To Seize or Not to Seize

There are a few ongoing controversies about the Patriot Act, the batch of laws passed to combat terrorism in the aftermath of the September 11 attacks. Most serious is the charge that anti-terror laws are being misapplied to advance agendas that have nothing to do with preventing another attack on America. If so, this is a serious problem.

Specifically, civil-liberties groups are warning that the Justice Department is abusing powers derived from the Patriot Act. The agency argues that it very clearly is utilizing Patriot Act provisions for crime-fighting beyond anti-terror activities, but that it is perfectly within the bounds of the law to do so. Of particular import is Section 319, which gives prosecutors the ability to seize foreign assets in U.S.-based accounts of foreign banks if there is probable cause that the funds were obtained illegally. On Friday, Justice Department spokesman Bryan Sierra explained to us that, “When tools are available, yes, we’ll use them. There is no wording in the law that limits this provision to terrorism. And given the complex connection between terrorism and money-laundering and other criminal activity, such as drug trafficking, we think it is appropriate to use the law to track down proceeds of illegal activity generally.”

Critics say such broad powers go too far, and that federal prosecutors have a tendency to overreach. Economist Richard Rahn told us, “The government has a record of abuse with asset forfeiture already. It’s a dangerous trend that undermines due process. Until actually convicted, no one should suffer the loss of their property.” There are political ramifications as well. The State Department is worried that its diplomatic initiatives are undermined if prosecutors receive more power to move against foreign businesses operating in this country.

Our concern is the seeming misunderstanding of the public’s support for the Patriot Act, which was sold as a reaction to terrorism. In its wisdom, Congress gave the government more powers to confront the new threat to the nation, including the ability to seize terrorist assets. We endorsed the new law, and would support broader tactics so long as they have sunset clauses and are used for the intended purposes. We could even understand the loose use of Section 319 in cases in which there is a hunch that a terrorist connection could exist. But permanently instituting new police powers or extending them beyond the scope of the terrorist threat, risks undercutting the public’s support for the laws. If prosecutors don’t show restraint, Congress may decide to restrain them by changing the statutes. And that would be a setback for the war on terror.