Challenging the Legality of Section 106 of the USA PATRIOT Act

I. 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 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 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 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 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 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 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 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. …