Bills of Attainder

A Bill of Attainder is a law that labels a person or group to be criminals, and provides punishment for same without involving the judicial system. The British Crown was fond enough of them to piss off the framers of the United States Constitution, which leads to this paragraph in Section 9, Article 1.

No Bill of Attainder or ex post facto Law shall be passed.

Which is in the main body of the text, between the "Habeas Corpus" section, and, "no direct tax" (since amended) section. An "ex post facto" law is a law that makes existing penalties for a crime to be greater, and applies it retroactively, or changes the rules so it is easier to convict a crime and applying those new rules of evidence to people already in custody or were already cleared of charges on the crime.

The key thing here is the Bill of Attainder. It is flatly unconstitutional in the US to pass them, a point that the US Courts have pointed out a couple of times (most recently in 2003). So why bring this up?

Because President Bush has put out an Executive Order of Attainder.

It isn't a 'bill' of attainder, because:

1. It isn't an Act of Congress.
2. It doesn't create a new crime, it just penalizes a behavior.

Why it is an Executive Order of Attainder:

1. It singles out a specific group for penalty without involving the courts.

What is especially troubling is the broad wording of the executive order.

Section 1. (a) Except to the extent provided in section 203(b)(1), (3), and (4) of IEEPA (50 U.S.C. 1702(b)(1), (3), and (4)), or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the date of this order, all property and interests in property of the following persons, that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of United States persons, are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any person determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense,

(i) to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of:

(A) threatening the peace or stability of Iraq or the Government of Iraq; or

(B) undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people;

(ii) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, such an act or acts of violence or any person whose property and interests in property are blocked pursuant to this order; or

(iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.

(b) The prohibitions in subsection (a) of this section include, but are not limited to, (i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order, and (ii) the receipt of any contribution or provision of funds, goods, or services from any such person.

To summarize, anyone who works against our goal of creating democracy in Iraq can have their US assets seized by the Treasury Department. The determination of "working against" is not done by a court of law, rather by Executive agencies. This is a writ of attainder pure and simple.

The scope is particularly troubling. One could argue, and I'm sure many have, that passing a law mandating the withdrawal of troops from Iraq would violate this EO, and thus subject practically every democrat in Congress to having their assets siezed. Hilary Clinton has already received an official nasty-gram from the DOD, saying (without pointing to the EO) that she qualifies for the EO.

As grounds for Impeachment go, this Executive Order is way better than Abu Ghraib ever was. This is action taken by President Bush himself that directly contravenes (the intent of) the Constitution. It is a violation of his oath of office ("I promise to uphold the constitution").

Will an Impeachment motion stick, though? The arguments I raised for Abu Ghraib still stand, even though control of congress has shifted. The Democrats have been having a whee good time in the house passing bill after bill of Bush-Smackdown only to have it ram against the 60-vote wall in the Senate. An Impeachment motion would pass the House, only to follow Bill Clinton by dieing in the Senate. Anything there will HAVE to involve significant numbers of GOP Senators defecting to the 'Anti-Bush' camp, and that will require a MAJOR blunder on Bush's part; a blunder like trying to apply this new EO to a leading Democratic Senator like Ted Kennedy. I believe that Bush is politically savvy enough to avoid the actions that'll lose him the votes in the Senate he needs to keep on his side.

That said, the wording will still be there when the next President is elected. Who knows how the next President will take things, and they won't be held to the same account as Bush, who wrote the EO, would. It is a bad precedent, and needs to be struck down as soon as possible.