When a Warrant Isn't Warranted
By The Investigative Project on Terrorism (IPT)
What rights, if any, should alleged terrorist financiers be afforded? This question has plagued federal judges since the Treasury Department first began targeting those believed to be providing financial support to terrorist organizations over a decade ago. One recurring issue has been whether the Treasury Department must seek a warrant prior to freezing the assets of those suspected of terrorist financing. Two recent, high profile cases – Kindhearts v. Geithner (N.D. Ohio) and al Haramain v. United States Department of the Treasury (D. Or.) – have set the stage for a possible showdown at the Supreme Court, where this question can hopefully be resolved.
Treasury's Office of Foreign Asset Control (OFAC), one of the lead agencies in the fight against terrorist financing, froze the assets of both al Haramain and Kindhearts in 2004 and 2006 respectively. In both cases, the defendant charities were accused of providing financial support to terrorist groups. Al Haramain allegedly funneled money to Chechen rebels and Kindhearts was accused of funding Hamas.
Neither of the asset seizures was conducted with prior judicial warrants, and consequently, defendants challenged the Treasury actions as a violation of the Fourth Amendment's proscription against warrantless seizures. Although both federal courts agreed with the defendants that the freezing of assets was a "seizure" for Fourth Amendment purposes, they diverged when determining whether an exception to the warrant requirement may apply to seizures of terrorist finances.
The government argued that asset seizures in counter-terrorist financing investigations are exempted from the warrant requirement. Relying upon the "special needs exception," the government explained that no warrant is needed where: (i) the primary purpose of the seizure is beyond criminal law enforcement; and (ii) a warrant and probable cause are impracticable. Applying these factors, the al Haramain court upheld the search on the grounds that a warrant was unnecessary, whereas the Kindhearts court found the exception inapplicable, and invalidated the seizure.
Read more at: http://www.investigativeproject.org/1517/when-a-warrant-isnt-warranted