Unconstitutional Tool: Terrorism Again

Designations (Annals of Surveillance, New Yorker) amount to a kind of economic embargo: anyone who does business with a designated person risks criminal or civil penalties. The Treasury Department can act more quickly than the police or the F.B.I., who may take action only after an investigation. By preëmptively freezing a suspect’s assets, “the government does not have to watch these dollars continue to flow over a period of months or years as it investigates whether it will pursue criminal charges,” a department spokesman, Andrew DeSouza, told me.

Authorities also need less evidence for a designation than they would for prosecution, and they can rely on evidence that would not be admissible in a criminal trial. Matthew Levitt, who until last year was deputy assistant secretary for intelligence and analysis at the Treasury Department, says that designations involve “an extremely robust process. This is not something that can be done easily or willy-nilly.” But Lormel, who retired from the F.B.I. in 2003, says he would have been “hard pressed” to act on some of the material that Treasury officials used. “Oftentimes, I think they base their evidence on media stories or public-source information, whereas we would never use only that,” he told me.

In addition, the Treasury Department may use classified evidence that is never disclosed to the designated party, despite an established principle of the American legal system that the accused should have an opportunity to confront evidence against him. Designations can be challenged before a federal judge, but lawyers for the designated party are not shown all the government’s evidence and cannot introduce their own. Nearly five hundred individuals and groups have been labelled Specially Designated Global Terrorists since 2001; there has never been a successful challenge in court. A designation “effectively denies people province over their own property in a largely unreviewable way,” Aufhauser, the department’s former general counsel, told me. “Such an extraordinary power needs to be exercised with discretion, because it could be constitutionally suspect.”