# Kindhearts for Charitable Humanitarian Development, Inc. v. Geithner

> District Court, N.D. Ohio · August 18, 2009 · 647 F. Supp. 2d 857

URL: https://www.frixlaw.com/law-library/cases/2359589

## Case

- **Full name:** KINDHEARTS FOR CHARITABLE HUMANITARIAN DEVELOPMENT, INC., Plaintiff v. Timothy GEITHNER, Et Al, Defendant
- **Court:** District Court, N.D. Ohio
- **Decided:** August 18, 2009
- **Citations:** 647 F. Supp. 2d 857; 2009 U.S. Dist. LEXIS 80475; 2009 WL 2514057
- **Precedential status:** Published
- **Opinion:** Opinion by Carr
- **Judges:** James G. Carr
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2359589

## How later opinions describe it (automated extraction)

- explaining the errors of the other district court opinions and rejecting the argument that the seizure of assets under EO 13,224 is not a “seizure” for Fourth Amendment purposes
- holding that there is no general “reasonableness” approach to warrantless seizures
- holding that the “special needs” exception did not apply to very similar facts
- noting that OFAC had provided “an unclassified three- page summary of the classified evidence” to the entity under investigation
- noting that OFAC had provided “an unclassified three-page summary of the classified evidence” to the entity under investigation

## Opinion text

ORDER
JAMES G. CARR, Chief Judge.
Plaintiff KindHearts for Charitable Humanitarian Development, Inc. (KindHearts), an Ohio corporation, challenges a provisional determination by the Office of Foreign Assets Control [OFAC] of the United States Treasury Department that plaintiff is a Specially Designated Global Terrorist [SDGT]. KindHearts also challenges the block OFAC placed on plaintiffs assets pending a full investigation.
OFAC alleges that KindHearts provides material support to Hamas, which is also an SDGT. OFAC’s authority to designate SDGTs and block the assets of entities under investigation for supporting terrorism stems from the International Emergency Economic Powers Act [IEEPA], 50 U.S.C. § 1701-06 and Executive Order 13224 [E.0.13224].
KindHearts alleges that OFAC’s actions are unconstitutional because: 1) OFAC’s block is an unreasonable seizure in violation of the Fourth Amendment; 2) provisions authorizing OFAC to designate SDGT and block assets pending investigation are void for vagueness under the Fifth Amendment; 3) OFAC denied KindHearts procedural due process before provisionally determining it to be an SDGT and blocking its assets; and 4) OFAC has unconstitutionally restricted plaintiffs access to the resources it needs to mount a defense. KindHearts further claims that OFAC blocked KindHearts’ assets without proper statutory authorization.
KindHearts asks this court to lift the OFAC blocking order or, alternatively, to require OFAC to provide KindHearts with adequate process.
The defendants — the Secretary of the Treasury, Director of OFAC, and Attorney General — are United States government officials sued in their official capacities. This court
sua sponte
substitutes as defendants Timothy Geithner, Secretary of the Treasury, and Eric H. Holder, Attorney General, for former Treasury Secretary Henry M. Paulson and former Attorney General Michael B. Mukasey, respectively. Defendants contest plaintiffs constitutional and statutory claims, and argue that claims arising from OFAC’s provisional determination that KindHearts is an SDGT are not ripe for this court’s review.
Pending are plaintiffs motion for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure [Doc. 31] and defendants’ motion to dismiss under Rule 12(b)(6) or, in the alternative, for summary judgment on all counts under Rule 56. [Doc. 36],
Background
KindHearts, a Toledo-based non-profit corporation, was incorporated on January 22, 2002, under Ohio law. Its stated goal is to provide humanitarian aid without regard to religious or political affiliation.
Khaled Smaili founded KindHearts after OFAC shut down several Muslim-affiliated charities which, like KindHearts had as their stated objectives humanitarian relief in the Middle East and elsewhere. KindHearts contends that from its inception, its officers and directors took great care to ensure it did not fund any designated terrorist or terrorist-related entities or otherwise violate federal laws regarding
*865
designated terrorists. It sought guidance from the Treasury Department, and implemented the Treasury’s voluntary guidelines for charitable organizations.
On February 19, 2006, OFAC froze all of KindHearts’ assets pending investigation into whether it was subject to designation under IEEPA and E.O. 13224. More than a year later, on May 25, 2007, OFAC informed KindHearts it had provisionally determined to designate it a SDGT.
Statutory and Regulatory Framework
The Executive initially used the Trading With the Enemy Act [TWEA], 50 App. U.S.C. §§ 1-44, enacted in 1917, to impose sanctions and embargoes on foreign nations. In 1977, Congress amended the TWEA and enacted the IEEPA. The IEEPA requires the President to declare a national emergency to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy or economy of the United States.” The pertinent sections of the IEEPA are 50 U.S.C. § 1701 and 1702:
§ 1701. Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities
(a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.
(b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat.
§ 1702. Presidential authorities
(a)(1) At the times and to the extent specified in section 1701 of this title, the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise—
(A) investigate, regulate, or prohibit—
(i) any transactions in foreign exchange,
(ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof,
(iii) the importing or exporting of currency or securities, by any person, or with respect to any property, subject to the jurisdiction of the United States;
(B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States; ...
50 U.S.C. §§ 1701-1702 .
On September 24, 2001, President Bush issued E.O. 13224, declaring a national emergency with respect to “grave acts and threats of terrorism.” He invoked his au
*866
thority under the IEEPA, authorizing the Secretary of Treasury, in consultation with the Secretary of State and Attorney General, to designate “persons” (defined as individuals or entities) whose property or interests in property should be blocked because they “act for or on behalf of’ or are “owned or controlled by” designated terrorists, or because they “assist in, sponsor, or provide financial, material or technological support for, or financial or other services to or in support of’ or are “otherwise associated” with them.
1
Individuals or entities designated under E.O. 13224 are labeled “Specially Designated Global Terrorists.” In § 10 of the Executive Order, the President states that under the Order no prior notice of a listing or designation needs to be provided to those with a presence in the United States because of the targeted organization’s ability to transfer funds or assets instantaneously, which would render the blocking measures ineffectual.
In October, 2001, the Patriot Act amended the IEEPA. It added the phrase “block pending investigation” after the word “investigate” in 50 U.S.C. § 1702 (a)(1)(B). The amendment permitted the Treasury Secretary to impose all the blocking effects of a designation, including freezing an organization’s assets indefinitely and criminalizing all its transactions, without designating the organization a SDGT. The Treasury only needs to assert that it is investigating whether the entity should be designated. The amendment also provided that an agency record containing classified information could be “submitted to the reviewing court
ex parte
and
in camera.”
Designation as a specially designated global terrorist immediately results in the blocking of the designee’s property and interests in property within the United States or in the control of United States persons. It also prohibits all transactions with designated entities, including making or receiving any contribution of funds, goods or services to or for the benefit of those persons. Executive Order 13224 specifically prohibits all humanitarian donations.
The Treasury Department promulgated regulations implementing E.O. 13224 on June 6, 2003. The regulations set forth the procedures for imposing civil and criminal penalties on United States persons who engage in any transaction with any entity that has been designated or blocked pending investigation. With respect to a designation, 31 CFR § 501.807 permits designated entities to seek administrative reconsideration by OFAC after they have been designated and had their property frozen.
OF AC’s Block Pending Investigation of KindHearts
On February 19, 2006, OFAC blocked all of KindHearts’ assets and property pending investigation into whether it was subject to designation under E.O. 13224. On the same day it blocked KindHearts’ assets, the government executed search warrants at KindHearts’ Toledo headquarters and the residence of its President, Khaled Smaili. It removed all KindHearts’ records, computers and several boxes of publications and documents. Before executing those search warrants, the Department of Justice obtained two grand jury subpoenas
*867
requiring: 1) Ernst
&
Young to produce documents relating to KindHearts and 2) a member of KindHearts’ Board of Directors to produce all records of KindHearts from January 1, 2002, to February 17, 2006.
On issuing the block, OFAC sent a “blocking notice” to KindHearts. The notice stated:
You are hereby notified that all property and interests in property of KindHearts ... including its U.S. representative office and all other offices worldwide, are blocked pending investigation into whether KindHearts is subject to designation pursuant to Executive Order 13224 ... for being controlled by, acting for or on behalf of, assisting in or providing financial or material support to, and/or otherwise being associated with Hamas.
The notice also explained KindHearts did not receive prior notice of OFAC’s determination to block its assets pending investigation because it could have transferred its funds and assets, thus rendering the sanctions ineffectual. It stated that if KindHearts believed OFAC took this action in error, and wanted to challenge it, it could send a letter to the attention of the Director of OFAC explaining KindHearts’ views and providing evidence.
That same day, the Treasury Department posted a press release on its website announcing the blocking of KindHearts’ assets. The press release also stated that KindHearts’ officials and fundraisers had “coordinated with Hamas leaders and made contributions to Hamas-affiliated organizations” including such organizations in the West Bank and Lebanon. The press release asserted that KindHearts was founded to replace the Hamas-affiliated Holy Land Foundation for Relief and Development [HLF] and the al-Qaida-affiliated Global Relief Foundation [GRF].
2
As a result of the block, KindHearts’ assets and property, including about one million dollars in bank accounts, became frozen indefinitely. Through its blocking order, OFAC effectively shut the organization down.
In April, 2006, KindHearts’ attorney, Jihad Smaili [brother of Khaled Smaili], filed a letter in response to the block, but OFAC failed to respond to it. On November 29, 2006, KindHearts counsel requested a copy of the full administrative record being used by OFAC in its investigation. It received no response.
OFAC’s Provisional SGDT Designation of KindHearts
On May 25, 2007, more than a year after Jihad Smaili’s initial letter, and more than six months after his follow-up letter, OFAC notified KindHearts that OFAC had provisionally determined to designate KindHearts a specially designated global terrorist. In that letter it for the first time acknowledged receiving KindHearts’ challenge to the block pending investigation. OFAC’s letter stated,
We have received Jihad Smaili’s April 24, 2006 letter to ... OFAC requesting reconsideration of OFAC’s decision to block the property and property interests of KindHearts ... pending investigation into whether KindHearts should be designated as a Specially Designated Global Terrorist ... Since receipt of that letter, OFAC has completed its investigation into whether KindHearts should be designated as an Specially Designated Global Terrorist and has provisionally determined that designation is appropriate.
*868
Accompanying OFAC’s letter were thirty-five unclassified and non-privileged documents on which, according to OFAC, it had relied in making the provisional determination. OFAC acknowledged it also relied on other “classified and privileged documents obtained to date ... not authorized for disclosure, including material obtained or derived pursuant to” the Foreign Intelligence Surveillance Act [FISA], 50 U.S.C. § 1801 et seq.
The OFAC letter also included an unclassified three-page summary of the classified evidence. It provided no explanation of the specific charges it was considering against KindHearts or why it thought the evidence supported a potential designation.
The letter stated KindHearts could “present to OFAC any evidence or other information that it [wanted] OFAC to consider before making a final determination with respect to designation.” It explained “OFAC [would] consider any such information, as well as the information described above in making a final determination.” It also noted that if it “decide[d] to consider any additional unclassified, non-privileged materials in making this determination, it [would] advise KindHearts of that fact, provide KindHearts with copies of the materials, and give KindHearts an opportunity to respond to them.” OFAC initially gave KindHearts thirty days to respond to its provisional determination.
KindHearts sought access to the full classified and unclassified administrative record to defend itself, and an extension of time in which to respond to OFAC’s unclassified submission.
On June 14, 2007, KindHearts requested access to its own records in the government’s possession. OFAC waited two months, until August 14, 2007, before notifying KindHearts’ counsel that OFAC possessed only a few of the records. The United States Attorney’s office had the rest of the records. That Office refused to provide KindHearts with a copy of the documents.
3
On June 25, 2007, KindHearts’ counsel sent OFAC a twenty-eight page preliminary submission in which KindHearts attempted to, in its words, “guess at and address OFAC’s concerns.” It attached to that a 1369-page submission of supporting evidence. OFAC never responded to this submission.
4
On June 27, 2007, KindHearts asked OFAC to perform a declassification review of the classified evidence on which i.t relied in issuing the blocking notice. In a letter dated August 10, 2007, OFAC agreed with KindHearts’ request, and stated it would give KindHearts thirty days after the com
*869
pletion of declassification review to submit a response. OFAC informed counsel that it could not state when review would be completed, and denied KindHearts’ counsel interim access to classified information.
OFAC reported no progress on the declassification review in the fourteen months between its June 27, 2007, agreement to conduct declassification review and the filing of this lawsuit. After KindHearts filed suit, the government, during a telephone call with KindHearts’ counsel on October 20, 2008, indicated it could complete the declassification review within thirty days.
On August 13, 2007, KindHearts requested further clarification of the charges against it and an extension of time until forty-five days after the completion of the declassification review. KindHearts stated it needed the extension to receive meaningful process.
On August 16, 2007, OFAC informed KindHearts that it could contact KindHearts’ employees; it also stated that any KindHearts documents in possession of such employees constituted blocked property. Use of such documents would require a license from OFAC, and existing regulations require counsel to provide basic identifying information regarding the property.
5
On October 26, 2007, and December 20, 2007, KindHearts’ counsel objected to OFAC’s requirement that it identify blocked property in its possession. Counsel did not request a license to use blocked property.
On December 26, 2007, OFAC issued a license allowing KindHearts counsel to receive copies of blocked documents necessary for them to provide legal services to KindHearts.
For over two years, OFAC did not allow KindHearts to use its own funds to pay attorneys’ fees. OFAC asserted KindHearts could pay for legal services only if those payments did not originate from its blocked funds. Immediately after the block, Jihad Smaili, KindHearts’ attorney, corresponded with OFAC regarding the release of blocked funds to pay attorney fees, but OFAC maintained that KindHearts could only pay for attorneys from “fresh funds” (funds raised abroad), or by obtaining a license to create a legal defense fund. Smaili resigned, and Lynne Bernabei, of the law firm Bernabei & Wachtel PLLC, and Professor David Cole applied for and were granted licenses to represent KindHearts. OFAC denied them funding from blocked assets. In late June 2008, Bernabei & Wachtel sought the assistance of the ACLU.
As of June, 2008, after its policy on attorneys fees was challenged as unconstitutional in other litigation, OFAC, after adopting a policy change, permits KindHearts to use a limited amount of its funds to pay for legal expenses. It can pay up to two lawyers $7000 each for proceedings at the administrative level, and an additional $7000 each for trial level proceedings. It can pay up to $5000 each for appellate proceedings. In March, 2009, after Bernabei & Wachtel applied for funding, OFAC granted $27,040 from KindHearts’ blocked funds for legal fees.
In December, 2008, OFAC produced declassified versions of the block and provisional determination memoranda. Since then, the government has declassified portions of block exhibits. In January, 2009, it declassified several portions of several paragraphs in the block memorandum. On March 13, 2009, OFAC declassified one of several bases for its block and threatened designation.
*870
Since February 19, 2006, when OFAC first notified KindHearts of the block pending investigation, OFAC has not designated KindHearts a SDGT.
6
For almost three years OFAC has blocked KindHearts’ property and property interests and criminalized all transactions with it. OFAC has effectively shut KindHearts down.
Standard of Review
Both plaintiff and defendants move for summary judgment. A court must enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of informing the district court of its motion’s basis, and identifying the record’s portions that demonstrate the absence of a genuine issue of material fact.
Id.
at 323 , 106 S.Ct. 2548 . The nonmoving party “must [then] set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).
In deciding the motion for summary judgment, the court will believe the non-moving party’s evidence as true, it will resolve all doubts against the non-moving party, it will construe all evidence in the light most favorable to the non-moving party, and it will draw all inferences in the non-moving party’s favor.
Eastman Kodak Co. v. Image Technical Servs., Inc.,
504 U.S. 451, 456 , 112 S.Ct. 2072 , 119 L.Ed.2d 265 (1992).
Defendants move to dismiss plaintiffs claims under Rule 12(b)(6). A court “must accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff.”
Inge v. Rock Fin. Corp.,
281 F.3d 613 , 619 (6th Cir.2002) (citing
Turker v. Ohio Dep’t of Rehab. & Corr.,
157 F.3d 453, 456 (6th Cir.1998));
Gazette v. City of Pontiac,
41 F.3d 1061, 1064 (6th Cir.1994). The court is not bound to accept as true unwarranted factual inferences,
Morgan v. Church’s Fried Chicken,
829 F.2d 10, 12 (6th Cir.1987), or legal conclusions unsupported by well-pleaded facts.
Teagardener v. Republic-Franklin, Inc. Pension Plan,
909 F.2d 947, 950 (6th Cir.1990).
A Rule 12(b)(6) motion to dismiss is directed solely to the complaint and any exhibits attached to it.
Roth Steel Products v. Sharon Steel Corp.,
705 F.2d 134, 155 (6th Cir.1983). The merits of the claims are not at issue. Consequently, a complaint will be dismissed pursuant to Rule 12(b)(6) only if there is no law to support the claims made, the facts alleged are insufficient to state a claim, or on the face of the complaint there is an insurmountable bar to relief.
See Rauch v. Day & Night Mfg. Corp.,
576 F.2d 697, 702 (6th Cir.1978).
Discussion
1. Fourth Amendment
KindHearts argues that OFAC’s block pending investigation is an unreasonable seizure in violation of the Fourth Amendment. In blocking KindHearts’ assets, OFAC acted without a prior judicial warrant. It purports, however, to have acted on reasonable suspicion that KindHearts met the criteria for designation under E.O. 13224.
*871
Neither the IEEPA nor E.O. 13224 requires a warrant or probable cause to effect a block pending investigation. The government argues that the economic sanctions authorized by that statute and the Executive Order are not “seizures” and therefore the Fourth Amendment is inapplicable Alternatively, the government disputes the contention that traditional warrant and probable cause requirements apply to blocks pending investigation.
A. The Block Pending Investigation is a Fourth Amendment “Seizure”
The first inquiry is whether OFAC’s block is a “seizure” in Fourth Amendment terms. If the block is not a “seizure,” the Fourth Amendment does not constrain the government’s conduct.
The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The government seizes property when it creates “some meaningful interference with an individual’s possessory interests in that property.”
Soldal v. Cook County, Ill,
506 U.S. 56, 61 , 113 S.Ct. 538 , 121 L.Ed.2d 450 (1992);
see also Horton v. California,
496 U.S. 128, 133 , 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990);
U.S. v. Jacobsen,
466 U.S. 109, 113 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984). Even “brief detentions of personal effects,” such as a short investigative detention of luggage at an airport, are “seizures” subject to Fourth Amendment scrutiny.
U.S. v. Place,
462 U.S. 696, 706 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983).
i. OFAC Blocking Actions Meet the
Soldal
Definition of “Seizure”
The government need not take possession of or title to property to “seize” it; interference with the target’s possessory interest triggers Fourth Amendment scrutiny.
Illinois v. McArthur,
531 U.S. 326, 330 , 121 S.Ct. 946 , 148 L.Ed.2d 838 (2001). In
McArthur ,
officers, who had probable cause to believe a suspect’s home contained marijuana, prevented him from reentering his home for the two hours needed to obtain a search warrant.
Id.
at 331-332 , 121 S.Ct. 946 . Even though the officers had taken nothing during that period, the Court applied Fourth Amendment scrutiny to the “temporary seizure” of the suspect’s home.
Id.
at 330-31 , 121 S.Ct. 946 .
Those courts that have considered Fourth Amendment challenges to OFAC blocking actions under the IEEPA and E.O. 13224 disagree as to whether blocks are Fourth Amendment seizures. One view is that asset-blocking is not a seizure.
Islamic Am. Relief Agency v. Unidentified FBI Agents,
394 F.Supp.2d 34, 47-48 (D.D.C.2005);
Holy Land Foundation for Relief and Development v. Ashcroft,
219 F.Supp.2d 57, 79 (D.D.C.2002).
In upholding the government’s action in those cases, the courts applied the standard for identifying a taking under the Takings Clause of the Fifth Amendment, rather than the
Soldal
standard for a Fourth Amendment seizure. In
Holy Land, supra,
219 F.Supp.2d at 79 , the court’s analysis centered on whether an OFAC asset-blocking procedure is a permanent forfeiture or causes title to pass to the government.
Id.
As support for its Takings Clause approach, the court In
Holy Land,
citing
Tran Qui Than v. Regan,
658 F.2d 1296, 1301 (9th Cir.1981),
IPT Co. v. U.S. Dept. of Treasury,
1994 WL 613371 , at *5-6 (S.D.N.Y.), and
Can v. U.S.,
820 F.Supp. 106, 109 (S.D.N.Y.1993), stated that, because asset blocking does not “vest” title in the government, it is not a “forfeiture.” 219 F.Supp.2d at 79 . None of the cases cited by
Holy Land
involves, however, a Fourth Amendment claim.
*872
Likewise, in
Holy Land,
the court cited
Cooperativa Multiactiva de Empleados de Distribuidores de Drogas v. Newcomb,
Civ. No. 98-0949, slip op. at 13-14 (D.D.C. Mar. 29, 1999), for the statement that “blocking bars transactions but does not confiscate property and is not tantamount to a forfeiture.”
Id.
Plaintiffs in
Cooperativa Multiactiva,
however, raised no Fourth Amendment challenge to the blocking notice.
Id.
at 4. In
Cooperativa Multiactiva,
the court discussed questions of title and forfeiture to determine whether a blocking notice was a “fine” and compliance with the federal forfeiture statute, not to determine whether it was a “seizure.”
Id.
at 21-22.
Finally, in
Holy Land,
the court cited
D.C. Precision Inc. v. U.S.,
73 F.Supp.2d 338 , 343 n. 1 (S.D.N.Y.1999), for the proposition that “assets blocked by the government are not seized.”
Id.
Despite the use of the word “seized,” the cited passage in
D.C. Precision
refers to a Takings Clause claim.
Id.
Plaintiffs did not raise a Fourth Amendment claim in
D.C. Precision. Id.
In contrast to
Holy Land
and related cases, the court in
Al-Haramain Islamic Foundation, Inc. v. U.S. Dept. of Treasury,
585 F.Supp.2d 1233, 1263 (D.Or. 2008), concluded that OFAC asset-blocking is a seizure subject to Fourth Amendment analysis. Reliance on the Takings Clause was inappropriate, the court stated, because “[t]he Fourth Amendment imposes a lower threshold than does the Fifth Amendment.”
Id.
at 1262 . A blocking order, the court stated, would be a taking only “if it resulted in an appropriation of property for the government’s use” or if the government’s actions eliminated “all economically valuable use of the property.”
Id.
A Fourth Amendment seizure, in contrast, does not result in passage of title to the government or even necessarily permanent deprivation. A seizure affects a possessory interest:
Id.
at 1263 . A Fourth Amendment seizure may often lead to permanent deprivation of the property “taken” by government officers, but that is not always so. Indeed, Fed.R.Crim.P. 41(g) provides a means for seeking return of seized property.
Viewing the consequences of a blocking order in a Fourth Amendment light, the court in
Al Haramain
stated that because “[e]ven a temporary deprivation of property” constitutes a seizure, an OFAC blocking action affects Fourth Amendment rights.
Id.
If merely “holding luggage for 90 minutes” constitutes a seizure, then surely placing an indefinite freeze on all an entity’s assets is as well.
Id.
This conclusion is not only reinforced, but, indeed, made irrefutable on consideration of the fact that the very purpose of an OFAC blocking action is to “depriv[e] the designated person of the benefit of the property, including services, that might otherwise be used to further ends that conflict with U.S. interests.”
Al Haramain, supra,
585 F.Supp.2d at 1263 . An OFAC block interferes with possessory rights, and is, in Fourth Amendment terms a seizure.
ii. Whether the History of the IEEPA, TWEA and the Fourth Amendment Justify Excluding OFAC Blocking Actions from Fourth Amendment Scrutiny
The government offers two arguments as to why I should follow the decision in
Holy Land
and withhold Fourth Amendment scrutiny from a block pending investigation. First, the government argues that the Supreme Court historically has never applied the Fourth Amendment to imposition of economic sanctions under the TWEA or the IEEPA. Therefore, the government contends, I should not do so in this case.
*873
Second, the government urges that deference to the executive’s unique role in foreign affairs should override any judicial impulse to invoke the Fourth Amendment. The government bases this argument on the history of TWEA and IEEPA economic blocking actions.
Neither argument offers a compelling reason for foregoing Fourth Amendment analysis, much less for departing from the Supreme Court’s definition of “seizure” in
Soldal .
Looking to history for support for its first contention, the government states, “[i]n the nearly 100 years since the TWEA was passed, no Court has held that the executive must obtain a warrant to conduct an economic blocking authorized by either TWEA or IEEPA.” [Doc. 36, at 63]. To undertake a Fourth Amendment analysis, the government claims, would be to disregard a “systematic, unbroken, executive practice, long pursued to the knowledge of Congress [and the courts] and never before questioned.”
Id.
For support, the government cites several cases in which the Supreme Court, in the government’s view, has consistently not subjected blocking actions to Fourth Amendment.
See Regan v. Wald,
468 U.S. 222, 235 , 104 S.Ct. 3026 , 82 L.Ed.2d 171 (1984) (upholding restrictions on United States citizen travel to Cuba under the TWEA);
Dames & Moore v. Regan,
453 U.S. 654, 654 , 101 S.Ct. 2972 , 69 L.Ed.2d 918 (1981) (IEEPA authorizes the president to nullify attachments against property of the Iranian government and to transfer Iranian assets);
Orvis v. Brounell,
345 U.S. 183 , 73 S.Ct. 596 , 97 L.Ed. 938 (1953) (executive order blocking assets of Japanese nationals under TWEA prevents attachment by creditor of Japanese nationals);
Propper v. Clark,
337 U.S. 472 , 69 S.Ct. 1333 , 93 L.Ed. 1480 (1949) (upholding freeze on Austrian property under the TWEA, despite inconvenience freeze caused to American citizens).
The government accurately depicts these cases and describes their results. What is missing, though, is acknowledgment that in those cases none of the government’s adversaries asserted a Fourth Amendment interest. Like lower courts,
see U.S. v. Collier,
246 Fed.Appx. 321, 334-335 (6th Cir.2007) (unpublished disposition) (failing
sua sponte
to consider Fourth Amendment issues not error);
Hartmann v. Prudential Ins. Co. of America,
9 F.3d 1207, 1214 (7th Cir.1993) (“Our system ... is not geared to having judges take over the functions of lawyers, even when the result would be to rescue clients from their lawyers’ mistakes”), the Supreme Court routinely does not consider issues not raised by the parties. Absence of discussion of the Fourth Amendment in the cases cited by the government says nothing about how a Fourth Amendment analysis should come out here.
Failure of plaintiffs in the those cases probably did not arise from lawyerly oversight: the economic sanctions targeted foreign governments, and neither foreign governments nor non-resident foreign nationals enjoy Fourth Amendment protection. In
U.S. v. Verdugo-Urquidez,
494 U.S. 259, 265 , 110 S.Ct. 1056 , 108 L.Ed.2d 222 (1990), the Supreme Court held that the Fourth Amendment does not apply to search by American authorities of the Mexican residence of a Mexican citizen and resident. The Court, on examining the text of the Amendment, concluded that its central motivation was to “protect the people of the United States against arbitrary action by their own government.”
Id.
Thus, the Fourth Amendment, the Court stated, does not protect aliens outside United States territory, nor does it protect foreign governments.
Id.
*874
KindHearts’ situation differs strikingly and significantly from that of the foreign governments and foreign assets at issue in the TWEA and IEEPA cases on which the government relies.
7
KindHearts is an American corporation based in Toledo, Ohio. Its assets, presumably, came from persons resident in this country. Those assets were in this country when the government seized them. This case does not involve a nation-targeted embargo.
KindHearts is indisputably one of “the people” protected by the Fourth Amendment. If the Constitution affords KindHearts no protection from unreasonable searches and seizures, whom among “the people” does it protect, and who among the people can be certain of its protection?
The government’s argument, moreover, ignores compelling parallels between the instant ease and the colonial-era activities inspiring the Founders to include the Fourth Amendment in our fundamental charter of liberties. Indiscriminate customs searches, unregulated by judicial approbation or oversight, were the “first inducement” to American attitudes against such promiscuous searches and seizures, William J. Cuddihy,
The Fourth Amendment: Origins and Original Meaning,
253 (2009). Despised writs of assistance allowing customs officials to employ unfettered discretion in their search for and seizure of smuggled goods and contraband were a “major cause of the Revolution.” Tracy Maclin,
The Complexity of the Fourth Amendment: A Historical Review,
77 B.U.L.R. 925, 945 (1997);
see also
Nelson B. Lasson,
The History & Development of the Fourth Amendment to the U.S. Constitution,
51 (1937).
In the late 1750s and early 1760s, a controversy erupted in the Massachusetts Bay Colony over gubernatorial warrants and writs of assistance to enforce customs laws. Great Britain, embroiled from 1754-1763 in the Seven Years’ War, enacted customs laws proscribing American commerce with Spanish and French colonies. Great Britain also implemented restrictive trade relationships between itself and the North American colonies. Those laws favored British interests at the expense of colonial merchants. Lasson,
supra,
at 52; Cuddihy,
supra,
at 378-380. Evasion of those laws and restriction- — smuggling— became more than just a colonial pastime: for many American merchants it was the way of life. It was, as well, often of benefit to Britain’s enemies commercially. Lasson,
supra,
at 52.
In response to this unacceptable situation, Governor Shirley of Massachusetts issued warrants giving customs officials authority forcibly to enter houses and other buildings, and, once inside, to exercise unfettered discretion to search for and seize contraband. Maclin,
supra,
77 B.U.L.R. at 945; Cuddihy,
supra,
at 378. Public reaction to this exercise of extreme executive authority caused the Governor to require customs officers, before they could conduct such searches, to obtain Writs of Assistance from Crown judges. Maclin,
supra,
77 B.U.L.R. at 945.
Unlike the search warrants with which every American judge, prosecutor and defense attorney is now familiar, colonial
*875
Writ of Assistance were “a continuous license and authority” valid for the “whole lifetime of a reigning sovereign ... empowering] the officer his deputies and servants to search, at their will, wherever they suspected uncustomed goods to be, and to break open any receptacle or package falling under their suspecting eye.”
Id.
The judges of the Superior Court of Judicature who issued Writs of Assistance lacked power to refuse to issue the writs or to review specific searches or seizures. Maclin,
supra,
77 B.U.L.R at 946; Cuddihy,
supra,
at 379.
When King George II died in 1760, all previously-issued writs expired. Customs officers sought new writs.
Id.
at 380-381. A merchants’ association, The Society for Promoting Trade and Commerce Within the Province, retained James Otis Jr. to challenge the reissuance.
Id.
at 380. This led to the decision in
Paxton’s Case.
Culhuddy,
supra,
at 380. That case “intensified public antipathy to the writs of assistance” and triggered a flood of public commentary on search and seizure.
Id.
at 395.
Challenging Writs of Assistance, Otis and other critics delineated and condemned the abuses left in their wake. The Writs, as a commentator in the
Boston Gazette
wrote, allowed writ-holders to “break open doors, trunks, chests, and boxes — alms houses, brideswells, jails or churches — never mind a dwelling house”— this listing making clear that no premises were safe.
Id.
at 396. Another commentator feared that writ-holders would look unchecked “wherever he shall PLEASE to suspect uncustom’d goods are lodg’d.”
Id.
Despite these concerns and objections and Otis’s arguments, the court re-issued the Writs of Assistance.
Id.
at 395.
Though unsuccessful, Otis’s arguments were the “first recorded declaration” of the Fourth Amendment’s requirement of a specific warrant.
Id.
at 382. Others in England and the colonies had criticized the writs of assistance, general warrants, and other forms of indiscriminate search and seizure. Otis first contended that specific warrants — in Fourth Amendment terms, warrants “particularly describing the place to be searched and things to be seized”— as alone appropriate if the sanctity one’s home and security of one’s possessions were to be assured under, as Otis argued, the “British Constitution, English common law, natural law, and the higher law.”
Id.
at 387.
As with IEEPA and TWEA, the initial impetus for executive action at the outset of the era leading to
Paxton’s Case
was to deprive the enemies of economic benefits: restricting trade with the enemy was the purpose of both Governor Shirley’s wartime writs to customs officers and the TWEA. In time, these purposes, and the authority by which government sought to accomplish them led to a practice of far-reaching and open-ended searches for and seizures of private property.
Unlike the system under which OFAC has operated thus far, the colonial system came to involve judges in the issuance of the writs. But their participation did little to control the duration of the authority to conduct searches, and did not encompass judicial involvement or oversight during implementation of that authority.
The centrality of indiscriminate customs searches and seizures to the development, purposes and meaning of the Fourth Amendment is of special relevance to this case. Like James Otis, the attorneys for KindHearts claim for their client “the right ... to be secure in their ... papers and effects.” Also like Otis, they argue that how the government has been exercising its authority to regulate commercial affairs can violate that right and destroy that security.
*876
To find the Fourth Amendment inapplicable to OFAC blocking actions would disregard the Amendment’s history and its role as a bulwark against the abuses and excesses of unchecked governmental power.
iii. Whether Deference to the Executive Regarding Foreign Affairs Requires Excluding OFAC Blocking Actions From Forth Amendment Scrutiny
The government’s second argument is that deference to the executive should cause me to refrain from viewing its conduct through the lens of the Fourth Amendment. Courts, in the government’s view, ought not involve themselves with “the exercise of the executive’s most uniquely reserved powers- — conducting foreign affairs and protecting national security.” [Doc. 36, at 36]. Instead, I should heed Justice Jackson’s statement in his concurring opinion in
Youngstown Sheet & Tube v. Sawyer,
343 U.S. 579, 635-36 , 72 S.Ct. 863 , 96 L.Ed. 1153 (1952), that “A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily on any who might attack it.”
8
The defendants claim that this means that the President’s powers “can indeed be so broad and uniquely reserved to the president that questions of Fourth Amendment applicability do not come into play.” [Doc. 73, at 34], Defendants also argue that subjecting OFAC’s actions to Fourth Amendment strictures is improper because when the President “execute[s] seizures with explicit authorization by congress, the President’s “authority [is] at its maximum”.” [Doc. 73, at 35], The government supports this assertion with a further quotation from Justice Jackson:
In the practical working of our government we have already evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency.
Youngstown Sheet & Tube, supra,
343 U.S. at 652 , 72 S.Ct. 863 .
Defendants also argue that
U.S. v. Curtiss-Wright,
299 U.S. 304 , 57 S.Ct. 216 , 81 L.Ed. 255 (1936), stands for the principle that the “strict limitation” on federal powers over “internal affairs” does not apply in the realm of “external affairs.” [Doc. 73, at 35].
The government’s reliance on the propositions expressed by Justice Jackson and in
Curtiss-Wright
conflates two discrete questions about the limitations of federal executive power. The first question in evaluating the validity of executive action is whether any of the recognized sources of executive authority — Article II, powers inherent in national sovereignty or a valid delegation of authority from Congress— affirmatively empower the executive to take action, such as a block pending investigation. A second, separate question is whether a the manner in which the executive has exercised it authority in a specific instance violates any of the restrictions on federal authority protecting individual liberties.
In
Youngstown Sheet & Tube
and
Curtiss-Wright
the Court dealt exclusively with the first question. In this case, however, the first question is not at issue because the parties do not dispute that the
*877
executive has the general power to block pending investigation. The issue here— whether, in this instance, OF AC has exercised its authority in violation of the Fourth Amendment — involves the second question.
When Justice Jackson in
Youngstown Sheet & Tube
described the President’s “authority at its maximum” and the need for “the widest latitude of judicial interpretation,” he was describing the President’s power to act
vis-a-vis
Congress, not restrictions on presidential power imposed by the Bill of Rights.
See
343 U.S. at 635 , 72 S.Ct. 863 . This is apparent from the context of the quotation, which is that when Congress expressly authorizes the action, the President possesses all his authority “in his own right plus all that Congress may delegate.”
Id.
Justice Jackson also stated that if a court should invalidate presidential action that Congress has expressly authorized, “it usually means that the Federal Government as an undivided whole lacks power.”
Id.
Legislation cannot authorize the President to ignore the Bill of Rights. Under the Fourth Amendment, the federal government
“as an undivided whole
” lacks entirely the power to conduct unreasonable searches and seizures.
Id.
That the Court in
Youngstown Sheet & Tube
refers to the President’s actions as a “seizure” in no way suggests that that case involved a Fourth Amendment search or seizure. The Steelworkers Union had announced its members would strike after unsuccessful labor-management negotiations.
Id.
at 864. On the eve of the strike, President Truman ordered the Secretary of Commerce to assume control of the steel mills and keep them running.
Id.
at 865.
The President’s actions, and the government’s operation of the mills temporarily did not deprive the shareholders of any of the their property interests in the company. The company did not claim that President Truman had engaged in an unreasonable seizure under the Fourth Amendment. The issue, rather, was whether the President had the authority to adopt the “technique of seizure” as a “method of solving labor disputes,” even though Congress had expressly declined to incorporate this technique in the TaftHartley Act.
Id.
at 866. The Court noted that Congress’s power to authorize this method was “beyond question” because Congress may “authorize the taking of private property for public use.”
Id.
at 867. In view of the absence in
Youngstown Sheet & Tube
of citation to, argument about, discussion of and adjudication on the basis of Fourth Amendment principles and doctrine, the decision in that case, not the Fourth Amendment, is inapplicable here.
Similarly, the Court’s opinion in
Curtiss-Wright
likewise addressed whether the President possesses inherent, unenumerated powers over foreign affairs — not whether such powers were subject to Bill of Rights limitations. 299 U.S. at 319 , 57 S.Ct. 216 .
In
Curtiss-Wright ,
an arms manufacturer was charged with conspiring to sell arms to Bolivia in violation of a Joint Resolution of Congress authorizing the President to criminalize such arms sales and a Presidential proclamation issued under that authority.
Id.
at 312-313 , 57 S.Ct. 216 . The Court rejected the company’s challenge to Congress’s delegation of authority to the President.
Id.
at 315-316, 333 , 57 S.Ct. 216 . The federal government, the Court held, has and can, with regard to the nation’s foreign affairs, exercise the powers inherent in national sovereignty. Such exercise did not violate the rights inuring to the states.
Id.
at 316 , 57 S.Ct. 216 .
*878
Further, because “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” he may exercise powers “in the field of international relations” without needing “a basis for its exercise in an act of Congress.”
Id.
at 220-221.
The Court’s opinion in
Curtiss-Wright
makes indisputably clear fundamental constitutional principles of federalism and separation of powers endow the President with extensive, and generally unilateral authority over our foreign affairs, especially with regard to our relations with other countries. Though the Court upheld the exercise of that authority against an American company and others engaged in international commerce, it did not address, much less declare, that such authority, if it impinged on freedoms guaranteed under the Bill of Rights, was in all circumstances and for all times unrestricted and uncontrollable.
Contrary to defendants’ claims, courts have held that the executive’s domestic actions — even when taken in the name of national security — must comport with the Fourth Amendment.
See, e.g. U.S. v. U.S. Dist. Court,
407 U.S. 297, 320 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972) (“the President’s domestic security role ... must be exercised in a manner compatible with the Fourth Amendment”);
Coolidge v. New Hampshire,
403 U.S. 443, 461 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) (national security “is not a talisman in whose presence the Fourth Amendment fades away and disappears.”);
U.S. v. Bin Laden,
126 F.Supp.2d 264, 273 (S.D.N.Y.2000) (“even in the exercise of his foreign affairs power, the President is constrained by other provisions of the Constitution.”).
OF AC’s blocking action against KindHearts, therefore, is, despite the deference generally due to presidential acts relating to our foreign relations and affairs, subject to some degree of Fourth Amendment scrutiny. This case raises questions about the extent and consequences of such scrutiny.
B. Whether OF AC Must Have a Warrant and Probable Cause for the Seizure to be Reasonable Under the Fourth Amendment
The next issue is whether OFAC satisfied the requirements of the Fourth Amendment when it blocked KindHearts’ assets pending investigation. Generally, the Fourth Amendment permits seizures only on the basis of probable cause and a judicial warrant listing, with particularity, the item or items to be seized.
Place, supra,
462 U.S. at 701 , 103 S.Ct. 2637 . The government contends,
inter alia,
that its actions were lawful, and could be undertaken on the basis of reasonable suspicion, rather than probable cause to believe that KindHearts engaged in acts proscribed by the IEEPA and E.O. 13224.
i. Generally, the Fourth Amendment Requires a Warrant and Probable Cause
Defendants argue that this court should jettison the probable cause and warrant requirements in favor of an open-ending balancing of interests. Defendants contend that courts are free to apply an indeterminate “reasonableness” inquiry in light of the doctrine that “the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.”
Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602, 619 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989).
The defendants base their argument on the fact that the Fourth Amendment contains two textually distinct clauses, the reasonableness clause barring “unreasonable searches and seizure” and a warrant clause stating that “no Warrants shall issue, but upon probable cause.” U.S. Const, amend. IV. Reason
*879
ableness is the ultimate standard under the Fourth Amendment.
Pennsylvania v. Mimms,
434 U.S. 106, 108-109 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) (“[Reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security” is the “touchstone” of Fourth Amendment analysis);
Soldal, supra,
506 U.S. at 61-62 , 113 S.Ct. 538 . This does not, however, mean that courts always are free to conduct open-ended balancing of interests whenever the government has seized property.
On the contrary, searches and seizures are usually “reasonable” only when conducted with a judicial warrant supported by probable cause.
Place, supra,
462 U.S. at 701 , 103 S.Ct. 2637 . The reasonableness clause under the Fourth Amendment “derives content and meaning through reference to the warrant clause.”
U.S. Dist. Court, supra,
407 U.S. at 309-310 , 92 S.Ct. 2125 . Though the ultimate inquiry is reasonableness, “the Amendment does not leave the reasonableness of most seizures to the judgment of courts or government officers: the Framers of the Amendment balanced the interests involved and decided that a seizure is reasonable only if supported by a judicial warrant based on probable cause.”
Place, supra,
462 U.S. at 722 , 103 S.Ct. 2637 (Blackmun, J. concurring). Under most circumstances searches and seizures conducted without a warrant are
“per se
unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”
Katz v. U.S.,
389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). Thus, as stated in
Place, supra,
462 U.S. at 701 , 103 S.Ct. 2637 , “In the ordinary case, the Court has viewed a seizure of personal property as
per se
unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.”
Two recognized exceptions to the warrant requirement might, however, apply in this case. First, “special needs” warrantless searches and seizures need only be reasonable under all the circumstances; no warrant or probable cause is required.
See, e.g., Griffin v. Wisconsin,
483 U.S. 868, 873 , 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987) (upholding warrantless, suspicionless searches of probationers’ homes);
Illinois v. Lidster,
540 U.S. 419, 426 , 124 S.Ct. 885 , 157 L.Ed.2d 843 (2004) (upholding warrantless, suspicionless stops at a roadblock to gather information about a hit-and-run accident). Second, if exigent circumstances exist, the warrant requirement, but not the requirement of probable cause, may be excused.
See, e.g., U.S. v. Johnson,
22 F.3d 674, 680 (6th Cir.1994) (describing general types of exigencies).
ii. Whether the Block is a Special Needs Seizure
Special needs searches and seizures share at least three basic characteristics. First, they must serve a purpose above and beyond normal criminal law enforcement.
See Ferguson v. City of Charleston,
532 U.S. 67, 81-86 , 121 S.Ct. 1281 , 149 L.Ed.2d 205 (2001);
City of Indianapolis v. Edmond,
531 U.S. 32, 41-47 , 121 S.Ct. 447 , 148 L.Ed.2d 333 (2000). Second, circumstances must make “the warrant and probable cause requirement impracticable.”
See Griffin, supra,
483 U.S. at 873 , 107 S.Ct. 3164 . Third, the method of search or seizure must have built-in limits, such as a confined geographic scope or regular, suspicionless application, that restrict executive discretion and ensure that all citizens know the circumstances under which they are subject to a special needs search or seizure.
See
*880
New York v. Burger,
482 U.S. 691, 702-03 , 107 S.Ct. 2636 , 96 L.Ed.2d 601 (1987).
Administrative searches of closely-regulated industries are one type of special needs search. Officials responsible for administrative searches need engage in no prior assessment of behavior. The lack of individualized probable cause is deemed does not violate the Fourth Amendment where the search relates to a closely regulated endeavor or enterprise. Anyone engaging in such activity can reasonably expect inspection.
The Supreme Court upheld such searches In
Burger, id.
at 702, 107 S.Ct. 2636 , the Court upheld suspicionless, warrantless inspection of plaintiffs automobile chop shop. The Court noted that chop shops are closely regulated, reducing plaintiffs expectation of privacy and putting their operators on notice that inspections may occur.
Id.
The Court also concluded that the state’s inspection program was sufficiently regular and certain because it “carefully limited [inspections] in time, place, and scope.”
Id.
at 702-03 , 107 S.Ct. 2636 . These built-in limits on executive discretion provided “a constitutionally adequate substitute for a warrant” and gave the owner with notice of when, where and to what extent he was subject to being searched.
Id.
In concluding that the inspection program was reasonable, the court noted that there was a “substantial government interest” behind the regulatory regime and that warrantless, suspicion-less inspections were “necessary to further the regulatory regime.”
Id. Accord, e.g., Donovan v. Dewey,
452 U.S. 594, 600 , 101 S.Ct. 2534 , 69 L.Ed.2d 262 (1981) (warrant constitutionally required when warrantless searches “are necessary to further a regulatory scheme and the ... regulatory presence is sufficiently comprehensive and defined” that owner knows property is “subject to periodic inspections undertaken for specific purposes.”).
Searches and seizures at roadblock check points are another type of warrant-less special needs search that must only be “reasonable” under all the circumstances to comply with the Fourth Amendment. In
Michigan Dept. of State Police v. Sitz,
496 U.S. 444, 455 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990), the Court upheld stops at a checkpoint at which police officers detained drivers briefly and tested them for sobriety. The officers stopped every vehicle and checked every driver for intoxication.
Id.
at 447 , 110 S.Ct. 2481 . On average, the stops lasted twenty-five seconds.
Id.
at 448 , 110 S.Ct. 2481 .
See also Lidster, supra,
540 U.S. at 426 , 124 S.Ct. 885 (extending
Sitz
to checkpoints designed to gather information after a nearby hit-and-run accident). Police may not, however, set up roadblocks to detect ordinary criminal wrongdoing.
Edmond, supra,
531 U.S. at 37, 121 S.Ct. 447 (drug interdiction roadblock unconstitutional because police may not conduct regular suspicionless searches and seizures solely to enforce criminal laws).
A third type of special needs search and seizure occurs at border crossings. In
U.S. v. Martinez-Fuerte,
428 U.S. 543, 551-554 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976), the Court applied a balancing test to uphold a Border Patrol traffic-checking program on highways within one hundred miles of the Mexican border. In
U.S. v. Boumelhem,
339 F.3d 414, 421 (6th Cir.2003), the Sixth Circuit upheld a warrant-less and suspicionless search of a railroad shipping container from abroad, noting the “power of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” In so holding, the court noted that warrantless entry and exit searches date back to the time of the Framers.
Id.
at 422 n. 5;
see also U.S. v. Montoya de Hernandez,
473 U.S. 531, 538 , 105 S.Ct. 3304 , 87 L.Ed.2d 381 (1985) (“Routine searches of the per
*881
sons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause. Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion”). Border searches are restricted geographically to regions surrounding the border because individuals have a lesser expectation of privacy at the border than in the interior.
Id.
at 539 , 105 S.Ct. 3304 .
OFAC’s exercise of its blocking power lacks the characteristics that excuse the warrant and probable cause requirements as to administrative, roadblocks, and border searches and seizures. Most importantly, OFAC’s blocking power entails no built-in limitations curtailing executive discretion and putting individuals on notice that they are subject to blocking.
Traffic checkpoints and border searches are focused geographically, as they occur only at he checkpoint or near the national border. In cases of administrative searches, the government may only search discrete categories of individuals — such as closely-regulated businesses — and even then the regulatory regime must be “carefully limited in time, place and scope.”
Burger, supra,
482 U.S. at 702-03 , 107 S.Ct. 2636 .
Second, in method, OFAC’s blocking power has more in common with ordinary law enforcement activity than with any of the activities considered in the special needs cases. OFAC does not block pending investigation every entity sending money overseas: it only blocks those it suspects have violated the law. In this case, OFAC targeted KindHearts as a potential violator and conducted a preliminary investigation before imposing the block. It necessarily had gathered information in advance that it considered sufficient to justify seizure of KindHearts’ assets.
No such prior determination occurs with a border crossing or checkpoint. Everyone passing through is stopped, detained and examined.
Thus, unlike traditional law enforcement investigatory activities, special needs searches expose everyone within their scope or zone of their operation to a cursory search or brief seizure in the interest of public safety and welfare or border integrity.
OFAC’s blocking power, which focuses on single entities, and does so on the basis of some suspicion, more closely resembles the
modus vivendi
and
modus operandi
of traditional law enforcement investigative activity than warrantless searches allowed under the special needs exception. This is true, even though, at this point, OFAC’s actions may be deemed “civil,” but actions violating E.O. 13224 may also become the basis for criminal sanctions. Investigations with the potential for criminal prosecution have historically triggered the warrant and probable cause requirements.
See Edmond, supra,
531 U.S. at 37-38, 121 S.Ct. 447 .
Finally, for the special needs exception to apply, both the probable cause and warrant requirements must categorically be impracticable in light of the government’s purpose.
Griffin, supra,
483 U.S. at 873 , 107 S.Ct. 3164 . The government provides no explanation as to why the probable cause warrant requirements were impracticable in this case. OFAC has shown no cause to believe or conclude that requiring it to develop probable cause and submit such cause to judicial evaluation would have impaired its enforcement efforts and ability otherwise to act in this case.
In conclusion, OFAC blocking actions do not fit within the special needs exception
*882
to the warrant and probable cause requirements.
iii. Whether Exigency Excuses the Warrant Requirement
Even if an OFAC blocking action is not a special needs search, a showing of exigent circumstances could eliminate the need for a warrant. Judicially endorsed exigent circumstances are, however, “few in number and carefully delineated.”
U.S. Dist. Court, supra,
407 U.S. at 318 , 92 S.Ct. 2125 .
The Sixth Circuit has identified four general categories of exigency justifying warrantless searches: “(1) hot pursuit of a fleeing felon, (2) imminent destruction of evidence, (3)[the] need to prevent a suspect’s escape, and (4) a risk of danger to police or others.”
Johnson, supra,
22 F.3d at 680 . None of these situations exists here except, possibly, the need to avoid destruction of evidence (or, in this case, dissipation of assets, which I discuss below). Thus, this case does not fit into a standard exigent circumstances exception to the warrant requirement.
That this is so does not answer the government’s claim of exigency
in toto.
A court may still find that exigent circumstances existed on consideration of: “(1) whether immediate government action was required; (2) whether the governmental interest was sufficiently compelling to justify a warrantless intrusion; (3) whether the citizens’ expectation of privacy was diminished in some way.”
U.S. v. Rohrig,
98 F.3d 1506, 1521 (6th Cir.1996).
For “immediate government action” to be necessary, law enforcement must have an objective, factual basis to believe that “the loss or destruction of evidence is imminent.”
U.S. v. Sangineto-Miranda,
859 F.2d 1501, 1512 (6th Cir.1988). For a warrantless search to be sustained, a “person of reasonable caution” must be able to conclude that “evidence of a federal crime would probably be found on the premises and also that such evidence would probably be destroyed within the time necessary to obtain a search warrant.”
Id.
Law enforcement, however, may not merely assume that a suspect will destroy or dispose of evidence or contraband simply because he is aware the government suspects him of an offense. Thus, in
Vale v. Louisiana,
399 U.S. 30, 35 , 90 S.Ct. 1969 , 26 L.Ed.2d 409 (1970), the Court held that an arrest outside a residence does not justify warrantless search of arrestee’s house. Officers, the Court stated, could not conduct such search simply on the basis that “time is of the essence” and “officers never know whether there is anyone on the premises to be searched who could very easily destroy the evidence.”
Id.
at 34 , 90 S.Ct. 1969 .
9
The gravity of the underlying offense is also a consideration.
Rohrig, supra,
98 F.3d at 1516 . In
Welsh v. Wisconsin,
466 U.S. 740, 742-743 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 (1984), the Court rejected the contention that exigency authorized warrantless entry into a driver’s home to arrest him after he had left the scene of an
*883
accident. The officers’ desire to ascertain the suspect’s blood-alcohol level before dissipation was insufficient to justify entry without a warrant.
Id.
In so holding, the Court noted that police were investigating the suspect for a “nonjailable traffic offense that constituted only a civil violation under the applicable state law.”
Id.
at 746 n. 6, 104 S.Ct. 2091 .
In this case, the
Rohng
factors do not weigh in favor of an absolute exception to the warrant requirement. First, OFAC’s own actions belie its claim that this situation required immediate action, making a prior judicial warrant impracticable. OFAC conducted a preliminary investigation of presently indeterminate duration. That investigation led to the blocking order. Nothing in the record supports any contention that time was of the essence. There is no basis for finding that something clearly, or to a very substantial likelihood, would have been lost by taking the time to prepare the documents for and present them to a judge and receive judicial authority for the seizure.
The second
Rohñg
factor asks whether the government had a sufficiently compelling interest in swift action to justify a warrantless intrusion. The government has an indisputably important interest in preventing the flow of funds to overseas terrorist organizations. This is so, even if those organizations, at least for now, are not directly engaged in hostile acts against the United States or its citizens. Among his other Article II powers, the President can conclude that our national interest includes working with other countries to combat terrorism within or adjacent to their borders.
At issue is not, however, the policy or its undoubted importance. At issue, rather, is whether the government has shown that the need for implementing that policy effectively and expeditiously required doing so without judicial authorization. The importance of a particular policy or program does not, without more, excuse the warrant requirement.
The exigent circumstances exception is bottomed on need for immediate action to avoid loss or destruction of evidence. To come within this exception in this case, the government has to show that reasonable grounds existed at the time of the blocking notice to apprehend that KindHearts, unless the block were implemented, was about to dispose of its assets in an unlawful manner.
The government has made no such showing. In this instance the government had time to secure a warrant.
10
Thus, the
*884
second
Rohrig
factor militates in favor of requiring a warrant.
The third factor concerns the citizen’s interest. KindHearts had a strong interest in accessing its funds, remaining in operation and disbursing its funds, to the extent it was doing so, lawfully.
The government has not shown that the need to act without a warrant was so compelling that it could do so lawfully under the exigent circumstances exception to the warrant requirement.
iv. Alteration of Probable Cause and Warrant Requirements
The government argues that its reliance on classified information to determine whether blocking is appropriate justifies bypassing the probable cause requirement and prior judicial review. It also argues that the nature of its investigation — namely, of an organization alleged to be providing financial support to overseas terrorists — precludes judicial involvement and oversight under the separation of powers doctrine.
These arguments are a variation on similar arguments which the Court rejected in
U.S. Dist. Court, supra.
There the government argued, much as it does here, that a judicial warrant would “obstruct the President in the discharge of his constitutional duty to protect domestic security.”
Id.
at 318 , 92 S.Ct. 2125 . The government also argued that courts lack technical expertise to determine whether surveillance is appropriate, and that disclosure of the necessary information to a magistrate would “create serious potential dangers to the national security and to the lives of informants and agents.”
Id.
at 319 , 92 S.Ct. 2125 .
The Court held that these concerns did “not justify complete exemption of domestic security surveillance from prior judicial scrutiny.”
Id.
at 320 , 92 S.Ct. 2125 . Complete abnegation of the Fourth Amendment and judicial involvement in protecting Fourth Amendment interests is likewise not justifiable here. As already discussed, nothing in our Fourth Amendment jurisprudence or constitutional tradition supports complete elimination of the probable cause, prior judicial review and warrant requirements.
To the extent the government argues that its possible reliance on classified information as a basis a blocking order justifies displacement of judicial review, its contentions are not persuasive. District judges increasingly handle classified information under the aegis of the Classified Information Procedures Act (CIPA). 18 U.S.C.App. 3, §§ 1-16. The government has not shown that there is something so unique about blocking of assets in circumstances such as those in this case that would make CIPA inapplicable or functionally inoperable.
The Court in
U.S. Dist. Court
suggested that Congress might adopt a modified warrant procedure that would both respond to the President’s Article II exclusive responsibility and authority to protect national security from foreign dangers and accommodate Fourth Amendment interests and protections.
Id.
at 320 , 92 S.Ct. 2125 . Declining “to detail the precise standards for domestic security warrants,”
id.
at 323 , 92 S.Ct. 2125 , the Court expressly stated, however, that some form
oí
“prior judicial approval” was constitutionally required.
Id.
at 324 , 92 S.Ct. 2125 .
Here, as well, in view of the effect of implementation of Fourth Amendment protections and processes on the President’s Article II powers, some reformulation of the probable cause requirement may be appropriate. The same may be true with regard to variance from the conventional process for obtaining judicial warrants under the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure.
*885
I agree, though, with the parties’ request that I not undertake in this case to determine whether such reformulation is appropriate or necessary or, if so, to define its contours. In not undertaking these tasks, I go no further than the Supreme Court in
U.S. Dist. Court ,
in which the Court left to Congress the responsibility for considering and adopting the appropriate structure.
Id.
at 320 , 92 S.Ct. 2125 . This, in turn, led to enactment of FISA and creation of the FISC.
11
I also note that provision could be made for emergency seizure of assets pending such review when, as and if truly exigent circumstances existed — as they did not in this case, and as is unlikely in other past cases of OFAC blocking orders. In any event, great care would have to be taken to ensure that what should be rare did not become routine.
That has not happened under Title III: warrantless emergency surveillance, though authorized by that statute, 18 U.S.C. § 2518 (7), has hardly ever occurred in the forty years since its enactment. But circumstances might possibly arise where the time needed for even
ex parte
prior judicial review might be so risky that an emergency exception, “both limited and tailored reasonably to secure law enforcement needs while protecting privacy interests,”
Illinois v. McArthur,
531 U.S. 326, 337 , 121 S.Ct. 946 , 148 L.Ed.2d 838 (2001), would be appropriate.
12
C. Fourth Amendment Challenges to the Provisional and Final SDGT Designation
KindHearts also challenges the provisional and prospective final SDGT designations under the Fourth Amendment. This court can review neither challenge at this time. Under the Administrative Procedure Act [APA], 5 U.S.C. § 704 , I may review only final agency action. Agency action becomes final when it creates a binding obligation.
Bennett v. Spear,
520 U.S. 154, 158 , 117 S.Ct. 1154 , 137 L.Ed.2d 281 (1997).
Provisional agency action is not final action.
Greater Detroit Resource Recovery Auth. v. U.S. E.P.A.,
916 F.2d 317, 322 (6th Cir.1990) (holding a letter of intent to hold agency proceedings contemplating revocation of a permit was not final agency action);
Den-Mat Corp. v. U.S., Food and Drug Admin.,
1992 WL 208962 , *4 (D.Md.1992) (“[A] statement by the FDA in a letter of what its position is on
*886
an issue, along with a threat of enforcement that does not arise to a promise to enforce, is not a final action.”). The provisional designation is, by definition, not final agency action: this court cannot, therefore, review it. Final designation would be final agency action, but it has yet to occur.
2. Statutory Authorization for Block Pending Investigation
KindHearts argues that the IEEPA does not authorize OFAC’s block on KindHearts’ assets because the IEEPA requires that blocked individuals have a nexus with a nation on which the United States government has imposed economic sanctions. Defendants argue that the IEEPA requires no such nexus and that OFAC may properly block any assets in which any foreign national- — not just foreign nations and foreign nationals linked to a sanctioned nation — has an interest.
A. Whether the IEEPA Requires a Nexus With a Sanctioned Nation
The IEEPA authorizes the President to “investigate, block during the pendency of an investigation, regulate, ... or prohibit ... transactions involving ... any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.” 50 U.S.C. § 1702 (a)(1)(B).
Two courts have rejected the argument that the IEEPA requires that an entity have a nexus with a sanctioned nation to be blocked. In
Al Hammam, supra,
585 F.Supp.2d at 1260 , plaintiff argued that a blocking action “requires a nexus between a sanction against a national and a sanction against its country.” Thus, the government could properly sanction a Libyan national, but not a national of a country the United States has never sanctioned.
Id.
The court rejected this argument, concluding that “the term ‘thereof simply directs that the ‘national’ must be ‘foreign’ without imposing any other conditions.”
Id.; see also Humanitarian Law Project v. U.S. Dept. of Treasury,
463 F.Supp.2d 1049, 1072-1073 (C.D.Cal.2006) (rejecting contention that the IEEPA is only a “tool for nation-to-nation diplomacy” and that the power to block individual assets under IEEPA is not merely “incident to” the power to impose sanctions).
These rulings represent the better interpretation of the IEEPA. First, as the court in
Al Haramain
concluded, there is no textual reason to interpret “thereof’ as a limitation; the phrase “nationals thereof’ simply means foreign nationals.
Second, the executive has blocked the assets of individuals unaffiliated with sanctions in the past and received Congressional approval. This occurred after President Clinton issued executive orders under the IEEPA blocking the assets of Columbian drug cartels. E.O. 12978 (Oct. 21, 1995). In the legislative findings in the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. § 1901 (a)(3), Congress addressed President Clinton’s actions, noting that the President “successfully applied [the IEE-PA] to international narcotics traffickers in Columbia and based on that successful case study, Congress believes similar authorities should be applied worldwide.” The findings specifically referenced E.O. 12978.
Id.
at § 1901(a)(1).Congress amended the IEEPA in 2001 and, though aware of President Clinton’s executive orders, did not limit the IEEPA to be only a tool of nation-to-nation diplomacy.
The IEEPA requires no nexus with a sanctioned nation; it only requires that blocked property be property in which any foreign country or a foreign national “has any interest.” 50 U.S.C. § 1702 (a)(1)(B).
*887
B. Whether a Foreign National Has “Any Interest” in KindHearts’ Assets
Even if the IEEPA mandates no nexus with a sanctioned nation, the statute requires a foreign national to have an “interest” in the corporation’s assets within the meaning of
50
U.S.C. § 1702 (a)(1)(B).
Id
To satisfy the Fourth Amendment, OFAC thus must show, with regard to an entity’s alleged violation of IEEPA and E.O. 13224, probable cause to believe that a foreign national has an “interest” in the corporation’s assets.
13
The IEEPA authorizes blocking based on “any interest.”
See
50. U.S.C. § 1702(a)(1)(B);
Holy Land Found for Relief & Dev. v. Ashcroft,
219 F.Supp.2d 57, 67 (D.D.C.2002). Congress has authorized the executive to define the statutory terms of the IEEPA. 50 U.S.C. § 1704 . OFAC defines “interest” to mean “an interest of any nature whatsoever, direct or indirect.” 31 C.F.R. § 535.312 . In contrast, OFAC defined the terms “property” and “property interest” to refer to an expansive list of legally enforceable rights, including currency, negotiable instruments, “evidences of title,” “contracts of any nature whatsoever, and any other property, real, personal, or mixed, tangible or intangible, or interest or interests therein, present, future or contingent.” 31 C.F.R. §§ 535.311
Courts have endorsed broad interpretations of the phrase “any interest” as used in the IEEPA and TWEA. E.g.,
Regan v. Wald,
468 U.S. 222, 225-226, 233-34 , 104 S.Ct. 3026 , 82 L.Ed.2d 171 (1984) (the phrase “any interest” must be construed broadly);
Consarc Corp. v. Iraqi Ministry,
27 F.3d 695, 701-02 (D.C.Cir.1994) (OFAC may define property interests, subject to judicial review).
The statute does not, therefore, require that a foreign national have a legally enforceable property interest in a target corporation’s assets. A beneficial interest in the entity’s assets may suffice.
Global Relief Found, v. O’Neill,
315 F.3d 748, 753 (7th Cir.2002).
To date, courts have considered the definition of “interest” in cases involving OFAC blocking actions against domestic corporations only where: 1) foreign nationals occupy key executive positions or were members of the entity’s board,
Global Relief, supra,
315 F.3d at 752-53 (two of the three members of the board were foreign nationals),
Al Haramain, supra, 585
F.Supp.2d at 1261 (foreign nationals served as the President and Treasurer); or 2) OFAC had already named the United States corporation as an SDGT for channeling funds to foreign terrorists.
Islamic Am. Relief, supra,
394 F.Supp.2d at 40, 46 ;
Holy Land, supra,
219 F.Supp.2d at 67 .
Khaled Smali, President of KindHearts, is a foreign national. This satisfies the requirement of 50 U.S.C. § 1702 (a)(1)(B) that a foreign national have an interest in the organization.
3. Void for Vagueness
Plaintiff alleges that OFAC’s authority to block assets pending investigation and to designate SDGTs under the IEEPA and E.O. 13224 is unconstitutionally vague. First, plaintiff claims neither the IEEPA nor E.O. 13224 imposes substantive or procedural constraints on the authority to block pending investigation. Second, plaintiff claims that neither the IEEPA nor E.O. 13224 imposes a scienter requirement for designation. Third, plaintiff claims that the criteria set forth in E.O. 13224 for designation contain the unconstitutionally vague terms “material support,”
*888
“services,” and “otherwise associated with.”
To determine whether a statute is vague, courts consider whether the statute is “sufficiently clear so as not to cause persons ‘of common intelligence ... necessarily [to] guess at [a statute’s] meaning and [to] differ as to its application.’ ”
Connolly v. General Const Co.,
269 U.S. 385, 391 , 46 S.Ct. 126 , 70 L.Ed. 322 (1926). Vague statutes violate the Due Process Clause of the Fifth or Fourteenth Amendments.
Kolender v. Lawson,
461 U.S. 352, 357 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983);
see also Coates v. City of Cincinnati,
402 U.S. 611, 614 , 91 S.Ct. 1686 , 29 L.Ed.2d 214 (1971).
Vague statutes are contrary to the “first essential of due process of law” for two reasons.
Connolly, supra,
269 U.S. at 391 , 46 S.Ct. 126 . First, unclear statutes deny citizens “a reasonable opportunity to know what is prohibited, so that [they] may act accordingly.”
Grayned v. City of Rockford,
408 U.S. 104, 108-09 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972). Second, vague laws encourage arbitrary and discriminatory enforcement, because they “impermissibly delegate[ ] basic policy matters to policemen, judges, and juries.”
Id.
at 108-109, 92 S.Ct. 2294 ;
see also City of Chicago v. Morales,
527 U.S. 41, 60 , 119 S.Ct. 1849 , 144 L.Ed.2d 67 (1999);
Papachristou v. City of Jacksonville,
405 U.S. 156, 162 , 92 S.Ct. 839 , 31 L.Ed.2d 110 (1972).
Courts demand a greater level of certainty where a vague criminal statute “might induce individuals to forgo their rights of speech, press, and association” to avoid even a risk of prosecution.
Scull v. Com. of Va. ex rel. Comm, on Law Reform & Racial Activities,
359 U.S. 344, 353 , 79 S.Ct. 838 , 3 L.Ed.2d 865 (1959); see
also Ashton v. Kentucky,
384 U.S. 195, 200 , 86 S.Ct. 1407 , 16 L.Ed.2d 469 (1966);
Am. Booksellers Found, for Free Expression v. Strickland,
512 F.Supp.2d 1082, 1097 (S.D.Ohio 2007),
questions certified,
560 F.3d 443 (6th Cir.2009) (“The courts will pay even closer attention when ... a statute attempts to restrict an area of free expression through the penal code, because the threat of punitive penalties has the potential to significantly chill speech.”).
A. Facial and As-Applied Vagueness Claims
A plaintiff may assert two types of vagueness claims. First, it may challenge statutes as vague as applied to plaintiffs specific conduct. An as-applied challenge “implicates the statutes’ enforcement only as to the plaintiff challenging the statute” but does not. “implicate the enforcement of the law against third parties.”
Humanitarian Law Project, supra,
463 F.Supp.2d at 1058 . Thus, a successful as-applied challenge “does not render the law itself invalid.”
Id.
Second, plaintiffs may claim that a statute is vague on its face, meaning that it is vague as to conduct beyond that of the individual plaintiff.
Id.
A successful facial challenge renders the law invalid; facial invalidation, therefore, is “strong medicine” that courts should use only as a “last resort.”
Id.; see also Nat’l Endowment for the Arts v. Finley,
524 U.S. 569, 580 , 118 S.Ct. 2168 , 141 L.Ed.2d 500 (1998).
KindHearts asserts both facial and as-applied challenges to OFAC’s designation and block pending investigation authorities.
i. Facial Invalidity
(a). OF AC Neither Suppresses Protected Speech Nor Imposes Criminal Sanctions
Generally, an enactment is unconstitutionally vague on is face only if it is “impermissibly vague in all its applications.”
Village of Hoffman Estates v.
*889
KINDHEARTS v. GEITHNER
Cite as 647 F.Supp.2d 857 (N.D.Ohio 2009)
889
Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 497 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982); see
also U.S. v. Salerno,
481 U.S. 739, 745 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987) (enunciating the
“Salerno
doctrine” that a successful facial challenge to a statute requires proof of invalidity in all its applications unless the statute regulates protected speech).
If, however, plaintiffs show that an allegedly vague criminal statute reaches a “substantial amount of constitutionally protected conduct” under the First Amendment,
Belle Maer Harbor v. Charter Twp. Of Harrison,
170 F.3d 553 , 557 (6th Cir.1999), the
Salerno
doctrine does not apply.
See Salerno, supra,
481 U.S. at 745 , 107 S.Ct. 2095 (recognizing an exception for First Amendment claims). Despite the general rule that plaintiffs who engage in “some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,” the Supreme Court has “relaxed that requirement” in the First Amendment context to avoid chilling protected speech.
U.S. v. Williams,
553 U.S. 285 , 128 S.Ct. 1830,1845 , 170 L.Ed.2d 650 (2008).
[23]To avail themselves of this exception to
Salerno ,
plaintiffs must show that the challenged enactment is: 1) criminal in nature; and 2) implicates First Amendment rights. In
Kolender v. Lawson,
461 U.S. 352, 353 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983), the Supreme Court invalidated a criminal statute requiring those who “loiter or wander on the streets to provide ‘credible and reliable’ identification and to account for their presence when requested by a peace officer.” Though the statute could be clear in some instances, the Court invalidated it on the its potential to infringe First Amendment rights and the serious criminal sanctions imposed for its violation.
Id.
at 358 n. 8, 103 S.Ct. 1855 ;
see also Morales, supra,
527 U.S. at 55 n. 22, 119 S.Ct. 1849 (in dicta, declining to
apply
Salerno
in void for vagueness challenge to a criminal statute implicating First Amendment rights).
[24] Where a criminal statute is narrowly tailored to restrict only unprotected speech, it does not implicate First Amendment rights for the purposes of a void-for-vagueness challenge.
Belle Maer Harbor, supra,
170 F.3d at 557;
see also Rendon v. Transp. Sec. Admin,
424 F.3d 475, 480 (6th Cir.2005). Indeed, to be invalid, a statute must reach a “substantial amount” of protected speech: not all laws restricting speech satisfy this test.
In
Rendon ,
the Sixth Circuit concluded that a Transportation Security Administration regulation did not reach a substantial amount of protected First Amendment conduct. The regulation at issue stated that “[n]o person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties.” 49 C.F. R. § 1540.109. Because the statute requires that the plaintiff “interfere” with screeners in the performance of a specified task, it did not give screeners unfettered discretion to fine anyone they may find disruptive and therefore did not reach a substantial amount of protected speech. 424 F.3d at 478 .
[25] In this case, OFAC’s designation authority neither implicates First Amendment rights nor is criminal in nature. Courts have uniformly held that OFAC’s blocking and designation authorities do not reach a substantial amount of protected speech, and that its restrictions are narrowly tailored.
Al Haramain, supra,
585 F.Supp.2d at 1267 (E.O. 13224 “does not punish a substantial amount of protected free speech or associational rights.”);
Islamic Am. Relief, supra,
394 F.Supp.2d at 52-55 (rejecting claims that OFAC blocking action violates plaintiffs First Amendment freedom of speech, freedom of associ-
*890
ation and freedom of religion, and noting that “nothing in the IEEPA or the executive order prohibits [the plaintiff] from expressing its views.”);
Holy Land Found. for Relief and Dev. v. Ashcroft,
333 F.3d 156, 166 (D.C.Cir.2003) (“[T]here is no First Amendment right nor any other constitutional right to support terrorists.”);
Holy Land, supra,
219 F.Supp.2d at 82 (OFAC designation and blocking did not restrict plaintiffs “ability to express its viewpoints, even if these views include an endorsement of Hamas.”);
Global Relief Found., Inc. v. O’Neill,
207 F.Supp.2d 779, 806 (N.D.Ill.2002),
aff'd
315 F.3d 748 (7th Cir.2002) (Executive Order satisfies strict scrutiny and is not overbroad under in violation of the First Amendment because it neither
“directly
regulates speech or expression” and does not grant discretion to “determine whether particular items of expression may be prohibited on the basis of their content.”).
Even if plaintiff shows that OFAC’s blocking and designation authorities reach a substantial amount of constitutionally protected conduct, the consequences are civil, rather than criminal. Even harsh civil sanctions do not justify applying heightened scrutiny. In
Columbia Natural Res. Inc. v. Tatum,
58 F.3d 1101 , 1108 (6th Cir.1995), for example, the court held that civil provisions of the Racketeer Influenced and Corrupt Organizations Act [RICO], 18 U.S.C. § 1962 (c), were not unconstitutionally vague. The court stated that it “expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.”
Id.
(citing
Hoffman Estates, supra,
455 U.S. at 498-499 , 102 S.Ct. 1186 ).
14
(b). OFAC’s Authority to Order Blocking Pending Investigation is Not Facially Vague
Plaintiffs argue OFAC’s power to block assets pending investigation is vague on its face because neither E.O. 13224 nor the IEEPA require OFAC to establish any level of suspicion or amass any quantum of evidence before acting. If this is true, the enactments are vague because -without criteria governing OFAC’s actions “persons ‘of common intelligence ... necessarily [to] guess at [a statute’s] meaning and [to] differ as to its application.’ ”
Connally, supra,
269 U.S. at 391 , 46 S.Ct. 126 .
Defendants argue that the substantive criteria set forth in § 1 of E.O. 13224 constrain both OFAC’s power to designate and to block pending investigation. Defendants further assert, “To initiate a BPI OFAC must be pursuing an investigation based upon a reasonable basis to suspect that the individual or entity meets the E.O. criteria. Whereas, to designate, OFAC must have reason to believe the subject meets the designation criteria.” [Doc. 36, at 30 n. 25], Plaintiffs respond that OFAC’s power to designate and power to block pending investigation have distinct sources in the text of E.O. 13224, and that the government’s putative “reasonable basis to suspect” standard is wholly invented.
E.O. 13224 empowers OFAC to block and designate by delegating powers given to the President by Congress in the IEE-PA. Congress, through the IEEPA, authorized the President to block certain assets and transactions in cases of declared national emergency. 50 U.S.C.A. §§ 1702 (a)(1), 1701. In E.O. 13224, the President declared that “foreign terrorists” represented an “unusual and extraordinary threat to the national security” and
*891
designated several entities and persons as “foreign terrorists.”
OFAC’s power to designate SDGTs derives from E.O. 13224, § l(c)-(d). These sections permit the Secretary of Treasury, in consultation with the Secretary of State and the Attorney General, to determine that an entity is “owned or controlled by” a designated foreign terrorist, has “assist[ed] in, sponsored], or provide[d] financial, material, or technological support for, or financial or other services to or in support of’ acts of terrorism by a designated foreign terrorist, or is “otherwise associated with” a designated terrorist. Under § 1 of E.O. 13224, the “property and interests in property” of entities so designated by the Treasury “are blocked.” Section 1 of E.O. 13224, however, does not confer any power on the United States Treasury to block pending investigation; it only authorizes blocks on entities who have already been designated.
OFAC’s power to block pending an investigation presumably stems from E.O. 13224, § 7, which authorizes the Secretary of the Treasury to “employ all powers granted to the President by IEEPA ... as may be necessary to carry out the purposes of this order.” E.O. 13224 does not specifically mention any power to block pending an investigation. The catch-all provision in § 7, however, delegates the President’s IEEPA authority to block pending investigation to the Treasury. IEEPA authorizes the President to “investigate [and] block during the pendency of an investigation ... any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.” 50 U.S.C. § 1702 (a)(1)(B).
With regard to statutory limits on OFAC’s authority to impose blocking pending investigation, the plaintiff and defendant agree that the IEEPA places five limitations on the President’s power to block pending investigation, and that these also limit OFAC’s power under E.O. 13224. First, before acting under IEEPA, the President must find and declare a national emergency based on an “unusual and extraordinary threat, which has its source in whole or in substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” 50 U.S.C. § 1701 (a). Second, the President may exercise his authority “to deal with an unusual and extraordinary threat to which a national emergency has been declared” and “not for any other purpose.”
Id.
at 1701 (b). Third, blocks pending investigation, like all blocks, must be on “property in which any foreign country or a national thereof has any interest.” 50 U.S.C. § 1702 (a)(1)(B). Fourth, the President may not under IEEPA regulate the export of personal communications, information such as films, artworks and news wire feeds, or transactions ordinarily incident to travel in a foreign country.
Id.
at § 1702(b). Fifth, the president must consult with Congress “in every possible instance” before exercising his authority and Congress periodically reviews the President’s actions.
Id.
at §§ 1703(a), 1622.
These limitations, however, do not require OFAC to establish any specific level of suspicion or collect any quantum of evidence before blocking an entity pending an investigation. Plaintiffs argue that, provided the President has declared a national emergency, OFAC may block any entity it chooses to investigate on a whim. Defendants respond that OFAC may only block pending investigation if OFAC is “pursuing an investigation based upon a reasonable basis to suspect that the individual or entity meets” the criteria for designation under the E.O. [Doc. 73, at 30 n. 25].
*892
Defendants argue that this “reasonable basis to suspect” requirement derives from the judicial review provision of the Administrative Procedures Act (APA), 5 U.S.C. § 706 (2)(A). This provision states that a court may overturn an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Id.; see also Marsh v. Oregon Natural Res. Council,
490 U.S. 360, 377 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989). Defendant cites three cases in which courts reviewed whether OFAC had a “rational basis” for issuing a final SDGT determination and block.
Holy Land Found, for Relief and Development v. Ashcroft,
333 F.3d 156, 162 (D.C.Cir.2003);
see also Islamic Am. Relief Agency v. Gonzales,
477 F.3d 728, 732 (D.C.Cir.2007);
Al Haramain, supra,
585 F.Supp.2d at 1249 .
Defendant’s argument, however, is flawed. First, § 706(2)(A) of the APA sets forth a standard of judicial review, not a substantive standard to govern agency behavior. OFAC must comply with statutes, executive orders, and Treasury regulations governing its conduct; it should not consider whether its actions would later be reversed under the deferential “arbitrary and capricious” standard of judicial review in choosing its course of action.
Second, defendant’s argument fails to establish a link between the power to block pending investigation (authorized by E.O. 13224, § 7) and the standard for designating an SDGT (described in E.O. 13224, § 1). Nothing in the text of E.O. 13224 suggests that the block pending investigation power can be exercised only as a precursor to designation, nor does anything suggest how close OFAC must be to designating to impose a block. Without such a link, a reviewing court has no basis for determining whether OFAC has exercised its power reasonably in accordance with its authority.
Defendants rely on three cases involving challenges to post-designation blocking orders, not blocks pending investigation.
Islamic Am. Relief, supra,
477 F.3d at 732 ;
Holy Land, supra,
333 F.3d at 162 ;
Al Haramain, supra,
585 F.Supp.2d at 1249 .
Because the cases do not deal with the power to block pending investigation, they provide no guidance as to the restrictions on this power. In all three, OFAC simultaneously designated the target entity as an SDGT and blocked its assets. In these cases, therefore, both the designation decision and the block were governed by § 1 of the Executive Order, not § 7.
Section 1 sets forth criteria for designation and the block attaches automatically on designation. Courts in these cases apply the APA’s standard of review to determine whether OFAC had a “rational basis” to designate an entity under the § 1 criteria — courts do not treat “rational basis” as the criteria OFAC must abide in blocking or designating an entity.
Holy Land, supra,
333 F.3d at 162 .
Neither the IEEPA nor E.O. 13224, therefore, restrict OFAC’s power to block pending investigation OFAC’s authority to block pending investigation by requiring a specific quantum of evidence or level of suspicion that the targeted entity should be designated.
Plaintiff argues that this lack of statutory criteria restricting OFAC’s blocking authority makes that authority unconstitutionally vague. Because no criteria restrict OFAC’s authority, all exercise of that authority, plaintiff contends, are
ab initio
suspect, thereby rendering the IEEPA and E.O. 13224 facially vague.
Application of the Fourth Amendment to blocks pending investigation provides the criteria, otherwise unavailable under the IEEPA and E.O. 13224, for such seizures. If, to satisfy the Fourth Amendment,
*893
OF AC may only block pending investigation on a showing of probable cause that the target entity has violated prohibitions of the IEEPA and E.O. 13224, its discretion to block is not unfettered and OFAC’s authority is not unconstitutionally vague on its face.
15
B. Whether the Criteria For Designation Are Unconstitutionally Vague
KindHearts also facially challenges OFAC’s designation authority as unconstitutionally vague. I have concluded previously that challenges to OFAC’s preliminary and final designation authority are not reviewable at this time, but I consider KindHearts’ challenge because the designation criteria also govern the probable cause standard required to block pending investigation.
OFAC’s designation authority arises from E.O. 13224, § 1 which orders a block on “all property and interest in property” subject to United States jurisdiction of an enumerated list of foreign terrorist individuals and organizations. E.O. 13224 § l(d)(i)-(ii) authorizes the Secretary of the Treasury to add to this list by designating additional entities that “assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of’ or are “otherwise associated with” individuals or groups designated as foreign terrorists. E.O. 13224, § 2(a) further authorizes designation and blocking for “making or receiving of any contribution of funds, goods, or services to or for the benefit of’ designated foreign terrorists. KindHearts argues that the terms “services,” “otherwise associated with” and “material support” are unconstitutionally vague. KindHearts further argues that E.O. 13224 is unconstitutionally vague because it contains no scienter requirement.
To establish that these terms are unconstitutionally vague, plaintiff must show that they cause persons “of common intelligence ... necessarily [to] guess at [a statute’s] meaning and [to] differ as to its application.”
Connally, supra,
269 U.S. at 391 , 46 S.Ct. 126 . Because plaintiffs challenge is facial and, as discussed above, does not implicate First Amendment rights, plaintiff must show that the challenged provisions are “impermissibly vague in all [their] applications.”
Hoffman Estates, supra,
455 U.S. at 497 , 102 S.Ct. 1186 . To prevent arbitrary enforcement and to provide citizens with reasonable notice of what conduct is proscribed, a statute must draw “reasonably clear lines” between legal and illegal conduct.
Smith v. Goguen,
415 U.S. 566, 573 , 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974).
Because E.O. 13224 and the IEEPA are federal rather than state law, this court has greater leeway to construe the enactments to remedy vagueness. The Supreme Court has rarely held federal statutes to be void for vagueness.
Columbia Natural Resources, supra,
58 F.3d at 1108. Because federal statutes are subject to interpretation by federal courts, federal courts need not “sit passively and review only what other people have said to determine if a statute is vague.”
Id.
Rather, a federal court’s “own interpretations are a means of mitigating any vagueness.”
Id.
An undefined word or phrase does not necessarily render an enactment vague. Courts may ascertain an undefined term’s meaning by reading it in context,
Boos v. Barry,
485 U.S. 312, 332 , 108 S.Ct. 1157 , 99 L.Ed.2d 333 (1988), or by looking to the term’s common meaning.
U.S. v. Haun,
90 F.3d 1096, 1101 (6th Cir.1996) (If the common meaning of an undefined term
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provides “adequate notice of the conduct prohibited and standards for enforcement,” the statute is not void for vagueness.). Courts may look to other statutes and case law to determine an undefined term’s meaning.
See Jordan v. De George,
341 U.S. 223, 229-230 , 71 S.Ct. 703 , 95 L.Ed. 886 (1951) (upholding phrase “crime of moral turpitude” against vagueness challenge by examining meaning of term in cases and other statutes).
A statute may be facially vague if it contains language that “lends itself to subjective interpretation.”
Humanitarian Law Project, supra,
463 F.Supp.2d at 1062 . In
Coates v. City of Cincinnati,
402 U.S. 611, 612-614 , 91 S.Ct. 1686 , 29 L.Ed.2d 214 (1971), the court invalidated an ordinance prohibiting “conduct ... annoying to persons passing by,” because “[c]onduct that annoys some people does not annoy others.”
See also U.S. v. Wunsch,
84 F.3d 1110 (9th Cir.1996) (invalidating court’s local disciplinary rule requiring lawyers to “abstain from all offensive personality” because it could “refer to any number of behaviors” and it would be “impossible to know when such behavior would be offensive enough to invoke the statute.”).
i. “Services”
Plaintiff argues that the term “services” as it appears in E.O. 13224, §§ 1-2 is unconstitutionally vague. The Treasury Regulations do not provide a concise definition of “services,” but they do contain a non-exhaustive list of examples: “legal, accounting, financial, brokering, freight forwarding, transportation, public relations, or other services.” 31 C.F.R. § 594.406 .
Other courts have concluded that the term “services” in E.O. 13324 is not unconstitutionally vague. In
Humanitarian Law Project, supra,
463 F.Supp.2d at 1063 , the court held that the term “services” in the E.O. 13224 is not vague be-
cause it is a “word of common understanding and one that could not be used for selective or subjective enforcement.” Despite the fact that the regulations list examples in place of an exact definition, the court concluded that “any given individual would be able to distinguish when he or she was providing a ‘service’ to a designated terrorist group, as opposed to engaging in independent activity.”
Id.; see also Al Haramain, supra,
585 F.Supp.2d at 1270 (The term “services” in E.O. 13224 is not unconstitutionally vague because the whole phrase, “services to or in support of’ an SDGT “implies cooperation between the two entities, as opposed to independent advocacy.”).
Courts have also upheld the term “services” against vagueness challenges in other contexts.
See, e.g., Al Haramain, supra,
585 F.Supp.2d at 1269-1270 (upholding “services” as it appears in IEE-PA);
U.S. v. Lindh,
212 F.Supp.2d 541, 547 (E.D.Va.2002) (upholding “services” in a criminal case).
In
Humanitarian Law Project v. Mukasey,
509 F.3d 1122, 1136 (9th Cir.2007), the court concluded that the “service” in the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] is unconstitutionally vague. The AEDPA, however, expressly defined “services” to include “expert advice or assistance.”
Id.
The court ruled the terms “expert advice or assistance” to be unconstitutionally vague because the terms reaches protected First Amendment activity, such as training in “how to lobby or petition representative bodies such as the United nations.”
Id.
The court concluded that the phrase “expert advice or assistance” was unconstitutionally vague, and that the term “services” was unconstitutionally vague because the term includes “expert advice or assistance.”
Id.
at 1135-1136 .
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The term “service” in E.O. 13224 is not unconstitutionally vague. The common meaning of the word sufficiently constrains executive discretion. When read in context, “services to or in support of,” the term clearly requires a collaborative relationship with an SDGT; independent advocacy is not covered. Moreover, neither the E.O. nor the Treasury Regulations expressly extend the term “services” to any protected area of speech, making the Ninth Circuit’s reasoning in
Humanitarian Law Project
regarding the AEDPA inapplicable here.
ii. “Material Support”
Plaintiffs assert that the term “material support” is unconstitutionally vague. Neither the Executive Order nor the Treasury regulations provide a definition of this term. To construe the statute, courts may look to how other statutes, regulations, and case law define this term.
See Jordan, supra,
341 U.S. at 229-230 , 71 S.Ct. 703 .
The Immigration and Naturalization Act [INA], 8 U.S.C. § 1182 (a)(3)(B), bars aliens who “engage in terrorist activity,” including those who “afford material support” to terrorists from receiving visas or entering the United States. The statute provides several examples of “material support,” including “a safe house, transportation, communications, funds, transfer or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training.”
Id.
at § 1182(a)(3)(B)(iv)(VI).
Courts have defined and applied the term “material support” from the INA using the plain meaning of the words. Thus, “material” has been held to mean “significant” or “essential” and “support” has been held to mean “sustenance or maintenance; esp., articles such as food and clothing that allow one to live in the degree of comfort to which one is accustomed.”
Singh-Kaur v. Ashcroft,
385 F.3d 293, 298 (3d Cir.2004) (construing “material support” in 8 U.S.C. § 1182 (a)(3)(B)(iv)(VI)) (quoting
Black’s Law Dictionary
991, 1453 (7th Ed.1999)) Though not addressing a vagueness challenge to the statute, the court concluded that “material support” clearly encompassed the claimant’s actions, which included providing food and shelter to individuals the claimant knew had committed terrorist activities.
Id.
at 299 .
The term “material support” also appears in the AEDPA, 18 U.S.C. § 2339A. Subsection (b)(1) defines “material support or resources” to mean
any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.
That two different federal statutes define “material support” somewhat differently does not, as plaintiffs contend, indicate that the statute is vague. The definitions in the INA and AEDPA do not set forth an exhaustive list of examples. In addition to specific examples like “weapons, lethal substances [and] explosives,” the definition in the AEDPA includes general terms like “any property, tangible or intangible, or service.” 18 U.S.C. § 2339A(b)(l). The definition in the INA uses the term “including” before the enumerated examples, indicating that Congress “intended to illustrate a broad concept rather than narrowly circumscribe a term with exclusive categories.”
Singh-Kaur, supra,
385 F.3d
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at 298. Even if the two statutes differ in the examples they list, there is substantial overlap: both list safe houses, funds, false documentation, financial services and weapons as examples of “material support.”
Plaintiffs vagueness challenge to “material support” fails. The INA, AED-PA, existing case law and common meaning provide a “broad concept” of material support that is sufficiently clear. Statutes “need not define with mathematical precision the conduct forbidden.”
Columbia Natural Res., supra,
58 F.3d at 1108. Plaintiff, furthermore, must show that the statute is vague in all its potential applications to succeed in its facial challenge. Because existing statutes and case law identify a clear core of activities that constitute “material support”—including the giving of funds, which plaintiff allegedly did—plaintiffs facial challenge fails.
iii. “Otherwise associated with”
Plaintiffs also find unconstitutional vagueness in the term “otherwise associated with” in E.O. 13224, § 1. OFAC regulations have recently defined this phrase to mean “(a) To own or control [an SDGT]; or (b) To attempt, or to conspire with one or more persons, to act for or on behalf of or to provide financial, material, or technological support, or other financial services, to” [an SDGT]. 31 C.F.R. § 594.316 .
Plaintiff alleges that the phrase “otherwise associated with” arguably encompasses First Amendment protected speech and association. The recently-adopted definition in 31 C.F.R. § 594.316 , however, clarifies the phrase and limits its applicability to protected speech and conduct. Since the regulation was adopted, courts have twice rejected arguments identical to the plaintiffs.
See Al Haramain, supra,
585 F.Supp.2d at 1270 (term “otherwise associated with” as defined in § 594.316 is not unconstitutionally vague);
Humanitarian Law Project v. U.S. Dept. of Treasury,
484 F.Supp.2d 1099, 1106 (C.D.Cal.2007) (terms “on behalf of’ and “to attempt, or to conspire” in § 594.316 are themselves sufficiently clear and clarify the meaning of “otherwise associated with”).
Plaintiff notes that § 594.316 includes the terms “services” and “material support,” which it alleges are unconstitutionally vague. For the reasons described above, neither term is vague either as it appears in E.O. 13224 or 31 C.F.R. § 594.316 . Neither, therefore, makes the term “otherwise associated with” unconstitutionally vague.
iv. Lack of a Scienter Requirement
Plaintiff claims, and the defendant does not dispute that OFAC may designate a targeted entity for providing “material support,” providing “services” or “otherwise associating] with” an SDGT without showing that the targeted entity knew the recipient of its resources was an SDGT or that the targeted entity knew the resources would be used for illegal purposes. Plaintiff argues that this lack of a scienter requirement renders E.O. 13224 unconstitutionally vague.
Lack of a scienter requirement does not make an otherwise clear statute unconstitutionally vague. Even criminal statutes are not unconstitutional where the legislature did not make intent to violate the statute an element of the crime.
Lambert v. California,
355 U.S. 225, 228 , 78 S.Ct. 240 , 2 L.Ed.2d 228 (1957) (“There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”). Punishing “a person for an act as a crime when ignorant of the facts making it so” is not a denial of due process of law.
Williams v. North Carolina,
325 U.S. 226, 238 , 65 S.Ct. 1092 , 89 L.Ed. 1577 (1945). Although “a scienter requirement may
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mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed,”
Hoffman Estates, supra,
455 U.S. at 499 , 102 S.Ct. 1186 , lack of such requirement does not make the statute vague.
In this case, the absence of a scienter requirement does not make OF AC’s authority unconstitutionally vague.
4. Procedural Due Process
KindHearts asserts a due process challenge to OFAC’s provisional designation of it as a SDGT.
KindHearts claims that the statute on its face does not accommodate, and in any event, OFAC failed to provide constitutionally mandated due process. As a result, according to KindHearts, it was not given — and, in its view, even yet has not received — constitutionally adequate notice of the basis and reasons for the blocking order. It also asserts that the government has failed to provide an opportunity to be heard in response to that order and the deprivation of its assets.
For the reasons that follow, I reject KindHearts’ contentions regarding facial invalidity for want of an express description of process. I conclude, however, that the government’s actions regarding the blocking order failed to provide the two fundamental requirements of due process: meaningful notice and opportunity to be heard.
Mathews v. Eldridge,
424 U.S. 319, 333, 348 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976).
I find, though, that I presently cannot determine the extent to which KindHearts has been prejudiced by the violation of its constitutional rights.
I also conclude that the due process challenge to the provisional SDGT designation is not ripe for adjudication.
A. Asset Freeze — Facial Challenge
KindHearts contends that IEEPA § 1702(a)(1)(B) is unconstitutional on its face because it fails to include procedural safeguards. The law does not require notice, an opportunity to be heard or pre- or post-deprivation process. A provision of the Patriot Act amended the IEEPA and authorized OFAC to block an individual’s or organization’s assets based on its assertion that the individual or organization is under investigation.
16
OFAC can thus freeze an American corporation’s assets just by announcing that the corporation is under investigation — under the statute it does not need to provide any process to that corporation.
§ 1702(a)(1)(B) states:
At the times and to the extent specified in § 1701 of this title, the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise — (B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States[.]
KindHearts argues the government must provide notice and an opportunity to be heard by a neutral tribunal. While it agrees that the government does not always have to provide pre-deprivation process, it maintains that the government
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must afford it prompt post-deprivation process.
The government, in response, emphasizes the flexible nature of due process requirements, and states that courts must consider the governmental interest in national security in addition to harm to private interests and risk of erroneous deprivation. The government’s interest in national security, it contends, is paramount.
KindHearts correctly contends that the IEEPA contains no procedural protections. That does not mean that it meets the
Salerno
“no set of circumstances” test. 481 U.S. at 745 , 107 S.Ct. 2095 .
17
Under
Salerno ,
“a plaintiff can only succeed in a facial challenge by establishing that no set of circumstances exist under which the Act would be valid,
ie.,
that the law is unconstitutional in all of its applications.”
Washington State Grange v. Washington State Republican Party,
552 U.S. 442 , 128 S.Ct. 1184, 1190 , 170 L.Ed.2d 151 (2008).
In
U.S. v. Al-Arian,
308 F.Supp.2d 1322 (M.D.Fla.2004), the court upheld the constitutionality of the IEEPA because the statute primarily applies to foreign organizations. The court reasoned that facial analysis of the statute should include the statute’s application to foreign organizations and to organizations without a substantial connection to the United States. It stated, “[i]n such limited and exceptional circumstances ... the facial analysis of a statute, like AEDPA or IEEPA, should include application to foreign organizations and individuals without a substantial connection to the United States.”
Id.
at 1346 . It rejected the notion that its analysis would “eviscerate the doctrine of facial invalidity.”
Id.
It instead explained that its analysis prevented it “from intruding into an area that ... belonged] to the domain of political power.”
Id.
No other court has explicitly addressed the constitutionality of the IEEPA under the
Salerno
“no set of circumstances” test. In
Global Relief Foundation, Inc., supra,
207 F.Supp.2d at 793 , plaintiff argued the IEEPA did not apply to the domestic assets of a United States corporation. Plaintiff did not challenge the constitutionality of the statute under
Salerno .
In
Holy Land Foundation, supra,
219 F.Supp.2d at 67 , plaintiff argued that under the IEE-PA, the President can only block property in which a foreign country or national has an interest that is “legally enforceable.” Again, plaintiff did not challenge the statute’s constitutionality under
Salerno .
In
Al-Haramain Islamic Foundation v. U.S. Dept. of Treasury, supra,
the plaintiff challenged the lack of procedural safeguards and regulations under the APA, arguing that OFAC’s designation process was arbitrary and capricious because “none of the regulations [identified] any procedural or substantive criteria to guide the process.” 585 F.Supp.2d at 1253 . In response to plaintiff’s complaint that the designation process lacked procedural safeguards, the court held “there is no mandatory duty requiring OF AC to adopt the regulations AHIF-Oregon demands ..., the agency’s failure to do so cannot be deemed ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law under the APA ... In the absence of regulations, the requirements of due process apply.”
Id.
at 1254 . Thus, although the court did not specifically address the constitutionality of the statute under the
Salerno
“no set of circumstances” test, it rejected plaintiffs challenges by noting that the requirements of
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due process apply to and constrain implementation of the statute.
The government argues that the IEEPA can be applied constitutionally. It asserts that its application to KindHearts is an example of a set of circumstances under which the statute is constitutional. It notes that KindHearts suggests safeguards that it believes would satisfy the constitutional standard. Thus, according to the government, KindHearts itself suggests a set of circumstances under which the IEEPA is constitutional.
In
Khouzam v. Attorney General of the U.S.,
549 F.3d 235, 243-44 (3rd Cir.2008), the court, considering the facial constitutionality of the Foreign Affairs Reform and Restructuring Act of 1998 [FAR-RA] noted that neither the statute nor its implementing regulations provided “any procedures to be afforded the alien once the Attorney General [made] a determination that a deferral [of removal] should be terminated based on diplomatic assurances.” The court did not, however, fault the statute or its implementing regulations for the lack of process the petitioner received. It noted that the Act did not prohibit the Executive from acting constitutionally, and therefore was not facially unconstitutional. The court stated, “We do not attribute the lack of due process to ... FARRA or its implementing regulations, for neither expressly directed the Executive to act in a manner that offends the Fifth Amendment. A statute is not facially unconstitutional unless ‘no set of circumstances exists under which the Act would be valid.’ ”
Id.
at 258 ;
see also, Washington State Grange, supra,
552 U.S. at ---, 128 S.Ct. at 1194 (finding statute was not facially unconstitutional because it could “conceivably be” implemented in a constitutional manner).
But see, e.g., Wis-cousin v. Constantineau,
400 U.S. 433, 439 , 91 S.Ct. 507 , 27 L.Ed.2d 515 (1971) (finding statute that lacked provisions for notice and hearing unconstitutional);
Leslie v. Lacy,
91 F.Supp.2d 1182, 1186, 1193 (S.D.Ohio 2000) (finding statute unconstitutional on its face where text contained “no provision for notice ... or hearing prior to the transfer of title ... or after the transfer of title.”).
OFAC does not contend that due process requirements do not apply at all. Indeed, it contends that it has met those requirements. Thus, it implicitly acknowledges the mandate of due process: it only disputes the claim of noncompliance. Although OFAC, as discussed in the next subsection, faile

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2359589. Public record. Not legal advice.