RE: My Blind Spot

From: Lee Corbin (lcorbin@tsoft.com)
Date: Sun Mar 16 2003 - 21:43:39 MST

  • Next message: Reason: "RE: MEME: Leaderless Resistance"

    Hubert writes

    > [Ron wrote]
    > > [samantha writes: Laws are on the books to prosecute any of
    > > us at any time with or without such formalities as an actual
    > > arrest, due process and all of that... Any of us can have our
    > > property seized, all of it, at any time by law.
    > >
    > > Samantha,
    > > Would you be so kind as to quote the relevant sections of the law
    > > allowing the powers that you list above?
    >
    > Ron, your paranoid political leaders... are going to exchange
    > your freedom for a shaky security in a future police state.
    > Turn to the following URL where Patriot Act II is thoroughly explained:
    >
    > http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11835&c=206

    Am I to understand (as I think Ron's investigation exposed) that
    this is still just tentative legislation? Oh, well, a minor point
    since here we are about ideas.

    Hubert, since you have taken it upon yourself to point out
    where America's "paranoid" and "future war criminal" leaders
    are turning America into a "police state", could you be more
    specific? What I mean is, what portions of that very long
    ACLU document trouble you the most? Could we focus on
    something in particular, please?

    Now, just so you know that I am sincere, I read through the first
    sections of that document. Only four times out of the many, many
    items (mostly doing with wiretapping and communications) did my
    alarm bells go off. If you want, we could start with these four
    (although please mention any others that seem more to the point.)

    Here are the four that raised my eyebrows:

    1. Using an overbroad definition of terrorism that could cover some protest tactics such as those used by Operation Rescue or
    protesters at Vieques Island, Puerto Rico as a new predicate for criminal wiretapping and other electronic surveillance. (Sections
    120 and 121)

    "Eh, freedom to protest is being infringed? Yikes."

    2. Permitting searches, wiretaps and surveillance of United States citizens on behalf of foreign governments – including
    dictatorships and human rights abusers – in the absence of Senate-approved treaties. (Sections 321-22)

    "Permitting searches of citizens?" Oh, oh!

    3. Stripping even native-born Americans of all of the rights of United States citizenship if they provide support to unpopular
    organizations labeled as terrorist by our government, even if they support only the lawful activities of such organizations,
    allowing them to be indefinitely imprisoned in their own country as undocumented aliens. (Section 501)

    "Stripping Americans of citizenship rights if they provide
    support to unpopular organizations?" (My God.)

    4. Providing for summary deportations without evidence of crime, criminal intent or terrorism, even of lawful permanent residents,
    whom the Attorney General says are a threat to national security. (Section 503)

    "Deporting anyone whatsoever who the Attorney General says?" Yikes.

    So I delved further into the document where each of these is
    described in more detail. I found nothing alarming after all.
    Okay, now I've done my part. You tell me just *where* there
    is something here that we should discuss!

    Lee

    P.S. Here, for your convenience, are the details
    provided in your URL for each of the above:

    1. Using an overbroad definition of terrorism that could cover tactics used by some protest groups as a predicate for criminal
    wiretapping and other surveillance under Title III (Sections 120, 121). Current law provides, at 18 U.S.C. § 2516, a list of
    “predicate offenses” that permit the government to conduct wiretaps and other intrusive surveillance. The list is quite lengthy,
    but reflects the judgment of Congress that electronic surveillance is a particularly intrusive investigative method that is not
    appropriate for all criminal investigations but should be reserved only for the most serious crimes.
    Title 18 already provides that any terrorism crime defined by federal law is a predicate for Title III surveillance. See 18 U.S.C.
    § 2516(q) (providing that any violation of sections 2332, 2332a, 2332b, 2339A, or 2339B is a predicate offense for Title III
    surveillance). The draft bill, however, extends the predicate even further, to cover offenses that are not defined as terrorism
    crimes under federal law, but do fit the definition of either international or domestic terrorism, i.e., they involve acts that are
    a violation of federal or state law, are committed with the intent of affecting government policy, and are potentially dangerous.
    See 18 U.S.C. § 2331. It is this broad definition that sweeps in the activities of a number of protest organizations that engage in
    civil disobedience, including People for the Ethical Treatment of Animals and Operation Rescue. Since true crimes of terrorism are
    already predicates for Title III surveillance, providing this authority is not necessary to listen to the telephone conversations
    and monitor the e-mail traffic of terrorist groups. To ensure Title III wiretaps are not used to monitor the activities of protest
    organizations, Congress should reject this provision and should also amend the definition of “terrorism.”

    2. Permitting searches, wiretaps and surveillance of United States citizens on behalf of foreign governments – including
    dictatorships and human rights abusers – in the absence of Senate-approved treaties. (Sections 321-22). This section would
    authorize the DOJ to help foreign governments – including those that systematically abuse human rights and do not respect the rule
    of law – invade Americans’ privacy even when the United States Senate has failed or refused to approve a treaty allowing such
    assistance with such a government. Under current law, the United States does not engage in covert surveillance or issue search
    warrants on behalf of foreign nations unless the Senate has approved a mutual legal assistance treaty. If a foreign nation with
    which the United States does not have such a treaty requires information from a United States citizen or resident for its own
    judicial process, it may still obtain that information by asking the assistance of a United States district court in issuing an
    order to take testimony or obtain “a document or other thing” under 28 U.S.C. § 1782, but it may not issue search warrants or
    certain surveillance orders. This limitation ensures that that the Senate consents to more intrusive surveillance on behalf of a
    foreign nation before Americans’ privacy can be invaded at the behest of a foreign government. The draft bill (at section 321)
    sweeps aside this sensible limitation altogether.
    These limitations on foreign-directed searches, wiretaps and surveillance orders do not need to substantially impede the
    investigation and prosecution of terrorism, as Congress has provided “universal jurisdiction” over many serious terrorism offenses.
    In other words, such offenses are a crime under United States law and subject to U.S. jurisdiction even if committed in a foreign
    nation. For such offenses, a United States Attorney could obtain the full panoply of searches and surveillance orders to aid in the
    investigation of that crime, even if such a crime was also being investigated by a foreign nation under its own laws. Such
    information could then easily be shared with the foreign nation, under information sharing provisions approved by Congress in the
    Homeland Security Act. See Homeland Security Act of 2002, §§ 891-99, Pub. L. No. 107-296, 116 Stat. 2135, 2252-58.

    3. Stripping even native-born Americans of all of the rights of United States citizenship if they provide support for “terrorism,”
    allowing them to be indefinitely imprisoned in their own country as undocumented aliens. (Section 501). This section would permit
    the government to punish certain criminal activity by stripping even native-born Americans of U.S. citizenship, thereby depriving
    them of any nationality at all and potentially relegating them forever to imprisonment as undocumented immigrants in their own
    country. Among the activities that could be punished this way are providing material support for an organization – including a
    domestic organization – labeled as a terrorist organization by the government, even if the support was only for the lawful
    activities of that organization.
    The Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction
    thereof, are citizens of the United States and of the State wherein they reside.” While Americans do have the right to give up
    their citizenship in the United States, the Constitution does not give Congress any power to take away from an American his or her
    status as a citizen even for participating in crime in time of war. See Trop v. Dulles, 356 U.S. 86 (1958) (conviction by court
    martial of crime of desertion during World War II could not constitutionally lead to loss of citizenship, even though crime was
    committed voluntarily). Rather, as the Supreme Court has made clear, every citizen of the United States enjoys “a constitutional
    right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.” Afroyim v. Rusk, 387 U.S. 253 (1967)
    (citizenship could not be forfeited merely by voting in foreign election without the requisite intent to abandon U.S. citizenship).
    While DOJ is correct to observe that certain voluntary acts, such as serving in a foreign army, can serve to terminate U.S.
    citizenship, these “expatriating acts” must indicate some desire to show an affinity with a foreign sovereign. Only acts that
    indicate such a desire to relinquish American nationality can be made the basis for a finding that strips an American of his or her
    citizenship. See Vance v. Terrazas, 444 U.S. 252, 262 (1980).
    Moreover, it is the government’s burden to establish that the expatriating act was committed with the intent of relinquishing
    citizenship, a showing this section attempts to short-circuit. See id. at 261 (holding that the “trier of fact must . . . conclude
    that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his
    citizenship.”) Expatriating acts are not defined by reference to how repugnant or offensive they are, or by whether they constitute
    serious crimes, but by whether they show the individual has an intent to attach himself or herself to another sovereignty. Thus,
    while serving in a foreign army or voting in a foreign election may indicate an intent to abandon American nationality, the
    commission of a series of grisly murders, or the control of a vast criminal enterprise plainly do not, although the former are legal
    while the latter are serious crimes.
    Providing support to a terrorist organization, which possesses no sovereignty under international law, is a crime, see 18 U.S.C. §
    2339A, but plainly does not indicate that the individual desires to attach himself or herself to the allegiance of a foreign nation
    or to abandon U.S. citizenship in the way that, for example, serving in a foreign army might. Indeed, expatriation in the draft
    bill is not even limited to providing material support to foreign terrorist organizations, as wholly domestic organizations can be
    designated as terrorist organizations under 8 U.S.C. § 1182(a)(3). In addition, expatriation could result from support of
    organizations “engaged in hostilities” against the “national security interests” of the United States – which could mean anything --
    not just against the United States or its people. Finally, the draft bill would allow expatriation even for support of the lawful,
    humanitarian activities of an organization that the United States has labeled a “terrorist organization,” which belies DOJ’s analogy
    of supporting terrorism by serving in a foreign army engaged in hostilities against the United States.

    4. Providing for summary deportations, even of lawful permanent residents, whom the Attorney General says are a threat to national
    security (Section 503). Under this provision, any immigrant, including longtime lawful permanent residents, may be expelled from
    the United States on the unilateral determination of the Attorney General that they are a threat to “national security,” which is
    defined as “the national defense, foreign relations, or economic interests of the United States.” INA § 219(c)(2). A person facing
    removal under this section will be separated from his or her family and community without ever being able to effectively answer the
    government’s true reasons for labeling him or her a security risk.
    Immigrants and other non-citizens involved in terrorism are deportable under current law,[11] and suspected terrorists are subject
    to mandatory detention during any immigration or criminal proceedings.[12] The purpose of this amendment is to eliminate due
    process entirely for immigrants, including lawful permanent residents, accused of crimes or terrorism by permitting their expulsion
    merely on the Attorney General’s fiat. It is based on the fundamentally flawed notion that non-citizens in the United States do not
    possess the right to fair treatment under the law, a notion that the Supreme Court has repeatedly rejected. See Zadvydas v. Davis
    533 U.S. 678, 693 (2001) (reiterating long-standing constitutional rule that “the Due Process Clause applies to all ‘persons’ within
    the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”).
    The proposal is another DOJ initiative that flies in the face of President Bush’s stated opposition to the use of secret evidence in
    immigration proceedings on the basis that fair treatment should be afforded everyone in America. Under the proposal, a non-citizen,
    including a lawful permanent resident, accused of posing a risk to national security could be detained and deported without having
    committed any violation of law and without ever knowing the basis of the accusation against him or her. The provision would
    essentially authorize a repeat of the “Palmer raids,” a discredited episode in the 1920s that involved widespread mass deportations
    and widespread abuse of the rights of law abiding Russian and other immigrants during a wave of anti-immigrant and nativist
    hysteria.
    DOJ originally asked for this summary deportation power shortly after September 11 in its initial drafts of the USA PATRIOT Act. It
    was firmly rejected, on a bipartisan basis, by a Congress deeply concerned about the use of secret evidence and core due process in
    immigration proceedings. It should be rejected again.



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