September 30, 2023
September 30, 2023

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A Misrepresentation of the Law

Stephen M. Flatow argues in “Ruth Bader Ginsburg and Israel’s Anti-Terror Strategy” that not only does American law and jurisprudence support the seizure of property of relatives of convicted and even alleged criminals, but that the esteemed liberal justice, Ruth Bader Ginsburg, z”l endorsed the practice. Mr. Flatow egregiously misrepresents Justice Ginsburg’s position and even that of the conservative majority she joined in the case cited, Bennis v. Michigan, 516 U.S. 442 (1996), to suggest that American law supports Israel’s practice of demolishing familial homes of terrorists.

Chief Justice Rehnquist makes it plain throughout his majority opinion that the following two points control the case:

1) The car used in violation of Michigan’s indecency statute was co-owned by the plaintiff, Tina Bennis, and her wayward husband. In all cases cited in support of forfeiture, the accused had sole or joint ownership with another party (or was a lessee).

2) The property seized by the government was used in committing a crime. In all precedents, the owner, lessee or employee representing the owner was not only engaged in the criminal activity but committed the crime with the seized property.

These two tests of the legitimacy of government seizure of property come together in Chief Justice Rehnquist’s retort dismissing the dissent of Justice Stevens:

“The dissent also suggests that The Palmyra line of cases ‘would justify the confiscation of an ocean liner just because one of its passengers sinned while on board.’ … None of our cases have held that an ocean liner may be confiscated because of the activities of one passenger.”

Mr. Flatow argues not only that the government has the right to seize property of innocent third parties, but that the practice of destroying Palestinian homes deters other terrorists; yet he cites no studies in support of his opinion and suggests that the Supreme Court of the United States agrees with his position. Unfortunately for Mr. Flatow, Bennis advances no argument to support the idea that forfeiture laws affecting innocent third parties deter criminals. Indeed, Justice Thomas, perhaps the Court’s most conservative voice, argues in his concurrence that laws allowing the seizure of property serve as a potential deterrent on property owners (i.e., not on perpetrators) by enjoining owners to be responsible for the use of their property.

Recognizing the potential for the abuse of innocents by governmental officials eager to enforce what can only be called retribution, federal law today explicitly limits the ability of the government to seize property of innocent third parties. The Civil Asset Forfeiture Act of 2000 (H.R. 1658, 106th Congress) legislates that the government must meet a very high standard to seize property of innocent third parties and mandates that there be a “substantial connection between the property and the offense” and that an “innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute.” The Act provides no grounds for seizing property for which the perpetrator lacks any property interest or property in no way related to the crime’s commission or its fruits.

In her concurrence in Bennis, Justice Ginsburg makes plain her own views on such seizures: “Michigan, in short, has not embarked on an experiment to punish innocent third parties… Nor do we condone any such experiment.”

In seizing and destroying homes of relatives of terrorists, Israel has embarked on the very experiment Justice Ginsburg refused to condone. Mr. Flatow badly distorts Justice Ginsburg’s vote in support of the majority opinion in Bennis v. Michigan—an opinion of four conservative justices and one liberal that in no way endorses the forfeiture of property that is neither owned by the perpetrator nor directly used for terrorist purposes.

Contrary to Mr. Flatow’s misrepresentation of American law and Justice Ginsburg’s views, the wise, constitutional limits placed on civil asset forfeiture in such cases as Bennis inform federal legislation of the practice in The Civil Asset Forfeiture Act of 2000, which today serves to protect innocent third parties, the very families of terrorists that Mr. Flatow proposes to punish.

We look forward to Mr. Flatow’s retraction in this paper.

Craig Hanoch
Highland Park
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