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
- 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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