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
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).
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.
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 🙂
Bob,Esq.1, March 4, 2012 at 12:59 pm
—————————————————
🙂
that wasn’t a chime, that was an Uber Gong!
(I’m just catching up….)
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).
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”
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.
Another excellent submission Gene, thanks.
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?
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
Mespo,
That scenario was what I was thinking about.