Due Process and Aliens

We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents...

— Donald J. Trump (@realDonaldTrump) June 24, 2018

Zadvydas v. Davis, 533 U.S. 678 (2001), at 693-694.

The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. See Kaplan v. Tod, 267 U. S. 228, 230 (1925) (despite nine years' presence in the United States, an "excluded" alien "was still in theory of law at the boundary line and had gained no foothold in the United States"); Leng May Ma v. Barber, 357 U. S. 185, 188-190 (1958) (alien "paroled" into the United States pending admissibility had not effected an "entry"). It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. See United States v. VerdugoUrquidez, 494 U. S. 259, 269 (1990) (Fifth Amendment's protections do not extend to aliens outside the territorial boundaries); Johnson v. Eisentrager, 339 U. S. 763, 784 (1950) (same). But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See Plyler v. Doe, 457 U. S. 202, 210 (1982); Mathews v. Diaz, 426 U. S. 67, 77 (1976); Kwong Hai Ghew v. Golding, 344 U. S. 590, 596-598, and n. 5 (1953); Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886); cf. Mezei, supra, at 212 ("[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law"). Indeed, this Court has held that the Due Process  Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U. S. 228, 238 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U. S. 21, 32-34 (1982); Johnson, supra, at 770.

Civil Asset Forfeiture

Shaila Dewan reports at The New York Times that the IRS has seized the assets of law-abiding citizens without even an allegation of criminal conduct. The government can keep the money, and its victims have to prove their innocence to get it back.

On Thursday, in response to questions from The New York Times, the I.R.S. announced that it would curtail the practice, focusing instead on cases where the money is believed to have been acquired illegally or seizure is deemed justified by “exceptional circumstances.”

Richard Weber, the chief of Criminal Investigation at the I.R.S., said in a written statement, “This policy update will ensure that C.I. continues to focus our limited investigative resources on identifying and investigating violations within our jurisdiction that closely align with C.I.’s mission and key priorities.” He added that making deposits under $10,000 to evade reporting requirements, called structuring, is still a crime whether the money is from legal or illegal sources. The new policy will not apply to past seizures.

The I.R.S. is one of several federal agencies that pursue such cases and then refer them to the Justice Department. The Justice Department does not track the total number of cases pursued, the amount of money seized or how many of the cases were related to other crimes, said Peter Carr, a spokesman.

But the Institute for Justice, a Washington-based public interest law firm that is seeking to reform civil forfeiture practices, analyzed structuring data from the I.R.S., which made 639 seizures in 2012, up from 114 in 2005. Only one in five was prosecuted as a criminal structuring case.

The Washington Post reports:

Police agencies have used hundreds of millions of dollars taken from Americans under federal civil forfeiture law in recent years to buy guns, armored cars and electronic surveillance gear. They have also spent money on luxury vehicles, travel and a clown named Sparkles.

The details are contained in thousands of annual reports submitted by local and state agencies to the Justice Department’s Equitable Sharing Program, an initiative that allows local and state police to keep up to 80 percent of the assets they seize. The Washington Post obtained 43,000 of the reports dating from 2008 through a Freedom of Information Act request.

The documents offer a sweeping look at how police departments and drug task forces across the country are benefiting from laws that allow them to take cash and property without proving a crime has occurred. The law was meant to decimate drug organizations, but The Post found that it has been used as a routine source of funding for law enforcement at every level.

The Post also reports:

A leading House lawmaker asked Attorney General Eric H. Holder Jr. on Friday to provide an array of documents and data relating to the Justice Department’s role in tens of thousands of cash and property seizures made in recent years by state and local police under federal civil asset forfeiture laws.

...
The request by Rep. F. James “Jim” Sensenbrenner Jr. (R-Wis.), chairman of the House Judiciary subcommittee on crime, terrorism, homeland security and investigations, is part of an inquiry into the billions of dollars in seizures made through the Justice Department’s Equitable Sharing Program, the federal government’s largest asset forfeiture initiative.

...
“The implications on civil liberties are dire,” he said in the letter to Holder. “The right to own property is a fundamental right implicitly recognized in the Fourth, Fifth and Fourteenth Amendments. I also believe that it is a human right.”

Sensenbrenner’s request follows a Washington Post investigation that found that 61,998 cash seizures have been made on U.S. highways and elsewhere since the Sept. 11, 2001, attacks without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion.

The Homeland Security and Justice departments and other federal agencies received $800 million of that total; state and local authorities kept the rest.

Friday’s letter follows similar requests by Sensenbrenner for documents from the Drug Enforcement Administration and the Immigration and Customs Enforcement. In those letters, Sensenbrenner sought details about how challenges from cash and property owners are handled.

The Godfather and the Presidency

At the Philadelphia Inquirer, Dick Polman quotes The Godfather to make a constitutional argument:

Michael Corleone tells Kay that his dad, Vito, is really no different than "a senator or a president." Kay tells Michael that he's being naive, because "senators and presidents don't have men killed."

To which Michael says, "Oh. Who's being naive, Kay?"

You tell her, Michael! Because, as the U.S. attorney general made clear the other day - in a speech that got little play in the media, thanks to the Republican primaries - Obama is the first president to claim the legal authority to whack U.S. citizens, to act as judge, jury, and executioner without a shred of transparency or public accountability. 

This issue flared briefly last fall after Anwar al-Awlaki, an American-born, American-educated radical Muslim cleric, was lit up in Yemen by one of Obama's drones. ... 

Indeed, 18 months before Awlaki's death, it was reported (via government leaks) that Awlaki's name had been placed on a hit list of American citizens, but today we still don't know who is on the list, why they were placed on the list, what kind of evidence puts you on the list, or which government officials maintain the list. What's clear, however, is that an American citizen can be placed on the hit list without knowing it, and with no opportunity to face or refute one's accusers.

All that would appear to be in violation of the Fifth Amendment (No person shall be "deprived of life ... without due process of law"), as well as Obama's constant boast that he is running "the most transparent administration in history." And when Attorney General Eric Holder said in his speech that Obama can make these life-or-death decisions without any judicial oversight, he contradicted Sen. Obama, who had insisted on the Senate floor that even presidents fighting a war on terror needed to be checked and balanced by judicial oversight. 

 

Casey Anthony, A Scam, and Double Jeopardy

MSNBC reports:

If you see this on Facebook: "Breaking news — Leaked video of Casey Anthony CONFESSING to lawyer!" — don't click on it. It's fake. It isn't malware that can harm your computer, but it is annoyingware that could irritate your friends.

Of course, it's tempting to want to see it, nearly a week after Anthony was acquitted of killing her 2-year-old daughter Caylee, with much of the country outraged about the verdict, and a good deal of that anger being shared on social media sites like Facebook and Twitter.

"With such huge media interest in the case and its outcome, scammers have leapt upon the opportunity to take advantage for their own financial ends," writes Graham Cluley, Sophos senior technology consultant on the security company's blog.

Suppose it were true and that a video showed Casey Anthony confessing. Could prosecutors do anything? Nope. The Double Jeopardy Clause of the Fifth Amendment forbids Florida prosecutors from retrying her for the murder. The Huffington Post comments on an urban legend about the possibility of a federal prosecution:

Anthony's acquittal has ensured that she can never again be tried for her daughter's murder because of the double jeopardy clause in the U.S. Constitution. Prosecutors are also unable to appeal her acquittal.

There has been some speculation online that she could be tried in federal court for violating the civil rights of her child, but [attorney Anne] Bremner said that is not possible.

"You can only violate someone's civil rights if you're acting on behalf of the government," Bremner explained. "The violation would have to have been committed by law enforcement, the state or some other government agency."