Organize to be Decision-Makers
Time for a Democracy of Our Own Making
There have been more than 25 police killings of African Americans since just the beginning of the year, all unpunished. President Obama recently issued an executive order for emergency measures even when there is no emergency, affirming presidential authority to control energy, food and water resources, prepare for a draft and potentially have slave labor camps. There are the recent laws authorizing the president and military to indefinitely detain anyone, anywhere that is deemed a “threat,” and outlawing protests near government officials and buildings. Attorney General Holder also issued guidelines for yet more spying even while the New York Police Department together with the CIA continue spying and profiling whole communities with no crimes or even suspected crimes involved. And the Supreme Court has now ruled that anyone simply arrested, not convicted, of any crime however minor and put in jail can be subjected to the humiliation and brutality of cavity searches, which are done while being strip-searched.
At every level, existing public institutions are being rendered dysfunctional and failing to in anyway defend the public. The above examples show the state is being used to destroy the sovereign public institutions and make sure the interests of the most powerful monopolies trump all other interests that stand in their way. These institutions are not and cannot be vehicles of people’s democracy. They are dysfunctional and outdated and show it is time for a democracy of our own making, one where the people themselves govern and decide.
A democracy of our own making is a project that is within our hands to control. It does not depend on the existing political set-up, which is rigged against us. Indeed the new arrangements now in place and reflected in Obama’s executive order, for example, are designed to eliminate any role for the public in governance, designed to depoliticize the public.
It is time to focus not on the existing institutions, but on developing a democracy of our own making. Steps can be taken now to develop mechanisms to represent our interests, beginning with our collective interests, as workers, women, youth. Let us organize as collectives, with our peers, where we decide. Let us select our own representatives to come forward from our collectives to be our politicians, the people’s choice representatives! It is time to break new ground, not remain stuck in the mud and debris of the old set-up that is anti-social, anti-worker, anti-youth and pro-war! Now is the time to join the organizing efforts for a democracy of our own making where we decide.
Numerous progressive commentators are lambasting the Supreme Court for its 5-4 ruling in Florence v. Bd. of Chosen Freeholders, and rightfully so. The 5-judge conservative faction held that prison officials may strip-search anyone arrested even for the most minor offenses before admitting them to the general population of a jail or prison, even in the absence of a shred of suspicion that they are carrying weapons or contraband. The plaintiff in this case had been erroneously arrested for outstanding bench warrants for an unpaid fine that he had actually paid, and was twice subjected to forced strip searches; he sued, claiming a violation of his Fourth and Fourteenth Amendment rights. In essence, the Florence ruling grants prison officials license to subject every single arrested individual entering the general prison population to humiliating and highly invasive strip searches (that’s 13 million people every year, with hugely disproportionately minority representation), based on the definitive police state mentality — one that has been applied over and over — that isolated risks justify the most sweeping security measures. This policy has been applied to those arrested for offenses such as dog leash laws, peaceful protests, and driving with an expired license.
What virtually none of this anti-Florence commentary mentioned, though, was that the Obama Department of Justice (DOJ) formally urged the Court to reach the conclusion it reached. While the Obama administration and court conservatives have been at odds in a handful of high-profile cases (most notably Citizens United and the health care law), this is yet another case, in a long line, where the Obama administration was able to have its preferred policies judicially endorsed by getting right-wing judges to embrace them:
In 1979, the Supreme Court ruled that in the interest of security, prisons could conduct visual body cavity searches of all detainees after they had contact with outsiders. For years after that ruling, lower courts ruled that the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility.
But in recent years, some courts have begun to allow a blanket policy to strip search all arrestees.
The Obama administration is siding with the prisons in the case and urging the court to allow a blanket policy for all inmates set to enter the general prison population.
“When you have a rule that treats everyone the same,” Justice Department lawyer Nicole A. Saharsky argued, “you don’t have folks that are singled out. You don’t have any security gaps.”
As The Guardian said yesterday: “The decision was a victory for the jails and for the Obama administration, which argued for an across-the-board rule allowing strip-searches of all those entering the general jail population, even those arrested on minor offenses.” Civil rights lawyer Stephen Bergstein added:
“This evidence suggesting that minor offenders are not smuggling contraband into jails was not good enough for the Obama administration, which is asking the Supreme Court to endorse the restrictive strip search policy in Florence. At oral argument, a lawyer for the Obama Justice Department told the Supreme Court that “[p]rotesters…who decide deliberately to get arrested… might be stopped by the police, they see the squad car behind them. They might have a gun or contraband in their car and think hey, I’m going to put that on my person, I just need to get it somewhere that is not going to be found during a patdown search, and then potentially they have the contraband with them.” This position would probably be identical to that advanced by a Republican presidential administration.
What makes the Obama DOJ’s position in favor of this broad strip-search authority particularly remarkable is that federal prisons do not even have this policy. As The New York Times’ Adam Liptak explained, “the procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.”
It is rather strange to so vehemently condemn the ruling in this case as a warped, sadistic police state excess, and not even mention that the Obama DOJ vigorously advocated for this very result. […]
Humiliation is the law of the land. When you fall into the clutches of the police, for any reason, or no good reason at all, you can be compelled to bare your private parts before being placed in the general jail population. Five of the nine U.S. Supreme Court justices ruled that Constitutional prohibitions against unreasonable searches end at the jailhouse door, even if there is no reason to suspect that the person under arrest is in possession of anything that could be called contraband.
The decision throws out laws against unreasonable strip searches in at least ten states, and overrides federal law enforcement regulations against intrusive searches. The High Court decision also flies in the face of international human rights treaties to which the United States is a signatory. In effect, the Supreme Court majority ruled that the whim of the local jailer trumps any standard of reasonableness. The American Correctional Association, which represents jail guards, is pleased that its members now have the “flexibility” to look into virtually every human orifice that enters their domain, even though the association’s own standards currently discourage blanket policies of strip-searching everyone.
The casual observer might conclude that the ruling is more evidence of a rightwing court on the warpath against what remains of the Bill of Rights. But, on this issue, the Obama administration is marching in lock step with the High Court’s rightwing majority. U.S. Justice Department lawyers spoke and filed briefs in favor of blanket strip searches. Indeed, the oral argument put forward by Obama’s lawyer was, perhaps, the most curious of all. Most of the discussion about the smuggling of contraband into jail settings involves drugs or crude weapons and other petty criminal concerns – the day-to-day stuff of life in a jail. But the administration’s lawyer chose to use hypothetical political protesters as the bad guys of his argument. In this weird scenario, a protester with a gun, traveling in a car that was about to be stopped by police, would hide the gun on his person in hopes of avoiding a pat-down search, and then bring the gun into the jail when he is arrested – presumably for some minor offense connected to the demonstration.
This is quite strange reasoning, and shows what kinds of conversations the Obama folks are having at the Justice Department. Crushing political dissent, not safety in jails, is what motivates the Obama administration to ally itself with the most reactionary wing of the Republican-dominated U.S. Supreme Court. The Left is not paranoid; the Obama administration really is preparing its legal arsenal to smash dissent in the United States. They are getting ready for a “full spectrum” assault on civil and political freedoms, ranging from the big hammer, suspension of all due process through preventive detention, to the intimately chilling effect on potential protesters of knowing that Uncle Sam wants to look into all of your bodily cavities if you get arrested at a demonstration.
Obama’s lawyer was not talking off-the-cuff before the U.S. Supreme Court. This administration is obsessed with political protesters. They want you to bend over, and spread ‘em – literally and politically.
The Risks of H.R. 347, Infringing Right to Protest
Abuses of civil or human rights in the United States often 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 National Defense Authorization Act (NDAA) scandal. 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 Representative 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. 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, with emphasis added:
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
‘(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.’
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 [emphasis added] :
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). […]
(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. […]
(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.”
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 revision of 18 U.S.C. § 1752 whether the impediment or disruption was willful or not. The reworded law 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?
For months leading up to the passage of the National Defense Authorization Act (NDAA) opponents of the legislation fervently argued that it usurped one of the most fundamental protections guaranteed to U.S. citizens: the right to due process.
Buried in the otherwise mundane budget and expenditure bill is a provision under Section 1021 permitting the indefinite military detention, without a formal charge or public trial, of anyone suspected of participating in or aiding a terrorist organization “engaged in hostilities against the United States.” President Barack Obama, after initially vowing to veto an original version of the legislation that applied the provision to U.S. citizens, signed a revised version on December 31, 2011.
The president included a signing statement where he discussed some of his objections to the bill, emphasizing that his administration would not authorize the indefinite military detention of American citizens without trial. However, critics have pointed out that the signing statement cannot control how future administrations interpret the provision.
As the controversy played out, legislation that could completely bypass the amended law was already in the works. In October, Representative Charles Dent, Pennsylvania and Senators Joseph Lieberman, Connecticut and Scott Brown, Massachusetts, introduced a slight but powerful amendment to the Immigration and Nationality Act that gives the government the authority to strip a person of their American citizenship if that person is accused or suspected of supporting “hostilities” against the U.S.
The amendment, known as the Enemy Expatriation Act, would allow the government to revoke Americans of their U.S. citizenship if they are accused or suspected of “engaging in, or purposefully or materially supporting, hostilities.” The sparse amendment, which defines “hostilities” as “any conflict subject to the laws of war,” does not say which government body — say a military tribunal or a congressional panel — has the power to brand suspected persons as hostiles.
Enemy Expatriation Act Could Circumvent NDAA Provision
Devon Chaffee, a legislative counsel for the American Civil Liberties Union, said the proposed amendment could theoretically be used to circumvent current laws, including the NDAA. If the amendment became law, the government could potentially revoke the citizenship of anyone deemed to be supporting hostilities against the U.S., thereby subjecting him or her to the indefinite military detention provision of the NDAA.
“Fortunately, it is unlikely that Congress would pass something like this. If it did, the law would probably be found unconstitutional since the Supreme Court has ruled that Congress cannot revoke U.S. citizenship without a citizen’s consent,” Chaffee said.
The U.S. Supreme Court’s 1967 decision in Afroyim v. Rusk set that landmark precedent, ruling that the right of citizenship is protected by the Fourteenth Amendment. In doing so, the nation’s high court actually overruled one of its own precedents set in Perez v. Brownell (1958), where it decided Congress is within its right to revoke U.S. citizenship in certain circumstances.
“The theory behind this is citizenship is a core civil liberty. That’s why the right to nationality is recognized by the global community as a fundamental human right,” Chaffee said, referring to the United Nations’ Universal Declaration of Human Rights.
Legally, Americans Must Renounce U.S. Citizenship to be Stripped of Those Privileges
Under the regulations set by section 349 of the Immigration and Nationality Act, Americans can only lose their U.S. citizenship if they renounce it in some way — such as by submitting a formal written renunciation to the attorney general or announcing the intention before a diplomat or consular office of the U.S. The law also states that joining the military of a foreign state or engaging in “a conspiracy to overthrow, put down, or to destroy by force” the U.S. government are actions that can be interpreted as voluntarily renunciations of citizenship.
The sponsors of the Enemy Expatriation Act argue the legislation is constitutional because citizens who engage in hostilities against the U.S. perform those acts with the intention of relinquishing their nationality. In a statement announcing the proposal, both Lieberman and Dent cited Anwar al-Awlaki, the American-born Muslim cleric who led al-Qaida operations in Yemen.
“The repeated attempts by the now-deceased al-Qaida leader Anwar al-Awlaki to recruit other American citizens to strike our homeland demonstrates the necessity of updating our laws to account for an enemy who would subvert our freedoms to attack us,” said Lieberman.
Obama authorized the assassination of Awlaki, and the cleric was killed by a U.S. drone strike in Yemen in September 2011, raising a barrage criticism from civil liberties organizations that argued the targeted killing of an American citizen without trial obstructs his or her constitutional right to due process.
The vague language of the Enemy Expatriation Act — a version of which Lieberman and Brown also co-sponsored in 2010 as the “Terrorist Expatriation Act” — is what poses the greatest civil liberties threat to American citizens.
In 2010 the Supreme Court ruled that “material support” to a foreign terrorist organization includes everything from money and weapons, to “expert advice or assistance,” even when that advice has nothing to do with aiding attack efforts against the U.S. As a result, that “material support” is not a form of First Amendment-protected political speech, a decision that critics said constituted an attack of freedom of speech tantamount to the notorious Smith Act of 1940, which set criminal penalties for advocating the overthrow of the U.S. government.
HR 3166 IH Enemy Expatriation Act
(112th CONGRESS, 1st Session, H. R. 3166, currently in Judiciary Committee)
To add engaging in or supporting hostilities against the United States to the list of acts for which United States nationals would lose their nationality.
IN THE HOUSE OF REPRESENTATIVES, OCTOBER 12, 2011
Mr. DENT (for himself and Mr. ALTMIRE) introduced the following bill; which was referred to the Committee on the Judiciary
To add engaging in or supporting hostilities against the United States to the list of acts for which United States nationals would lose their nationality.
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 ‘Enemy Expatriation Act’.
SEC. 2. LOSS OF NATIONALITY.
(a) In General- Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481) is amended–
(1) in subsection (a)–
(A) in each of paragraphs (1) through (6), by striking ‘or’ at the end;
(B) in paragraph (7), by striking the period at the end and inserting ‘; or’; and
(C) by adding at the end the following:
‘(8) engaging in, or purposefully and materially supporting, hostilities against the United States.’; and
(2) by adding at the end the following:
‘(c) For purposes of this section, the term ‘hostilities’ means any conflict subject to the laws of war.’.
(b) Technical Amendment- Section 351(a) of the Immigration and Nationality Act (8 U.S.C. 1483(a)) is amended by striking ‘(6) and (7)’ and inserting ‘(6), (7), and (8)’.