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Challenging the legality of section 106 of the USA PATRIOT Act.


The attacks of September 11, 2001 have focused our national security efforts on eradicating terrorism. In doing so, the government has enacted legislation to provide law enforcement with powerful tools to combat this imminent threat. One such piece of legislation is the PATRIOT Act, which was signed into law on October 26, 2001. (1) Sectors of the world legal community have criticized the PATRIOT Act because Congress passed it six weeks after September 11th--without committee hearings or substantive debate--even though the Act granted new powers to the federal government affecting privacy and other constitutional rights. (2) Containing ten titles and 342 pages, the PATRIOT Act is so immense that most of its provisions are not well understood. (3) Consequently, the judiciary will be called upon to clear up its ambiguity as the war on terror progresses.

A primary purpose of the PATRIOT Act is to drain terrorists of their monetary resources. (4) Therefore, many of its provisions are implemented through regulations imposed by the United States Department of the Treasury. (5) One such provision is section 106, contained in the Enhancing Domestic Security Against Terrorism procedures of Title I. Section 106, entitled Presidential Authority, amends section 203 of the International Emergency Economic Powers Act ("IEEPA"). (6) The amendment allows the President to "confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States" once a national emergency has been declared. (7) The President now may freeze assets during a pending IEEPA investigation, as opposed to waiting for the outcome as was previously required. (8) Additionally, this authority may be delegated periodically to any agency or person the President chooses. (9)

The United States has carefully re-evaluated its national security strategy in the post-September 11th era. The PATRIOT Act has been instrumental in this development because provisions, such as section 106, are allowing the government to dismantle the financial network of terrorists. For example, in 2002 the Secretary of the Treasury froze the assets of two Muslim charity organizations--found to have been supporting terrorists--using the authority delegated to him by the President under section 106. (10) In March 2003, President Bush confiscated Iraqi funds held in the United States after the decision to take military action against Saddam Hussein's government. (11) However, despite its effectiveness, section 106 of the PATRIOT ACT may violate customary international law.

In Brown v. United States, (12) the Supreme Court addressed, pursuant to the law of nations, whether enemy property found on United States land during wartime could be confiscated as a consequence of a declaration of war. (13) The Court determined that a declaration of war, by itself, was not enough to permit enemy property to be confiscated. (14) In addition to the declaration, there needed to be a specific legislative act authorizing the taking of enemy property. (15) The Court reasoned that a declaration of war merely places two nations in a state of aggression, while the authority to confiscate enemy property is produced by other measures of government. (16) In other words, "war gives the right to confiscate, but does not itself confiscate the property of the enemy." (17)

Chief Justice Marshall's opinion is filled with references to the theories of English legal scholars. (18) He refers to a passage from Chitty's Law of Nations, stating: '"[I]n strict justice, [the right of seizure] ... can take effect only on those possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities."' (19) The language in Marshall's opinion is very specific. While concluding that Congress is required to produce a specific legislative act to confiscate enemy property, Marshall implies that they do not have the authority to promulgate such an act without a declaration of war. (20)

Brown has not been overturned in the 190 years since it was decided. The decision outlines the two-step procedure for the government to follow when confiscating enemy property found within its jurisdiction. First, Congress must declare war. Second, it must promulgate a legislative act stating its intent to confiscate the property of enemies found within the United States once war has been declared. Adherence to this process will authorize the right to confiscate enemy property.

The ability to confiscate the property of foreign nations and nationals is a powerful tool that should be used wisely. According to Marshall, foreign nations will apply to U.S. foreign properties the same rule that the United States applies to other nation's citizens. (21) As a result, we should carefully adhere to the law of nations where circumstances permit us to do so.

This paper will explore to what extent section 106 of the PATRIOT Act conflicts with Brown and how a court would resolve this issue by examining definitions of enemy and states of warfare, the doctrine of military necessity, international law regarding unlawful expropriations, the application of customary international law in American jurisprudence, and the evolution of the IEEPA.


An enemy is "one seeking to injure, overthrow, or confound an opponent" (22) or "[a] state with which another state is at war." (23) Enemies may be placed in several categories. For example, "[a] person possessing the nationality of the state with which one is at war" is deemed an enemy subject. (24) However, "[a] citizen or subject of a country at war with the country in which the citizen or subject is living or traveling" is an enemy alien. (25)

War transforms rights and relationships. When the United States declares war on a belligerent nation, foreign nationals of that nation, who reside in a U.S. jurisdiction, are considered enemy aliens. (26) Under international law, a country may confiscate any or all property of such aliens. (27) However, while the United States government can confiscate enemy property during wartime without providing compensation to the enemy owner, it must make available a remedy to protect its own citizens in case their property is erroneously seized. (28) Additionally, a declaration of war has the effect of suspending all commercial intercourse and contracts between subjects of the warring powers for at least the length of the hostilities. (29)

During peacetime, the rights of foreign nationals become less restricted. For example, both the United Nations and United States recognize that foreign nations and nationals have a right to be compensated when a host government takes their property in peacetime. (30) United States courts will refuse to respect the act of a foreign government that involves a taking of U.S. property or the property of American citizens when there has not been just compensation. (31) This area of international law reveals how rights are affected by war because when a nation classifies another government as an enemy, that government's privileges, along with the privileges of its nationals to own property within the belligerent nation become severely limited.

Conversely, a country has a duty to make sure foreign persons within its jurisdiction are afforded the protections of the country's laws during peacetime. The country also has the duty to ensure that these laws accord with accepted standards of international law--deriving from either a treaty or principles of customary international law. (32) While war permits a nation to limit the rights of enemy nations and aliens, doing so may affect the economic stability of the belligerent powers because commercial intercourse and trading between subjects of the countries will cease. (33) As a result, considerations outside of national security may heavily influence a nation's decision to go to war. (34)

During the last half of the twentieth century, the United States failed to declare war against any country in the world despite being engaged in hostilities in Korea, Vietnam, and the Persian Gulf. While these conflicts were more limited in scope than either World War, they were still legally definable states of hostility. (35) This raises the question of what a limited war is and its impact on the legal responsibilities of the countries. These issues are particularly relevant as we examine the consequences of the war on terrorism.

In Bas v. Tingy, (36) Justice Washington's opinion notes that war can be "perfect" or "imperfect." (37) He stated:
 But hostilities may subsist between two nations, more
 confined in its nature and extent; being limited as to places,
 persons and things; and this is more properly termed
 imperfect war; because not solemn, and because those who
 are authorized to commit hostilities act under special
 authority, and can go no farther than to the extent of their
 commission. (38)

Therefore, imperfect war is a public war of limited acts approved by the governments of the belligerent nations. (39) Justice Washington applied this reasoning to conclude that France was an enemy of the United States, within the meaning of an act set into law in March 1799. (40) The act reimbursed persons who were able to re-take American ships from "the enemy." (41) Despite an argument that the language of the act was ambiguous, because it did not specifically state that France was "the enemy," Justice Washington asserted that the act of March 1799 embraced all future war with France or any other nation. (42)

The Supreme Court's decision in Bas shows that enemy engagement in an imperfect war differs from the case of perfect war. (43) The U.S. air campaign in Kosovo in 1999 exemplifies imperfect war. (44) The goals of the air campaign were limited to specific objectives: ensuring that Serbian forces withdraw from Kosovo and that refugees be provided with humanitarian aid. (45) Also, risks to the United States were not great since there was no threat to U.S. sovereignty and air assaults effectively minimized casualties. (46)

Section 106 states that the President may "confiscate any property ... of any foreign person, foreign organization, or foreign country" that he maintains has taken part in hostilities against the United States. (47) This authority violates customary international law because foreign persons have a right to be compensated when their property is taken by a host nation. (48) Confiscation without compensation may be applied only to enemies of the host country within the host country's jurisdiction during times of perfect war. (49)

The war on terror is an imperfect war. (50) It does not confer upon Congress the authority to promulgate legislation that would authorize the President to confiscate enemy property. (51) According to the Brown court, this right hinges on a declaration of war. (52)

It is debatable whether a terrorist would conform to the legal definition of enemy. For example, recall that Black's Law Dictionary defines an enemy as "[a] state with which another state is at war." (53) The United States government, however, has been careful to assert that it "will pursue nations that provide aid or safe haven to terrorism." (54) Therefore, the United States considers itself to be at war not only with terrorists, but also with the nations terrorists operate within. This mandate serves as further support that terrorists are, in fact, legally definable enemies and are treated as such under section 106.


In 1863, the United States government produced "the earliest official government codification of the laws of war" known as the '"Lieber Code."' (55) Drawn up by Dr. Francis Lieber, a Professor of Law at Columbia College (presently Columbia University), the Code defined certain acts and listed appropriate punishments. (56) It served as a response to the tremendous expansion of the United States Army during the Civil War, giving inexperienced officers a standard to turn to when faced with questions concerning the legality of operations. (57)

In particular, Article 14 introduced the topic of military necessity, which gained international recognition. (58) Military necessity includes those procedures "indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war." (59) This broad mandate is limited somewhat by Article 15, which provides a noninclusive list of acts falling within "military necessity." (60) Notably, the destruction of enemy property, disruption of traffic and communication channels, as well as denying nourishment or other sustenance to the enemy is contemplated. (61) Military necessity has meant different things to nations in times of war: for example, the Kriegsraison doctrine in early twentieth century Germany. (62)

Another interpretation of the doctrine of military necessity is the positivist theory, which confines the doctrine by international law. (63) Under this theory, legal wartime tactics are no broader than those commonly allowed under international law. (64) Another main goal of the positivist theory is proportionality. (65) A nation contemplating the use of military force must first ensure that the means employed are proportional to a justifiable military end. (66)

In stark contrast, the Kriegsraison doctrine views military necessity as superior to international law and laws of war. (67) A state at war can violate any law as long as it meets the broad mandate of Article 14. (68) Positivist theory sees Article 14 as a limit on state action rather than a grant to bypass international laws. (69) Under the positivist interpretation, Kriegsraison is an improper evolution of military necessity, sanctioning even actions that serve no military purpose. (70)

Military necessity, however, has been successfully used to defend actions during times of imperfect war. The United States had begun to use land mines containing devices that would neutralize the mines after a set period of time. (71) However, there was an exception to the prohibition, since President Clinton's military advisors felt that permanent mines were necessary to protect the Korean Demilitarized Zone ("DMZ"). (72) While the exception was clearly made out of regard to some form of military necessity, the Clinton Administration did not employ that doctrine as justification. (73) Lieber's doctrine continues to be a source of controversy in situations similar to this, since it often appears to crop up in areas where humanitarian and other policies would appear weightier and conflicting. (74) However, when governments avoid the use of the military necessity doctrine, doing so may also hamper prosperity by failing to "limit the destruction of war." (75)

Military necessity constitutes a unique and controversial doctrine of international law. Especially controversial is the Kreigsraison theory, which, even in times of imperfect war, views Lieber's doctrine as a device that can be applied to override international law. (76) While it is clear that this theory is disfavored, it appears that the United States applied Kriegsraison principles recently to defend its use of permanent land mines in the DMZ. (77) This raises the issue of whether the United States would also justify confiscations of property under section 106 through Kriegsraison principles of military necessity. The argument for the United States is compelling, since terrorists require financing to maintain their operations, the United States could argue that section 106 of the PATRIOT Act is "indispensable for securing the ends of ... war." (78) A court could find that military necessity applies even in absence of a declaration of war therefore allowing confiscation of property, seemingly at will. (79)


During the past century, international law regarding confiscation of property has been well established. (80) The Restatement (Third) of the Foreign Relations Law expressly states that a confiscation of property is unlawful if it: "(a) is not for a public purpose, or (b) is discriminatory, or (c) is not accompanied by a provision for just compensation." (81) This tripartite definition expresses the accepted customary international law standard with respect to the first two parts. (82)

While nations concur that property may be confiscated for a public purpose if it is done in a non-discriminatory manner, part (c) of the definition--the amount of compensation to be awarded--remains unsettled. (83) In response to changing global conditions, the meaning of "just compensation" has changed. (84) There is a marked difference in opinions about the appropriate compensation under customary international law for takings of property. (85) In examining decisions made by international tribunals throughout the twentieth century, one can come to different conclusions as to which standard is appropriate.

For instance, in Factory at Chorzow, (86) the international court established that compensation should erase the consequences of the taking and return the property owner to the situation he or she occupied before the seizure. (87) Known as restitutio in integrum, the arbitrator in Chorzow made no mention of the "prompt, adequate and effective" standard advocated by the United States in the Restatement. (88) Furthermore, some commentators note that previous decisions by arbitration tribunals have failed to uphold the United States standard, as in the case of Norway v. U.S.A. (89) in 1922. (90)

Levy attacks the United States position on compensation because she believes that many legal scholars readily conclude that arbitration tribunals accept the United States' "prompt, adequate, and effective" standard as the preferred choice of the international community. (91) Levy states, '"[h]owever, contrary to what is often asserted, these decisions contain no reference to the 'prompt, adequate, and effective' standard."' (92) Levy quotes Professor Rudolf Dolzer's statement concerning a 1938 letter from United States Secretary of State Hull to the Mexican Government, where Hull asked for "prompt, adequate, and effective compensation" for United States property that had been confiscated by Mexico. (93) Hull's position was challenged by the Soviet Union and countries in Latin America. (94) Levy contends that even assuming Hull's formula was the accepted norm in the international legal community at the time, the argument over compensation was thrown into chaos after World War II. (95)

After World War II, decisions by arbitration tribunals articulated different standards of compensation. (96) Two cases that Levy discusses are Texaco Overseas Petroleum Co. v. The Government of the Libyan Arab Republic, ("TOPCO") (97) and Arbitration Between the Government of the State of Kuwait and The American Independent Oil Co., (98) ("AMINOIL") in 1982. (99) She notes that TOPCO upheld the doctrine of restitutio in integrum set forth by the court in Chorzow, while AMINOIL was decided on a standard of "appropriate" compensation. (100) In another case involving Libya and the Libyan American Oil Co., ("LIAMCO") (101) Levy asserts that arbitrator Dr. Sobhi Mahmassani rejected Hull's "prompt, adequate and effective"compensation standard and settled on a standard of "equitable compensation." (102)

These cases illustrate the ambiguity that existed after World War II in the international legal community regarding the appropriate standard of compensation in takings cases. (103) Levy reveals that the inability of courts to agree on an acceptable compensation method led arbitrators to acknowledge United Nations General Assembly Resolution 1803 as an accurate reflection of the international legal community's standard for compensation. (104)

U.N. General Assembly Resolution 1803 was passed in 1962, long before most of the cases previously mentioned. (105) This resolution established an "appropriate compensation" standard. (106) Levy believes the United States interpreted this standard as synonymous with "prompt, adequate and effective," even though the TOPCO arbitrator was silent on the U.S. interpretation. (107) In fact, both TOPCO and AMINOIL recognized Resolution 1803 as the clearest expression of customary international law for expropriation compensation. (108)

Several years after the TOPCO, AMINOIL, and LIAMCO opinions, the United States Restatement (Third) of Foreign Relations Law "replaced the 'prompt, adequate and effective' standard with the requirement of 'just compensation' in the case of expropriation." (109) The drafters of the Restatement "incorporated the meaning of 'prompt,' 'adequate' and 'effective' into the definition of 'just.'" (110) Levy reasons that this alteration illustrates another attempt by the United States to resolve the disparity in international standards. (111) By citing major international arbitration tribunals, however, Levy argues that the international community often disregards the position of the United States (112)--pointing to one scholar who has noted that the "prompt, adequate and effective" standard is not "deeply rooted in international law." (113)

In sharp contrast, other scholars have argued that full compensation is the well established standard for property confiscation in international law. (114) This meaning was derived from the decision in the Chorzow case. (115) In its opinion, the Permanent Court of International Justice considered appropriate compensation by noting: "that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed." (116) John Smagula alludes that Chorzow is significant not only because it embodies customary international law, but also because international tribunal cases prior to World War II often cited to Chorzow--and continued to follow the standard of full compensation well after the war. (117)

As they became independent, however, more states questioned the need to fully compensate foreign nationals for expropriated property. (118) The United Nations responded to this growing trend by passing General Assembly Resolution 1803, which articulated a standard of "appropriate" compensation. (119) Some countries maintained, however, that "appropriate" did not mean full compensation. (120) In fact, Resolution 1803's "appropriate" standard was heavily influenced by the United States' "prompt, adequate and effective" standard. (121)

International arbitration tribunals, however, continued to apply full compensation for unlawful expropriation. (122) Scholars agree that U.N. Resolution 1803, as interpreted by tribunals in cases such as TOPCO (123) and AMINOIL, (124) is now the applicable standard under international law. (125)

Whether compensation for unlawfully confiscated property should be full, or merely "appropriate," continues as a cause for debate. Some propose that the United States heavily influenced the definition of the international standard for compensation. Others argue that the international community has continued to disregard the United States' position, as evidenced by TOPCO and AMINOIL. (126) As a balancing point to both opinions, Smagula contends these tribunals did apply the United States' standard in rendering their decisions. (127) While none contest the fact that U.N. Resolution 1803 has become the accepted standard in customary international law, scholars continue to disagree about its meaning. Levy contends Resolution 1803 was influenced by a variety of sources, while Smagula stresses that it has its origins in the United States' standard.

These two positions add little clarity to an issue that will always retain an element of ambiguity. As such, it is difficult to determine how a court would compensate a foreign national or nation for confiscation under section 106 of the PATRIOT Act. A court following customary international law should apply the standard set forth in U.N. Resolution 1803. (128) If a court determines the standard does not involve the U.S. principle of "prompt, adequate and effective," then the injured party may not have a right to full compensation. (129) The confusion may be a moot point, however, since any challenge to the PATRIOT Act would occur in the United States, thus requiring the court to adopt the Restatement's standard of just compensation to fully compensate a victim of an unlawful taking.


Ordinarily courts have applied the law of nations in five general situations: for "the protection of human rights, the protection of diplomats, the punishment of piracy and terrorism, the punishment of war-related crimes and the settlement of claims arising out of the seizure of alien property without adequate compensation." (130) The United States Constitution explicitly grants Congress the authority to apply the law of nations. (131) Nevertheless, there is much debate regarding how and when such customary international law should be applied by our judicial system. Some legal scholars argue that the United States has a duty to enforce and uphold the law of nations. (132) Others reject this view, contending that customary international law remains too unfair to apply because nations only observe it to serve self-interests. (133)

Those who argue that the United States has a responsibility to recognize and apply the law of nations often refer to Justice Gray's Supreme Court majority opinion in The Paquete Habana, (134) which states unequivocally, that "[i]nternational law is part of our law." (135) In The Paquete Habana, the Supreme Court addressed the issue of whether Spanish fishing vessels were subject to capture by armed U.S. ships during wartime. (136) The Court held that absent a controlling legislative act, executive act, or judicial ruling the law of nations should be applied. (137) The Justices concluded that it represented "trustworthy evidence of what the law really is." (138) In 1964, however, The Paquete Habana's holding was significantly narrowed in its application of customary international law to our jurisprudence. (139)

In Banco Nacional De Cuba v. Sabbatino, the Court held that under customary international law "the act of state doctrine" precluded the Court from inquiring into the legality of Cuba's right to confiscate the property of foreign nationals within its territory. (140) The Sabbatino decision suggested that federal foreign relations common law could be used to further narrow the scope of customary international law. (141) The act of state doctrine provides:
 Subject to a controlling act of Congress or international
 agreement, courts in the United States will generally
 refrain from examining the validity of a taking by a foreign
 state of property within its own territory, or from sitting in
 judgment on other acts of a governmental character done
 by a foreign state within its own territory and applicable
 there. (142)

The Court applied the doctrine in Sabbatino because it wanted to shield itself from involvement in foreign affairs. (143) The Court felt incompetent to make decisions significantly impacting the country's ability to conduct foreign relations (144)--implying that the executive branch better resolved such issues. (145)

In 1982, Congress mitigated the effect of the Supreme Court's decision in Sabbatino by enacting the Hickenlooper Amendment. (146) The Hickenlooper Amendment prevented the judiciary from using "the act of state doctrine" to avoid judging the validity of unlawful expropriations by foreign nations within their territory under customary international law. (147) Its purpose was to protect the investments of American citizens in foreign countries. (148) Furthermore, the amendment served notice that Congress would take appropriate steps to remedy situations that have the potential to disrupt the United States economy. (149)

The Hickenlooper Amendment eased the effects of Sabbatino, but federal courts continued to narrow the applicability of customary international law in the United States. For example, in 1986 the Eleventh Circuit held in Garcia-Mir v. Meese (150) that international law did not control the Attorney General's actions. (151) The appellees argued that the Attorney General violated principles of international law which forbid arbitrary detention. (152) Relying on The Paquete Habana, the court held that international law could not be used to remedy a situation where there was a controlling and conflicting executive act. (153) The appellants challenged the definition of what constituted a controlling executive act, suggesting The Paquete Habana provided that only the President could perform such duties. (154) The court refused to accept this interpretation and instead determined that a member of the President's cabinet could perform a controlling executive act if the President had properly delegated authority to that official. (155) As a result, the law did not prohibit continued arbitrary detentions (156) and as Garcia-Mir reveals, international law continues to be construed and applied in a conservative manner. (157)

A suit by a foreign person challenging the legality of section 106 of the PATRIOT Act, would probably not be well received by a court. If such a challenge were made, a court may look to do one of two things. First, it might attempt to avoid the issue by applying the Sabbatino (act of state) doctrine. This approach is appealing because section 106 confiscations are directly tied to foreign affairs, such as the war on terrorism. Secondly, a court could apply Garcia-Mir, by finding that section 106 of the PATRIOT Act overrules customary international law because it is a controlling legislative act. (158)

Foreign nations or nationals could argue against applying the Sabbatino case to confiscations under section 106 by asserting that the Hickenlooper Amendment contains congressional intent to protect foreign investment, international trade, and commerce; and unlawful expropriations have the potential of disrupting the U.S. economy--whether American or foreign property interests. (159) To illustrate, take the following scenario: the President confiscates property belonging to a large oil producing country in the Middle East. The country claims the property has no connection to any terrorist related activity. Offended, it decides to cut oil production to raise prices. As a result, gas prices in the United States skyrocket and the economy rapidly declines, similar to the oil crisis of the 1970's.

In addition to attacking Sabbatino with the Hickenlooper Amendment's mandate to adjudicate such matters, Garcia-Mir's limit on international law could be challenged on the grounds that section 106 of the PATRIOT Act is not a controlling legislative act, and therefore international law may be applied. Section 106 would not be controlling, applying Brown, because Congress did not have the authority to promulgate such a provision until after war was declared.


The International Emergency Economic Powers Act ("IEEPA") is a peacetime emergency measure that allows the President to regulate trade with foreign nations and criminally punish American citizens who disregard such regulations. (160) The IEEPA is triggered when the President declares a national emergency through the procedures set forth in the National Emergency Act. (161) Since its inception, Presidents have frequently used the IEEPA to respond quickly to emergency situations that endanger the national security of the United States. (162) President Bush used the IEEPA by enacting Executive Order 13,224 on September 23, 2001, entitled, "Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism." (163)

Enacted in 1977, the IEEPA was meant to erode the President's broad economic powers for responding to peacetime emergencies under section 5(b) of the Trading With The Enemy Act of 1917 ("TWEA"). (164) TWEA had become a source of concern for Congress because it prevented Congress from inquiring into the validity of the President's actions. (165) Specifically, Congress was fearful section 5(b)--which authorized the President to use the TWEA in domestic settings outside of wartime emergency--would become a "'dictatorial' threat." (166) As a result, Congress amended the TWEA "so that it applied only under a declaration of war," and enacted the IEEPA to respond to peacetime emergency situations. (167) The broad domestic powers available under section 5(b) were preserved in section 203 of the IEEPA, which was recently amended by section 106 of the PATRIOT Act in 2001. (168)

Over the past twenty years, the IEEPA has become the primary weapon employed by the executive to respond to national emergencies caused by threats originating outside of the United States. (169) The Act provides the President with broad regulatory powers that he may employ liberally because the judiciary permits Congress to defer to his judgment regarding foreign affairs. (170) Presidents have not hesitated to test the powers of the IEEPA. In the early 1980s, Presidents Carter and Reagan used the IEEPA to resolve the Iran Hostage Crisis. (171) Pursuant to the IEEPA, President Carter enacted an Executive Order freezing Iranian assets in the United States in order to secure the release of the hostages. (172) This use of the IEEPA was challenged by U.S. companies whose claims to the assets were suspended. (173) In Dames & Moore v. Regan, (174) the Supreme Court held that the suspension of a pending claim did not exceed the President's authority since Congress "acquiesced" in executive branch settlement agreements. (175)

Dames & Moore demonstrates the difficulty of challenging Presidential actions taken pursuant to the IEEPA. Since economic sanctions are popular, congressional challenges to the use of the IEEPA are difficult. (176) This is evident in the fact that despite the omission of vesting power in the language of the IEEPA, the Supreme Court in Dames & Moore still upheld the seizure of Iranian assets. (177) The IEEPA's legislative history clearly indicates that Congress deliberately left seizing power out of the document--noting "[a]uthority to vest property ... would not be granted." (178) Moreover, prior to Dames & Moore, when the IEEPA's House sponsor, Congressman Bingham, was questioned as to whether the President could "freeze" foreign assets under the IEEPA, he stated, "[c]orrect, freeze, but not seize. There is a difference." (179)

The Iran Hostage Crisis was the first time the IEEPA was used to combat terrorism. The Supreme Court's Dames & Moore ruling paved the way for the IEEPA's use by future Presidents to effectively combat terrorist threats. In 1986, President Reagan used the IEEPA to cease business transactions between American citizens and the country of Libya. (180) Several years later, President Clinton used it to disrupt the financial network of terrorist groups who were threatening the Middle East peace process. (181) Ironically, among the terrorist groups listed in one of Clinton's Executive Orders was al-Qaeda, the organization responsible for the September 11, 2001 attacks. (182)

Aside from judicial hesitation to restrict the President's ability to use the IEEPA to impose economic sanctions on a foreign country, there has also been reluctance to look into the validity of Presidential declarations of emergency, fearing that it would present a political question. (183) Currently, the President can use the IEEPA beyond temporary emergency durations by renewing emergency declarations every year. (184) This clearly contradicts Congress's intent in enacting the IEEPA because it allows the President to "usurp legislative control in certain foreign policy areas," even though the Act "was meant to decrease the president's unfettered discretion." (185)

If past history is an indication, the IEEPA would make any challenge to the legality of section 106 of the PATRIOT ACT through Brown difficult to sustain. As Dames & Moore revealed, the judiciary gives great deference to the President in foreign affairs, especially when the IEEPA is involved. It is important to remember, however, that the Supreme Court's decision to allow the powers of the IEEPA to be expanded to include the seizure of Iranian property contradicted congressional intent, (186) as illustrated by the act's legislative history which states: "[a]uthority to vest property ... would not be granted." (187) Nevertheless, because of the war on terrorism, courts are unlikely to find the President's new authority to confiscate property unlawful under the amended IEEPA.


The attacks of September 11th had a tremendous impact on law in the United States. Militant Islamic terrorists thrust our country into a defensive position by exploiting deficiencies in our national security. The government scrambled to provide law enforcement agencies and other departments with more effective means to deter this imminent terrorist threat. As a result, our government stretched the boundaries of the law to provide itself with appropriate avenues to begin conducting the war on terrorism.

Nearly three years after September 11th, however, Americans have again rediscovered democracy by challenging the legality of governmental measures, including the PATRIOT Act. By providing the President with authority to confiscate foreign property within the United States, section 106 of the PATRIOT Act conflicts with the Supreme Court's decision in Brown, which expresses that such a right can only be granted upon a declaration of war. Although Brown referred to enemy property, it is quite clear that the "foreign persons" referred to in section 106, despite being enemies of the United States, will not have the benefit of a compensatory provision due to legal definitions of the word enemy, and statements made by the President regarding nations that harbor terrorists. (188)

Both United Nations Resolution 1803 and the U.S. Restatement (Third) of Foreign Relations Law state that foreign property owners have a right to be compensated when a host government takes their property in times of peace. (189) The judiciary may be reluctant to involve itself in foreign affairs because of what it perceives as a lack of competence on its part to resolve such issues, as demonstrated by Sabbatino. (190) Even if a court decided in line with the Hickenlooper Amendment, that customary international law should be applied to adjudicate all unlawful expropriations potentially harmful to the economy, a foreign property owner may find it difficult to persuade a court that the taking of his property was unlawful.

The government could attempt to justify its actions based on the doctrine of military necessity. If a court were willing to apply the Kriegsraison theory, it would not be difficult to show that confiscating property under section 106 was "indispensable for securing the ends of war." This defense would not succeed if a court, adopting positivist principles, saw the doctrine as a limit on state action. Also, presidential action under the IEEPA is given tremendous deference. (191) One need not bother looking any further than Dames & Moore to support this assertion. As a result, it would be unreasonable to expect that a court would find section 106 to be in violation of international law and risk inhibiting the President's ability to fight the war on terror.

Challenging the legality of section 106 of the PATRIOT Act based on principles of customary international law, as articulated by the Supreme Court's decision in Brown, would be difficult. A court would have to balance a foreign property owner's right to be compensated against the President's right to protect the national security interests of the United States. Such a challenge would certainly fail because of deference the President is afforded in such matters. International law in the United States has been steadily eroded since The Paquete Habana. As the war on terrorism progresses, it leaves one to wonder if the United States will continue to make a mockery of customary international law and Justice Gray's famous words, "[i]nternational law is part of our law...." (192)

(1) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered sections of the U.S.C.) [hereinafter PATRIOT Act].

(2) See Michael T. McCarthy, Recent Developments, USA Patriot Act, 39 HARV. J. ON LEGIS. 435, 435--36 (2002) (expanding governmental authority with such haste has been challenged by civil libertarians, privacy advocates, and immigrant organizations).

(3) Philip A. Thomas, 9/11: USA and UK, 26 FORDHAM INT'L L.J. 1193, 1209 (2003); Peter A. Dumbuya, Terrorist and Hate Groups: A Primer For Lawyers, 64 ALA. LAW. 296, 299 (2003).

(4) Susan Weerasinghe & Juerg Kaempfer, American and Swiss Anti-Money-Laundering Laws in Light of September 11, 15 INT'L. L. PRACTICUM 31, 31 (2002).

(5) Id.

(6) 50 U.S.C. [section] 1702 (2000 & Supp. I 2001).

(7) PATRIOT ACT of 2001 [section] 106, 50 U.S.C. [section] 1702 (Supp. I 2001).

(8) [section] 1702.

(9) Id.

(10) See Holy Land Found. for Relief and Dev. v. Ashcroft, 219 F. Supp. 2d 57, 64 (D.D.C. 2002), aff'd, 333 F.3d 156 (D.C. Cir. 2003) (discussing the freezing of Holy Land's assets as a result of it being designated a terrorist group affiliated with Hamas); Global Relief Found. Inc. v. O'Neill, 207 F. Supp. 2d 779, 793 (N.D. Ill. 2002), aff'd, 315 F.3d 748 (7th Cir. 2002) (referring to an unsuccessful attempt by the Global Relief Foundation to challenge the government's actions under IEEPA).

(11) Press Release, White House Office of the Press Secretary, Message to the Congress of the United States (Mar. 20, 2003), available at 20030320-12.html) (last visited Apr. 8, 2004).

(12) 12 U.S. (8 Cranch) 110 (1814).

(13) Id. at 123.

(14) Id. at 126-28 (noting the acts of Congress on the subject indicate that no such power is granted by a declaration of war alone, including acts on the following subjects: alien enemies, safe keeping and accommodation of prisioners of war, and trade with enemies).

(15) Id. at 129.

(16) Id. at 125-26.

(17) Id. at 125, 129 (stating that the legislature holds the power to affect confiscation of enemy property).

(18) Id. at 124-25.

(19) Id. at 125 (quoting JOSEPH CHITTY, ON THE LAW OF NATIONS, RELATED TO THE LEGAL EFFECT OF WAR ON THE COMMERCE OF BELLIGERENTS AND NEUTRALS; AND ON ORDERS IN COUNCIL AND LICENSES 67 (Boston, Bradford & Read 1812)). Chitty explains that that a "conqueror has a right to seize on the property of the enemy, ... to obtain what he demands as his due, ... to defray the expenses of the war, ... to force the enemy to an equitable peace" and to provide fewer assets so that the enemy will not be able to wage war. JOSEPH CHITTY, ON THE LAW OF NATIONS, RELATED TO THE LEGAL EFFECT OF WAR ON THE COMMERCE OF BELLIGERENTS AND NEUTRALS; AND ON ORDERS IN COUNCIL AND LICENSES 66-67 (Boston, Bradford & Read 1812)).

(20) See Brown, 12 U.S. (8 Cranch) at 125-26 (noting that the declaration of war can not operate by its own force).

(21) Id. at 128-129.

(22) WEBSTER'S COLLEGIATE DICTIONARY 383 (10th ed. 1997)

(23) BLACK'S LAW DICTIONARY 548 (7th ed. 1999).

(24) Id.

(25) Id. at 72.

(26) Silesian-American Corp. v. Clark, 332 U.S. 469, 475 (1947).

(27) Id. at 474-75 (deriving the war power from Article I, Section 8, Clause 11 of the Constitution).

(28) Id. at 475; Miller v. Robertson, 266 U.S. 243, 248 (1924).

(29) Sutherland v. Mayer, 271 U.S. 272, 286 (1926).

(30) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 712 cmt. c (1987); Permanent Sovereignty over Natural Resources (Concluded): Report of the Second Committee, U.N. GAOR, 17th Sess., 1194th plen. mtg., Agenda Item 39, at 1134, 1136, U.N. Doc A/PV.1194 (1962).

(31) Castro v. ITT Corp., 598 A.2d 674, 679 (Del. Ch. 1991).


(33) See supra notes 26-29 and accompanying text.

(34) Gillette v. United States, 401 U.S. 437, 455 n.21 (1971).

(35) Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800).

(36) Id. at 37.

(37) Id. at 39-40 (noting that perfect war constitutes aggression authorized by a declaration of war).

(38) Id. at 40.

(39) Id.

(40) Id. at 41.

(41) Id. at 37.

(42) Id. at 40.

(43) See id. at 39-40 (explaining that committing hostilities in an imperfect war is limited to those acting under special authority, but general authority is given to all members of a nation involved in a perfect war).

(44) Michael Hahn, Note, The Conflict in Kosovo: A Constitutional War?, 89 GEO. L.J. 2351, 2361-62 (2001) (concluding that under the Bas definition, the air campaign in Kosovo was probably an imperfect war because "not all members of the armed forces were authorized to conduct hostitlites" and "the bombing was geographically limited to Kosovo and only later expanded to Serbia"). See id. at 39-40 (explaining that committing hostilities in an imperfect war is limited to those acting under special authority, but general authority is given to all members of a nation involved in a perfect war).

(45) Id. at 2362 (noting that the conflict was not intended to defeat the enemy, but to accomplish certain "political objectives").

(46) See id. at 2363. Congress did not expressly approve the air war in Kosovo, which led members of the House Representatives to bring suit against President Clinton. Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), aff'd, 203 F.3d 19 (D.C. Cir. 2000). In Campbell, a federal district court failed to address a complaint brought by members of the House of Representatives and dismissed the case for a lack of standing. Id. at 45. The case, which was affirmed by the Court of Appeals for the District of Columbia, provides yet another example of the judiciary's reluctance to involve itself in controversies with foreign affairs implications. Campbell v. Clinton, 203 F.3d 19, 24 (D.C. Cir. 2000).

(47) PATRIOT Act [section] 106, 50 U.S.C. [section] 1702 (Supp. I 2001).

(48) See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, supra note 30; Permanent Sovereignty Over Natural Resources (Concluded): Report of the Second Committee, supra note 30, at 1134, 1136.

(49) Silesian-American Corp. v. Clark, 332 U.S. 469, 475.

(50) See supra note 38 and accompanying text.

(51) Brown v. United States, 12 U.S. (8 Cranch) 110, 129 (1814). (52) Id. at 123.

(53) BLACK'S LAW DICTIONARY, supra note 23.

(54) Address Before a Joint Session of the Congress of the United States Response to the Terrorist Attacks of September 11, 37 WEEKLY COMP. PRES. DOC. 1334 (Sept. 20, 2001).

(55) Burrus M. Carnahan, Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity, 92 AM. J. INT'L L. 213, 213 (1998) (citing U.S. War Department, General Orders No. 100, Apr. 24, 1863, reprinted in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 3 (Dietrich Schindler & Jiri Toman eds., 3d rev. ed. 1988 [hereinafter ARMED CONFLICTS]).


(57) Carnahan, supra note 55, at 214.

(58) See ARMED CONFLICTS, supra note 55, at 6 (reprinting language of Article 14); Carnahan, supra note 55, at 219 (noting the adoption of the doctrine after the Civil War by Prussia and later Germany).

(59) ARMED CONFLICTS, supra note 55, at 6.

(60) Id.

(61) Id.; Carnahan, supra note 55, at 217 (demonstrating that the limiting effects of Article 15 were slight--property could be destroyed without any showing of military significance).

(62) Carnahan, supra note 55, at 218 (describing the doctrine of Kriegsraison, which

purportedly allowed German forces to violate laws and customs of war because of military necessity, but was declared unfounded by international tribunals after World War II).

(63) See Peter A. Ragone, The Applicability of Military Necessity in the Nuclear Age, 16 N.Y.U.J. INT'L. L. & POL. 701, 702 (1984) (noting that the definition of military necessity in Article 14, prefaced by the words, "as understood by modern civilized nations" gives its own limitation to the doctrine, that of the international community's common standards),

(64) Id. at 703.

(65) Id. at 704.

(66) Id.

(67) Id.

(68) Id.

(69) See Carnahan, supra note 55, at 230 (noting that under the Kriegsraison doctrine, the original intent of Article 14 was ignored); see also Ragone, supra note 63, at 704 (declaring that modern scholars and states reject the Kriegsraison doctrine).

(70) See Carnahan, supra note 55, at 230 (labeling military necessity "an insidious doctrine", which is now used not as a justification but rather as a condemnation of war crimes).

(71) Id. at 230-31 (acting in response to humanitarian workers, who were at the time dealing with civilian casualties decades after conflict was resolved).

(72) Id,

(73) Id. at 231.

(74) Id.

(75) Id.

(76) See Ragone, supra note 63, at 704. (avoiding defeat by acts of self-preservation is sanctioned under Kriegsraison doctrine).

(77) Id. (noting that while the use violated international humanitarian law, the United States instituted the policy with no justification or reliance on military necessity, it can only be teneable under a Kriegsraison interpretation).

(78) ARMED CONFLICTS, supra note 55, at 6.

(79) Cf. Brown v. United States, 12 U.S. (8 Cranch) 110, 129 (1806) (holding that the legislature must explicitly authorize confiscation of enemy property within our borders at the time war is declared, it is not a self-executing right. While this does not speak to the particular situation; if a court sees fit to apply military necessity, it would override even our own common law).

(80) John W. Smagula, Redirecting Focus: Justifying the U.S. Embargo Against Cuba and Resolving the Stalemate, 21 N.C.J. INT'L L. & COM. REG. 65, 79 (1995).


(82) See Smagula, supra note 80, at 78 (discussing the sources of customary international law, and the Restatement, and noting the language differs from "just compensation" to "prompt adequate and effective compensation); see, e.g., BP Exploration Co. (Libya) v. Government of the Libyan Arab Republic, 53 I.L.R. 297, 329, 355 (1973) (finding for the claimant, BP, on the breach of contract issue because Libya's confiscation of BP's property rights "violates public international law as it was made for purely extraneous political reasons and was arbitrary and discriminatory in character").

(83) Tali Levy, Note, NAFTA's Provision for Compensation in the Event of Expropriation: A Reassessment of the "Prompt, Adequate and Effective" Standard, 31 STAN. J. INT'L L. 423, 445 (1995) (citing differences between Mexico and the United States).

(84) See id. at 429 (noting it took many years for the United States and Mexico to agree to a NAFTA provision addressing compensation for expropriation).

(85) See generally Smagula, supra note 80, at 107-08 (calling restitution "the optimum remedy"); Levy, supra note 83, at 448 (reaching an agreement, such as the United States and Mexico did in NAFTA, for compensation from expropriation).

(86) 1928 P.C.I.J. (Ser. A) No. 17.

(87) Levy, supra note 83, at 431-32.

(88) See id. (noting that this standard has been asserted since 1938 by the United States in an exchange of diplomatic notes responding to the expropriation of United States property).

(89) 1 R.I.A.A. 307, 334 (1922) (deciding claims of Norway regarding requisitions by United States Shipping Board Emergency Fleet Corporation).

(90) See, e.g., Levy, supra note 83, at 433.

(91) Id. at 431-32.

(92) Id. (quoting Oscar Schachter, Editorial Comment, Compensation for Expropriation, 78 AM. J. INT'L. L. 121, 122-23 (1984)).

(93) Id. at 432.

(94) Id.

(95) See id. at 432-34 (explaining that arbitrators have noted that the "classical doctrine" had changed due to new concepts of "the right of property and the sovereign right of states to nationalize their natural wealth").

(96) See Levy, supra note 83, at 433.

(97) 53 I.L.R. 389 (1977) [hereinafter TOPCO].

(98) 21 I.L.M. 976 (1982) [hereinafter AMINOIL].

(99) See Levy, supra note 83, at 433.

(100) Id.

(101) Libyan American Oil Co. v. Libyan Arab Republic, 20 I.L.M. 1 (1981) [hereinafter LIAMCO].

(102) Levy, supra, note 83, at 433-34.

(103) See id. at 434-37 (discussing the lack of consensus between the various standards of compensation for expropriation, including the U.N. Resolutions and the "prompt, adequate and effective" standards).

(104) Id. at 435 (citing Patrick M. Norton, A Law of the Future or a Law of the Past? Modern Tribunals and the International Law of Expropriations, 85 AM. J. INT'L L. 474, 498 (1991)).

(105) Permanent Sovereignty Over Natural Resources, G.A. Res. 1803, U.N. GAOR, 17th Sess., Supp. No. 17, at 15, 16, U.N. Doc. A/5217 (1962).

(106) Id. at 15.

(107) Levy, supra note 83, at 435-36 (citing Oscar Schachter, Editorial Comment, Compensation for Expropriation, 78 AM. J. INT'L L. 121, 128 (1984)).

(108) See id. at 435.

(109) Levy, supra note 83, at 437.

(110) Id.

(111) Id.

(112) See id. at 435-36.

(113) Id. at 431-32.

(114) See, e.g., Smagula, supra note 80, at 79-80 (recognizing a century old principle incorporating the "inviolability of private wealth and the sanctity of contract").

(115) See id at 80.

(116) Factory at Chorzow, 1928 P.C.I.J. (Ser. A) No. 17, at 47.

(117) Smagula, supra note 80, at 80-81.

(118) Id. at 81.

(119) Id. at 81-82 (citation omitted); see also Levy, supra note 82, at 434-35 (discussing interpretations of "appropriate compensation" by the United States and Mexican delegations to the United Nations).

(120) Smagula, supra note 79, at 82.

(121) Id.

(122) Id. at 83.

(123) Texaco Overseas Petroleum Co./Cal. Asiatic Oil Co. v. Libyan Arab Republic, 17 I.L.M. 1 (1978) [hereinafter "TOPCO"].

(124) Kuwait v. Am. Indep. Oil Co., 21 I.L.M. 976 (1982) [hereinafter "AMINOIL"].

(125) See, e.g., Smagula, supra note 80, at 83-84.

(126) See, e.g., Levy, supra note 83, at 432-33.

(127) See Smagula, supra note 80, at 84 (reasoning that both standards follow the view that "adequate" compensation means "prompt, adequate, and effective" compensation).

(128) See id. at 81 (noting that although a U.N. resolution is not binding, it is evidence of what constitutes customary international law); see also Levy, supra note 83, at 434 (characterizing the recognition of Resolution 1803 in arbitral decisions and writings of publicists as "reflective of customary international law").

(129) See Smagula, supra note 79, at 82 (citing Michael Akehurst, A Modern Introduction to International Law 94 (6th ed. 1987); Higgins, The Taking of Property by the State, 176 RECEIL DES COURS 259 (1982 II)).


(131) U.S. CONST. art. I, [section] 8, cl. 10.

(132) See, e.g., Kathleen M. Kedian, Customary International Law and International Human Rights Litigation in United States Courts: Revitalizing the Legacy of The Paquete Habana, 40 WM. & MARY L. REV. 1395, 1397-98 (1999).

(133) See Mark A. Chinen, Game Theory and Customary International Law: A Response to Professors Goldsmith and Posner, 23 MICH. J. INT'L L. 143, 144 (2001) (describing that game theory principles applied by scholars such as Justice Posner, lead to the conclusion that states use customary international law to their own ends).

(134) 175 U.S. 677 (1900).

(135) Id. at 700.

(136) Id. at 678-79.

(137) Id. at 700.

(138) Id. (reasoning that the works of jurist and commentators were resorted to by judicial tribunals because they clarified the law).

(139) Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398, 423 (1964).

(140) Id. at 438.

(141) See FRANCK & GLENNON, supra note 130, at 243.

(142) Id. at 241.

(143) See id. at 242 (citing Sabbatino, 376 U.S. at 425).

(144) Sabbatino, 376 U.S. at 432 (noting that judicial dispositions might interfere with the executive's negotiations); see also Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 861 (1997) (explaining that the Sabbatino analysis was not an endorsement of federal judicial law making).

(145) See Sabbatino, 376 U.S. at 425 (noting that judicial inquiry is limited because of the executive's perception of competence in international community members); see also FRANCK & GLENNON, supra note 132, at 242.

(146) See 22 U.S.C. [section] 2370(e)(2) (2000); see also FRANCK & GLENNON, supra note 132, at 240-41.

(147) See 22 U.S.C. [section] 2370(e)(2)(2) (2000).

(148) FRANCK & GLENNON, supra note 130, at 245 (citing 110 CONG. REC. 18,944 (daily ed. Aug. 14, 1964)).

(149) See id. at 246.

(150) 788 F.2d 1446 (11th Cir. 1986).

(151) Id. at 1455.

(152) Id. at 1453.

(153) Id. at 1455.

(154) Id. at 1454.

(155) Id. at 1455.

(156) Id.

(157) See, e.g., id.

(158) See id. at 1455 (holding that the executive act was a sufficient basis for not finding international law as controlling).

(159) See FRANCK & GLENNON, supra note 130, at 245.

(160) International Emergency Economic Powers Act, 50 U.S.C. [subsections] 1701-1707 (2000).

(161) Jason Luong, Forcing Constraint: The Case for Amending the International Emergency Economic Powers Act, 78 TEX. L. REV. 1181 (2000).

(162) James J. Savage, Executive Use of the International Emergency Economic Powers Act Evolution through the Terrorist and Taliban Sanctions, 10 CURRENTS: INT'L TRADE L. J. 28 (2001).

(163) Exec. Order No. 13,224, 3 C.F.R. 786 (2001).

(164) See Note, The International Emergency Economic Powers Act: A Congressional Attempt to Control Presidential Emergency Power, 96 HARV. L. REV. 1102 (1983).

(165) Savage, supra note 162, at 29, 30.

(166) Id. at 30.

(167) Id. (citing Note, supra note 164, at 1105 n.19).

(168) PATRIOT Act [section] 106, 50 U.S.C. [section] 1702 (Supp. I 2001).

(169) See Savage, supra note 162, at 32 (indicating that at least eighty-four executive orders invoking the IEEPA powers were initiated between 1977 and November 1, 2001).

(170) Luong, supra note 161, at 1188.

(171) See Savage, supra note 172, at 33 (noting that executive orders initiated during the transition period between the two administrations purported "to consolidate Iranian funds and to place these vast funds into an escrow account, controlled by the Algerian Government, upon confirmed release of the hostages").

(172) Id. at 31.

(173) Id.

(174) 453 U.S. 654 (1981).

(175) Id. at 686.

(176) See Luong, supra note 161, at 1204-05 (noting judicial deference to the executive branch in matters of foreign affairs).

(177) See Dames & Moore, 453 U.S. at 671-72 (rejecting the petitioner's argument urging the Court to focus on legislative history, rather than statutory language, and arguing that only the President was authorized to freeze the assets).

(178) Act of Dec. 28, 1977, Pub. L. No. 95-223, 91 Stat. 1625 (codified at 50 U.S.C. [section] 1702 (Supp IV 1980)).

(179) Revision of Trading with the Enemy Act: Markup of H.R. 7738 Before the House Comm. on International Relations, 95th Cong., 1st Sess. 5 (1977).

(180) See Savage, supra note 175, at 34-35, 43 n.101 (arguing Reagan's use of his IEEPA powers fell within its intended use).

(181) Id. at 35.

(182) Id.

(183) See Note, supra note 164, at 1117-18.

(184) See Luong, supra note 161, at 1192.

(185) Id.

(186) See Note, supra note 164, at 1109-10.

(187) Act of Dec. 28, 1977, Pub. L. No. 95-223, 91 Stat. 1625 (codified at 50 U.S.C. [section] 1702 (Supp IV 1980)).

(188) PATRIOT Act [section] 106, 50 U.S.C. [section] 1702 (2000 & Supp. I 2001).

(189) RESTATEMENT, supra note 32, [section] 712.

(190) Bradley & Goldsmith, supra note 148, at 861.

(191) See, e.g., Note, supra note 176, at 1109.

(192) The Paquete Habana, 175 U.S. 677, 700 (1900).

Charles A. Flint, B.A., Randolph-Macon College, 2001; J.D., 2004, Albany Law School. The author wishes to thank his parents for their support and guidance during the past three years. Also, special thanks to the editors of the Albany Law Review for their fine effort in preparing this note for publication.
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