Tuesday, March 13, 2012

Reading is Fundamental to Liberty


I have been thinking a lot lately about how difficult is becoming to keep track of all of the threats to our Constitution and personal liberty here in the U.S.

It seems like every time I turn around I find someone else warning me about another law or proposed bill that threatens what have previously been thought of as unassailable constitutional guarantees.

All the noise can be good in the sense that if no one speaks up then few will know there is a problem. However it is a common reaction of the general populace to become more immune, skeptical and apathetic as the amount/volume of noise increases.

This is why I feel it is important for everyone to learn to read and understand proposed legislation (or for that matter laws that have been passed and signed as well). It is dangerous to rely on the noise-makers to interpret the laws for us. This is especially true of laws that are a potentially controversial because it has been my experience (especially lately) that the people writing these bills, and supporting them, are encouraging a culture of misinformation and confusion in order to try and “fly them in under the radar”.

This article is going to be fairly long. However I think an examination of a couple of examples is necessary and warranted and I hope at least some of you will hang around through it all.

H.R. 347

The first bill I want to examine is H.R. 347. You may have heard some folks raising alarms about this bill recently. It did not seem to pop-up on most people’s radars until it had been passed and sent to the President for his signature. It passed overwhelmingly in the House with only 3 members of congress voting against it. The President signed it into law last week.

Let’s begin our examination with the Official Press Release about the signing of the bill:

The White House
Office of the Press Secretary
For Immediate Release
March 08, 2012

Statement by the Press Secretary on H.R. 347

On Thursday, March 8, 2012, the President signed into law:
H.R. 347, the “Federal Restricted Buildings and Grounds Improvement Act of 2011,” which makes it a Federal crime to enter or remain knowingly in any restricted area of the White House, the Vice President’s official residence, or their respective grounds without lawful authority. 
On the face of it, based on that press release, it seems simple and straightforward enough. It seems perfectly reasonable that it should be a Federal crime to enter a restricted area of the White House or Vice President's house without lawful authority. I do not see anything here that should have raised alarms with most anyone.
So, let’s look at some political blog coverage of the bill prior to it being signed:

House approves White House 'trespass' bill, sends to Obama

By Pete Kasperowicz - 02/27/12 07:53 PM ET
The House on Monday evening easily approved a bill that would clarify in U.S. law that it is illegal to trespass on White House grounds or the permanent residence of the Vice President.
Members approved the bill, H.R. 347, under a suspension of House rules, by a 388-3 vote. The non-controversial bill was subject to just a brief debate in the afternoon, seeing the easy vote.
The only "no" votes were from Reps. Justin Amash (R-Mich.), Paul Broun (R-Ga.), and Keith Ellison (D-Minn.).
Under current law, people can be fined for knowingly intruding in a building where the president or vice president is staying temporarily, but no penalties are prescribed for those who trespass in their permanent residences. To impose fines in the latter case, the Secret Service now uses a provision of D.C. code dealing with misdemeanor infractions.
The bill was slightly amended and voice-voted by the Senate earlier this month, so House passage of the Senate version sends it to the White House for President Obama's signature into law.
Again, no real red flags here. If this was all you read about the bill upon passage and then followed that with the Press Release upon signature, then you would have no idea why some people are now calling it an “anti-protest bill”.

This kind of coverage is why I think it is essential to read the text of the bill itself. So, without further ado, here is the actual text of H.R. 347:

One Hundred Twelfth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the third day of January, two thousand and twelve
An Act
To correct and simplify the drafting of section 1752 (relating to restricted buildings or grounds) of title 18, United States Code.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
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.'.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
END

The bill seems a little longer, and about a little more than just keeping people from unlawfully entering restricted areas or grounds of the White House and Vice President’s residence. So, let’s look at some of this language and see if we can suss out what is really going on here.

First off, I have noticed a “quirk” about several of the bills I have been reading lately. It has been my long experience that bills usually have a discreet and clearly named glossary or section of definitions. Not to go on too great a tangent here, definition of terms is extremely important in law making. Without clearly defined terms it is difficult to determine the scope and potential enforcement of laws. Interpretation of the law and how it applies in individual circumstances is what the courts and judges are all about. If Congress does not clearly, narrowly and specifically define terms then the judicial branch is free to define them broadly and as they see fit. Therefore, bills usually have a section of definitions, and traditionally in all of the bills I have previously encountered (prior to the last year or so), those definitions appeared at the beginning, before the main text of the bill. This makes good sense; we want the reader to understand what we mean by specific terms, so we define them before they encounter them in context in the bill. I do not want to sound overly conspiracy-minded here, but I am always suspicious of why lawmakers would bury definitions at the end of a bill. At least there are some here, even though they are not in a separate demarked section and follow the bills main text.

So, in order to try and think clearly about what the bill says, let’s walk through the text and grab the definitions as we go so we can be clear:

`(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).

Ok, here we have the first main section. The first definition we need is of “restricted building or grounds” :

`(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

There we see the reference to the White House and the Vice President’s residence. But wait, what about B and C? B says that any “posted, cordoned off, or otherwise restricted area…” of any “building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting…” [emphasis added] qualifies as covered by this law.  So the question then becomes who could these other people be? Helpfully the bill gives us a definition:

`(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.'

Now that seems a little more clear. Title 18 of the US Code outlines in section 3052 who the Secret Service can be authorized to protect so we can look there for the list:

Sec. 3056. Powers, authorities, and duties of United States Secret
      Service

-STATUTE-
      (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 Committee shall not be
      subject to the Federal Advisory Committee Act (5 U.S.C. App. 2).
        (8) Former Vice Presidents, their spouses, and their children
      who are under 16 years of age, for a period of not more than six
      months after the date the former Vice President leaves office.
      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 thereafter if the Secretary of
      Homeland Security or designee determines that information or
      conditions warrant such protection.

Ok so that list is pretty long, but notice a couple of key additions to President and Vice President (both current and former and respective family members):

   (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.
       
While it seems reasonable that we would want the Secret Service protecting these people, this law creates a situation where anywhere any of these people may be temporarily visiting now falls under the definition of “restricted building or grounds”.
The next term we come across that needs some explanation is:

or
`(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance; and

What in the heck is a “special event of national significance”? It is not defined in this bill. As far as I can discover it traces its origins back to the Presidential Protection Act of 2000 which amended this same Title 18 to allow the Secret Service to participate "in the planning, coordination and implementation of security operations at special events of national significance”. This Act does not however define the term. However, it does require a report be made to Congress as to what events may have been so designated in the previous year. So, with a little digging I have discovered a list of example events:

Summary
Major events that are considered to be nationally significant may be designated by the President—or his representative, the Secretary of the Department of Homeland Security (DHS)— as National Special Security Events (NSSE). Beginning in September 1998 through February 2008, there have been 28 events designated as NSSEs. Some of these events have included presidential inaugurations, presidential nominating conventions, major sports events, and major international meetings. The U.S. Secret Service (USSS) is the lead federal agency responsible for coordinating, planning, exercising, and implementing security for NSSEs, and was designated as the lead agency in P.L. 106-544. This report provides information on USSS legislative authority for NSSEs, NSSE designation funding and training, and NSSE funding. This report will be updated when congressional or executive branch actions warrant.

A little further down in the document we find more criteria for the designation:

NSSE Designation
Prior to the establishment of DHS in January 2003, the President determined what events of national significance were designated as NSSEs. Since the establishment of the department, the DHS Secretary—as the President’s representative—has had the responsibility to designate NSSEs.
NSSE designation factors include:
• anticipated attendance by U.S. officials and foreign dignitaries;
• size of the event; and
• significance of the event.
Recent NSSEs include the 2009 inauguration of President Barack Obama, the Republican and Democratic Presidential Candidate Nominating Conventions in 2008, and the state funeral of former President Gerald Ford on January 3, 2007.

Now, in light of a better understanding of what types of events or locations can be covered under this law, let’s look more closely at what it prohibits:

`(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)

Ok so I think we can all agree that section 4 is no problem, but what about sections 1-3? The problem I have with these sections is the use of terms like “impede or disrupt the orderly conduct of Government business or official functions” and especially “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”.

You see, nowhere in the document are terms like “disrupt”, “disturb”, “disorderly conduct”, “Government business” or “official functions” defined. It is left up to law enforcement to define these terms on the spot and then to the courts to finally decide if law enforcement acted correctly.

Taken in context with the definitions of “restricted buildings or grounds”  we have already discovered, this means that a group of people protesting, marching, shouting slogans outside a political convention could be in violation of this law. People protesting the state visitation of a foreign dignitary could be subject to arrest, fine and imprisonment. Even people shouting uncomfortable questions at an appearance by a Presidential or Vice Presidential candidate on the campaign trail could be subject to arrest, fine and imprisonment.

This is a far cry from:

On Thursday, March 8, 2012, the President signed into law:
H.R. 347, the “Federal Restricted Buildings and Grounds Improvement Act of 2011,” which makes it a Federal crime to enter or remain knowingly in any restricted area of the White House, the Vice President’s official residence, or their respective grounds without lawful authority.

Unfortunately this bill has already been signed into law by President Obama. In the next installment (this first one has gotten long enough for now) of this series we will examine a bill that has recently been introduced. The Cyber Intelligence Sharing and Protection Act of 2011 (H.R. 3523).

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