================================================================== The BIRCH BARK BBS / 414-242-5070 ================================================================== THE NEW AMERICAN -- July 24, 1995 Copyright 1995 -- American Opinion Publishing, Incorporated P.O. Box 8040, Appleton, WI 54913 ================================================================== ARTICLE: Front Page TITLE: Chipping Away at Freedom AUTHOR: William Norman Grigg ================================================================== In an address denouncing the French revolutionary terror two centuries ago, Noah Webster observed that governments always justify the criminal aggrandizement of their powers by deploying "the old stale plea of necessity." As Congress finishes work on the "Comprehensive Terrorism Prevention Act," a measure which will continue the unconstitutional enrichment of federal police powers, the air is thick with invocations of the "necessity" defense. "Necessity" has no stronger champion than Representative Charles Schumer (D-NY), a veteran anti-gun zealot. Schumer explains that restraints on federal power must be lifted, because "in wartime, it's different than peacetime. In terrorism time, it's different from peacetime." Remarkably, at least one supporter of the Senate version of the Terrorism Prevention Act has candidly admitted that the measure will lead to abuses of individual liberty. During Senate debate over the bill, Senator Patty Murray (D-WA) declared, "It is disturbing to me when the Congress is faced with a decision to increase protection for the people by chipping away at the edges of freedom. But in this case, the imperative is clear." Although Murray admonished her colleagues that "we as elected officials have an ... obligation to keep from unnerving the people we are trying to protect," her remarks could not fail to unnerve the attentive: "We have no idea what kind of mistakes will be made, or whose rights will be infringed, when this bill is implemented.... While we can take comfort knowing this bill strengthens the hand of law enforcement to aggressively pursue terrorists, none of us should take comfort in what it might mean for innocents caught in the middle as the anti-terrorism effort intensifies." "It will be critically important," emphasized Murray, "for law enforcement officials of all types ... to protect the citizens that go along with the kind of broad new powers we are bestowing upon them." Centralization of Power The rationale for this enrichment of federal power, of course, was the April 19th bombing in Oklahoma City. However, there was public ambivalence regarding the proposed anti-terrorism legislation even in the immediate aftermath of the bombing. A Time/CNN poll conducted on April 27th found that 61 percent of the surveyed public believed that "the federal government ... already has enough power" to investigate U.S. citizens; 60 percent of those polled responded that they were worried about abuses of power "if the federal government were given more powers in order to combat terrorism." In spite of the public's unease, President Clinton has insisted that an anti-terrorism measure must be passed as quickly as possible, before political support for new federal powers dissipates altogether. As of this writing, the Senate has passed its version of the bill (S. 735),* and the House version (H.R. 1710) has been voted out of committee for consideration by the entire House. ------------------------------------------------ *NOTE: See Senate vote #20 in the Conservative Index (page 30). ------------------------------------------------ Both the Senate and House versions of the measure would create new federal powers to conduct wiretap surveillance and to collect information from private transactions. The Senate bill provides $1.8 billion to hire new federal law enforcement officers and creates a new FBI counter-terrorism center. In addition, S. 735 expands the predicate offenses under the Racketeer-Influenced and Corrupt Organizations Act, a measure which may be used to criminalize political associations (it is already being used against pro-life activists). Both the Senate and House measures would relax the posse comitatus guidelines which prevent the direct involvement of the military in domestic law enforcement. Furthermore, the House version of the measure would permit the federal government to define nearly any crime involving a gun as an act of "terrorism" that would therefore fall under the scope of the bill. The Senate's bill does contain some useful provisions dealing with the threat posed by international terrorism. The measure provides for more rapid deportation of suspected aliens and bans organizational and fund-raising efforts on behalf of foreign terrorist groups. It also contains a welcome limit on death row appeals. Significantly, these provisions, which target real terrorists and convicted criminals, were loudly denounced by many liberal senators who eventually voted for the measure. Hastily Crafted Bills The Clinton Administration's original bill, H.R. 896 (sponsored by Representative Charles Schumer), contained all of the troublesome provisions which are found in the present Senate and House bills. Further, as David Kopel of the Independence Institute observes, the Administration's original bill "abolished ... all jurisdictional restraints on federal agencies." Additionally, the President would have been given the power to designate any group, foreign or domestic, as a "terrorist" organization. Given Mr. Clinton's dyspeptic fulminations about "right-wing extremists," talk radio hosts, and gun rights advocates, it is not difficult to imagine how such powers would have been used. In modified form, the original Clinton Administration bill was adopted by the Republican Senate leadership. Mike Hammond, a legislative analyst for Gun Owners of America, told The New American, "The Senate leadership simply took the Schumer bill, added some things, and removed some of its more objectionable features, and claimed it as its own. There were no hearings or witnesses." The result met with the Clinton Administration's unqualified approval. As the New York Times pointed out, "Although drafted by the Republican majority, the legislation would give President Clinton most of the provisions he requested in a counter-terrorism measure." As Senator Murray's remarks suggest, the Senate measure is intended to cast a wide and indiscriminate net. A crime may be designated a "terrorist offense" if it involves "the mail, or any facility utilized in interstate commerce," or "obstructs, delays, or affects interstate or foreign commerce in any way or degree...." This promiscuous use of the Constitution's commerce clause runs contrary to the Supreme Court's recent Lopez decision, in which the Court reaffirmed the embattled principle that the powers delegated to the federal government are "few and defined," and that they do not amount to a general grant of police power over the nation. The substance of S. 735 illustrates that preserving the unconstitutional police power of the federal government is a priority for both the Clinton Administration and the Republican Senate leadership. Another provision of the Senate measure states that federal jurisdiction "shall exist over all principals, co-conspirators, and accessories after the fact" in any terrorism prosecution. Furthermore, one may be implicated as a "co-conspirator" or an "accessory" if he "transfers an explosive material, knowing or having reasonable cause to believe that such explosive material will be used to commit a crime of violence." This remarkably subjective standard could be used to prosecute law-abiding firearms and explosives dealers -- or, for that matter, fertilizer and fuel oil salesmen -- who innocently make a sale to the wrong person; all the feds would be required to prove in such a case would be a "reasonable cause" to know how the products would be used. This offense carries a mandatory ten-year prison sentence. The Senate bill also contains a statement of "findings" which encourages the President to "undertake immediate efforts to develop multilateral efforts" to prevent international terrorism, and to use "all necessary means," including "military force." While American Presidents can properly use military force to prevent and punish acts of international terrorism, the Senate's findings use the threat of terrorism as a pretext for continued entanglement in NATO and other multilateral relationships which have no relationship to America's national interests. Furthermore, S. 735 actually expands presidential authority to provide military assistance to terrorist states. Although the Senate measure decrees that "no assistance ... shall be provided to the government of any country that provides lethal military equipment" to recognized terrorist states, it contains a self- nullifying codicil stating that such assistance may be provided if the President "determines that furnishing such assistance is important to the national interests of the United States...." This provision will be welcomed by the Clinton Administration, which has dispensed aid and other favors upon North Korea, China, and Russia -- all of which sponsor terrorists -- and upon such practitioners of terrorism as Hafez al-Assad and Yasir Arafat. Discretion and Rectitude The House Judiciary Committee approved H.R. 1710 by a 23-12 vote on June 14th. Among the opponents of the measure were found several conservative Republicans who objected to its excessively broad firearms-related language: Terrorism, as defined in the measure, includes "the use of any explosive or firearm (other than for mere personal monetary gain) with intent to endanger, directly or indirectly, the safety of one or more individuals." The New York Times observed, "The committee members received [this] language just moments before it was to vote on it." The committee members therefore voted up-or-down on statutory language the implications of which were not entirely understood by the legislators. Seeking to placate concerned members of his House Judiciary Committee, chairman Henry Hyde (R-IL) declared, "The use of a gun in a crime is a serious act. That doesn't offend my sense of rectitude to have that defined as terrorism." Representative Martin Hoke (R-OH) rejoined, "We don't want crimes of passion to be suddenly federalized." Hyde parried this complaint by asserting that "prosecutorial discretion" on the part of federal authorities would prevent such a result. Besides, Hyde insisted, an act of domestic violence "sounds pretty terroristic to me." Observing that his motivation was "to move the bill," Hyde assured his colleagues that a "better, more accurate definition" of terrorism could be substituted in the final version of the measure. "But meanwhile, we have a workable [definition]. It's not the worst in the world." If constitutional limitations on federal police powers are to be limited only by the "prosecutorial discretion" of federal officials and Henry Hyde's storied "sense of rectitude," the Republic is in serious trouble. Associate Deputy Attorney General Andrew Fois, who was assigned by the Justice Department to monitor the legislation, approved of the committee's definition, explaining that "we proposed a definition that is broad enough to enforce our needs. The efforts are to narrow it. Our concern is that it doesn't get too narrow." In short, the Clinton Administration's motley band of regulatory zealots, gun-grabbers, and property-seizers will be satisfied with nearly any definition which enlarges federal authority. So much for "prosecutorial discretion." As for Hyde's "rectitude," this dubious attribute led the congressman to support last year's ban on "assault" weapons; it has also inspired him to denounce as obsolete the Constitution's allocation of war-declaring power to the Congress (see page 19 in this issue). Other Republicans in Hyde's committee did not share their chairman's cavalier attitude regarding constitutional limitations on federal power. Following the vote, Representative Bob Barr (R- GA) remarked, "Under this definition, any crime that involves the use of firearms becomes a terrorist act, and then the provisions of this bill -- making it easy for the federal government to wiretap or obtain financial records -- apply.... In addition, these all become federal offenses, and that cuts squarely against the grain [of] what I and the people in my district want me to be doing up here, which is to be narrowing the scope of federal activity, not vastly expanding it." Similar views were expressed by Representative James Sensenbrenner (R-WI), who was also among the Republicans who opposed the bill in committee. Kathy Benz, Sensenbrenner's press secretary, told The New American that Sensenbrenner was firmly opposed to the measure on federalist grounds. Furthermore, recounted Benz, "The bill will give Janet Reno's Justice Department vastly expanded powers to intrude into the lives of private, law-abiding citizens on the basis of political beliefs." Militarizing Law Enforcement It has been frequently recalled in these pages that every dictatorship makes use of centralized and militarized law enforcement to suppress its subjects. Both of these tendencies were manifest in last year's Omnibus Crime bill, and they are powerfully reinforced by this year's Terrorism Prevention Act. Liberal Senator Russ Feingold (D-WI), who voted against last year's crime bill on federalist grounds, was also among the eight solons who voted against the Senate's version of the anti-terrorism bill. He regards the terrorism bill as "a vehicle to undo some of the traditional barriers which separate the federal government from state and local law enforcement." Feingold particularly takes issue with the revision of posse comitatus guidelines, which would allow the Attorney General to use the military to investigate incidents of biological and chemical terrorism: "This really goes over the line, because what it does is give the military, in cases of biological and chemical terrorism, new powers it has never had before, including the power of arrest in what are called exigent circumstances. I think this is a dangerous precedent." Extending the principle contained in S. 735, Feingold explained, "It is possible to argue that the military should be involved in some sort of gun-related items [because] that involves the whole country. So this is a dangerous precedent, as well as one of the most dangerous departures from the protection of civilian law enforcement in this history of our country." The Independence Institute's David Kopel shares Feingold's misgivings about weakening the posse comitatus guidelines. Kopel told The New American, "This is really a solution in search of a problem -- or maybe a solution which can evolve into a real problem." While acknowledging that chemical or biological terrorism is not an impossibility, Kopel indicated that there are preemptive measures which are compatible with the earlier posse comitatus guidelines: "There are perfectly permissible ways for the military to share its expertise regarding chemical and biological warfare with civilian law enforcement personnel. For example, it could train the FBI to deal with such threats, and the FBI could pass this along to local police, or perhaps military experts could train local police directly, as long as the military is not actually enforcing civilian law. This is a more elaborate solution, but it would help maintain one of the most important characteristics of a free society -- a clear separation of roles between the military and civilian law enforcement." Kopel is also critical of what he calls a "massive expansion of federal jurisdiction" created by the anti-terrorism legislation. Although Kopel is not sanguine about the threat of terrorism, he concludes that "there is nothing in this legislation that would have prevented the tragedy of Oklahoma City. There is, however, a lot which could be used to increase the vulnerability of American citizens to abuses of government power -- state terrorism." An American Enabling Act? Professor Angelo Codevilla of Boston University has written that the Terrorism Prevention Act "portends trouble" for American liberty, as "the President's rhetoric has made it perfectly clear who, in his view, the country's potential terrorists are, and hence who the targets of the government's attentions will be. The standard developed after Oklahoma City -- namely that possession of literature and frequent expression of opinions similar to those of people involved in violence constitutes a 'link' to violence -- will enable the Clinton Justice Department to treat a wide variety of conservatives as threats to internal security." "These are not 'paranoid fantasies,'" Codevilla maintains. "This is the legacy of almost thirty years of the federalization and militarization of American law enforcement. What will happen if this panoply of weapons is put to the service of political passions and bureaucratic self-interest?" One of the most prominent profiles in bureaucratic self-interest is that offered by ATF director Stephen Higgins, the official who supervised the raid on the Branch Davidian congregation. In a July 2nd Washington Post op-ed column, Higgins petulantly attacked critics of the Waco raid and reiterated a string of weary falsehoods and misrepresentations in an effort to forestall a congressional inquiry into the tragedy. Higgins justified the lethal raid as part of a necessary campaign against religious "extremists" and concluded, "The day has long passed when we can afford to ignore the threat posed by individuals who believe they are subject only to the laws of their god and not those of our government." In predictably self-serving fashion, Higgins ignores an even greater danger: a government which presents itself as God. One example of such a government was that of National Socialist Germany, which used "anti-terrorism" laws to obtain total power. Following the arson attack on the German Reichstag on February 27, 1933, German President Hindenburg signed an executive decree "for the protection of the people and the state." Interpreting the attack as the opening salvo in a terrorist campaign against the new National Socialist government, the decree enlarged the powers of the central government to permit "restrictions on personal liberty, on the right of free expression of opinion, including the press ... on the rights of assembly and association, and violations of the privacy of postal, telegraphic and telephonic communications," and specified that "warrants for house searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed." Less than a month later, the Reichstag enacted a "Law for Removing the Distress of People and Reich," also known as the "Enabling Act," in which it essentially renounced its residual powers by assigning all legislative authority to the Reich cabinet for a period of four years. Hitler, who at that time was Chancellor, promised, "The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures.... The number of cases in which an internal necessity exists for having recourse to such a law is a limited one." However, the unlimited powers granted to Hitler's government through the Enabling Act allowed him the luxury of defining "essential" powers and "vitally necessary measures" according to his ideological needs. Although he promised that "the separate existence of the federal states will not be done away," the National Socialist central government consolidated all powers to itself. Although he promised that "the rights of the churches will not be diminished," his government aggressively persecuted religious "extremists" who insisted that the state was accountable to God's authority. The Enabling Act, which had been created as a "counter-terrorism" measure, provided a legal, democratic rationale for national socialist dictatorship. Although the federal powers created by the Comprehensive Terrorism Prevention Act fall far short of those granted to Hitler's government by the Enabling Act, they not only manifest the same tendency toward radically centralized police authority, but (if enacted) will set the stage for even more oppressive legislation. Once again, a nation is being told to entrust its government with vastly increased powers, which will supposedly be used in a "limited" way. In such fashion is the "old stale plea of necessity" renewed, to the detriment of individual liberty. 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