I read an article this morning which stated that hopefully the judiciary would overturn the decision in Kindhearts v. Geithner and realized that warrant requirements in blocking actions by the United States Department of the Treasury Office of Foreign Assets Control (“OFAC”) is not a viable option. This is a classic position in the protecting the homeland vs. protecting civil liberties debate. Essentially, what the author was arguing is that requiring warrants provides potential terrorist financiers too much time in which to move assets prior to OFAC being able to take action.

I disagree. I believe Kindhearts was a step forward. OFAC while having a very important mission, is already afforded a great deal of deference. The opaque process by which they determine who is blocked and/or designated often times leaves such persons in the dark as to how to fight their case. There needs to be some sort of burden of proof that OFAC should satisfy prior to being able to take these actions. Such burdens of proof are fundamental cornerstones in the American legal system and serve as checks and balances on government authority.

My former professor/boss/mentor Lt. Colonel (Ret.) Jeffrey Addicott used to tell me “you have to do the right things in the right way or you are wrong.” This quote has stuck with me throughout the years and is extremely pertinent to this debate. If we do not maintain the primary principles of our legal system, regardless the circumstances, then we contribute to the destruction of all of our civil liberties.

However, the question still remains: where is the middle ground? Well, my suggestion is that if the judiciary does not uphold the reasoning set forth in Kindhearts and warrants are not required for OFAC’s blocking actions, then the investigative process should be greatly expediated in order to mitigate the harm done to those who have been erroneously blocked and/or designated. Either way, some action should be taken in order to resolve these current difficulties with OFAC procedural framework.

The author of this blog is Erich Ferrari, an attorney specializing in OFAC litigation. If you have any questions please contact him at 202-280-6370 at 202-351-6161 or ferrari@ferrari-legal.com.