On reconsideration from Kindhearts for Charitable Humanitarian Dev. v. Geithner, 647 F. Supp. 2d 857 (N.D. Ohio 2009), posted here, the indefinite asset seizure by Office of Foreign Asset Control is not a reasonable seizure, and the plaintiff must have a Fourth Amendment remedy, and this is a difficult question. Giving a post-deprivation remedy satisfies the Fourth Amendment. Kindhearts for Charitable Humanitarian Dev. v. Geithner, 710 F. Supp. 2d 637 (N.D. Ohio 2010):
It is the role of the judiciary, however, to ensure the protection of individual rights. E.g., Trop v. Dulles, 356 U.S. 86, 103 (1958) ("The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away [fundamental rights] ..., the safeguards of the Constitution should be examined with special diligence."); accord Brill v. Hedges, 783 F. Supp. 340, 346 (S.D. Ohio 1991) ("[T]he judiciary's role [is to serve] as a protector of individual rights and freedoms.").
This is true in even the most dire of circumstances. See Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion) ("We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."); see also Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426 (1934) (holding that "even the war power does not remove constitutional limitations safeguarding essential liberties").
This tension between assuring security and protecting liberty is never-ending, and has been present since the founding of our Republic: "Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency." Blaisdell, supra, 290 U.S. at 425.
The question is probable cause to believe that the OFAC laws are being violated, not evidence of a crime, and a post-deprivation finding of probable cause as a remedy would satisfy reasonableness:
I conclude that the government need not show probable cause to believe that evidence of a crime will be found. The government must instead show that, at the time of the original seizure, it had probable cause -- that is, a reasonable ground -- to believe that KindHearts, specifically, was subject to designation under E.O. 13224 § 1.
I further find that if the government can show probable cause for the original seizure, even at this very late date, the post-hoc judicial finding of such cause remedies the Fourth Amendment violation.
. . .
If the government shows probable cause for the seizure, even at this very late date, then the Fourth Amendment violation will be remedied and thus harmless, and the government can retain the plaintiff's assets pending completion of the administrative SDGT process.
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—Katz v. United States, 389 U.S. 347, 351 (1967)
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—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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