William & Mary Bill of Rights Journal


Allison Lofgren


This Note will concentrate on procedural due process concerns stemming from the imposition of terrorist financing sanctions, and it will primarily discuss designated U.S. persons. This is a narrow focus, but it can be viewed as a microcosm for due process issues present throughout the broader IEEPA [International Emergency Economic Powers Act] regime. Ultimately, this Note will conclude that OFAC [Office of Foreign Assets Control]'s terrorist financing designation process inadequately protects the procedural due process rights of targets, and it will advocate for the implementation of additional procedural protections that balance undeniable constitutional requirements with the critical concern of national security.

This Note will be organized as follows: Part I will explore the broader background of sanctions, beginning with a short history of emergency powers in the United States, including the Trading with the Enemy Act (TWEA) and IEEPA. Additionally, it will outline the structure of the current U.S. sanctions regime and the process for implementing sanctions under IEEPA (with a particular focus on the role of OFAC in administering and enforcing sanctions). Lastly, Part I will explain the role of each of the three branches of the federal government in the sanctions framework and address a range of key concerns about IEEPA. Part II will (1) briefly discuss due process jurisprudence in the United States; (2) analyze key procedural due process cases in the sanctions realm, with a targeted focus on two issues: the use of classified information in the government’s designation decisions and the diminished right to notice and an opportunity to be heard; and (3) discuss the particularly severe impact of designation on individuals. Part III will begin with a discussion of recent criticisms of the U.S. sanctions process and will be followed by a detailed evaluation of the Department of the Treasury’s 2021 Sanctions Review. Finally, Part III will recommend amending both OFAC’s regulations and IEEPA to provide for more adequate procedural protections during the designation and deprivation process.

This abstract has been adapted from the author's introduction.