White House Executive Order

Tough for a Friday, perhaps, but if you have a moment over the weekend when you feel you just need to tussle with a patch of legal prose, take a look at the recent executive order issued Tuesday from the White House, “Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq.”

I’ve cut to the chase by choosing what I think is one of the more worrisome paths through the order (always a risky business, so read the original if you’re at all curious):

S.1 (a)
…all …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come within the possession or control of United States persons, are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: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 pose a significant risk of committing… an act or acts of violence that have the purpose or effect of:

…(B) undermining efforts to promote economic reconstruction and political reform in Iraq…

There is obviously some question as to whether this violates the Fifth Amendment to the U.S. Constitution guaranteeing due process before property is “taken for public use.” Some are arguing that this doesn’t license taking, merely freezing, and therefore doesn’t run afoul of the Constitution.

The second class of persons whose property may be blocked includes, among others “…any person determined by the Secretary of the Treasury” etc…:

(ii) to have materially assisted… or provided …logistical, or technical support for, or …services in support of… any person whose property and interests in property are blocked pursuant to this order;

This cannot mean — can it? — that a lawyer who acts for someone whose property is blocked falls afoul of this edict (“to have…provided…services in support of…”). The third class seems to be equally applicable to lawyers: ..any person determined by the Secretary of the Treasury” etc…:

(iii) …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.

But if the President is prepared to skate so close to the Fifth Amendment, why would he baulk at depriving this order’s targets of legal representation?

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