No bill of attainder... shall be passed. (updated)
But Executive Orders are different, or something.
I, GEORGE W. BUSH, President of the United States of America,... hereby order:
Section 1. (a) Except to the extent provided in section 203(b)(1), (3), and (4) of IEEPA (50 U.S.C. 1702(b)(1), (3), and (4)), or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the date of this order, all property and interests in property of the following persons, that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of United States persons, are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any person determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense,
(i) to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of:
(A) threatening the peace or stability of Iraq or the Government of Iraq; or
(B) undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people;
(ii) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, such an act or acts of violence or any person whose property and interests in property are blocked pursuant to this order; or
(iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.
Purported is really good. The standard definition of purported is scary, in this context.
Adj. 1. purported - commonly put forth or accepted as true on inconclusive grounds; "the foundling's putative father"; "the reputed (or purported) author of the book"; "the supposed date of birth"
But the law uses words differently, though looking for a specifc use of it (which usually, as used in the legal cases I've read, means much the same as alleged) I can't find any specific definition.
(b) The prohibitions in subsection (a) of this section include, but are not limited to, (i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order, and (ii) the receipt of any contribution or provision of funds, goods, or services from any such person.
It's (B), and (B)(iii) which really worry me.
Because the decision to excercise this Bill of Attainder is vested in the Secretary of the Treasury, with the consultation of the Secretaries of State and Defense.
So they get to freeze the property, and assets of anyone they decide is "undermining efforts to promote economic reconstruction and political reform" in Iraq.
It's so nice to see there's a solid metric for this. Especially as anyone who contributes funds or services to such a person is also attainted.
So, if a blogger is subject to this act, because of the blogging they do, does that attaint the ISP? Does it reach to the other ISPs which connect to the blog?
And since the act affects anyone who "comes into the United States, does that require ISPs to block anyone the White House (through its Secrataries) condemns by way of this Act, oops, Executive Order?
Maybe not.
Sec. 3. For purposes of this order:
(a) the term "person" means an individual or entity;
(b) the term "entity" means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization; and
(c) the term "United States person" means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States.
But, because this is so important.
Sec. 5. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that, because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render these measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 13303 and expanded in Executive Order 13315, there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order.
Just in case you thought there might be some means of redress,
Sec. 8. This order is not intended to, and does not, create any right, benefit, or privilege, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.
Shall we compare this to what the Constitution says about this sort of thing?
Article 1, Sec.9. No bill of attainder or ex post facto Law shall be passed.
Article 3, Sec. 3.Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to, a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Want to get into tinfoil hat country... what if the Secretary of the Treasury, in consultation with the SecDef decided the leading candidate of the oppostion was "undermining", and froze all the campaign's assets?
Looking at the Order, I don't see any reason it couldn't happen.
There's more, by Sara Robinson at Orcinus, Barb, of Mahablog has some elaboration on that.
More commentary here from Spencer Ackerman, at TPMuckraker.
I, GEORGE W. BUSH, President of the United States of America,... hereby order:
Section 1. (a) Except to the extent provided in section 203(b)(1), (3), and (4) of IEEPA (50 U.S.C. 1702(b)(1), (3), and (4)), or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the date of this order, all property and interests in property of the following persons, that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of United States persons, are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any person determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense,
(i) to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of:
(A) threatening the peace or stability of Iraq or the Government of Iraq; or
(B) undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people;
(ii) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, such an act or acts of violence or any person whose property and interests in property are blocked pursuant to this order; or
(iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.
Purported is really good. The standard definition of purported is scary, in this context.
Adj. 1. purported - commonly put forth or accepted as true on inconclusive grounds; "the foundling's putative father"; "the reputed (or purported) author of the book"; "the supposed date of birth"
But the law uses words differently, though looking for a specifc use of it (which usually, as used in the legal cases I've read, means much the same as alleged) I can't find any specific definition.
(b) The prohibitions in subsection (a) of this section include, but are not limited to, (i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order, and (ii) the receipt of any contribution or provision of funds, goods, or services from any such person.
It's (B), and (B)(iii) which really worry me.
Because the decision to excercise this Bill of Attainder is vested in the Secretary of the Treasury, with the consultation of the Secretaries of State and Defense.
So they get to freeze the property, and assets of anyone they decide is "undermining efforts to promote economic reconstruction and political reform" in Iraq.
It's so nice to see there's a solid metric for this. Especially as anyone who contributes funds or services to such a person is also attainted.
So, if a blogger is subject to this act, because of the blogging they do, does that attaint the ISP? Does it reach to the other ISPs which connect to the blog?
And since the act affects anyone who "comes into the United States, does that require ISPs to block anyone the White House (through its Secrataries) condemns by way of this Act, oops, Executive Order?
Maybe not.
Sec. 3. For purposes of this order:
(a) the term "person" means an individual or entity;
(b) the term "entity" means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization; and
(c) the term "United States person" means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States.
But, because this is so important.
Sec. 5. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that, because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render these measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 13303 and expanded in Executive Order 13315, there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order.
Just in case you thought there might be some means of redress,
Sec. 8. This order is not intended to, and does not, create any right, benefit, or privilege, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.
Shall we compare this to what the Constitution says about this sort of thing?
Article 1, Sec.9. No bill of attainder or ex post facto Law shall be passed.
Article 3, Sec. 3.Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to, a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Want to get into tinfoil hat country... what if the Secretary of the Treasury, in consultation with the SecDef decided the leading candidate of the oppostion was "undermining", and froze all the campaign's assets?
Looking at the Order, I don't see any reason it couldn't happen.
There's more, by Sara Robinson at Orcinus, Barb, of Mahablog has some elaboration on that.
More commentary here from Spencer Ackerman, at TPMuckraker.