Journal of Criminal Law and Criminology Volume: 98 Issue: 4 Dated: Summer 2008 Pages: 1439-1466
This article examines the punitive effects of Office for Foreign Assets Control (OFAC) Freezing Sanctions.
OFAC is a subdivision of the Treasury Department tasked with administering and enforcing economic and trade sanctions based on U.S. foreign policy and national security goals. OFAC directs its activities against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. This comment focuses on the evidentiary standard OFAC uses in freezing assets. Although OFAC does not publish its evidentiary standard, the standard may be inferred through several recent cases. This Comment discusses the implications of using a minimal evidentiary standard in OFAC’s freezing process, through several case studies; the punitive effects of the freezing process on individuals whose assets have been frozen or who are collaterally affected; and the effectiveness of the freezing process as a whole. This comment argues that OFAC lacks adequate evidentiary criteria for establishing that an individual or entity should be sanctioned, and proposes that this failure can be remedied through implementation by Congress of a clear evidentiary standard and of reporting requirements. This comment opines that although OFAC is probably not currently acting outside of its authority as granted by the International Emergency Economic Powers Act and the USA Patriot Act, in freezing assets while entities or individuals are under investigation, it is simply unconscionable for Congress to allow OFAC to freeze assets with little more than suspicion as a basis. Essentially this comment is asking OFAC to judge its own actions and Congress to prevent OFAC from wrongfully freezing the assets of persons or entities that are not directly linked to terrorist activities by imposing a clear evidentiary standard and the reporting requirements proposed within.
United States of America