From: Barbara Lamar (barbaralamar@sanmarcos.net)
Date: Sun Aug 31 2003 - 11:00:58 MDT
APOLOGY:
This post, which I initially thought I could keep relatively short, soon
began to get way out of hand, both in terms of my time and in terms of what
most people want to read on an email list. I think I need to put it on a web
page where people can access it if they're interested.
I'll post only the beginning of my analysis of the Patriot Act here.
I have pasted in quite a bit of code language below. Codes of law, like
legal contracts, are meant to be applied in an uncertain future. Therefore,
they attempt to cover as many contingencies as the drafters can foresee.
If've often wished one could use mathematical notation when drafting legal
documents; but since it's customary to use the written form of the spoken
language, one must make do. To make matters worse, the final bill is a cut
and paste job representing compromises necessary to get it passed by both
the Senate and House. The result can be pretty nearly incomprehensible, and
often NO one understands what the heck the thing means, not even the members
of Congress who voted on it; so the courts interpret it as best they can.
Greg wrote:
> Let me see if I can make my ideas clear. The *tone* of the original piece
> in this thread was grossly partisan.
I'll throw in my observation here as well. When a person uses vague terms
such as "wholesale denial of fundamental rights" I don't usually pay much
attention to what they've written. I would be much more interested in which
fundamental rights of which poeple are being denied, who is denying them,
how they're being denied and so forth. I think one reason people start
shouting and foaming at the mouth over politics is that they've got their
brains set in Emotional Mode reather than Thinking Mode.
To put the PA's in perspective here, this is not the first time the U.S.
Congress has felt it necessary to curtail certain freedoms in order to
preserve others. In fact, the first time this happened was back in 1798. The
Sedition Act of that year says in part:
==========================
I Be it enacted . . ., That if any persons shall unlawfully combine or
conspire together, with intent to oppose any measure or measures of the
government of the United States, which are or shall be directed by proper
authority, or to impede the operation of any law of the United States, or to
intimidate or prevent any person holding a place or office in or under the
government of the United States, from undertaking, performing or executing
his trust or duty; and if any person or persons, with intent as aforesaid,
shall counsel, advise or attempt to procure any insurrection, riot. unlawful
assembly, or combination, whether such conspiracy, threatening, counsel,
advice, or attempt shall have the proposed effect or not, he or they shall
be deemed guilty of a high misdemeanor, and on conviction, before any court
of the United States having jurisdiction thereof, shall be punished by a
fine not exceeding five thousand dollars, and by imprisonment during a term
not less than six months nor exceeding five years; and further, at the
discretion of the court may be holden to find sureties for his good
behaviour in such sum, and for such time, as the said court may direct
=======================
Okay, now let's look at the law known as "Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act" aka the USA Patriot Act (signed into law by President Bush in late
October, 2001).
The specific sections that concern me are:
106, which expands the circumstances under which the president may issue
Executive Orders to confiscate the property of non-US citizens, by amending
Section 1702 of the International Emergency Economic Powers Act (Title 50,
Chapter 35 of the US Code) [I think such a provision may well be useful in
combating terrorism, but I would like to see more involvement by the courts
here. As written, I think this provision will harm foreign trade. An example
of what can happen was recently reported in the NYT. An importer of oreintal
rugs had already paid for a shipment from China, and the shipment was
enroute when that State Department published the following notice in the May
23 Federal Register:
==================
SUMMARY: The U.S. Government has determined that a foreign entity has
engaged in missile technology proliferation activities that require the
imposition of measures pursuant to Executive Order 12938 of November 14,
1994, as amended by Executive Order 13094 of July 28, 1998.
EFFECTIVE DATE: May 9, 2003.
================
As this is not considered a "taking" by the U.S. government, the U.S.
importer will not be compensated and has simply lost the $100,000 he paid
for the rugs, as they were required to be destroyed by U.S. customs agents.
Note that these particular executive orders were issued under prior law, not
the PA.
50 USC 1702 as amended by the PA, now reads (in part) like this (portions
added by the PA are in [bracekts]:
=======================
Sec. 1702. - Presidential authorities
(a) In general
(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; and.
(C)
[when the United States is engaged in armed hostilities or has been attacked
by a foreign country or foreign nationals, confiscate any property, subject
to the jurisdiction of the United States, of any foreign person, foreign
organization, or foreign country that he determines has planned, authorized,
aided, or engaged in such hostilities or attacks against the United States;
and all right, title, and interest in any property so confiscated shall
vest, when, as, and upon the terms directed by the President, in such agency
or person as the President may designate from time to time, and upon such
terms and conditions as the President may prescribe, such interest or
property shall be held, used, administered, liquidated, sold, or otherwise
dealt with in the interest of and for the benefit of the United States, and
such designated agency or person may perform any and all acts incident to
the accomplishment or furtherance of these purposes.]
============================
The language in 50 USC 1702 (a) (1) (C) give the president the right not
merely to regulate or block transactions but to seize assets for the benefit
of the U.S. As long as this provision can be applied only to non-U.S.
citizens, it only has the potential to damage citizens that are engaged in
foreign trade or who wish to transfer money or assets out of the country.
This is somewhat disturbing in itself to someone like me, married to a
non-U.S. citizen. What's even more disturbing to me, though, is the general
direction we seem to be headed.
If one could be 100% sure that such provisions would be used ONLY against
bad guys, I'd say fine, go for it. But people make mistakes, both innocent
and not so innocent. Even basically good people are often corrupted when
they're given too much power (I've seen it happen over and over during the
16 years I've been a CPA/lawyer).
I'M GOING TO END HERE, SO AS NOT TO TRY THE PATIENCE OF OTHER LIST MEMBERS
WHO MAY NOT SHARE MY FASCINATION WITH LEGAL CODES.
Barbara
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