Full opinion text
ORDER JAMES G. CARR, Chief Judge. Plaintiff KindHearts for Charitable Humanitarian Development, Inc. (KindHearts), an Ohio corporation, challenges a provisional determination by the Office of Foreign Assets Control [OFAC] of the United States Treasury Department that plaintiff is a Specially Designated Global Terrorist [SDGT]. KindHearts also challenges the block OFAC placed on plaintiffs assets pending a full investigation. OFAC alleges that KindHearts provides material support to Hamas, which is also an SDGT. OFAC’s authority to designate SDGTs and block the assets of entities under investigation for supporting terrorism stems from the International Emergency Economic Powers Act [IEEPA], 50 U.S.C. § 1701-06 and Executive Order 13224 [E.0.13224]. KindHearts alleges that OFAC’s actions are unconstitutional because: 1) OFAC’s block is an unreasonable seizure in violation of the Fourth Amendment; 2) provisions authorizing OFAC to designate SDGT and block assets pending investigation are void for vagueness under the Fifth Amendment; 3) OFAC denied KindHearts procedural due process before provisionally determining it to be an SDGT and blocking its assets; and 4) OFAC has unconstitutionally restricted plaintiffs access to the resources it needs to mount a defense. KindHearts further claims that OFAC blocked KindHearts’ assets without proper statutory authorization. KindHearts asks this court to lift the OFAC blocking order or, alternatively, to require OFAC to provide KindHearts with adequate process. The defendants — the Secretary of the Treasury, Director of OFAC, and Attorney General — are United States government officials sued in their official capacities. This court sua sponte substitutes as defendants Timothy Geithner, Secretary of the Treasury, and Eric H. Holder, Attorney General, for former Treasury Secretary Henry M. Paulson and former Attorney General Michael B. Mukasey, respectively. Defendants contest plaintiffs constitutional and statutory claims, and argue that claims arising from OFAC’s provisional determination that KindHearts is an SDGT are not ripe for this court’s review. Pending are plaintiffs motion for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure [Doc. 31] and defendants’ motion to dismiss under Rule 12(b)(6) or, in the alternative, for summary judgment on all counts under Rule 56. [Doc. 36], Background KindHearts, a Toledo-based non-profit corporation, was incorporated on January 22, 2002, under Ohio law. Its stated goal is to provide humanitarian aid without regard to religious or political affiliation. Khaled Smaili founded KindHearts after OFAC shut down several Muslim-affiliated charities which, like KindHearts had as their stated objectives humanitarian relief in the Middle East and elsewhere. KindHearts contends that from its inception, its officers and directors took great care to ensure it did not fund any designated terrorist or terrorist-related entities or otherwise violate federal laws regarding designated terrorists. It sought guidance from the Treasury Department, and implemented the Treasury’s voluntary guidelines for charitable organizations. On February 19, 2006, OFAC froze all of KindHearts’ assets pending investigation into whether it was subject to designation under IEEPA and E.O. 13224. More than a year later, on May 25, 2007, OFAC informed KindHearts it had provisionally determined to designate it a SDGT. Statutory and Regulatory Framework The Executive initially used the Trading With the Enemy Act [TWEA], 50 App. U.S.C. §§ 1-44, enacted in 1917, to impose sanctions and embargoes on foreign nations. In 1977, Congress amended the TWEA and enacted the IEEPA. The IEEPA requires the President to declare a national emergency to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy or economy of the United States.” The pertinent sections of the IEEPA are 50 U.S.C. § 1701 and 1702: § 1701. Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities (a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat. (b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat. § 1702. Presidential authorities (a)(1) At the times and to the extent specified in section 1701 of this title, the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise— (A) investigate, regulate, or prohibit— (i) any transactions in foreign exchange, (ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof, (iii) the importing or exporting of currency or securities, by any person, or with respect to any property, subject to the jurisdiction of the United States; (B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States; ... 50 U.S.C. §§ 1701-1702. On September 24, 2001, President Bush issued E.O. 13224, declaring a national emergency with respect to “grave acts and threats of terrorism.” He invoked his authority under the IEEPA, authorizing the Secretary of Treasury, in consultation with the Secretary of State and Attorney General, to designate “persons” (defined as individuals or entities) whose property or interests in property should be blocked because they “act for or on behalf of’ or are “owned or controlled by” designated terrorists, or because they “assist in, sponsor, or provide financial, material or technological support for, or financial or other services to or in support of’ or are “otherwise associated” with them. Individuals or entities designated under E.O. 13224 are labeled “Specially Designated Global Terrorists.” In § 10 of the Executive Order, the President states that under the Order no prior notice of a listing or designation needs to be provided to those with a presence in the United States because of the targeted organization’s ability to transfer funds or assets instantaneously, which would render the blocking measures ineffectual. In October, 2001, the Patriot Act amended the IEEPA. It added the phrase “block pending investigation” after the word “investigate” in 50 U.S.C. § 1702(a)(1)(B). The amendment permitted the Treasury Secretary to impose all the blocking effects of a designation, including freezing an organization’s assets indefinitely and criminalizing all its transactions, without designating the organization a SDGT. The Treasury only needs to assert that it is investigating whether the entity should be designated. The amendment also provided that an agency record containing classified information could be “submitted to the reviewing court ex parte and in camera.” Designation as a specially designated global terrorist immediately results in the blocking of the designee’s property and interests in property within the United States or in the control of United States persons. It also prohibits all transactions with designated entities, including making or receiving any contribution of funds, goods or services to or for the benefit of those persons. Executive Order 13224 specifically prohibits all humanitarian donations. The Treasury Department promulgated regulations implementing E.O. 13224 on June 6, 2003. The regulations set forth the procedures for imposing civil and criminal penalties on United States persons who engage in any transaction with any entity that has been designated or blocked pending investigation. With respect to a designation, 31 CFR § 501.807 permits designated entities to seek administrative reconsideration by OFAC after they have been designated and had their property frozen. OF AC’s Block Pending Investigation of KindHearts On February 19, 2006, OFAC blocked all of KindHearts’ assets and property pending investigation into whether it was subject to designation under E.O. 13224. On the same day it blocked KindHearts’ assets, the government executed search warrants at KindHearts’ Toledo headquarters and the residence of its President, Khaled Smaili. It removed all KindHearts’ records, computers and several boxes of publications and documents. Before executing those search warrants, the Department of Justice obtained two grand jury subpoenas requiring: 1) Ernst & Young to produce documents relating to KindHearts and 2) a member of KindHearts’ Board of Directors to produce all records of KindHearts from January 1, 2002, to February 17, 2006. On issuing the block, OFAC sent a “blocking notice” to KindHearts. The notice stated: You are hereby notified that all property and interests in property of KindHearts ... including its U.S. representative office and all other offices worldwide, are blocked pending investigation into whether KindHearts is subject to designation pursuant to Executive Order 13224 ... for being controlled by, acting for or on behalf of, assisting in or providing financial or material support to, and/or otherwise being associated with Hamas. The notice also explained KindHearts did not receive prior notice of OFAC’s determination to block its assets pending investigation because it could have transferred its funds and assets, thus rendering the sanctions ineffectual. It stated that if KindHearts believed OFAC took this action in error, and wanted to challenge it, it could send a letter to the attention of the Director of OFAC explaining KindHearts’ views and providing evidence. That same day, the Treasury Department posted a press release on its website announcing the blocking of KindHearts’ assets. The press release also stated that KindHearts’ officials and fundraisers had “coordinated with Hamas leaders and made contributions to Hamas-affiliated organizations” including such organizations in the West Bank and Lebanon. The press release asserted that KindHearts was founded to replace the Hamas-affiliated Holy Land Foundation for Relief and Development [HLF] and the al-Qaida-affiliated Global Relief Foundation [GRF]. As a result of the block, KindHearts’ assets and property, including about one million dollars in bank accounts, became frozen indefinitely. Through its blocking order, OFAC effectively shut the organization down. In April, 2006, KindHearts’ attorney, Jihad Smaili [brother of Khaled Smaili], filed a letter in response to the block, but OFAC failed to respond to it. On November 29, 2006, KindHearts counsel requested a copy of the full administrative record being used by OFAC in its investigation. It received no response. OFAC’s Provisional SGDT Designation of KindHearts On May 25, 2007, more than a year after Jihad Smaili’s initial letter, and more than six months after his follow-up letter, OFAC notified KindHearts that OFAC had provisionally determined to designate KindHearts a specially designated global terrorist. In that letter it for the first time acknowledged receiving KindHearts’ challenge to the block pending investigation. OFAC’s letter stated, We have received Jihad Smaili’s April 24, 2006 letter to ... OFAC requesting reconsideration of OFAC’s decision to block the property and property interests of KindHearts ... pending investigation into whether KindHearts should be designated as a Specially Designated Global Terrorist ... Since receipt of that letter, OFAC has completed its investigation into whether KindHearts should be designated as an Specially Designated Global Terrorist and has provisionally determined that designation is appropriate. Accompanying OFAC’s letter were thirty-five unclassified and non-privileged documents on which, according to OFAC, it had relied in making the provisional determination. OFAC acknowledged it also relied on other “classified and privileged documents obtained to date ... not authorized for disclosure, including material obtained or derived pursuant to” the Foreign Intelligence Surveillance Act [FISA], 50 U.S.C. § 1801 et seq. The OFAC letter also included an unclassified three-page summary of the classified evidence. It provided no explanation of the specific charges it was considering against KindHearts or why it thought the evidence supported a potential designation. The letter stated KindHearts could “present to OFAC any evidence or other information that it [wanted] OFAC to consider before making a final determination with respect to designation.” It explained “OFAC [would] consider any such information, as well as the information described above in making a final determination.” It also noted that if it “decide[d] to consider any additional unclassified, non-privileged materials in making this determination, it [would] advise KindHearts of that fact, provide KindHearts with copies of the materials, and give KindHearts an opportunity to respond to them.” OFAC initially gave KindHearts thirty days to respond to its provisional determination. KindHearts sought access to the full classified and unclassified administrative record to defend itself, and an extension of time in which to respond to OFAC’s unclassified submission. On June 14, 2007, KindHearts requested access to its own records in the government’s possession. OFAC waited two months, until August 14, 2007, before notifying KindHearts’ counsel that OFAC possessed only a few of the records. The United States Attorney’s office had the rest of the records. That Office refused to provide KindHearts with a copy of the documents. On June 25, 2007, KindHearts’ counsel sent OFAC a twenty-eight page preliminary submission in which KindHearts attempted to, in its words, “guess at and address OFAC’s concerns.” It attached to that a 1369-page submission of supporting evidence. OFAC never responded to this submission. On June 27, 2007, KindHearts asked OFAC to perform a declassification review of the classified evidence on which i.t relied in issuing the blocking notice. In a letter dated August 10, 2007, OFAC agreed with KindHearts’ request, and stated it would give KindHearts thirty days after the completion of declassification review to submit a response. OFAC informed counsel that it could not state when review would be completed, and denied KindHearts’ counsel interim access to classified information. OFAC reported no progress on the declassification review in the fourteen months between its June 27, 2007, agreement to conduct declassification review and the filing of this lawsuit. After KindHearts filed suit, the government, during a telephone call with KindHearts’ counsel on October 20, 2008, indicated it could complete the declassification review within thirty days. On August 13, 2007, KindHearts requested further clarification of the charges against it and an extension of time until forty-five days after the completion of the declassification review. KindHearts stated it needed the extension to receive meaningful process. On August 16, 2007, OFAC informed KindHearts that it could contact KindHearts’ employees; it also stated that any KindHearts documents in possession of such employees constituted blocked property. Use of such documents would require a license from OFAC, and existing regulations require counsel to provide basic identifying information regarding the property. On October 26, 2007, and December 20, 2007, KindHearts’ counsel objected to OFAC’s requirement that it identify blocked property in its possession. Counsel did not request a license to use blocked property. On December 26, 2007, OFAC issued a license allowing KindHearts counsel to receive copies of blocked documents necessary for them to provide legal services to KindHearts. For over two years, OFAC did not allow KindHearts to use its own funds to pay attorneys’ fees. OFAC asserted KindHearts could pay for legal services only if those payments did not originate from its blocked funds. Immediately after the block, Jihad Smaili, KindHearts’ attorney, corresponded with OFAC regarding the release of blocked funds to pay attorney fees, but OFAC maintained that KindHearts could only pay for attorneys from “fresh funds” (funds raised abroad), or by obtaining a license to create a legal defense fund. Smaili resigned, and Lynne Bernabei, of the law firm Bernabei & Wachtel PLLC, and Professor David Cole applied for and were granted licenses to represent KindHearts. OFAC denied them funding from blocked assets. In late June 2008, Bernabei & Wachtel sought the assistance of the ACLU. As of June, 2008, after its policy on attorneys fees was challenged as unconstitutional in other litigation, OFAC, after adopting a policy change, permits KindHearts to use a limited amount of its funds to pay for legal expenses. It can pay up to two lawyers $7000 each for proceedings at the administrative level, and an additional $7000 each for trial level proceedings. It can pay up to $5000 each for appellate proceedings. In March, 2009, after Bernabei & Wachtel applied for funding, OFAC granted $27,040 from KindHearts’ blocked funds for legal fees. In December, 2008, OFAC produced declassified versions of the block and provisional determination memoranda. Since then, the government has declassified portions of block exhibits. In January, 2009, it declassified several portions of several paragraphs in the block memorandum. On March 13, 2009, OFAC declassified one of several bases for its block and threatened designation. Since February 19, 2006, when OFAC first notified KindHearts of the block pending investigation, OFAC has not designated KindHearts a SDGT. For almost three years OFAC has blocked KindHearts’ property and property interests and criminalized all transactions with it. OFAC has effectively shut KindHearts down. Standard of Review Both plaintiff and defendants move for summary judgment. A court must enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of informing the district court of its motion’s basis, and identifying the record’s portions that demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The nonmoving party “must [then] set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). In deciding the motion for summary judgment, the court will believe the non-moving party’s evidence as true, it will resolve all doubts against the non-moving party, it will construe all evidence in the light most favorable to the non-moving party, and it will draw all inferences in the non-moving party’s favor. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Defendants move to dismiss plaintiffs claims under Rule 12(b)(6). A court “must accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff.” Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002) (citing Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir.1998)); Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994). The court is not bound to accept as true unwarranted factual inferences, Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987), or legal conclusions unsupported by well-pleaded facts. Teagardener v. Republic-Franklin, Inc. Pension Plan, 909 F.2d 947, 950 (6th Cir.1990). A Rule 12(b)(6) motion to dismiss is directed solely to the complaint and any exhibits attached to it. Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.1983). The merits of the claims are not at issue. Consequently, a complaint will be dismissed pursuant to Rule 12(b)(6) only if there is no law to support the claims made, the facts alleged are insufficient to state a claim, or on the face of the complaint there is an insurmountable bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.1978). Discussion 1. Fourth Amendment KindHearts argues that OFAC’s block pending investigation is an unreasonable seizure in violation of the Fourth Amendment. In blocking KindHearts’ assets, OFAC acted without a prior judicial warrant. It purports, however, to have acted on reasonable suspicion that KindHearts met the criteria for designation under E.O. 13224. Neither the IEEPA nor E.O. 13224 requires a warrant or probable cause to effect a block pending investigation. The government argues that the economic sanctions authorized by that statute and the Executive Order are not “seizures” and therefore the Fourth Amendment is inapplicable Alternatively, the government disputes the contention that traditional warrant and probable cause requirements apply to blocks pending investigation. A. The Block Pending Investigation is a Fourth Amendment “Seizure” The first inquiry is whether OFAC’s block is a “seizure” in Fourth Amendment terms. If the block is not a “seizure,” the Fourth Amendment does not constrain the government’s conduct. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The government seizes property when it creates “some meaningful interference with an individual’s possessory interests in that property.” Soldal v. Cook County, Ill, 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992); see also Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); U.S. v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Even “brief detentions of personal effects,” such as a short investigative detention of luggage at an airport, are “seizures” subject to Fourth Amendment scrutiny. U.S. v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). i. OFAC Blocking Actions Meet the Soldal Definition of “Seizure” The government need not take possession of or title to property to “seize” it; interference with the target’s possessory interest triggers Fourth Amendment scrutiny. Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). In McArthur, officers, who had probable cause to believe a suspect’s home contained marijuana, prevented him from reentering his home for the two hours needed to obtain a search warrant. Id. at 331-332, 121 S.Ct. 946. Even though the officers had taken nothing during that period, the Court applied Fourth Amendment scrutiny to the “temporary seizure” of the suspect’s home. Id. at 330-31, 121 S.Ct. 946. Those courts that have considered Fourth Amendment challenges to OFAC blocking actions under the IEEPA and E.O. 13224 disagree as to whether blocks are Fourth Amendment seizures. One view is that asset-blocking is not a seizure. Islamic Am. Relief Agency v. Unidentified FBI Agents, 394 F.Supp.2d 34, 47-48 (D.D.C.2005); Holy Land Foundation for Relief and Development v. Ashcroft, 219 F.Supp.2d 57, 79 (D.D.C.2002). In upholding the government’s action in those cases, the courts applied the standard for identifying a taking under the Takings Clause of the Fifth Amendment, rather than the Soldal standard for a Fourth Amendment seizure. In Holy Land, supra, 219 F.Supp.2d at 79, the court’s analysis centered on whether an OFAC asset-blocking procedure is a permanent forfeiture or causes title to pass to the government. Id. As support for its Takings Clause approach, the court In Holy Land, citing Tran Qui Than v. Regan, 658 F.2d 1296, 1301 (9th Cir.1981), IPT Co. v. U.S. Dept. of Treasury, 1994 WL 613371, at *5-6 (S.D.N.Y.), and Can v. U.S., 820 F.Supp. 106, 109 (S.D.N.Y.1993), stated that, because asset blocking does not “vest” title in the government, it is not a “forfeiture.” 219 F.Supp.2d at 79. None of the cases cited by Holy Land involves, however, a Fourth Amendment claim. Likewise, in Holy Land, the court cited Cooperativa Multiactiva de Empleados de Distribuidores de Drogas v. Newcomb, Civ. No. 98-0949, slip op. at 13-14 (D.D.C. Mar. 29, 1999), for the statement that “blocking bars transactions but does not confiscate property and is not tantamount to a forfeiture.” Id. Plaintiffs in Cooperativa Multiactiva, however, raised no Fourth Amendment challenge to the blocking notice. Id. at 4. In Cooperativa Multiactiva, the court discussed questions of title and forfeiture to determine whether a blocking notice was a “fine” and compliance with the federal forfeiture statute, not to determine whether it was a “seizure.” Id. at 21-22. Finally, in Holy Land, the court cited D.C. Precision Inc. v. U.S., 73 F.Supp.2d 338, 343 n. 1 (S.D.N.Y.1999), for the proposition that “assets blocked by the government are not seized.” Id. Despite the use of the word “seized,” the cited passage in D.C. Precision refers to a Takings Clause claim. Id. Plaintiffs did not raise a Fourth Amendment claim in D.C. Precision. Id. In contrast to Holy Land and related cases, the court in Al-Haramain Islamic Foundation, Inc. v. U.S. Dept. of Treasury, 585 F.Supp.2d 1233, 1263 (D.Or. 2008), concluded that OFAC asset-blocking is a seizure subject to Fourth Amendment analysis. Reliance on the Takings Clause was inappropriate, the court stated, because “[t]he Fourth Amendment imposes a lower threshold than does the Fifth Amendment.” Id. at 1262. A blocking order, the court stated, would be a taking only “if it resulted in an appropriation of property for the government’s use” or if the government’s actions eliminated “all economically valuable use of the property.” Id. A Fourth Amendment seizure, in contrast, does not result in passage of title to the government or even necessarily permanent deprivation. A seizure affects a possessory interest: Id. at 1263. A Fourth Amendment seizure may often lead to permanent deprivation of the property “taken” by government officers, but that is not always so. Indeed, Fed.R.Crim.P. 41(g) provides a means for seeking return of seized property. Viewing the consequences of a blocking order in a Fourth Amendment light, the court in Al Haramain stated that because “[e]ven a temporary deprivation of property” constitutes a seizure, an OFAC blocking action affects Fourth Amendment rights. Id. If merely “holding luggage for 90 minutes” constitutes a seizure, then surely placing an indefinite freeze on all an entity’s assets is as well. Id. This conclusion is not only reinforced, but, indeed, made irrefutable on consideration of the fact that the very purpose of an OFAC blocking action is to “depriv[e] the designated person of the benefit of the property, including services, that might otherwise be used to further ends that conflict with U.S. interests.” Al Haramain, supra, 585 F.Supp.2d at 1263. An OFAC block interferes with possessory rights, and is, in Fourth Amendment terms a seizure. ii. Whether the History of the IEEPA, TWEA and the Fourth Amendment Justify Excluding OFAC Blocking Actions from Fourth Amendment Scrutiny The government offers two arguments as to why I should follow the decision in Holy Land and withhold Fourth Amendment scrutiny from a block pending investigation. First, the government argues that the Supreme Court historically has never applied the Fourth Amendment to imposition of economic sanctions under the TWEA or the IEEPA. Therefore, the government contends, I should not do so in this case. Second, the government urges that deference to the executive’s unique role in foreign affairs should override any judicial impulse to invoke the Fourth Amendment. The government bases this argument on the history of TWEA and IEEPA economic blocking actions. Neither argument offers a compelling reason for foregoing Fourth Amendment analysis, much less for departing from the Supreme Court’s definition of “seizure” in Soldal. Looking to history for support for its first contention, the government states, “[i]n the nearly 100 years since the TWEA was passed, no Court has held that the executive must obtain a warrant to conduct an economic blocking authorized by either TWEA or IEEPA.” [Doc. 36, at 63]. To undertake a Fourth Amendment analysis, the government claims, would be to disregard a “systematic, unbroken, executive practice, long pursued to the knowledge of Congress [and the courts] and never before questioned.” Id. For support, the government cites several cases in which the Supreme Court, in the government’s view, has consistently not subjected blocking actions to Fourth Amendment. See Regan v. Wald, 468 U.S. 222, 235, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984) (upholding restrictions on United States citizen travel to Cuba under the TWEA); Dames & Moore v. Regan, 453 U.S. 654, 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (IEEPA authorizes the president to nullify attachments against property of the Iranian government and to transfer Iranian assets); Orvis v. Brounell, 345 U.S. 183, 73 S.Ct. 596, 97 L.Ed. 938 (1953) (executive order blocking assets of Japanese nationals under TWEA prevents attachment by creditor of Japanese nationals); Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949) (upholding freeze on Austrian property under the TWEA, despite inconvenience freeze caused to American citizens). The government accurately depicts these cases and describes their results. What is missing, though, is acknowledgment that in those cases none of the government’s adversaries asserted a Fourth Amendment interest. Like lower courts, see U.S. v. Collier, 246 Fed.Appx. 321, 334-335 (6th Cir.2007) (unpublished disposition) (failing sua sponte to consider Fourth Amendment issues not error); Hartmann v. Prudential Ins. Co. of America, 9 F.3d 1207, 1214 (7th Cir.1993) (“Our system ... is not geared to having judges take over the functions of lawyers, even when the result would be to rescue clients from their lawyers’ mistakes”), the Supreme Court routinely does not consider issues not raised by the parties. Absence of discussion of the Fourth Amendment in the cases cited by the government says nothing about how a Fourth Amendment analysis should come out here. Failure of plaintiffs in the those cases probably did not arise from lawyerly oversight: the economic sanctions targeted foreign governments, and neither foreign governments nor non-resident foreign nationals enjoy Fourth Amendment protection. In U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), the Supreme Court held that the Fourth Amendment does not apply to search by American authorities of the Mexican residence of a Mexican citizen and resident. The Court, on examining the text of the Amendment, concluded that its central motivation was to “protect the people of the United States against arbitrary action by their own government.” Id. Thus, the Fourth Amendment, the Court stated, does not protect aliens outside United States territory, nor does it protect foreign governments. Id. KindHearts’ situation differs strikingly and significantly from that of the foreign governments and foreign assets at issue in the TWEA and IEEPA cases on which the government relies. KindHearts is an American corporation based in Toledo, Ohio. Its assets, presumably, came from persons resident in this country. Those assets were in this country when the government seized them. This case does not involve a nation-targeted embargo. KindHearts is indisputably one of “the people” protected by the Fourth Amendment. If the Constitution affords KindHearts no protection from unreasonable searches and seizures, whom among “the people” does it protect, and who among the people can be certain of its protection? The government’s argument, moreover, ignores compelling parallels between the instant ease and the colonial-era activities inspiring the Founders to include the Fourth Amendment in our fundamental charter of liberties. Indiscriminate customs searches, unregulated by judicial approbation or oversight, were the “first inducement” to American attitudes against such promiscuous searches and seizures, William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 253 (2009). Despised writs of assistance allowing customs officials to employ unfettered discretion in their search for and seizure of smuggled goods and contraband were a “major cause of the Revolution.” Tracy Maclin, The Complexity of the Fourth Amendment: A Historical Review, 77 B.U.L.R. 925, 945 (1997); see also Nelson B. Lasson, The History & Development of the Fourth Amendment to the U.S. Constitution, 51 (1937). In the late 1750s and early 1760s, a controversy erupted in the Massachusetts Bay Colony over gubernatorial warrants and writs of assistance to enforce customs laws. Great Britain, embroiled from 1754-1763 in the Seven Years’ War, enacted customs laws proscribing American commerce with Spanish and French colonies. Great Britain also implemented restrictive trade relationships between itself and the North American colonies. Those laws favored British interests at the expense of colonial merchants. Lasson, supra, at 52; Cuddihy, supra, at 378-380. Evasion of those laws and restriction- — smuggling— became more than just a colonial pastime: for many American merchants it was the way of life. It was, as well, often of benefit to Britain’s enemies commercially. Lasson, supra, at 52. In response to this unacceptable situation, Governor Shirley of Massachusetts issued warrants giving customs officials authority forcibly to enter houses and other buildings, and, once inside, to exercise unfettered discretion to search for and seize contraband. Maclin, supra, 77 B.U.L.R. at 945; Cuddihy, supra, at 378. Public reaction to this exercise of extreme executive authority caused the Governor to require customs officers, before they could conduct such searches, to obtain Writs of Assistance from Crown judges. Maclin, supra, 77 B.U.L.R. at 945. Unlike the search warrants with which every American judge, prosecutor and defense attorney is now familiar, colonial Writ of Assistance were “a continuous license and authority” valid for the “whole lifetime of a reigning sovereign ... empowering] the officer his deputies and servants to search, at their will, wherever they suspected uncustomed goods to be, and to break open any receptacle or package falling under their suspecting eye.” Id. The judges of the Superior Court of Judicature who issued Writs of Assistance lacked power to refuse to issue the writs or to review specific searches or seizures. Maclin, supra, 77 B.U.L.R at 946; Cuddihy, supra, at 379. When King George II died in 1760, all previously-issued writs expired. Customs officers sought new writs. Id. at 380-381. A merchants’ association, The Society for Promoting Trade and Commerce Within the Province, retained James Otis Jr. to challenge the reissuance. Id. at 380. This led to the decision in Paxton’s Case. Culhuddy, supra, at 380. That case “intensified public antipathy to the writs of assistance” and triggered a flood of public commentary on search and seizure. Id. at 395. Challenging Writs of Assistance, Otis and other critics delineated and condemned the abuses left in their wake. The Writs, as a commentator in the Boston Gazette wrote, allowed writ-holders to “break open doors, trunks, chests, and boxes — alms houses, brideswells, jails or churches — never mind a dwelling house”— this listing making clear that no premises were safe. Id. at 396. Another commentator feared that writ-holders would look unchecked “wherever he shall PLEASE to suspect uncustom’d goods are lodg’d.” Id. Despite these concerns and objections and Otis’s arguments, the court re-issued the Writs of Assistance. Id. at 395. Though unsuccessful, Otis’s arguments were the “first recorded declaration” of the Fourth Amendment’s requirement of a specific warrant. Id. at 382. Others in England and the colonies had criticized the writs of assistance, general warrants, and other forms of indiscriminate search and seizure. Otis first contended that specific warrants — in Fourth Amendment terms, warrants “particularly describing the place to be searched and things to be seized”— as alone appropriate if the sanctity one’s home and security of one’s possessions were to be assured under, as Otis argued, the “British Constitution, English common law, natural law, and the higher law.” Id. at 387. As with IEEPA and TWEA, the initial impetus for executive action at the outset of the era leading to Paxton’s Case was to deprive the enemies of economic benefits: restricting trade with the enemy was the purpose of both Governor Shirley’s wartime writs to customs officers and the TWEA. In time, these purposes, and the authority by which government sought to accomplish them led to a practice of far-reaching and open-ended searches for and seizures of private property. Unlike the system under which OFAC has operated thus far, the colonial system came to involve judges in the issuance of the writs. But their participation did little to control the duration of the authority to conduct searches, and did not encompass judicial involvement or oversight during implementation of that authority. The centrality of indiscriminate customs searches and seizures to the development, purposes and meaning of the Fourth Amendment is of special relevance to this case. Like James Otis, the attorneys for KindHearts claim for their client “the right ... to be secure in their ... papers and effects.” Also like Otis, they argue that how the government has been exercising its authority to regulate commercial affairs can violate that right and destroy that security. To find the Fourth Amendment inapplicable to OFAC blocking actions would disregard the Amendment’s history and its role as a bulwark against the abuses and excesses of unchecked governmental power. iii. Whether Deference to the Executive Regarding Foreign Affairs Requires Excluding OFAC Blocking Actions From Forth Amendment Scrutiny The government’s second argument is that deference to the executive should cause me to refrain from viewing its conduct through the lens of the Fourth Amendment. Courts, in the government’s view, ought not involve themselves with “the exercise of the executive’s most uniquely reserved powers- — conducting foreign affairs and protecting national security.” [Doc. 36, at 36]. Instead, I should heed Justice Jackson’s statement in his concurring opinion in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 635-36, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), that “A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily on any who might attack it.” The defendants claim that this means that the President’s powers “can indeed be so broad and uniquely reserved to the president that questions of Fourth Amendment applicability do not come into play.” [Doc. 73, at 34], Defendants also argue that subjecting OFAC’s actions to Fourth Amendment strictures is improper because when the President “execute[s] seizures with explicit authorization by congress, the President’s “authority [is] at its maximum”.” [Doc. 73, at 35], The government supports this assertion with a further quotation from Justice Jackson: In the practical working of our government we have already evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. Youngstown Sheet & Tube, supra, 343 U.S. at 652, 72 S.Ct. 863. Defendants also argue that U.S. v. Curtiss-Wright, 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936), stands for the principle that the “strict limitation” on federal powers over “internal affairs” does not apply in the realm of “external affairs.” [Doc. 73, at 35]. The government’s reliance on the propositions expressed by Justice Jackson and in Curtiss-Wright conflates two discrete questions about the limitations of federal executive power. The first question in evaluating the validity of executive action is whether any of the recognized sources of executive authority — Article II, powers inherent in national sovereignty or a valid delegation of authority from Congress— affirmatively empower the executive to take action, such as a block pending investigation. A second, separate question is whether a the manner in which the executive has exercised it authority in a specific instance violates any of the restrictions on federal authority protecting individual liberties. In Youngstown Sheet & Tube and Curtiss-Wright the Court dealt exclusively with the first question. In this case, however, the first question is not at issue because the parties do not dispute that the executive has the general power to block pending investigation. The issue here— whether, in this instance, OF AC has exercised its authority in violation of the Fourth Amendment — involves the second question. When Justice Jackson in Youngstown Sheet & Tube described the President’s “authority at its maximum” and the need for “the widest latitude of judicial interpretation,” he was describing the President’s power to act vis-a-vis Congress, not restrictions on presidential power imposed by the Bill of Rights. See 343 U.S. at 635, 72 S.Ct. 863. This is apparent from the context of the quotation, which is that when Congress expressly authorizes the action, the President possesses all his authority “in his own right plus all that Congress may delegate.” Id. Justice Jackson also stated that if a court should invalidate presidential action that Congress has expressly authorized, “it usually means that the Federal Government as an undivided whole lacks power.” Id. Legislation cannot authorize the President to ignore the Bill of Rights. Under the Fourth Amendment, the federal government “as an undivided whole ” lacks entirely the power to conduct unreasonable searches and seizures. Id. That the Court in Youngstown Sheet & Tube refers to the President’s actions as a “seizure” in no way suggests that that case involved a Fourth Amendment search or seizure. The Steelworkers Union had announced its members would strike after unsuccessful labor-management negotiations. Id. at 864. On the eve of the strike, President Truman ordered the Secretary of Commerce to assume control of the steel mills and keep them running. Id. at 865. The President’s actions, and the government’s operation of the mills temporarily did not deprive the shareholders of any of the their property interests in the company. The company did not claim that President Truman had engaged in an unreasonable seizure under the Fourth Amendment. The issue, rather, was whether the President had the authority to adopt the “technique of seizure” as a “method of solving labor disputes,” even though Congress had expressly declined to incorporate this technique in the TaftHartley Act. Id. at 866. The Court noted that Congress’s power to authorize this method was “beyond question” because Congress may “authorize the taking of private property for public use.” Id. at 867. In view of the absence in Youngstown Sheet & Tube of citation to, argument about, discussion of and adjudication on the basis of Fourth Amendment principles and doctrine, the decision in that case, not the Fourth Amendment, is inapplicable here. Similarly, the Court’s opinion in Curtiss-Wright likewise addressed whether the President possesses inherent, unenumerated powers over foreign affairs — not whether such powers were subject to Bill of Rights limitations. 299 U.S. at 319, 57 S.Ct. 216. In Curtiss-Wright, an arms manufacturer was charged with conspiring to sell arms to Bolivia in violation of a Joint Resolution of Congress authorizing the President to criminalize such arms sales and a Presidential proclamation issued under that authority. Id. at 312-313, 57 S.Ct. 216. The Court rejected the company’s challenge to Congress’s delegation of authority to the President. Id. at 315-316, 333, 57 S.Ct. 216. The federal government, the Court held, has and can, with regard to the nation’s foreign affairs, exercise the powers inherent in national sovereignty. Such exercise did not violate the rights inuring to the states. Id. at 316, 57 S.Ct. 216. Further, because “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” he may exercise powers “in the field of international relations” without needing “a basis for its exercise in an act of Congress.” Id. at 220-221. The Court’s opinion in Curtiss-Wright makes indisputably clear fundamental constitutional principles of federalism and separation of powers endow the President with extensive, and generally unilateral authority over our foreign affairs, especially with regard to our relations with other countries. Though the Court upheld the exercise of that authority against an American company and others engaged in international commerce, it did not address, much less declare, that such authority, if it impinged on freedoms guaranteed under the Bill of Rights, was in all circumstances and for all times unrestricted and uncontrollable. Contrary to defendants’ claims, courts have held that the executive’s domestic actions — even when taken in the name of national security — must comport with the Fourth Amendment. See, e.g. U.S. v. U.S. Dist. Court, 407 U.S. 297, 320, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (“the President’s domestic security role ... must be exercised in a manner compatible with the Fourth Amendment”); Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (national security “is not a talisman in whose presence the Fourth Amendment fades away and disappears.”); U.S. v. Bin Laden, 126 F.Supp.2d 264, 273 (S.D.N.Y.2000) (“even in the exercise of his foreign affairs power, the President is constrained by other provisions of the Constitution.”). OF AC’s blocking action against KindHearts, therefore, is, despite the deference generally due to presidential acts relating to our foreign relations and affairs, subject to some degree of Fourth Amendment scrutiny. This case raises questions about the extent and consequences of such scrutiny. B. Whether OF AC Must Have a Warrant and Probable Cause for the Seizure to be Reasonable Under the Fourth Amendment The next issue is whether OFAC satisfied the requirements of the Fourth Amendment when it blocked KindHearts’ assets pending investigation. Generally, the Fourth Amendment permits seizures only on the basis of probable cause and a judicial warrant listing, with particularity, the item or items to be seized. Place, supra, 462 U.S. at 701, 103 S.Ct. 2637. The government contends, inter alia, that its actions were lawful, and could be undertaken on the basis of reasonable suspicion, rather than probable cause to believe that KindHearts engaged in acts proscribed by the IEEPA and E.O. 13224. i. Generally, the Fourth Amendment Requires a Warrant and Probable Cause Defendants argue that this court should jettison the probable cause and warrant requirements in favor of an open-ending balancing of interests. Defendants contend that courts are free to apply an indeterminate “reasonableness” inquiry in light of the doctrine that “the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The defendants base their argument on the fact that the Fourth Amendment contains two textually distinct clauses, the reasonableness clause barring “unreasonable searches and seizure” and a warrant clause stating that “no Warrants shall issue, but upon probable cause.” U.S. Const, amend. IV. Reasonableness is the ultimate standard under the Fourth Amendment. Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (“[Reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security” is the “touchstone” of Fourth Amendment analysis); Soldal, supra, 506 U.S. at 61-62, 113 S.Ct. 538. This does not, however, mean that courts always are free to conduct open-ended balancing of interests whenever the government has seized property. On the contrary, searches and seizures are usually “reasonable” only when conducted with a judicial warrant supported by probable cause. Place, supra, 462 U.S. at 701, 103 S.Ct. 2637. The reasonableness clause under the Fourth Amendment “derives content and meaning through reference to the warrant clause.” U.S. Dist. Court, supra, 407 U.S. at 309-310, 92 S.Ct. 2125. Though the ultimate inquiry is reasonableness, “the Amendment does not leave the reasonableness of most seizures to the judgment of courts or government officers: the Framers of the Amendment balanced the interests involved and decided that a seizure is reasonable only if supported by a judicial warrant based on probable cause.” Place, supra, 462 U.S. at 722, 103 S.Ct. 2637 (Blackmun, J. concurring). Under most circumstances searches and seizures conducted without a warrant are “per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. U.S., 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, as stated in Place, supra, 462 U.S. at 701, 103 S.Ct. 2637, “In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” Two recognized exceptions to the warrant requirement might, however, apply in this case. First, “special needs” warrantless searches and seizures need only be reasonable under all the circumstances; no warrant or probable cause is required. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (upholding warrantless, suspicionless searches of probationers’ homes); Illinois v. Lidster, 540 U.S. 419, 426, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (upholding warrantless, suspicionless stops at a roadblock to gather information about a hit-and-run accident). Second, if exigent circumstances exist, the warrant requirement, but not the requirement of probable cause, may be excused. See, e.g., U.S. v. Johnson, 22 F.3d 674, 680 (6th Cir.1994) (describing general types of exigencies). ii. Whether the Block is a Special Needs Seizure Special needs searches and seizures share at least three basic characteristics. First, they must serve a purpose above and beyond normal criminal law enforcement. See Ferguson v. City of Charleston, 532 U.S. 67, 81-86, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 41-47, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Second, circumstances must make “the warrant and probable cause requirement impracticable.” See Griffin, supra, 483 U.S. at 873, 107 S.Ct. 3164. Third, the method of search or seizure must have built-in limits, such as a confined geographic scope or regular, suspicionless application, that restrict executive discretion and ensure that all citizens know the circumstances under which they are subject to a special needs search or seizure. See New York v. Burger, 482 U.S. 691, 702-03, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Administrative searches of closely-regulated industries are one type of special needs search. Officials responsible for administrative searches need engage in no prior assessment of behavior. The lack of individualized probable cause is deemed does not violate the Fourth Amendment where the search relates to a closely regulated endeavor or enterprise. Anyone engaging in such activity can reasonably expect inspection. The Supreme Court upheld such searches In Burger, id. at 702, 107 S.Ct. 2636, the Court upheld suspicionless, warrantless inspection of plaintiffs automobile chop shop. The Court noted that chop shops are closely regulated, reducing plaintiffs expectation of privacy and putting their operators on notice that inspections may occur. Id. The Court also concluded that the state’s inspection program was sufficiently regular and certain because it “carefully limited [inspections] in time, place, and scope.” Id. at 702-03, 107 S.Ct. 2636. These built-in limits on executive discretion provided “a constitutionally adequate substitute for a warrant” and gave the owner with notice of when, where and to what extent he was subject to being searched. Id. In concluding that the inspection program was reasonable, the court noted that there was a “substantial government interest” behind the regulatory regime and that warrantless, suspicion-less inspections were “necessary to further the regulatory regime.” Id. Accord, e.g., Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (warrant constitutionally required when warrantless searches “are necessary to further a regulatory scheme and the ... regulatory presence is sufficiently comprehensive and defined” that owner knows property is “subject to periodic inspections undertaken for specific purposes.”). Searches and seizures at roadblock check points are another type of warrant-less special needs search that must only be “reasonable” under all the circumstances to comply with the Fourth Amendment. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the Court upheld stops at a checkpoint at which police officers detained drivers briefly and tested them for sobriety. The officers stopped every vehicle and checked every driver for intoxication. Id. at 447, 110 S.Ct. 2481. On average, the stops lasted twenty-five seconds. Id. at 448, 110 S.Ct. 2481. See also Lidster, supra, 540 U.S. at 426, 124 S.Ct. 885 (extending Sitz to checkpoints designed to gather information after a nearby hit-and-run accident). Police may not, however, set up roadblocks to detect ordinary criminal wrongdoing. Edmond, supra, 531 U.S. at 37, 121 S.Ct. 447 (drug interdiction roadblock unconstitutional because police may not conduct regular suspicionless searches and seizures solely to enforce criminal laws). A third type of special needs search and seizure occurs at border crossings. In U.S. v. Martinez-Fuerte, 428 U.S. 543, 551-554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Court applied a balancing test to uphold a Border Patrol traffic-checking program on highways within one hundred miles of the Mexican border. In U.S. v. Boumelhem, 339 F.3d 414, 421 (6th Cir.2003), the Sixth Circuit upheld a warrant-less and suspicionless search of a railroad shipping container from abroad, noting the “power of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” In so holding, the court noted that warrantless entry and exit searches date back to the time of the Framers. Id. at 422 n. 5; see also U.S. v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (“Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause. Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion”). Border searches are restricted geographically to regions surrounding the border because individuals have a lesser expectation of privacy at the border than in the interior. Id. at 539, 105 S.Ct. 3304. OFAC’s exercise of its blocking power lacks the characteristics that excuse the warrant and probable cause requirements as to administrative, roadblocks, and border searches and seizures. Most importantly, OFAC’s blocking power entails no built-in limitations curtailing executive discretion and putting individuals on notice that they are subject to blocking. Traffic checkpoints and border searches are focused geographically, as they occur only at he checkpoint or near the national border. In cases of administrative searches, the government may only search discrete categories of individuals — such as closely-regulated businesses — and even then the regulatory regime must be “carefully limited in time, place and scope.” Burger, supra, 482 U.S. at 702-03, 107 S.Ct. 2636. Second, in method, OFAC’s blocking power has more in common with ordinary law enforcement activity than with any of the activities considered in the special needs cases. OFAC does not block pending investigation every entity sending money overseas: it only blocks those it suspects have violated the law. In this case, OFAC targeted KindHearts as a potential violator and conducted a preliminary investigation before imposing the block. It necessarily had gathered information in advance that it considered sufficient to justify seizure of KindHearts’ assets. No such prior determination occurs with a border crossing or checkpoint. Everyone passing through is stopped, detained and examined. Thus, unlike traditional law enforcement investigatory activities, special needs searches expose everyone within their scope or zone of their operation to a cursory search or brief seizure in the interest of public safety and welfare or border integrity. OFAC’s blocking power, which focuses on single entities, and does so on the basis of some suspicion, more closely resembles the modus vivendi and modus operandi of traditional law enforcement investigative activity than warrantless searches allowed under the special needs exception. This is true, even though, at this point, OFAC’s actions may be deemed “civil,” but actions violating E.O. 13224 may also become the basis for criminal sanctions. Investigations with the potential for criminal prosecution have historically triggered the warrant and probable cause requirements. See Edmond, supra, 531 U.S. at 37-38, 121 S.Ct. 447. Finally, for the special needs exception to apply, both the probable cause and warrant requirements must categorically be impracticable in light of the government’s purpose. Griffin, supra, 483 U.S. at 873, 107 S.Ct. 3164. The government provides no explanation as to why the probable cause warrant requirements were impracticable in this case. OFAC has shown no cause to believe or conclude that requiring it to develop probable cause and submit such cau