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. 347, 18 U.S.C. § 3056, The Inquisitr
~Submitted by Gene Howington, Guest Blogger
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.’
Rafflaw:
Not sure what would happen in your scenario but it’s likely as in a State of the Union Address.
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.)
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.
FYI
http://www.nytimes.com/2012/03/04/world/middleeast/bearing-witness-in-syria-a-war-reporters-last-days.html?pagewanted=1&_r=1&ref=world
Re Anthony Shaddad’s last journey, by his photographer collegue, Tyler Hicks.
Correction: DoD…, not the FBI…
“DoD Training Manual: Protests are ‘Low-Level Terrorism’”
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.
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
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.
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
SR: “You also leaned on the threat of terrorism in defense of the NDAA.”
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?
Mespo,
Which are you the prodigal son…. Cain or able…..seth….
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?
Gene h:
Kind of like it too there, Gene H. Sibling rivalry among twin sons of different mother, I suspect. 😀
Bob,Esq.
We need you to chime in on this one!
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.
I maybe wrong but can’t mens rea be inferred by the acts of the actor…..
mespo,
Stipulated. Besides, I rather enjoy being diametrically opposed to you on an issue for a change. It so rarely happens. 😀
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.