Hacker News Reader

Comment by MCRed | Hacker News Reader

Asset forfeiture is one of the most heinous violations of people's rights that has come out of the drug war.

One of the effects of this is that it denies the accused the ability to defend themselves by making them immediately destitute and thus unable to afford good legal advice... which results in them being more likely to take bad plea deals etc.

Worse, it is corrosive-- many police departments seize millions of dollars a year which they then use on toys for themselves.

Thus it provides a financial incentive for corruption, and denies due process. Part of the corruption this creates is that if one tried to undo this law, those who abuse it have millions to spend on propaganda claiming that it would "Deny understaffed police agencies from millions they desperately need".

Not to mention, executive orders bypass the legislative process and I am not aware of any authorization for them in the constitution.

View on HN

This is a freeze, not a forfeiture. Also, it won't affect people in terms of legal advice, plea deals etc. because it only applies to people who launch attacks on critical infrastructure from outside the country, and thus beyond the reach of US police. The differences are subtle, but significant. It's basically the same mechanism we use against other sanctioned targets such as terrorist organizations: http://www.treasury.gov/ofac/downloads/t11sdn.pdf

This would not affect, for example, the people who engineered the Sony data breach or any of the various cyberattacks against retail or service companies that have been in the news in recent years.

Your worries about the constitutional basis for executive orders are misplaced, I think. Bear in mind that the President is in charge of the executive branch; this order promulgates a policy rule for executive agencies, ie, should the relevant event occur, DoJ is instructed to launch proceedings* to have the assets frozen. Think of it as a statement about how the administration will exercise its lawfully delegated powers going forward.

Edit: I said DoJ but the process starts with Treasury adding the person to the SDN list and proceeding from there by established means, though the doJ would get involved with that down the line, most likely. Sorry if that was confusing.

* by applying to a court for the authority, not on its own authority or on the authority of the order itself

This is a freeze, not a forfeiture.

Once your money is frozen and you have no money for the very high priced lawyers necessary to get it back, this is a distinction without a difference. The government's primary use of asset freezes is to paralyze a target's ability to defend themselves. Well financed defendants able to exercise their rights are a nuisance to bloodthirsty federal prosecutors, and executive orders like this one are designed to remove that nuisance. There is a reason that federal conviction rates are, for all intents and purposes, 100%.

You know, I addressed that in the very next sentence. Maybe you could just slow down and read the whole thing a couple of times before leaping to disagree.

So you are saying that this law will never impede anyone from paying for a lawyer? If the answer is "I don't know", the point still stands.

I read it, I don't see where you addressed it.

I can't see where its addressed either. Could OP update the comment?

I told you: in the very next sentence. Here is the second sentence of my previous post, again:

Also, it won't affect people in terms of legal advice, plea deals etc. because it only applies to people who launch attacks on critical infrastructure from outside the country, and thus beyond the reach of US police.

Sorry if this doesn't clear things up for you, but how much simpler do you expect me to make it? It is a pretty straightforward sentence, even though it does contain a small grammar mistake (it should read '...and are thus beyond the reach...').

You're stating that because someone is suspected of launching an attack from outside the US that they are "beyond the reach of US police". This is not a valid assumption. The US government has extradition agreements with most of the world's developed countries, and even where it doesn't, often applies political pressure to get what it wants.

As an aside, this order is far more broad than you state here. It extends to people that have done business with them, in any capacity. That will in many cases extend to US citizens.

This is really important for people to understand and I don't think enough people are aware of this distinction. Thank you!

You're guilty until proven innocent. Its not right to start punishing a person before his guilt is proven.

> launch attacks on critical infrastructure from outside the country

First, "outside the the country" is a nebulous thing. For example, I suspect that a NSA and/or GCHQ trick is to simply route traffic[1] so it flows over an international fiber so it becomes "foreign" in origin. The bad BGP routes that redirected traffic through

More importantly, the executive order does not reference "critical infrastructure" (itself a vary vague term that includes "safety" and "security" (unqualified)). Instead, it references[2] "critical infrastructure sector".

    (A) harming, or otherwise significantly compromising
    the provision of services by, a computer or network 
    of computers that support one or more entities in a
    critical infrastructure sector;

Which it defines as:

    (d) the term "critical infrastructure sector" means any
    of the designated critical infrastructure sectors
    identified in Presidential Policy Directive 21

PPD-21's list[3] of the "Designated Critical Infrastructure Sectors" includes:

    Commercial Facilities
    Communications
    Financial Services
    Government Facilities
    Information Technology

It would not take much imagination at all to construe various petty offenses, legitimate (but disliked) use cases, and simple accidents as "attacks" or "disruption" of some insignificant government service. Is screen scraping a business's website too fast count as "harming" a "commercial facility" that should allow accounts to be frozen without due process?

The vagueness of this is terrifying.

[1] http://research.dyn.com/2013/11/mitm-internet-hijacking/

[2] https://www.whitehouse.gov/the-press-office/2015/04/01/execu...

[3] https://www.whitehouse.gov/the-press-office/2013/02/12/presi...

Those are reasonable points, but ones which I think rely a little too heavily on an assumption of bad faith/worst-case scenario as opposed to a mechanism that works well most of the time but occasionally fails, eg people have been mistakenly added to the SDN list and had trouble getting off it, but the bulk of the entries are legitimate. I think it's important to weigh the non-zero potential for abuse, which we should absolutely take seriously, against the equally real and arguably much greater incidence of actual malfeasance, against which we have an entirely legitimate interest in protecting ourselves.

> This is a freeze, not a forfeiture.

Here's an example of a person whose computer equipment was seized during a warrant-backed search.

He was never charged. He was never even arrested. 15 months later, the police still held the equipment.

http://www.justanswer.com/law/3u8hd-long-may-police-keep-pro...

Freeze / forfeiture blurs into one with those sort of timescales.

In the UK it is scary. The police can hold your property for as long as is deemed necessary. If they claim that giving it back could assist you in pursuing another 'crime', you will never see it again. And not a penny of redress.

http://www.ukpolicelawblog.com/2013/05/08/retaining-property...

Hope you have off-site backups.

You're also missing another part -- because they're destitute, they can't make bail, so they're more likely to take a horrible plea deal just so that they can get out of jail.

There's a US code that requires national emergencies declared in an executive order to specify where in US code authorizes him to do so. According to the executive order, this law authorizes him to take unilateral action in certain circumstances: https://www.law.cornell.edu/uscode/text/50/1701

He seems to also be invoking a US code that allows certain conditions of a declared national emergency to override a legislative two-year sunset? https://www.law.cornell.edu/uscode/text/50/1601 I am guessing that's why he cites it, so his executive order won't sunset.

IANAL, I just read the executive order.

"We're in a perpetual state of emergency" is the convenient excuse of the rulers.

To anyone who thinks this could be hyperbolic; every single statement here is verifiable, from asset-forfeiture being applied overwhelmingly to people who are never convicted of a crime, to the police themselves admitting that seized funds are subject to NO regulation and are routinely used for "nice-to-haves" such as Margharita Machines, office parties, and other institutional costs.

I'm all for capitalism, but it has created a vicious positive-feedback loop here that if unchecked, means this will NEVER change.

1) Ex-LE create "training" subsidiary programs like Black Asphalt and Desert Snow succeed because, they teach the "police" how to operate "efficiently" and increase their financial "earnings." This is perpetuated by the rationalization of many police that they are "underfunded," "constrained" and thereby justified in the name of "protecting the public."

2) LE adopting these programs see an exponential rise in intake, and news spreads. These training programs become the new "ideal," and earn large sums in the process for the "training" they provide--an increased incentive to keep developing them.

3) Somewhere in this process the police 'mentality' shifts from "how do I uphold the law and protect the freedoms it affords" to, "how do I get mine, while not majorly stepping outside the bounds of the law."

In many ways it's ironically American, and yet, it's also very much an automatic symptom of this feedback loop where priorities are shifted in pursuit of personal gain and rationalizations are made that create a dangerous disconnect between a true "agent of the law" and a predatory individual with knowledge of said law who is inherently looking for ways to use that knowledge to take advantage of you.

Frankly, I think we're all self-interested in some way and make many rationalizations in the pursuit. The point of legislation is to allow that in a healthy context, while preventing those rationalizations from substantially harming the culture and society.

If we want to see any change here, I think designing intelligent disincentives is the only path that will produce a lasting effect. "Punishment" as deterrence isn't enough. Additional "civil liberty" stipulations aren't either, as we learned with the tax code--more complexity just makes more holes to be exploited.

How do we curtail the ability for these programs to remain economically viable? Remove the incentive, and only then, perhaps the psychology will change.

> I'm all for capitalism

What does this have to do with capitalism? The word you're looking for is "stealing". That's the word we use when someone takes property from someone else without due process.

So let's stop calling it "asset forfeiture" and call it what it is. Theft.

Absolutely. Theft is the outcome. It's also getting worse.

Work your way back up the chain, though, and you'll see that worsening correlates heavily with the adoption of these privatized "training programs."

Capitalism is the best system we have, in my opinion--and it's predicated on "reasonable freedom in the pursuit of profit."

I personally don't think it's reasonable to for that profit to come from public/municipal funds directed to "training programs" with a demonstrable connection to a systemic increase in civil rights abuses.

And do you think associating this disgraceful activity with capitalism hurts or helps the best system we have?

I believe framing the discussion as an honest dialectic will appeal more broadly to people who may not share the same beliefs as you and I.

I don't see that effort as helping anybody get closer to the truth.

You believe a carefully selected assortment of facts plus commentary can't be hyperbolic as long as the facts themselves are true? Police have been corrupt as long as they have existed. We just hear about it more now, so they are forced to come up with legal loopholes to justify their misbehavior.

You're right, and you're also ignoring the inverse effect that "hearing about more" now has on depersonalization.

That profession has always attracted those who will abuse the rights of others and seek power for personal gain, however, that's an intrinsically human quality that applies in many contexts. What is clear is that its more damaging in some than others, and its momentum/inertia is relevant. Pass a certain threshold of such behavior and, as per game theory, the motivations of the entire network (or "culture") change.

We're hearing about it more, but I'm also gravely concerned about the rapid rise in annual cumulative seizures. We may never solve the intrinsic problem, but if we don't take action now things could quickly become untenable with no method of recourse.

While it is patently[1] true that corruption has always been a problem in law enforcement, you cannot explain recent-ish events with better reporting and legal loopholes. Unexplained topics include:

* Asset forfeiture, at least in its current widespread form that now includes whole departments and is assumed to be a regular part of the budget.

* It used to be a scandal in all but the worst cities if an officer killed an unarmed suspect, that at least warranted an investigation or trial, instead of the current norm of rewarding murder with a paid vacation.

* Even in a country stereotypically known to love firearms, we used to limit regular police work to the same type of small arms that the average citizen might own. More powerful weapons were limited to special-purpose groups. Now, police = without adequate training - get to play soldier with APCs, camo (!), and a variety of modern weapons that are overpowered or unsuited for police work.

* A gang-mentality that has been growing for a long time. There used to be some truth to the idea of a police department having "a few bad apples" among many generally decent officers. Now we have a situation where former officers have spoken about how they had to resign (some voluntarily, some force out) because they didn't want to aid and abet the crimes of other officers.

[1] the problem was big enough that significant parts of the Constitution attempt to limit corruption and its effects

The Washington Post did a few great stories on this fact.

http://www.washingtonpost.com/sf/investigative/2014/10/11/ca...

http://www.washingtonpost.com/investigations/highway-seizure...

The second link (the Iowa incident) has an ~11 minute video that is a must see, but only if you want to be truly disturbed by how police just dgaf.

Additionally, SCOTUS decided Heien v. North Carolina[0] last December in an 8-1 decision for North Carolina. From SCOTUS blog summary: Holding: A police officer’s reasonable mistake of law gives rise to reasonable suspicion that justifies a traffic stop under the Fourth Amendment.

[0] http://www.scotusblog.com/case-files/cases/heien-v-north-car...

You do realize Eric Holder instituted a program back in January that limits forfeitures without a warrant or criminal charges - right?

"Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges.

Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs."

source: http://www.washingtonpost.com/investigations/holder-ends-sei...

Also in some states like Missouri, all of the money seized goes back to educational programs, not the cops for their toys as you state:

"In 1993, in response to some widely-publicized police abuses, the Missouri State Legislature passed a sweeping reform of the state's civil asset forfeiture laws. The new state law, one of the most stringent in the nation, required that a property owner be convicted of a felony in court before property related to that crime can be forfeited. What's more, the law required all proceeds from the forfeitures to go to a state education fund--not back to law enforcement. The reforms provided strong protection to innocent property owners, making it much harder to forfeit property under Missouri law than under federal law, and eliminated the police profit motive for making seizures"

source: http://www.pbs.org/wgbh/pages/frontline/shows/drugs/special/...

While I agree there are innocent people getting swept up by overzealous cops, the point of the program was to deny the criminals (mainly those in organized crimes at the time) proceeds from ill gotten gains to then give that money to the cops so they have more resources to go after other organized crime figures and drug dealers.

It was way out of control, but it looks like state and federal officials on both sides of the aisle agree the laws need to be changed and are already in the process of doing so.

  Attorney General Eric H. Holder Jr. on Friday barred local and state police

How about federal law enforcement?

I'm one of those people you're calling a "Criminal", and the property stolen from me by the FBI was not "ill gotten". This kind of prejudicial rationalization to justify this law is exactly the evil that the constitution was written to avoid. I was never charged with a crime, no crime was ever even alleged, and the warrant was fraudulent on the face of it, and the judge who rubber stamped it had been presented with evidence in the months before the warrant proving that no crime had been committed, so unlike any random judge he had been well versed in the facts of the matter. He still signed it. The warrant contained obvious falsehoods and would have been a slam dunk perjury case... if prosecutors ever charged federal agents, that is.

A friend of mine who I went to high school with was also a victim of this kind of theft. He is an oncologist and most of his patients were terminal. He naturally prescribed pain killers and reported to the DEA what he prescribed (as he's required to as part of the war on drugs.) One day they show up, seize everything of value in his house and practice and all of his bank accounts. Their claim? He was prescribing more pain killers than an average doctor. Not average oncologist, but average doctor. Apparently this makes him a "Drug dealer". Because he had no assets to defend himself, and his wife worked in the practice as a receptionist, they threatened him with arresting his wife and him, putting them in jail for many months until trial, taking the kids away and putting them in foster care, if he didn't admit guilt and do time (in which case his wife would stay out of jail and take care of the kids.)

They effectively stole his kids from him and held them ransom until he signed a deal that give them what they wanted--- just another notch on the belt for fighting the war on drugs.

And another doctor taken out of practice, his life ruined, and more patients pushed onto tother oncologists who, if they are smart, simply won't accept them because eventually they will get the same treatment.

These people are not just stealing money, they are destroying lives, and they couldn't give a flying fork the consequences-- they want convictions so that they can advance their own careers.

So don't give me any of this "criminals benefiting form their ill gotten gains" BS.

http://www.urbandictionary.com/define.php?term=Good%20German

Your characterization of what Eric Holder did is way too broad. He just limited one program that facilitated such thefts, that doesn't change the law that allows them or stop them from happening.

He is the AG. If he was going to start defending what's right, would put out the word that they had to stop completely, and then start filing charges against those who continued the practice.

It doesn't matter what the money is used for, stealing money is stealing. It's a violation of the rights of the victim and that makes it a crime. In fact, under USC 18-242 its a felony if you do it while armed (violate of 4th amendment, and almost all cops are armed when they steal assets.)

Claiming it's for a good cause doesn't make it any less a violation of people's rights-- and the way states manage their money, often "Earmarks" are redirected... that's pretty easy.

> the point of the program was to deny the criminals ... proceeds from ill gotten gains

No, that's not the point of the program, that's the rationalization used to justify it.

Here's the deal, though, under our legal system these innocent victims which you label "criminals" have a fundamental constitutional right to their "ill gotten" gains.... as they have a right to hire defense attorneys to represent them.... and UNLESS they are convicted they are to be considered innocent.

You calling them criminal is part of the post hoc ergo propter hoc rationalization to try and justify this.

My understanding is that asset forfeiture came into existence for fairly sensible reasons a few hundred years ago in the days of piracy.

The problem we have on our hands today is asset forfeiture combined with perverse incentives- only recently did the department that did the seizing, get a cut of the assets. Originally it all went straight to the Fed, so there was little incentive for local police departments to shake people down.

No, the Asset Forfieture program came into existence in the 1980s as part of the war on drugs.

The USA has only existed for a couple hundred years, and the US constitution has as amendment 4 a specific prohibition on these kinds of thefts.

The early Congress wrote forfeiture laws based on British maritime law to help federal tax collectors collect customs duties, which financed most of the expenses of the federal government in the early days of the republic. Seizures allowed government to confiscate property from citizens who failed to pay taxes or customs duties. The Supreme Court upheld these forfeiture statutes in situations where it was virtually impossible to get hold of guilty persons on the high seas while possible to get hold of their property. During much of the 19th century there was not much attention paid to forfeiture laws.

http://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_...

Reply on news.ycombinator.com