A government blocking of assets by Office of Foreign Asset Control (OFAC) qualifies as a Fourth Amendment seizure. The lack of case law only shows that nobody has raised the issue before. Al Haramain Islamic Found. v. United States Dep’t of the Treasury, 585 F. Supp. 2d 1233 (D. Ore. November 6, 2008): <\/p>\n
As an initial matter, the government’s assertion that the Supreme Court has never considered a blocking order to be a Fourth Amendment violation is unpersuasive; I note that no litigant asked it to do so. Furthermore, the cases on which the government relies, IARA and Holy Land Found., cite inapplicable precedent in concluding freezing of assets is not a seizure under the Fourth Amendment. Both courts rely on Tran Qui Than v. Regan, 658 F.2d 1296, 1304 (9th Cir. 1981), D.C. Precision, Inc. v. United States, 73 F. Supp. 2d 338, 343 n.1 (S.D.N.Y. 1999), Can v. United States, 820 F. Supp. 106, 109 (S.D.N.Y. 1993), and others, all of which held that freezing assets was not a “taking” under the Fifth Amendment. The Fourth Amendment imposes a lower threshold than does the Fifth Amendment, however. Generally speaking, a blocking order would constitute a violation of the Fifth Amendment only if it resulted in an appropriation of property for the government’s use or, if it could be deemed a “regulatory” taking, eliminated “all economically valuable use” of the property. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 323, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002) (summarizing takings precedent).<\/p>\n
Additionally, I do not agree with the government that Tran Qui Than’s definition and application of the statutory term “seizure” in the TWEA ends the matter. The court concluded that a blocking of assets in that case “merely suspend[ed] indefinitely the right to transfer” funds, and were not “‘conveyed, transferred, assigned, delivered or paid’ or otherwise seized” by the government. 658 F.2d at 1301 (quoting 50 U.S.C. App \u00a7 9(a)). The court did not apply the Fourth Amendment standard of “meaningful interference with a possessory interest” and, as a result, the case is not of assistance. Accordingly, the government is wrong to equate a seizure with the transfer of property to the government.<\/p>\n
The government’s blocking order is a seizure of property. Szubin himself describes the process as “depriving the designated person of the benefit of the property, including services, that might otherwise be used to further ends that conflict with U.S. interests.” Szubin Decl. P 11. More specifically, here for example, OFAC sent a notice to the Jackson County Recorder of Deeds notifying the clerk that AHIF-Oregon’s real property is “blocked pending investigation by the order of the United States Treasury Department” and prohibiting “[a]ny and all transactions” including “the sale and conveyance of title or deed” unless “specifically licensed” by OFAC. Szubin Decl. Attach. C. Indeed, as Szubin explains more generally, “The blocking notice provided to AHIF-Oregon on February 19, 2004, explained that, pursuant to E.O. 13224 and IEEPA, any transfer, withdrawal, export, payment or other dealing in AHIF-Oregon’s blocked assets was prohibited without OFAC’s prior authorization.” Szubin Decl. P 73. It is apparent that the assets are blocked by order of the government and remain under its control. Even a temporary deprivation of property, as a blocking is, constitutes a meaningful interference with property and qualifies as a “seizure” for purposes of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (holding luggage for 90 minutes constituted seizure); Flores v. United States, 551 F.2d 1169, 1175 n. 6 (9th Cir. 1977) (seizure “can ripen into a permanent taking”).<\/p>\n
Although the blocking constituted a seizure, such an action is constitutional if it is reasonable. Courts look first to whether the seizure would have been unreasonable at the time the Fourth Amendment was framed. If historical practices provide no insight, “we have analyzed a search or seizure in light of traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Virginia v. Moore, 128 S. Ct. 1598, 1604, 170 L. Ed. 2d 559 (2008) (internal quotations omitted). One purpose of the “reasonableness” inquiry is to impose limitations<\/p>\n
upon the exercise of discretion by government officials … to safeguard the privacy and security of individuals against arbitrary invasions …. [T]he reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against an ‘objective standard,’ whether this be probable cause or a less stringent test.<\/p><\/blockquote>\n
Delaware v. Prouse, 440 U.S. 648, 654, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) (internal quotation and citation omitted).<\/p>\n
The government devotes one paragraph to the question of reasonableness, asserting without citation to any law that national security and foreign policy considerations make the seizure reasonable. Neither party addresses the standard set forth in Virginia v. Moore. Accordingly, I request additional briefing on the following issues: …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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