Imprecise Language and the Risks of H.R. 347

Submitted by Gene Howington, Guest Blogger

Coincidentally and often, abuses of civil or human rights in the United States derive from the same source as law made via precedent. That source is vague or overly broad legislation and imprecise use of language.  As a matter of good drafting practice, this is why precision language is encouraged – to provide clarity and minimize ambiguity in the letter of the law. When vague laws create issues in court, the court either makes a ruling creating precedent and consequently a plan of action for how to address the issue moving forward although occasionally a law is overturned in toto for vagueness and the legislature can take a fresh swing writing the law.

However, it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing “wiggle room” for Federal authorities to potentially abuse civil and human rights under the color of authority. This is a dangerous practice. The issue of vagueness is at the heart of the NDAA scandal as recently discussed on the blog here, here and here. While the NDAA poses a threat to your 4th, 5th and 6th Amendment rights, the newest attack of vague language is aimed at your 1st Amendment rights of Freedom of Speech, Freedom of Assembly and Freedom to Petition. It is found in the pending legislation of H.R. 347, innocuously titled the “Federal Restricted Buildings and Grounds Improvement Act of 2011”. As currently worded, it might as well have been called the “Federal We’re Too Important To Be Annoyed By Your Protest Act of 2011” or (as described by Rep. Justin Amash (R-MI), one of the few Representatives to vote against the bill) the “First Amendment Rights Eradication Act” because it effectively outlaws protests near people who are “authorized” to be protected by the Secret Service.  Being that the bill passed on a House vote 388-3 and is currently coming out of committee in the Senate, its progress is something civil libertarians and activists may want to monitor. UPDATE: President Obama signed H.R. 347 into law on March 9, 2012.

This is H.R. 347 (proposed 18 U.S.C. § 1752) in its entirety as it is coming out of committee:

SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Federal Restricted Buildings and Grounds Improvement Act of 2011’.
SEC. 2. RESTRICTED BUILDING OR GROUNDS.
Section 1752 of title 18, United States Code, is amended to read as follows:
‘Sec. 1752. Restricted building or grounds
‘(a) Whoever–
(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;
‘(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;
‘(3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds; or
‘(4) knowingly engages in any act of physical violence against any person or property in any restricted building or grounds;
or attempts or conspires to do so, shall be punished as provided in subsection (b).
‘(b) The punishment for a violation of subsection (a) is–
‘(1) a fine under this title or imprisonment for not more than 10 years, or both, if–
‘(A) the person, during and in relation to the offense, uses or carries a deadly or dangerous weapon or firearm; or
‘(B) the offense results in significant bodily injury as defined by section 2118(e)(3); and
‘(2) a fine under this title or imprisonment for not more than one year, or both, in any other case.
‘(c) In this section–
‘(1) the term ‘restricted buildings or grounds’ means any posted, cordoned off, or otherwise restricted area–
‘(A) of the White House or its grounds, or the Vice President’s official residence or its grounds;
‘(B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or
‘(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance; and
‘(2) the term ‘other person protected by the Secret Service’ means any person whom the United States Secret Service is authorized to protect under section 3056 of this title or by Presidential memorandum, when such person has not declined such protection.’. [emphasis added]

Contrast this with how 18 U.S.C. § 1752 is currently worded:

18 U.S.C. § 1752 : US Code – Section 1752: Temporary residences and offices of the President and others

(a) It shall be unlawful for any person or group of persons –
(1) willfully and knowingly to enter or remain in
(i) any building or grounds designated by the Secretary of
the Treasury as temporary residences of the President or other
person protected by the Secret Service or as temporary offices
of the President and his staff or of any other person protected
by the Secret Service, or
(ii) any posted, cordoned off, or otherwise restricted area
of a building or grounds where the President or other person
protected by the Secret Service is or will be temporarily
visiting,
in violation of the regulations governing ingress or egress
thereto:
(2) with intent to impede or disrupt the orderly conduct of
Government business or official functions, to engage in
disorderly or disruptive conduct in, or within such proximity to,
any building or grounds designated in paragraph (1) when, or so
that, such conduct, in fact, impedes or disrupts the orderly
conduct of Government business or official functions;
(3) willfully and knowingly to obstruct or impede ingress or
egress to or from any building, grounds, or area designated or
enumerated in paragraph (1); or
(4) willfully and knowingly to engage in any act of physical
violence against any person or property in any building, grounds,
or area designated or enumerated in paragraph (1).
(b) Violation of this section, and attempts or conspiracies to
commit such violations, shall be punishable by a fine under this
title or imprisonment not exceeding six months, or both.
(c) Violation of this section, and attempts or conspiracies to
commit such violations, shall be prosecuted by the United States
attorney in the Federal district court having jurisdiction of the
place where the offense occurred.
(d) The Secretary of the Treasury is authorized –
(1) to designate by regulations the buildings and grounds which
constitute the temporary residences of the President or other
person protected by the Secret Service and the temporary offices
of the President and his staff or of any other person protected
by the Secret Service, and
(2) to prescribe regulations governing ingress or egress to
such buildings and grounds and to posted, cordoned off, or
otherwise restricted areas where the President or other person
protected by the Secret Service is or will be temporarily
visiting.
(e) None of the laws of the United States or of the several
States and the District of Columbia shall be superseded by this
section.
(f) As used in this section, the term “other person protected by
the Secret Service” means any person whom the United States Secret
Service is authorized to protect under section 3056 of this title
when such person has not declined such protection.”

As the bill relevantly cites to 18 U.S.C. § 3056, selected portions of that code read:

18 U.S.C. § 3056 : US Code – Section 3056: Powers, authorities, and duties of United States Secret Service
(a) Under the direction of the Secretary of Homeland Security,
the United States Secret Service is authorized to protect the
following persons:
(1) The President, the Vice President (or other officer next in
the order of succession to the Office of President), the
President-elect, and the Vice President-elect.
(2) The immediate families of those individuals listed in
paragraph (1).
(3) Former Presidents and their spouses for their lifetimes,
except that protection of a spouse shall terminate in the event
of remarriage unless the former President did not serve as
President prior to January 1, 1997, in which case, former
Presidents and their spouses for a period of not more than ten
years from the date a former President leaves office, except that

(A) protection of a spouse shall terminate in the event of
remarriage or the divorce from, or death of a former President;
and
(B) should the death of a President occur while in office or
within one year after leaving office, the spouse shall receive
protection for one year from the time of such death:
Provided, That the Secretary of Homeland Security shall have the
authority to direct the Secret Service to provide temporary
protection for any of these individuals at any time if the
Secretary of Homeland Security or designee determines that
information or conditions warrant such protection.
(4) Children of a former President who are under 16 years of
age for a period not to exceed ten years or upon the child
becoming 16 years of age, whichever comes first.
(5) Visiting heads of foreign states or foreign governments.
(6) Other distinguished foreign visitors to the United States
and official representatives of the United States performing
special missions abroad when the President directs that such
protection be provided.
(7) Major Presidential and Vice Presidential candidates and,
within 120 days of the general Presidential election, the spouses
of such candidates. As used in this paragraph, the term “major
Presidential and Vice Presidential candidates” means those
individuals identified as such by the Secretary of Homeland
Security after consultation with an advisory committee consisting
of the Speaker of the House of Representatives, the minority
leader of the House of Representatives, the majority and minority
leaders of the Senate, and one additional member selected by the
other members of the committee.
The protection authorized in paragraphs (2) through (7) may be
declined.
(d) Whoever knowingly and willfully obstructs, resists, or
interferes with a Federal law enforcement agent engaged in the
performance of the protective functions authorized by this section
or by section 1752 of this title shall be fined not more than
$1,000 or imprisoned not more than one year, or both.” [emphasis added]

The root of the problem with this legislation lies in the omission of the word “willfully” to make the condition simply “knowingly” in conjunction with the phrase “or so that, such conduct, in fact”.  The use of this conditional phrase effectively nullifies the intent component in the absence of “willfully” being explicitly stated.  You may not have willfully or knowingly done anything other than exercise your free speech and free assembly rights, but if you “in fact” “[impede] or [disrupt] the orderly conduct of Government business or official functions”, you can be arrested and charged under this proposed revision of 18 U.S.C. § 1752 whether the impediment or disruption was willful or not.  The reworded law as the bill is currently formulated effectively does away with intent as a requirement in addition to expanding the meaning of the term ‘restricted buildings or grounds’ to mean virtually any place in proximity to or place proper a government function or an “event of national interest” is taking place. This would allow for the arrest of protesters  just about anywhere.  Outside political rallies, near the hotels of visiting foreign dignitaries, outside sporting or other public events like the Super Bowl . . .  you get the idea.

Is this an instance of vague/imprecise language creating the potential for civil rights abuses?

Or it this an instance of purposefully vague/imprecise language to allow the government to infringe upon your rights to free speech, assembly and petition?

What do you think?

Kudos: ekeyra

Source(s): Techdirt, Reason.com, H.R. 34718 U.S.C. § 3056, The Inquisitr

~Submitted by Gene Howington, Guest Blogger

102 thoughts on “Imprecise Language and the Risks of H.R. 347

  1. Gene, I no longer recognize the Bill of Rights I learned about in eighth grade civics class. The First Amendment has been so badly assaulted, it needs a rape kit.

    I read today of a group of women in Virginia, who were protesting some of the current anti-woman legislation, when they were rushed and some arrested by a huge squad of police in full riot gear. You know Virgina–according to their motto, “Virginia is for lovers.” Some of the pictures of what went down reminded me of newsreel film I saw as a kid. Another time, another place, another continent, but current and timely for the present political climate. Only scared people react like that. Those intellectual and moral midgets are truly frightened.

    http://www.dailykos.com/story/2012/03/03/1070687/-BREAKING-Peaceful-Rally-for-Women-s-Health-Dispersed-by-SWAT-Team-in-Richmond-VA

  2. As for your final question regarding whether the vagueness is deliberate or just the result of being poorly written. My first inclination is that is is deliberate. This is what they want–to stifle protests under color of law.

    On the other hand, the drafter of the Resolution may just be a poor legal writer to boot. If drafting this piece of legal excrement had been assigned to a sharp legal eagle, it would still be residing in the “to do” basket for being prima facie unconstitutional.

  3. Deliberate. OWS scared the living shit out of every branch of the government and the wealthy. To quote OS: “Only scared people react like that.”

    We’re going to have to do what women did to get the vote and what blacks did to get civil rights … go to jail, go to court, go to trial and go through the appeal process all the way up the line until the law is declared unconstitutional.

    And those of us who aren’t sitting in a jail cell need to vote the bastards out of office.

  4. Gene,
    Magnificent post, but since I’m going to bed, very chilling to try to sleep on. I’ll have much to say in the morning.

  5. Being an early riser, + 6 hours exact, i’ll be first, if not the brightest.

    Deliberate draconian opposition to OWS or any other using peaceful assembly and seeking redress by public appeal.

    In our modern world, for that matter the ancient too, we seek to be seen at the relevant geographic point, where media is waiting for anything to liven up the all too slow pace of the event—-and what’s handier than a protest.

    Fuck who later said what, when we’ve got police brutalizing (and shooting teargan canisters into peoples faces from close range is brutality so no hyperbole here) peaceful protesters. The point of the protest goes forth on a national basis, álthough seldom in intended form.
    Now that is blocked on penalty of your very presence, NO INTENT IS REQUIRED—–that I can guess is often most diffcult to prove.

    The order comes: Do your protesting where it won’t be noticed. Lots of luck with that.

    There is a way, but that requires extremely large numbers, great effort (marches), great suffering (immolation), or frankly civil disobedienc; if such is not so specified already as being criminal, ie congregating in such numbers as to create a public danger, a disorder, etc.

    Hopefully a drumroll of demonstrations will energize the non-voters to take action and vote with us. At least be glad it was only events of national importance which qualified. Not the CoC or the state legisature included.

    Lead on, Blouise.

  6. I would like to know, as a citizen, where the fuck I am living. Because it is obviously no longer the USA or Canada, but my behaviour is based on the law of the Land, U.S.A. (with Constitutional rights guaranteed and all……).

    If I am in Fascist territory or some Potentate?

    Another repressive republic like Chad or Burma?

    That is what republic sans democratic process look like.

    Should I buy a gun?

  7. What do I think?! It is hard to think clearly after reading this post. Fear, sadness, frustration, confusion and a sense that members of the US Congrss have lost all sense of their oath to protect the Constitution from all enemies foreign and domestic. There is no question the the vagueness was deliberate. The continued constriction of the freedom of flesh and blood people(but not corporations) is open obvious and supported by both parties. Apparently Foreign enemies of the Constitution are no longer necessary; we elect them.

    It should be noted here that vague or precise the current crop of laws, practices and abuses of police power have already made the quiet peaceful petitioning of government officials a dangerous game. It is a shame.

  8. Can’t wait for the signing statement….. Ya think since Marbury we could get an advisory opinion… Everything else has taken power grabs….. Now it’s time for the Sct……

  9. When Pres. Bush came to Fl for the WTO talks in Miami we first saw the cordoning off and placement of ‘free speech zones’ well removed from any places where they would be having the meetings…we also saw the Darth Vader garbed riot police and tanks even before there were anything even remotely like demonstrations.

    So I guess NOW, that can be viewed as ‘Legal’?

  10. Gene:

    As you note, restricted building is defined as:

    ‘‘(c) In this section—
    9 ‘‘(1) the term ‘restricted buildings or grounds’
    10 means any posted, cordoned off, or otherwise re
    11 stricted area—
    12 ‘‘(A) of the White House or its grounds, or
    13 the Vice President’s official residence or its
    14 grounds;
    15 ‘‘(B) of a building or grounds where the
    16 President or other person protected by the Se
    17 cret Service is or will be temporarily visiting; or
    18 ‘‘(C) of a building or grounds so restricted
    19 in conjunction with an event designated as a
    20 special event of national significance; and

    This doesn’t seem particularly unreasonable to me in an era of terrorism by political assassination. Also, I am aware of no First Amendment protection for using a protest to disrupt a government function in such a “restricted” public building. I don’t think the law is read in contravention of the First Amendment but complementary with it. While you can certainly voice your protest in a “restricted” government building you have no right to disrupt the proceedings going on therein or injure or threaten to injure anyone else. I agree the law is vague but vagary is resolved in favor of the citizen constitutionally speaking. I note that protesters at congressional committee meetings are not dissuaded by the terms or intent of this law.

  11. “I note that protesters at congressional committee meetings are not dissuaded by the terms or intent of this law.”

    Although by its vague terms, they very well could be, mespo.

    “I agree the law is vague but vagary is resolved in favor of the citizen constitutionally speaking.”

    I agree, but since Citizens United where the court resolved against individual citizens by expanding corporate personality, I don’t think this is a given anymore. “[V]agary [should be] resolved in favor of the citizen constitutionally speaking”, but is it in practice anymore?

    I’m neither trusting nor certain that it is.

  12. Also Gene, I rspectfully disagree with your distinction of “knowingly” versus “knowingly and willfully.”

    Black’s Law Dictionary defines the word “knowingly” as “with knowledge; consciously; intelligently; willfully; intentionally. An individual acts ‘knowingly’ when he acts with awareness of the nature of his conduct.” BLACK’S LAW DICTIONARY 827 6TH ED.

    Black’s Law Dictionary defines the term “willful” as “proceeding from a conscious motion of will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.” BLACK’S LAW DICTIONARY 1599 6TH ED.

    Willfully is when the unlawful act was done deliberately and with knowledge, but does not require proof of evil intent. Knowingly is when the defendant acted with knowledge of the evil nature of his volitional (i.e, willing) act. Removing the term “willfully” suggests that an awareness of a malicious or evil intent will have to be proven thus according the citizen more rather than fewer defenses.

  13. Gene,

    Vagueness has worked to the lower level prosecutors benefit for sometime now….. Unless you are the government…. You are screwed until the conviction is over turned…..

  14. mespo,

    Perhaps. Then again, vagueness does invite discussion. To me, the phrase “proceeding from a conscious motion of will” points directly to mens rea as it addresses state of mind. How does the removal of the mens rea component from the law afford more (and not less) defense? I don’t think it does.

  15. Gene:

    I’m reading it to reflect a clear statement that the defendant’s intent to disrupt as well as scienter (knowledge of wrongdoing) will have to be proven beyond reasonable doubt. As a supporting proof set forth in the statute, it will have to be shown that the defendant specifically intended that his volitional acts were intended to disrupt or threaten harm rather than merely to voice displeasure. Getting rid of the seemingly contradictory term “willfully” and the conjunction “and” seems to serve the cause of precision not vagueness IMHO. Reasonable minds can differ, of course.

  16. mespo,

    Stipulated. Besides, I rather enjoy being diametrically opposed to you on an issue for a change. It so rarely happens. :D

  17. Woosty’s still a Cat: “I would like to know, as a citizen, where the fuck I am living.”

    I literally laughed out loud after reading that. I’m still laughing.

  18. Mespo,
    I know it is a rare example, but what if the VP or Pres. are in the same building when the congressional hearings are going on? Is that a violation of this statute?

  19. Mark,

    Chiming in…

    Intentional use of imprecise language to curtail free speech rights? Seems counter-intuitive since that’s an express ticket to judicial review per void for vagueness.

    What does concern me here is your continued reliance on the dangers of ‘terrorism’ as justification for the curtailment of civil liberties.

    So Mark, how does living in “an era of terrorism by political assassination” justify the curtailment of civil liberties?

    You also leaned on the threat of terrorism in his defense of the NDAA.

    I seem to recall we went through the entire cold war, dare I say at times when the atomic clock read two minutes to midnight, without ever dreaming of dismantling that which protects our rights, i.e. the constitution. In fact, I seem to also recall the entire purpose of MAD was not to protect citizens from danger but to protect our way of living first and foremost instead of decimating it out of fear.

    Tell me Mark, how do threats of lesser magnitude than global thermo-nuclear war, i.e. of the terrorist variety, justify, bolster or support the concept of curtailing civil liberties?

    You don’t suppose the legislators of the cold war era would consider those today as being a bunch of chicken shit brats who know nothing of defending the constitution; do you?

  20. Dear all,

    Greetings from the unwashed and unlawyered. Good work all but assumption only, can’t judge (pun not intended).
    Seem to me to use an old phrase: If it ain’t busted, why fix it?

    So why did they fix it? Was it to make it easier to scare off dangerous weapon carriers? I don’t think so. Was it to scare off demonstrators? Likely. To keep the curious prols away? Likely. To make all of us less likely to use our C. rights? Likely. To make us aware of BB and BSister, and more fearful? Likely.

    IMHO

  21. Woosty,
    I’m gonna fix my dinner, a late one. Welcome back from yours.
    But re “where am I”?

    If their are lots of whiteys, you’re not in Chad, unless it looks like a NGO site.
    If you wear an orange robe and carry a picket sign and survive, then it’s not Burma.
    But if you get clubbed, arrested, assaulted, railroaded, etc. then you knooooww where you are.
    Good luck in which case.

  22. Veering a little OT… (articles found via Ekeyra’s Tech Dirt link)

    1) http://www.techdirt.com/articles/20120301/03070317923/fbi-turns-off-about-3000-gps-devices-following-supreme-court-ruling.shtml

    It’s (the FBI) supposedly shut down 3,000 such devices — and is now having trouble retrieving many of them since it doesn’t know where they are

    FBI Turns Off About 3,000 GPS Devices Following Supreme Court Ruling
    from the why-not-just-get-a-warrant dept

    Back in January, we wrote about a quite limited ruling by the Supreme Court in the Jones case, which said that placing a GPS device on a car represented a search and was trespassing. Where the court held back was in discussing the reasonableness of the search, and whether or not it was actually constitutional to do so without a warrant. Some expect that a future case might rule that those searches are reasonable and don’t need a warrant, but apparently the FBI isn’t taking any chances. It’s supposedly shut down 3,000 such devices — and is now having trouble retrieving many of them since it doesn’t know where they are (it’s apparently asked courts to allow it to turn the devices on solely for the sake of retrieving them). Of course, this raises a bigger question that isn’t answered: why didn’t the FBI just get a warrant to use those devices in the first place? If it had done that, then there wouldn’t be any issue to deal with here at all… It seems that the only reason not to get a warrant is because they’re conducting fishing trips, rather than targeting those where there’s probable cause.”

    2) http://www.techdirt.com/blog/?tag=disorderly+conduct

    “Does The NYPD Really Think That Shooting Photos/Videos Of Protests Is ‘Disorderly Conduct?'” from the censorship-at-its-finest dept

  23. Another vote for “deliberate”… (And the lawyers from the Turley blog should help redraft the legislation.)

    As I was reading your posting, Gene H., an (old?) FBI exam came to mind. According to an old ACLU article, this was the question:

    Which of the following is an example of low-level terrorism?’

    — Attacking the Pentagon

    — IEDs

    — Hate crimes against racial groups

    — Protests

    The correct answer, according to the exam, was ‘Protests.’

    (I tried to find the ACLU article…, but found this one…

    http://open.salon.com/blog/dennis_loo/2009/06/22/dod_deletes_protest_terrorism_problems_remain )

    An excellent posting, Gene H.

  24. Correction: DoD…, not the FBI…

    “DoD Training Manual: Protests are ‘Low-Level Terrorism’”

  25. Bob,

    I’ll just point out that quantum mechanics seems counter-intuitive, but it works. How many points of vague law never get challenged because either a case on the merits never appears or if they do a person with standing may not have the wherewithal to bring suit to bear? Quite a few would be my guess.

  26. Bob,Esq:

    So Mark, how does living in “an era of terrorism by political assassination” justify the curtailment of civil liberties?

    **********************

    The Constitution is replete with the notion that individual liberties are counter-balanced with the prime responsibility of government to protect society from invasion and rebellion. Hence, the ensconcing of the people’s right to bear arms in the Second Amendment to provide for both personal security and for a militia; Congress’s right to call forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; Congress’ right to raise and man armies; the power to suspend habeas corpus in time of Rebellion or Invasion the public Safety; and the Chief Executive’s power to command the army, navy and militias of the several states when called into national service. All of these require sacrifice of some civil liberties (compulsory service, for one) and personal treasure (taxes to maintain the forces) in service to the common defense. It’s as old as our species that individual rights are tempered by the realization that our first right, collectively and individually, is to self-defense and to associate to fulfill it.

    We tend to focus on civil liberties here as we should but we need also recognize that there are as many words devoted to providing for our collective rights — including security — as there are to guaranteeing our individual freedoms. It’s worth noting our collective security comes first, both figuratively and literally, in Madison’s masterpiece.* One is inexorably linked to the other as Jefferson noted, “Every man, and every body of men on earth, possesses the right of self-government…This, like all other natural rights, may be abridged or modified in its exercise by their own consent, or by the law of those who depute them, if they meet in the right of others.” (Thomas Jefferson: Opinion on Residence Bill, 1790.)

  27. Mark,

    You didn’t even attempt to answer my question.

    It went like this:

    =====

    “So Mark, how does living in “an era of terrorism by political assassination” justify the curtailment of civil liberties?

    You also leaned on the threat of terrorism in defense of the NDAA.

    I seem to recall we went through the entire cold war, dare I say at times when the atomic clock read two minutes to midnight, without ever dreaming of dismantling that which protects our rights, i.e. the constitution. In fact, I seem to also recall the entire purpose of MAD was not to protect citizens from danger but to protect our way of living first and foremost instead of decimating it out of fear.

    Tell me Mark, how do threats of lesser magnitude than global thermo-nuclear war, i.e. of the terrorist variety, justify, bolster or support the concept of curtailing civil liberties?

    You don’t suppose the legislators of the cold war era would consider those today as being a bunch of chicken shit brats who know nothing of defending the
    constitution; do you?”

    ======

    Were the threat of the safety of the citizens sufficient justification for the curtailment of civil liberties, the cold war and the doctrine of MAD would have been more than enough justification for the declaration of perpetual marshal law.
    Yet today, the mere outside possibility of something so minor in comparison to a nuclear war, i.e. terrorism, is used to dismantle the very structure of government you claim to be protecting by allegedly providing for our ‘collective security.’

  28. Bob,Esq.

    I answered it, just not to your liking. You seem to relish dismissing the very real threat that terrorists will employ nuclear or quasi-nuclear devices (like dirty bombs) against Americans and our officials either here or abroad. This is a viable threat as deemed by all of our intelligence agencies and most independent analysts (http://www.csbaonline.org/publications/2009/04/nuclear-terrorism/). #

    You are an absolutist on Individual rights. I am not. I believe what the Founders believed: Individual rights are balanced against collective rights of security and other compelling government needs to maintain order and process government. While guaranteeing certain individual rights is a prime purpose of are government, that is not its only purpose.

    Assassination of Western political leaders is an avowed goal of our enemies and we have every right (and some would say duty) to protect them. You analogy of the Cold War in inapposite since there we dealt with a nation state with very clear aims based on rational thought processes in fulfilling their goal of advancing communism. Our policy of MAD worked precisely because the Russians were unwilling to sacrifice themselves to their cause. We now face a collection of fanatics and religious zealots all too willing to engage in self-sacrifice to ensure their eternal salvation while, at the same time, destroying us. While some antagonistic nation states are obviously involved, they are acting through these maniacal surrogates to wage a shadow war.

    No one wants to see an abridgment of individual freedom under normal circumstances. These are not normal circumstances when our very existence is at stake to a group of persons who do not respond predictably to the promise mutual annihilation if they act as they claim they will act. I take them at their word. This is not a Franklin-esque situation where we are bartering a “little temporary safety” for “essential liberty.” Rather we are weighing our permanent security against that price. Do you really blame decision-makers for erring on the side of caution?

    # Here’s part of the Executive Summary of the US-Russian Joint Threat Assessment on Nuclear Terrorism published in May 2011:

    Nuclear terrorism is a real and urgent threat. Urgent actions are required to reduce the risk. The risk is driven by the rise of terrorists who seek to inflict unlimited damage, many of whom have sought justification for their plans in radical interpretations of Islam; by the spread of information about the decades-old technology of nuclear weapons; by the increased availability of weapons-usable nuclear materials; and by globalization, which makes it easier to move people, technologies, and materials across the world.
    • Making a crude nuclear bomb would not be easy, but is potentially within the capabilities of a technically sophisticated terrorist group, as numerous government studies have confirmed. Detonating a stolen nuclear weapon would likely be difficult for terrorists to accomplish, if the weapon was equipped with modern technical safeguards (such as the electronic locks known as Permissive Action Links, or PALs). Terrorists could, however, cut open a stolen nuclear weapon and make use of its nuclear material for a bomb of their own.
    • The nuclear material for a bomb is small and difficult to detect, making it a major challenge to stop nuclear smuggling, or to recover nuclear material after it has been stolen. Hence, a primary focus in reducing the risk must be to keep nuclear material and nuclear weapons from being stolen by continually improving their security, as agreed at the Nuclear Security Summit in Washington in April 2010.
    Al-Qaeda has sought nuclear weapons for almost two decades. The group has repeatedly attempted to purchase stolen nuclear material or nuclear weapons, and has repeatedly attempted to recruit nuclear expertise. Al-Qaeda reportedly conducted tests of conventional explosives for its nuclear program in the desert in Afghanistan. The group’s nuclear ambitions continued after its dispersal following the fall of the Taliban regime in Afghanistan. Recent writings from top al-Qaeda leadership are focused on justifying the mass slaughter of civilians, including the use of weapons of mass destruction, and are in all likelihood intended to provide a formal religious justification for nuclear use.
    [emphasis mine]

    You can read it here:

    http://belfercenter.ksg.harvard.edu/files/Joint-Threat-Assessment%20ENG%2027%20May%202011.pdf

  29. This is also in anticipation of the upcoming G8 meeting in Chicago in May, this law should allow for Federal prosecution of protesters with higher penalties for protest being forthcoming. Inconveniencing politicians is one thing, but potentially impacting the worlds biggest/richest countries from determining the world’s future takes it up to a whole new level. This is a response to that threat. This is the cudgel that will be used to hammer protesters at all such gatherings in the US in the future.

    ===
    Yea, and what Blouise said. That used to be a tactic in the anti-war movement: have so many people arrested that there wasn’t room in the jails and the court process came to a halt. I wonder if the private-prison industry had a hand in this legislation?

  30. Just another brick in the wall. The Facist States of America get on board with another tyrannous bill that is clearly meant to stop any public dissent. It’s not enough to have The Patriot Act, Military Comissions Act, Torture, NDAA, Telecom immunity, warrantless searches, assassination, indefinite detention a failing currency etc….The last decade has seen the culmination of progressive & neo-con policy at it’s worst. The fences they are building to keep people out are soon going to be to keep people in.

  31. Gene —
    as scary as this is, I still — perhaps I am whistling past the grave yard — see an escape clause from the thing I fear the most, which you address, that of protesting as I regularly do with my placards in a zone not posted or cordoned but yet “otherwise restricted area”, and then being told it was restricted though unmarked.

    You wrote:
    The root of the problem with this legislation lies in the omission of the word “willfully” to make the condition simply “knowingly” in conjunction with the phrase “or so that, such conduct, in fact”. The use of this conditional phrase effectively nullifies the intent component in the absence of “willfully” being explicitly stated. You may not have willfully or knowingly done anything other than exercise your free speech and free assembly rights, but if you “in fact” “[impede] or [disrupt] the orderly conduct of Government business or official functions”, you can be arrested and charged.

    After re-reading the relevant passage, it seems solid to me to claim that the “or” of “or so that, such conduct, in fact…” is locked in an inescapable tango with the previous “when” of an unfinished clause, such that it cannot function outside of that context. Is that not a hard grammatical fact? If not, then to my eye, a judge could turn any sentence into its own opposite.

    The context I’m parsing is, for reference, “knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions”

  32. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  33. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  34. proudprimate,

    I suppose it depends on how one uses “or” – grammatically or logically.

    As a matter of English grammar, “or” is a coordinating conjunction connotative of an alternate option. In this context, “or” is usually considered as an exclusive disjunction (one or the other, but not both).

    As a matter of logical or mathematical usage, “or” is used as an inclusive disjunction (one or more operands are true).

  35. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  36. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  37. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  38. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  39. But if you get clubbed, arrested, assaulted, railroaded, etc. then you knooooww where you are.
    Good luck in which case.
    —————————-
    well, 2 out of 4 so far.
    hence the darkened outlook and need to vent on the edge of rabid but hopefully still w/reason.

    and thank-you,
    I know the fear of the 1% is survivable and will not prevail,
    I’ve seen the movie :)

  40. Gene —
    granting an exclusive disjunction, it indeed disjoins the force of “when” from “so that”, but both halves of that disjunction are entirely internal to the parenthesis ruled by “knowingly”. Yes, if we say it cannot be both “when” and “so that, such conduct, in fact…”, nevertheless these are trapped in a subordinate section.

    In fact, looking at it more closely, I now see that the whole of the predicate, which begins with the verb, i.e., “engages”, is on the far side of the mountain from the cis-verb section, where “knowingly, and with intent to impede or disrupt” are as completely separated from the predicate as can be in a sentence, thus untouchable by disjunctions “over there”, trans-verb.

    Just as parenthetical sections of a mathematical equation are sacrosanct, there are limits in language that cannot physically bleed into one another.

    My non-lawyer but rather-involved-language-student (Latin, Greek academically, French, German, Spanish, Hebrew &c. on the side) two cents.

  41. proudprimate,

    “granting an exclusive disjunction”

    Therein lies the rub. You have to assume one usage when the other is not only rationally permissible, but it yields a contrary result. To assume that a prosecutor or a judge is going to go with the grammatical usage over the logical usage is a risky assumption at best.

    “knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions”

    ” as completely separated from the predicate as can be in a sentence, thus untouchable by disjunctions “over there”, trans-verb.

    Just as parenthetical sections of a mathematical equation are sacrosanct, there are limits in language that cannot physically bleed into one another.”

    The whole structure of the sentence is a digression of alternative states based upon the predicate. Their number and distance from the predicate do not invalidate their relationship to the predicate. The disjunctions still apply. How they apply is the issue: exclusively or inclusively. The overall poor and rambling construction of the sentence is stipulated, but usage of “or” will still change meaning. Only one of the “or” need be read as inclusive to create a problem and that “or” is the “or” in “or so that, such conduct, in fact”. The key indicating that this “or” is reasonably interpreted as the inclusive “or” lies in the conditional “in fact” – a determination of fact based on outcome and not intent. With all the other applications of “or” in the sentence – “impede or disrupt”, “business or official functions”, “disorderly or disruptive”, “in, or withing such proximity”, “building or grounds” – there is an implied “either”. There is no implied “either” for “or so that, such conduct, in fact”. It seems to me to be arguably inclusive usage on its face.

    You bring up a valid point linguistically, but I think it is based upon assumptions about prosecutor’s and judge’s usage that cannot be relied upon in the face of ambiguity. The law is as much an exercise in applied psychology as it is in applied linguistics (among other things).

  42. “You have to assume one usage when the other is not only rationally permissible, but it yields a contrary result. To assume that a prosecutor or a judge is going to go with the grammatical usage over the logical usage is a risky assumption at best.”

    No, I’m saying that either one is OK, because they don’t affect the subject of the sentence. Their effect is limited to the predicate.

    With respect, I’m unconvinced.

  43. proudprimate,

    “With respect, I’m unconvinced.”

    And that is your right. With respect, I’m unconvinced by your assertions about the subject not being affected and that the usages are of equal value.

    The purpose of the article wasn’t to persuade others to my point of view, but rather foster debate on the bill, the use of imprecise language in general and the potential impact on civil rights. Some see a threat, others don’t. What creates this reasonable divide? Imprecise language. That you agree with me or not is secondary in my mind to the point that you (and others) are thinking about the issue in the first place.

  44. I’m definitely worried about it. I’m like a cat when a pack of dogs approaches: looking for an escape route quick, like through a small hole under the porch.

    I’m imagining I can make the case that, in the imagined example, I didn’t know it was restricted, because there were no visible signs of same, wouldn’t have violated any such restriction, and that the text excludes such inadvertent offenses.

    But I’m going out with my placards in any case on the first decent day, which will be Thursday. Here is me on Monument Square last summer: http://www.proudprimate.com/Placards/Debt%20Crisis%20Materials/Debt%20Crisis%20Materials_files/image002.jpg

  45. I think you should be debating the use of the word “restricted” instead. Isn’t that the word that can be read overbroadly?

  46. WWJB —

    Since I have no intention of violating a rope or a posted restriction, my personal worries only extend to the “unwitting” defense.

    Granted, there may be those who feel they must oppose this, even posted, restriction. I would approach it more tangentially.

    The last thing I want is for them to have an excuse to pull a JFK on BHO. You may know from “JFK and the Unspeakable”, specifically the testimony of Abraham Bolden, how the Secret Service used to vilify Kennedy in their drunken poker games, saying “if somebody takes aim at him I’m jumping out of the way” as well as making Bolden’s life hell as the first ever African American presidential Secret Service agent.

    So I’m willing to put up with requirements of civility — at least for now. I just don’t want to be scammed into jail.

  47. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  48. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  49. Mark,

    You still haven’t explained why terrorism is now being used as both the threat and procedure for solution.

    When discussing the procedure by which a threat to the public is addressed, the cold war is not an inappropriate analogy. Never during the cold war was the threat of danger to the citizens used as political leverage to dismantle the wholesale rights of those citizens.

    We knew the threat of burning children was real and ever present. We slept well knowing that in the event that the citizens were burning above ground our banking records would be safe and secure deep in a salt mine in Hutchinson Kansas, just past those golfing trophies in the elevator lobby. Yes Mark, it got to the point where we had no problem letting babies burn while preserving golfing trophies.

    Why? How could it get that distorted? Simple; because the procedure, Mark, was to preserve our form of government and the liberties protected therein no matter what the threat.

    Now it’s the opposite. Terrorism is ‘the use of violence and threats to intimidate or coerce, especially for political purposes.’ It is also defined as both ‘a method of governing or of resisting a government.’

    Where we once ignored the threat of harm to the citizens so as to keep the bigger picture, i.e. our form of government and the liberties protected thereunder, in focus, our government now uses those threats in a terroristic way — as leverage for a political agenda.

    The world has always been unsafe and it will always be unsafe. Not even when the atomic clock read two minutes to midnight did our government use the threat of impending danger as leverage to curtail our liberties; it did not use terrorism as a form of governing. Now it does.

    It’s not the threat that’s harming this country Mark, it’s the procedure by which the threats are dealt with; the procedure of leveraging terror far more than any terrorist could dream of. The procedure of employing terror as a form of governing.

  50. If wasn’t deliberate it certainly became so by the overwhelming vote in favor.
    and what can be defined as :disruptive”, a protestor yelling “you stink”? I thght that was free speech but under this now I am not so sure.

  51. My son and his friends were arrested, in a series of SWAT team raids, ahead of the 2008 Republican National Convention in St. Paul, Minn. He was charged under Minnesota’s version of the USA PATRIOT Act with “conspiracy to riot in furtherance of terrorism.” The case was prosecuted in state district court for more than two years, then the felony charges were completely dropped for three of the “RNC 8,” and the others pleaded guilty to gross misdemeanor charges, and received a small fine, community service and probation. It looks like the same scenario under HR 347 would result in federal prosecution, since the RNC was in a venue under the control of the Secret Service, and the entire Twin Cities came under the militarized policing regime that attaches to the declaration of a National Special Security Event ($50 million federal grant for police staffing and special weapons). There were more than 800 arrests during the four days of the 2008 RNC, so the federal courts could be quite busy during future political conventions.

  52. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  53. Update to my above comment regarding the use of this law on protesters at the G8 summit in Chicago:

    The G8 summit has been moved to Camp David though a summit related to multi-national security will be held in Chicago. If protesters show up anywhere near Camp David the law in question thus becomes more relevant.

  54. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  55. Gene: Your analysis suffers from a couple of fatal flaws. First, the “current” version of the bill you quote in your piece isn’t the current version. Its an older version from, I believe the 1990s. Several years ago, 18 USC 1752 was amended again. You claim that HR 347 “expand(s)” the current law by adding the language in section (c)(1)(C). Big problem for you: that exact language already is in the current version of the law, the one that’s been in effect for several years, the one that you managed not to find in your legal research. I’m surprised Prof.Turley didn’t slap an “F” on your blogpost just for that error. Second, as for your attempts to make something out of the deletion of the word “wilfully” from 18 USC 1752(a)(2), the term “wilfully” and “with intent” are essentially redundant, so eliminating the former really doesn’t change anything. And as for the great significance that you place on the italicized language in that provision, since that exact same language appears in current law, why is it signficant? If it somehow negates the words “with intent” in the HR 347 version of the law, it must also negate the word “willfully” in the older version. In short, not a terribly good piece of legal analysis.

  56. Virginia Baker,

    First, the text for the revision proposed in H.R. 347 comes from the version the Senate Committee was working on as of Nov. 17, 2011.

    Second, the language I cited for 18 U.S.C. § 1752 is the current language on the books. The history of its revision is irrelevant to the conversation.

    Third, the current version of H.R. 347 as it is in the Senate omits the word “willfully” in three different places compared to the existing law. The proposed revision of H.R. 347 single use of “with intent” is still negated by the inclusive use of “or” in the “or so that, such conduct, in fact” language.

    You should learn to read. Learning to comprehend wouldn’t be bad either. In short, you’re entitled to your opinion even if you are full of crap.

    Have a nice day.

  57. […] A sampling of postings from recent days reflects the disquiet. One website published an article headlined “US Congress passes authoritarian anti-protest law.” Another’s said “H.R 347 could be making the First Amendment illegal.” Still another, a guest blogger on the website of constitutional law professor Jonathan Turley, was headlined “Imprecise Language and the Risks of H.R. 347” […]

  58. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

  59. […] A sampling of postings from recent days reflects the disquiet. One website published an article headlined “US Congress passes authoritarian anti-protest law.” Another’s said “H.R 347 could be making the First Amendment illegal.” Still another, a guest blogger on the website of constitutional law professor Jonathan Turley, was headlined “Imprecise Language and the Risks of H.R. 347” […]

  60. It really amazes me that people are getting so riled up about this. HR 357 is nothing but a minor wording change, and the alarmism surrounding it is ridiculous. You still have to intend to and actually succeed at disrupting government function in or in proximity to a clearly restricted area of the building or grounds of a specially designated event.

    Do you people think it should be legal for protesters to disrupt the function of government or block ingress or egress at say.. the upcoming NATO summit? If you do, then the thing to call for is the repeal of 18 U.S.C. § 1752, which has been in place without incident since 1971, not the repeal of this very minor amendment to it – reverting it to a nearly identical form.

    Keep in mind this law does NOT outlaw protesting at such events, only intentionally disrupting the government business or blocking access to the event.

  61. […] Gene Howington, a guest blogger on law professor Jonathan Turley’s blog, contends that the government deliberately made the language of H.R. 347 vague and overly broad. Howington writes that “it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing ‘wiggle room’ for Federal authorities to potentially abuse civil and human rights under the color of authority.” […]

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