing assets is very low. Once an individual/entity has been designated a national security threat, the President reports it to OFAC, who then places them on a list and freezes their assets. What is significant is that there is no review of the Executive Branch's decision that the impacted party is a threat to national security. Given the link between recent terrorist activity in the United States and worldwide with Islamic extremism, this lax evidentiary standard opens the doorway for discriminatory seizures, as evidenced by the seizure of al Barakaat's assets and the focus on several Islamic charities. While the government contends that the OFAC seizures are strictly preventative, there is no way to avoid coming to the same conclusion as the author and labeling these seizures as punitive, since the impacted parties are deprived of the use of their property.

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As a stop-gap measure OFAC action seems warranted; however, it seems reasonable to require the government to prove their case against the party within a certain period of time, or to unfreeze the assets. The author addresses remedying the problem with keeping OFAC's standards secret and states a way that they could be kept confidential. However, the reality is that secret standards simply fail to meet due process requirements. If one is unaware of what type of behavior triggers a legal sanction, how can one avoid engaging in that behavior. While the author addresses the civil liberty matter and related post 9-11 abuses of civil liberties, she fails to absolutely condemn the administration for its unconstitutional behavior with these seizures. Her recommendations that Congress provide the OFAC with more clearly-defined standards is meaningless in a scenario where only a small group of Congress people is responsible for oversight. There is a reason that checks- and-balances have traditionally required the involvement of all three branches, and there is no reason to deprive the judicial branch of its ability to meaningfully review these….....

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