New Jersey’s Anti-Terrorism Asset Seizure Law: What Lawyers Should Know

New Jersey has some of the toughest anti-terrorism laws in the country, including a law that allows the state to seize assets of suspected terrorists or their supporters. This article provides an overview of Section 2C:66-1 of New Jersey’s criminal code, which deals with attaching deposited funds of suspected terrorists.

What the Law Allows

In a nutshell, Section 2C:66-1 allows the Attorney General to apply to a judge for an order to seize funds or assets that are deposited in a financial institution if there is probable cause to believe the account holder has engaged in an act of terrorism under New Jersey law. The law defines terrorism broadly to include threats or acts dangerous to human life that appear intended to intimidate or coerce a civilian population or government policy.

The application must state the approximate financial loss from the alleged act of terrorism and why other remedies or resources are inadequate. The judge can issue an ex parte restraining order to seize the assets if there is probable cause. Within 30 days, there must be a hearing to determine if the order should continue.

Key Points:

• Applies to funds or assets deposited in banks, savings banks, savings and loan associations, credit unions, or other financial services companies[1].
• Attorney General can apply for ex parte order if probable cause of act of terrorism under New Jersey law.
• Hearing required within 30 days to determine if order should continue.
• Burden on state to show probable cause at hearing.
• Order can last up to one year and is renewable.
• Funds may be released for legal defense fees or support of dependents.

Constitutional Concerns

Critics argue that Section 2C:66-1 denies targets due process since assets can be frozen without a hearing[2]. However, the law requires a hearing within 30 days, at which the state bears the burden to show probable cause. Further, funds can be released for legal defense. So while the ex parte order impacts rights temporarily, arguments that it violates due process face an uphill battle.

The law also raises Fourth Amendment concerns regarding unreasonable seizures[3]. However, the U.S. Supreme Court has held pre-judgment asset seizures are constitutional in the civil forfeiture context (Kaley v. United States). So again, constitutional challenges may struggle – but it depends on the specific facts.

Key Cases

There is limited case law on Section 2C:66-1 since New Jersey rarely uses it. However, a somewhat analogous federal law – 18 USC 981(a)(1)(G) – allows seizure of assets linked to terrorism support. A few key cases have upheld the federal law while pointing to due process safeguards:

• Holy Land Foundation v. Ashcroft: Upheld federal seizure of assets from a Muslim charity accused of Hamas links. Noted post-seizure hearing and ability to use funds for legal defense[4].
• United States v. Arnaout: Rejected First Amendment challenge to federal law. Upheld “material support” basis for seizure despite charity’s claim that it only funded humanitarian projects[5].

Takeaways

Section 2C:66-1 provides sweeping authority to seize assets based on as little as probable cause of terrorism links. The law denies targets normal due process safeguards, although limits on the initial seizure provide some protections. Attorneys dealing with such cases face major hurdles in challenging seizures. But for clients with legitimate humanitarian aims wrongly accused of terrorism, there may be openings to contest the statute as applied depending on the facts. The law also raises unsettled questions about how far First Amendment rights extend to support deemed terror-linked. So far courts have sided with the government, but there are conceivable scenarios where those accused of support could raise plausible freedom of association objections.

In practice, New Jersey rarely uses Section 2C:66-1. Federal laws provide overlapping seizure authority and get used more often in terrorism cases. But the existence of Section 2C:66-1 provides prosecutors another potent tool, and its breadth means defense attorneys must understand the law in advising clients on anti-terrorism compliance.