Source: Wall Street Journal 
Author:  James Bovard
Note: Mr.  Bovard, author of 'Lost Rights: The Destruction of American
Liberty' (St.  Martin's), has written often about asset forfeiture.
Pubdate: Monday, 29 December, 1997
Editors note: For more information on this issue, I suggest the Forfeiture
Endangers American Rights website at:


Asset forfeiture laws have been spreading like a computer virus through the
nation's statute books. Until a decade or two ago, such laws targeted
primarily customs violators, but today more than 100 federal laws authorize
federal agents to confiscate private property allegedly involved in
violations of statutes on wildlife, gambling, narcotics, immigration, money
laundering, etc. 

The vast expansion of government's forfeiture power epitomizes the demise
of property rights in modem America. Federal agents can confiscate private
property with no court order and no proof of legal violations. 

Law-enforcement officials love forfeiture laws because a hefty percentage
of the takings often go directly to their coffers. The Justice Department
alone bequeathed $163 million in confiscated assets to state and local law
enforcement last year. 

Forfeiture policies achieved national scandal status beginning in the early
1990s.  A federal appeals court complained in 1992: "We continue to be
enormously troubled by the government's increasing and virtually unchecked
use of the civil forfeiture statutes and the disregard for due process that
is buried in those statutes." 

In 1993 another federal appeals court questioned whether "we are seeing
fair and effective law enforcement or an insatiable appetite for a source
of increased agency revenue." 

A September 1992 Justice Department newsletter noted: "Like children in a
candy shop, the law enforcement community chose all manner and method of
seizing and forfeiting property, gorging ourselves in an effort which soon
came to resemble one designed to raise revenues." 

In many forfeiture cases, innocence is irrelevant. 

The Supreme Court further tilted the legal playing field against ordinary
people last year in a decision in a case involving the innocent co-owner of
confiscated property.  John Bennis stopped on his way home from work to
daily with a prostitute in his Plymouth; 'Detroit police descended on the
scene and seized the car, whose co-owner was Mr. Bennis's wife, Tina.  

The court ruled 5-4 that the seizure did not violate the wife's
constitutional rights even though she clearly was not complicit in her
husband's illicit behavior. Chief Justice William Rehnquist wrote: "The
government may not be required to compensate an owner for property which it
has already lawfully acquired under the exercise of governmental authority." 

By asserting that the government had already 'lawfully acquired" the
Bennises' car simply because it had a law authorizing seizure of the car,
Justice Rehnquist basically granted government unlimited power to steal: If
it wants to "lawfully acquire" private property without compensation, all
it needs to do is write more confiscatory laws. 

This term the Supreme Court is considering another forfeiture case,
involving $357,144 seized from a Syrian immigrant, Hosep Bajakajian, who
was searched at the Los Angeles airport prior to heading back to Syria.

The money consisted of profits from his two gas stations as well as loan
repayments for relatives in Syria. Both a federal district court and an
appeals court concluded that the money had been honestly acquired and
ordered most of it returned to Mr. Bajakajian. 

The Clinton administration insists that the fact that the money is
untainted is "not relevant" and that the government has a right to
confiscate the money solely because the immigrant failed to fill out a
required form disclosing that he was taking more than $10,000 in cash out
of the country. 

Mr. Bajakajian's case is not unusual. The Customs Service confiscated $56
million from outbound travelers in 1996. Immigrants are among the people
most susceptible to such penalties, since, often coming from nations with
corrupt customs services, they can be leery of making any declaration of
cash on hand. 

According to the administration's view, because someone does not trust the
government, the government somehow thereby acquires the right to rob the

Rep. Henry Hyde (R., Ill.), chairman of the House Judiciary Committee, took
the lead on forfeiture reform several years ago. He offered a bill to
moderate some of the worst abuses, declaring: "Some of our civil asset
seizure laws are being used in terribly unjust ways and depriving innocent
citizens of- their property with nothing that can be called due process." 

His bill had the support of Democrats such as Barney Frank who rarely agree
with Mr. Hyde. 

The Justice Department strongly objected to the bill and lobbied Mr. Hyde
to enact sweeping expansions of prosecutors' forfeiture power. 

The day before marking up the bill last June, Mr. Hyde sidetracked his
15-page reform bill and pledged himself to a new 64-page bill - with almost
all the new material written by Justice Department lawyers.  

This is like letting burglars write the laws on breaking-and-entering,
since many of the worst forfeiture abuses are committed by justice
Department employees. 

Mr. Hyde pushed the new bill through the Judiciary Committee on June 21 by
a 26-1 vote.  

The lone dissenter, Rep. Bob Barr (R., Ga.), a co-sponsor of Mr. Hyde's
original bill, says the new bill "seems to be, precisely what the
Department of Justice wanted." He adds, "The problem is that it has a good
title [the Civil Asset Forfeiture Reform Act] and with the reputation of
Chairman Hyde behind it, that carries a lot of weight." 

Stefan Cassella, the Justice Department's chief negotiator on asset
forfeiture, characterizes most of the new provisions as "noncontroversial
good government additions." 

However, the new bill greatly expands prosecutors' power to seize people's
assets before a trial (thereby potentially crippling a persons ability to
hire defense counsel), makes it much more difficult for citizens to get
summary judgments against wrongful seizures, and greatly increases the
number of crimes for which government can seize a person's or a
corporation's assets.  

The National Rifle Association warned its members: "Virtually any business
that has any substantive inventory and that is extensively regulated by the
government is in danger of having its goods seized - even for non-criminal
regulatory infractions." 

Asset forfeiture reform is an acid test of whether Congress and the Supreme
Court truly care enough to protect the American people from the federal

Property rights are too important to cast overboard with each new passing
political frenzy. 

The U.S. can't afford to give law enforcement agents a blank check to
violate the Fifth Amendment.
Mr.  Bovard, author of 'Lost Rights: The Destruction of American Liberty'
(St.  Martin's), has written often about asset forfeiture.