Can Congress make law as to designate a foreign organization as a “terrorist organization”?
Sure, they do it all the time. One of the reasons is that members of legally defined terrorist organizations (and IIRC certain of their family memboers) are statutorily ineligible to receive U.S. visas.
Yes. On what basis would they not be able to do so?
From CPI interpretation, it’s the AG’s right to label these organization, not the Congress. Where did you get this “designated either by Congressional act or by the Secretary of State; if the designation is by the Secretary of State” provision in the Patriot Act II?
Let’s look at the addition: **(B) joining or serving in, or providing material support (as defined in section 2339A of title 18, U.S.C.) to, a terrorist organization designated under section 212(a)(3) or 219 or designated under the International Emergency Economic Powers Act, if the organization is engaged in hostilities against the United States, its people, or its national security interests. **
What happen to a person who joined this so called “terrorist organization” before its being labeled as such? Hell, because the fact of “joining” it, tough sh*t, your citizenship is stripped!
How about “serving” ? You work there as a front desk secretary or a janitor, sh*t, all of the sudden your citizenship is stripped!
You answer your first question in your very next paragraph. A “terrorist organization” is designated as such under Patriot II in one of two ways:
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By the procedures set forth in section 212(a)(3) or 219 of the Immigration and Nationality Act, or
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By being so designated under the International Emergency Economic Powers Act.
This can be a little difficult to find, because section numbers in the initial legislation are usually re-numbered to fit into the organization scheme of the US Code. Here are links to the code as initially described and as found in the US Code:
Section 219 of the INA:
Original section numbering
US Code numbering: 8 USC 1189
Section 212 of the INA:
Original section numbering
US Code numbering: 8 USC 1182
The International Emergency Economic Powers Act
Now, note the following:
Both Section 212(a)(3) and Section 219 require the Secretary of State to make the designation of “terrorist organization,” although the AG may request that the Secretary of State make such a designation under 212. But it’s still the Secretary of State’s call, not the AG.
The IEEPA allows the President fairly broad regulatory powers during times of unusual and extraordinary threats to the US. Any action taken by the President must be done with consultation with Congress, and the President is obligated to provide detailed reports to Congress justifying any actions he takes under the act every six months. Note again, it is not the AG that makes the call as to whether to designate an organization as a “terrorist organiztion,” but the President, and even then the President must by law make detailed justifications for his choices.
So the simple answer is that the CPI is wrong, under the very text of the proposal and under existing law. Where they got the idea that the AG could unilaterally declare an organization as a “terrorist organization” is beyond me. My guess is they’re just sloppy and didn’t do their homework.**
Let’s look at what actually has to be proven in order to revoke one’s citizenship:
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The organization must have been designated a “terrorist organization” at the time of the act. If it was not so designated at the time the person rendered aid or support to the organization, then he is not liable under the act by the very terms of the act. So your first example is simply wrong.
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Mere aid to a terrorist organization is not enough. The support must be given at a time when that organization was “engaged in hostilities against the United States, its people, or its national security interests,” as per the text of the Patriot II proposal sub (b).
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The act of support must have been made knowing that it was supporting one of the crimes listed in Sec. 2339A, as per Sec. 2339A(a). So someone who did not know his funds or services were aiding in one of those crimes is off the hook.
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Furthermore, the act of support must have, in addition to knowingly made to aid in a listed crime, must be one of the following: “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials,” as per Sec. 2339A(b). Janitorial or secretarial services are not included in that list, so unless your erstwhile secretary is also a member of the terrorist organization (i.e., “serving in” per the proposal), she’s safe (and if she is a member of such an organization, I do not feel sorry for her – the proposal requires “voluntary” service in such an organization, so it isn’t like she could be tricked into joining, as the trickery would negate her voluntariness).
Okay, I’ll buy all you said here - there is a safeguard against the abuse… But wait a minute, Will AG John Ashcroft pay for all these attorney fees defending the accused? You know it’s not like you say you are innocent then you will be scottfree in this country, right? In order to clear one’s name and get back his reputation for not being labeled as a bad guy, in order to fight for his American citizenship, an accused American would have to hire a lawyer to defend himself. That would be in effect making everybody broke for giving all his paychecks to this fri’gging lawyer to defense him in court.
Why should Americans get this rotten deal?
Why should they support this kind of troubling law that would bring sufferings and pains to them in court when before Patriot Act II that they don’t have to?
I hope that Mr. Dewey Cheatem Undhow will explain to us.
One thing to ask Mr. Dewey Cheatem Undhow: When you strip a guy’s American citizenship, where are you going to put him? Prison? Homeless shelter? Pakistan? Afghnistan? Russia? North Korea? North Pole?
Y’know, I’m getting a little tired of doing your homework for you. The actual stripping of citizenship can only occur while the person is out of the country. 8 USC 1483:
In case you’re wondering, sub (6) deals with formal written renounciations of citizenship and sub (7) deals with treason.
Thus, the short answer is the person just wouldn’t be allowed back into the US.
At any rate, this was the very next section after 1481 (1482 having been repealed). Was it really too difficult for you to read it on your own?
Incidentally, imprisonment isn’t an option unless they’ve also committed a crime (which, in the case of providing material support to a terrorist organization, they have: that’s a violation of Sec. 2339A). The accused would have all the procedural safeguards in place for any other criminal proceeding in that case.
Now you’re truly grasping at straws. A person’s right to a lawyer is unchanged by Patriot II; a person has the same right to a lawyer under Section 1481 before Patriot II as he does after. I am not an immigration lawyer, and I’m not going to bust my ass researching that question, because it is irrelevant to Patriot II. If current law is flawed in that regard (and I do not know if it is or not), then that is a problem with the law already on the books and not a problem with Patriot II; ergo, your ire is misdirected.
But Patriot Act II makes it not the case. You can lose your citizenship even you are here in the States as long as you are a member of an organization that is engaged in hostilities to, say, “its people” - that could be you or anyone. What do you mean by “hostilities?”
Very subjective. You know joining an anti-war rally in DC can be interpreted as “hostilities” to American people by someone who wanted to get you for some reason. Unbelievable.
It is wrong and dangerous.
That is simply false. Section 1483 is unmodified by Patriot II; thus, the Section 1483 limitations on Section 1481 remain in place even if Patriot II were to pass.
Thus, even if Patriot II were to pass, the stripping of citizenship under Section 1481(a)(3) could not take place unless the strippee was outside of the country.
Really, do you even bother to read my posts? I’ve explained this very carefully, with supporting links to the relevant code sections. **
Also patently false. The organization must be one designated as a “terrorist organization” under the relevant code sections discussed above AND be engaged in hostilities. The “engagement in hostilities” language is a FURTHER RESTRICTION on the applicability of the act.
And, of course, the 1483 restriction requiring the strippee to be out of the country also applies, as per the above. **
Under no circumstances that I can imagine would mere participation in a rally be interpreted as “hostilities.” Note the word “hostilities” is also used under sub (a)(3)'s “service in foriegn armed services” provision, which is existing law unmodified by Patriot II. The likely meaning given to “hostilities” will thus be violent, destructive action, not peaceful marches.
More importantly, you overlook all the other things that must be proven: the organization must be formally designated a “terrorist organization” under a relevant statute, and the person must be a member of, serve in, or provide material support (defined as knowing assistance for a listed crime) to the organization. Merely marching in a peace rally is unlikely to be deemed “service in” the organization.
I am beginning to believe you are simply beyond reason. You will believe this proposal is a work of great evil no matter how often I point out the flaws in your interpretation. I have worked very hard to essentially spoon-feed you the answers to your questions, complete with backup citations. You have given nothing but drivel in response. You have consistently refused to read the text of the statutes I’ve provided. You have not provided any sort of basis for your interpretations. And you have ignored the statute when it directly contradicts your interpretations. In short, you have refused to discuss the issue in good faith. I am near the limit of my patience. Enough. Shape up or shut up.
DCU
Deportation? To where? A ship in neutral waters?
And your answer “The actual stripping of citizenship can only occur while the person is out of the country,” does not make sense. The quote you cite only states under what conditions citizenship is lost under that statute (and if you’re claiming the the government would simply not them back in, then why use the word "deportation?).
“Thus, even if Patriot II were to pass, the stripping of citizenship under Section 1481(a)(3) could not take place unless the strippee was outside of the country.”
Sure, the stripping of citizenship under1481 would not be changed. But my the OP implies that Pactriot supplies its own procedure for the stripping. Are you saying that this implication is false?
Your assurance that this simply clarifies an existing law is not very comforting. If this is a danger to civil liberties, the fact it is not recent makes it no less scary.
The idea that breaking the laws of one’s country implies an intent to renounce citizenship is absurd. If my wounding someone in a terrorist attack establishes intent, then shouldn’t murder in a bank robbery establish intent? After all, I have shown that I am willing to sacrifice US interests for my own in both cases. And if murder establishes intent, what about theft? Trespassing? Speeding?
How can you claim with a straight face that a person’s actions establishes intent to renounce their citizenship, even if they verbally insist that they wish to remain a citizen? I’d like to know what the reasoning is for this. What distinguishes terrorism from every other crime?
If a guy comes to my house and says “Your place is the only place I can hide. If the cops find me, I’ll be killed for being terrorist”, I have to choose between being an active participant in his death, or risk losing my citizenship.
Furthermore, I read the 14th Amendment as prohibiting any state in cooperating with this law.
They just wouldn’t be allowed back into the country. As noted, citizenship can only be stripped under Section 1481 (other than sub (6) and (7), which are inapplicable here) while out of the country.**
It makes perfect sense if you read the goddamn statute.
Section 1483 provides that no person can have his citizenship stripped “under this chapter” unless they are not in the US at the time. “This chapter” refers to Chapter 12 of Title 8 of the US Code. It includes Sections 1101 through 1537. You don’t have to be a supergenius to figure out that Section 1481 is inside of Chapter 12, and thus subject to the limitations of 1483. **
Yes, that implication is false. Section 501 of Patriot II only amends Section 1481 in very specific ways. It retains all prior procedures, including the limitations of Section 1483. (Unlike you, I actually looked through Patriot II to be sure it didn’t modify Section 1483). **
It requires more than just “breaking the law,” as I noted above. It requires membership or material assistance to a specifically named group, and it requires knowing assistance of a listed crime (which, you’ll note, correspond pretty well to a terrorist M.O.) **
Intent is often inferred from action, even if the defendant denies he had the requisite intent. The fact that a murderer pointed a gun at someone and pulled the trigger is sufficient to infer “intent to kill” even if the murderer denies he had such an intent.
It’s also important to realize that Patriot II does not create a conclusive presumption of intent – it only states that a prima facie case on intent can be inferred from action. The defendant can still rebut that presumption by providing additional evidence that he lacked the requisite intent. **
No, you won’t, for two reasons: (i) hiding your buddy is not a listed crime, and (ii) you’re in the US anyway, so the Section 1483 limitation applies. **
Then you have a nonsensical view of the 14th amendment.
To Dewey Cheatem Undhow:
First off thank you for your clarifications on exactly what the act entails.
I am a bit confused on one point though. You state that the determination as to what qualifies as a terrorist organization requires congress’ approval. You also state that
Quote:
The IEEPA allows the President fairly broad regulatory powers during times of unusual and extraordinary threats to the US. Any action taken by the President must be done with consultation with Congress, and the President is obligated to provide detailed reports to Congress justifying any actions he takes under the act every six months.
What I’m unclear about is this: Does the approval of congress consist of rubber-stamping a bi-annual report by the president, or of actually passing some form of legislation?
The reason I ask is that if all that is required is congress’ silent approval of determinations made by the president the system is not very transparent nor does it seem to have sufficient accountabilty built into it.
Jumping Bean: that is a very good question. It is nice to finally hear one from someone who obviously gives a damn about the act’s content.
The short answer is: when I initially posted about Congressional approval, I had only skimmed the IEEPA, and when I posted that Congressional approval was required, I was wrong. I tried to clarify later on, but I should have been more explicit: the IEEPA allows the President, in times of unsual and extraordinary threat to the US, to designate an organization as a “terrorist organization.”
My reading of the IEEPA indicates that while the reporting requirements are quite detailed, so long as the reports are made on a regular basis, the President’s determination remains in effect. HOWEVER, under 50 USC 1622, Congress can end a national emergency by passing a concurrent resolution, which effectively withdraws Presidential acts under the IEEPA (since they can only be exercised under a declared emergency); also note that emergencies terminate after a fixed period of time if they are not renewed. So Congress does get a say in the matter, it’s just not as direct as I initially claimed.
There is actually a pretty interesting constitutional question there: does the joint resolution ending a national emergency require a presidential signature, like any other Congressional act? If not, the Congressional approval portion may be unconstitutional because it is tantamount to Congress making policy in a manner outside of the method prescribed in the Constutition (e.g., “how a bill becomes a law” – including either the president’s signature or a veto override).
As for the IEEPA lacking transparency: I don’t really see that. The IEEPA sets forth pretty detailed reporting requirements. To that extent, it’s as transparent as any law giving the executive discretion but providing for Congressional oversight.
Shape up or shut up? That sounds Bush to me. Near the limit of patience? That sounds Ashcroft to me.
Not really. IMO, that’s saddest thing about Patriot Act II that had done to the spirit of section 1481. The overzealous insertion to the section 1481 by Patriot Act II’s section 501 had basically cut off the intrinsic connection between section 1481 and section 1483.
Now are you seriously thinking that John Ashcroft, for proposing Patriot Act II section 501, wasn’t trying to get his hand on Americans who are here in the States?
Can I call you Mr. Hallucination?
This comment is utter nonsense. The simple fact is, I’ve ponied up evidence. You have not. QED, you are wrong. **
It does NO SUCH THING. Try to follow me here – I’ll try to spell it out as if for a small child:
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Patriot II does NOT amend Section 1483; thus, the language of 1483 remains the same if Patriot II becomes law.
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Section 1483 limits Section 1481 by restricting its application to persons out of the country.
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Because the language of 1483 is unchanged by Patriot II, that restriction would remain in force.
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Therefore, Section 1481, even after amendment as per Patriot II, would still be restricted in its application to persons out of the country.
If you’re going to insist on saying that the 1483 limitation would go away under Patriot II, it is incumbent on you to explain WHY. You have not done so. You have provided no citation nor have you provided a basis in the text of the statute as modified. You have utterly failed to back up your claim. **
Yes, because as noted, THE STATUTE WOULD NOT ALLOW PERSONS WITHIN THE US TO BE REACHED, EVEN AS MODIFIED. If reaching persons within the US was the DOJ’s desire, they would have included an amendment to Section 1483 in the proposal. They did not. QED, persons in the US cannot be reached under the modified act.
OK, **Dewey, ** let’s assume you’re correct about the expatriation provisions; although I’m not a lawyer and you are, I tend to believe the analysis of the American Immigration Lawyers Institute, since that’s what they do, but that’s a separate debate.
Why, then, should we resign ourselves to the idea that those who are judged in violation of Patriot II should forever be trapped in the U.S., or risk losing their citizenshhip and potentially becoming stateless if they depart? To me, this is still A Very Bad Thing; it’s an awful precedent in terms of stripping citizenship from people who were either born citizens or lawfully naturalized, and currently AFAIK the only way expatriation could be accomplished against a person’s will in current times. It would put us on a par with the Soviets.
What do you say to that?
I would say that the provision in question isn’t very far from the state of current law. If you run off and join a foriegn miltary, you can be stripped of your citizenship in the same fashion, even if Patriot II never sees the light of day. What Patriot II’s Section 501 does is effectively put membership in a “terrorist organization” on par with joining a foriegn military.
Your notion that this is “the only way expatriation could be accomplished against a person’s will in current times” is simply wrong – peruse Section 1481 as cited above (Patriot II is not law, so it does not include its provisions) and you’ll see that involuntary termination of citizenship is perfectly possible under existing law. Patriot II’s Section 501 just adds assistance to terrorists in an act against the US to that list.
And as for this:**
I can only assume you mean the American Immigration Lawyers Association, since Googling did not hit an “Institute.” In the future, if you wish challenge my interpretation in this manner, a citation to the alternate interpretation would be much appreciated.
The AILA analysis can be found here. Note two things about the AILA commentary:
- This is the full extent of their comment on Section 501:
I would note that the last sentence of their analysis is simply wrong: “material support” is specifically defined as knowing support for a listed criminal activity.
And the rest of their analysis is correct, if dressed up in fearmongering language. Yes, a person who joins a terrorist organization may well be stranded in their native country – just as a person who joins a foriegn military may be similarly stranded under existing law. And as noted above, the inferring of intent is already a common feature of the law, one already judicially recognized which Patriot II just makes explicit.
Note, however, that the AILA commentary takes as given that the person would be “stranded” – they understand, as verybdog does not, that Section 1481 does not apply to a person within the US due to the limitations of Section 1483.
- The remainder of their analysis focuses on other sections of Patriot II which deal specifically with immigrants. Thus, the rest of their analysis does not apply to citizenship or the stripping thereof.
Yep, that’s what I meant, AILA. That’s what I get for posting before coffee. My apologies.
I’d be happy to provide more detail, but as my browser’s URL bar has disappeared, it will have to wait until I get to work tomorow, since I can’t figure out another way to cut & paste links.
Even if your interpretation is 100% correct, I’m still nervous about how the issue of “knowing” material support for a terrorist organization might play out in the judicial system.