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
CEJ,
Thanks!
Gene,
Great article. It was cool to see this morning that you have been quoted and linked by the Constant Weader [AKA Marie Burns (who also is a columnist at the New York Times eXaminer; found at http://www.nytexaminer.com)] on her blog http://www.realitychex.com see The Commentariat–March 6, 2012.
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.
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.
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.
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.
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.
I think you should be debating the use of the word “restricted” instead. Isn’t that the word that can be read overbroadly?
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
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.
“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.