Americans have just suffered a dangerous loss of liberties
Though what SCOTUS will say about it remains to be seen
The Federal Restricted Buildings and Grounds Improvement Act of 2011 (PDF) may sound like a landscaping measure, but it is also being called the Trespass Bill, the Anti-Occupy Bill, and the First Amendment Rights Eradication Act. Under this bill, it is a felony to protest at or in the vicinity of a venue or event that is attended by anyone who has Secret Service protection. H.R. 347 passed the House on February 27th by a vote of 388–3. The Senate version (S. 1794) passed unanimously. With President Obama's signature, the Act became law on March 8.
The bill has caused a furor among advocates of civil liberties. Justin Amash, one of the three “no” votes in the House, dubbed the bill the “First Amendment Rights Eradication Act.” Calling it “this administration's latest assault on our civil liberties,” he explains on his Facebook page that “criminalizing legitimate First Amendment activity — even if that activity is annoying to those government officials — violates our rights.”
The left-leaning Daily Kos states, “Protesting will be a felony — where is the outrage?”
Meanwhile, the bill is being ignored by the mainstream media as uncontroversial. Supporters of the act dismiss its critics as hysterical or ill-informed. Michael Mahassey, the communications director for Rep. Thomas J. Rooney, who sponsored H.R. 347, called the backlash, "a whole lot of kerfuffle over nothing. This doesn’t affect anyone’s right to protest anywhere at any time. Ever.”
Who is correct? And why is there such a deep schism on H.R. 347?
The American Civil Liberties Union warns against H.R. 347. Nevertheless, the ACLU observes, “It's important to note — contrary to some reports — that H.R. 347 doesn't create any new crimes, or directly apply to the Occupy protests. The bill slightly rewrites a short trespass law, originally passed in 1971.”
Section 1752 of title 18 in the United States Code is entitled “Restricted Building or Grounds.” This 1971 bill was intended to prevent assassination, kidnapping, or other attempts to harm the political elite, especially the president. The section of title 18 that immediately precedes it, section 1751, is entitled “Presidential and Presidential Staff Assassination, Kidnapping, and Assault; Penalties.”
Thus, section 1752 restricts people from entering or blocking access to or from public areas that have been cordoned off by the Secret Service for the protection of a person (or for a “special event of national significance,” which could range from the Olympics to a political convention). The penalty for violating section 1752 includes a possible one-year jail term; if a “dangerous weapon” is involved, then the jail term rises to a possible ten years.
In recent years, the 1971 bill has been interpreted beyond its intent in order to crack down on peaceful protesters. Moreover, as the Transportation Security Administration (TSA) has amply demonstrated, the definition of a “dangerous weapon” has been expanded at the discretion of law enforcement to include such items as nail clippers.
Thus, the controversy over the current revision, H.R. 347, revolves around two issues. First, is H.R. 347 part of a trend toward vagueness in legislative wording, which can be later exploited and expanded by authorities in order to violate civil liberties? Second, how legally “slight” is the change of wording in this revision?
Consider the first question. Gene Howington, a guest blogger at Jonathan Turley's legal-analysis site, writes: "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."
Howington refers to a recent example of legislative vagueness — the National Defense Authorization Act (NDAA), which gives Obama the power to indefinitely detain citizens without trial if they are accused of terrorism. Some politicians, notably Senator Carl Levin, argued that the NDAA did not allow such arrests and, so, soothed his worried compatriots while dismissing the bill's critics. Nevertheless, even Obama acknowledged his new power after the bill passed, saying, “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”
No wonder legal scholars now scrutinize with a skeptical eye every word that appears in potentially menacing legislation.
As to the second question, to determine how “slight” the revisions of H.R. 347 truly are, it is necessary to review them. One change has or could have deep significance. The original text reads,
(a) It shall be unlawful for any person or group of persons—
(1) willfully and knowingly to enter or remain in 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.
Four additional paragraphs, (2) through (5), begin with the words “willfully” and “knowingly.”
The revised text of paragraph (a)(1) in H.R. 347 reads,
(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so.
The four additional clauses in the original are compressed to three, each of which now begins with the word “knowingly” only.
Why is deleting the word “willfully” so significant? Because it removes the need for a prosecutor to prove that a protester had the intent to violate the statute, for example, through blocking an egress. All that needs to be proven is that the protester knew he was accessing a restricted area. His intent may have been nothing more than to exercise freedom of speech; blocking the exit may have been inadvertent. But under H.R. 347, his mens rea — that is, that aspect of his state of mind — becomes legally insignificant.
In Latin, “mens rea” means “guilty mind” or guilty intention. Within Western law, an act has traditionally required a guilty mind for that act to become criminal behavior. That is why defendants who are found to be mentally incompetent are not placed on trial; they are not deemed capable of mens rea. The Latin legal phrase, actus non facit reum nisi mens sit rea — “the act does not make a person guilty unless the mind is also guilty” — is often invoked in such cases.
Writing in the periodical In These Times, Daniel Hertz encapsulates the impact of removing “willfully” from the statute, “In other words, Congress removed a hurdle in enforcing the law without actually adding any new restrictions to the First Amendment.”
They simply changed the rules of enforcement to remove what is often the most difficult element of the crime to prove: namely, intent. Indeed, since both the original text and H.R. 347 allow the arrest of someone who is merely in “proximity” to a restricted area, proving intent could be close to impossible. How could you prove that person was walking near a politician's hotel with the intent of causing harm or blocking the egress?
As Gene Howington observes, “in addition” to lowering the threshold for mens rea***, H.R. 347 defines: "the term “restricted buildings or grounds” to mean virtually any place in proximity to or place proper [where] 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."
H.R. 347 may well make the arrest and conviction of peaceful protesters much easier.
It is criminally naive to believe that the police and courts will not eventually use the expanded latitude granted by H.R. 347. The Occupy movement frightened and angered the authorities it yanked control away from. For years, “free speech zones,” in which protesters speak from behind barred walls, as though in cages, contained dissenters and kept them far from government officials. They were allowed to protest only where the elite and the mainstream media would not hear them.
Occupy changed that. And the authorities have struggled to find ways to contain dissent ever since; they never want to lose control again. And, especially in this election season, politicians are eager to avoid a repeat of the public outrage that surrounded the 1968 Democratic convention, when police were filmed brutally beating peaceful demonstrators in the street.
The elites are losing patience with civil rights. This January, Chicago Mayor Rahm Emanuel pushed through two anti-protest ordinances that were widely termed “sit down and shut up” measures. The online periodical and voice of Occupy, the Dissenter, describes two of several repressive new requirements.
Ahead of demonstrations, “organizers would be required to provide the City with a list of all signs, banners, sound equipment or ‘attention-getting devices’ that require more than one person to carry them,” creating “a license for the city to ‘ding’ organizers with absurd fines.”
All downtown protest marches would be required to get $1 million insurance coverage to “indemnify the city against any additional or uncovered third party claims against the city arising out of or caused by the parade.” They would have to “agree to reimburse the city for any damage to the public way or city property arising out of or caused by the parade.”
Clearly, Emanuel is determined that the upcoming NATO/G8 meetings in his city will go smoothly. Emanuel and his ilk would not hesitate to use the free hand provided by H.R. 347 to prosecute “offenders.” And god help them if the protesters are found to be in possession of a pair of nail clippers, small scissors, or any other item that could be construed as a “dangerous weapon.” The penalty could then rise to ten years imprisonment for young people still idealistic enough to believe they have free speech, freedom of assembly, and the right to petition officials with their grievances.
Obamacare Costs More Than Twice As Much As Obama Claimed; Stimulus Creates Debt, Not Jobs
Today, the CBO released new projections from 2013 extending through 2022, and the results are as critics expected: the ten-year cost of the law’s core provisions to expand health insurance coverage has now ballooned to $1.76 trillion. That’s because we now have estimates for Obamacare’s first nine years of full implementation, rather than the mere six when it was signed into law. Only next year will we get a true ten-year cost estimate, if the law isn’t overturned by the Supreme Court or repealed by then. Given that in 2022, the last year available, the gross cost of the coverage expansions are $265 billion, we’re likely looking at about $2 trillion over the first decade, or more than double what Obama advertised.”
Obamacare will harm the health care system and reduce employment. The Dean of Harvard Medical School, Jeffrey Flier, noted that Obamacare will harm life-saving medical innovation. Obamacare is causing layoffs in the medical device industry. Obamacare will raise the cost of insurance by at least 55 percent in Ohio, according to one study. It taxes medical devices and cosmetic surgery, arbitrarily discriminates against certain hospitals, and raises taxes starting in 2013 on investors. The Associated Press and others have noted that it breaks a number of Obama campaign promises. Earlier, CEI filed an amicus brief against the health care law on behalf of Minnesota and North Carolina legislators.
Bloomberg News features an interesting column by Ramesh Ponnuru, “Obama’s Stimulus Helped Grow Debt, Not Economy,” which debunks some frequently-repeated claims about stimulus jobs and job projections. Harvard University economist Jeffrey Miron argued that the $800 billion stimulus package wasn’t even designed to stimulate the economy, but rather to benefit special-interest groups, since it ignored even old-fashioned Keynesian policy prescriptions about how to revive the economy. Obama claimed the stimulus was needed to prevent an “irreversible decline” in the economy, even though the Congressional Budget Office admitted that the stimulus package would shrink the economy “in the long run.” The Congressional Budget Office, ignoring the stimulus package’s flaws, argues that the stimulus has boosted the economy in “the short run.” But even the CBO concedes that the stimulus will shrink economic output in “the long run” by increasing the national debt and thus crowding out private investment.
MS: Remaining five inmates in pardons controversy freed: "All five remaining inmates held in the Mississippi pardons controversy have now been released from prison. Mississippi's Supreme Court last week upheld the controversial pardons of more than 200 convicts that former Gov. Haley Barbour granted on his way out of office, rejecting a challenge by the state's attorney general."
France: Sarkozy defies Europe with protectionist push: "President Nicolas Sarkozy, recasting himself as France's saviour from low-cost competition and high immigration, threatened to disregard European limitations on protectionism as he sought to give his re-election campaign a second wind on Sunday. Going out on a limb that risks angering France's European partners, Sarkozy said it was time to support local companies and stop the uncontrolled influx of immigrants and cheap imports that demonstrate Europe's lack of protectionist controls."
Imaginary due process: "According to the Attorney General of the United States, the United States Constitution Bill of Rights, specifically the due process requirements, no longer applies to some American citizens if the president arbitrarily chooses to suspend them. In short, the president can have you assassinated if he thinks it’s a good idea."
Israel, Islamic Jihad agree to Gaza truce: "Israel and militants in Gaza agreed to cease hostilities Tuesday after Egypt brokered a 'mutual truce' following four days of bloodletting which left 25 Gazans dead. Under the agreement, which came into force at 1:00am (2300 GMT on Monday), both Israel and militants from Islamic Jihad -- responsible for the lion's share of rockets targeting southern Israel -- agreed to hold their fire, an Egyptian intelligence official told AFP. Israeli officials and Islamic Jihad both confirmed that a deal was in place."
TSA thugs threaten media outlets: "Jonathan Corbett is suing the TSA for its unconstitutional body scanners and pat-down methods. He's also demonstrating that the TSA simply doesn't work. ... the pornoscanners actually put passengers at GREATER RISK -- and the TSA knows it! Even worse, the TSA issued threats against mainstream media outlets that wanted to interview Corbett!"
Not the messiah: "I caught about 30 seconds of some Republican forum last night and heard someone ask Newt Gingrich about what he was going to do to lead the nation back to God. I am a religious person. I think Godliness is a good thing. But the right answer to that question should be to say that it is not the job of the President of the United States or in in the skill set of the President of the United States to lead the nation back to or toward God."
Property rights are human rights: "One of the left's most effective canards has been its alleged distinction between property rights and human rights. The fact is that property rights are human rights. My right to my computer -- my property -- is not my computer's right to itself. It's my right, and I'm human. So when I see someone who is on record as being a defender of human rights and that someone defends, however haltingly, her property right as a human right, that's progress."
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