Title

Combating Money Laundering and International Terrorism: Does the USA PATRIOT Act Require the Judicial System to Abandon Fundamental Due Process in the Name of Homeland Security?

Abstract

The USA PATRIOT Act was part of a wave of legislation which reshaped national security policies while simultaneously restricting traditional civil liberties in response to the terrorist attacks of September 11. Among the many terrorism related provisions of the Act, the executive branch was given authority to freeze the assets of organizations in which there is a foreign interest suspected of funding terrorist organizations through the use of an asset blocking order pending further investigation. The Act further permits the use of classified information which will be subjected to only ex parte, in camera inspection by the judge presiding over a challenge to such an action as a means of supporting the government’s actions in freezing such assets. This article addresses the question of whether the government’s use of secret evidence to justify a challenged blocking order pursuant to the provisions of the Patriot Act represents a violation of the fundamental due process rights of an aggrieved party. The article first examines the rapidly developing body of legal precedent emerging from recent challenges to such blocking orders and the Government’s efforts to enforce such orders through the submission of “confidential and sensitive” evidence on an ex parte, in camera basis. The article also examines the legal and public policy arguments, both in favor of and against the continued use of such ex parte, in camera evidence as a part of judicial proceedings challenging blocking orders as well as some of the potential ramifications of such a course of action. What emerges from this analysis is the determination that while the provisions of the Act relating to the ex parte, in camera submission of evidence supporting the government’s allegations are alarming at first glance, the ultimate goal of cracking down on money laundering as an increasingly potent source of terrorist financing can only be supported by broad enforcement capabilities held in check by the unbiased members of the judiciary.

Disciplines

Civil Rights and Discrimination | Constitutional Law | Law

Date of this Version

September 2003