Patriot Act II

Such as…?

I mean, really. This is where debate becomes absurd. If you can’t posit a situation that the statute, as amended, actually applies to, then discussion becomes impossible. You’ve got a vague feeling that this is bad? Well, whooptie-freakin’-do. If you can’t translate that into concrete terms, that vague feeling is utterly worthless.

As a matter of fact, I did read the “goddam statute”. And my statement that your argument did not make sense was based on my not realizing that you are taking verybdog’s quotations of Patriot II’s modifications of 1481 to be the only basis for the claim that Patriot II would allow the stripping of citizenship. You could have made this more clear, but I withdraw my statement that your argument does not make sense.

Do you find something odd about me trying to establish just what the different sides were claiming about Patriot II, before looking through it to see if they are correct?

The fact remains that it is being proposed that the government infer intent to renounce citizenship based on the commision of a crime. No, not any crime, but still a crime.

I an not questioning that there are cases where intent can be inferred from action. What I am questioning is that in this case intent can be inferred from action. Your argument is like responding to question “Why do you think this person committed murder?” with “People commit murder all the time. For instance, Jeffrey Dahmer committed murder.” You completely failed to address my question “What distinguishes terrorism from every other crime?”

What standard would the rebuttal have to meet? Preponderance? Beyond a reasonable doubt? What would be evidence? Would continuing to vote be evidence?

Well, since it’s a hypothetical, my house could be outside the US. Does this definition not apply?

Do you not consider stripping someone of citzenship to be “abridg[ing] the privileges or immunities of citizens of the United States”?

BTW, “QED” is not a synonym for “therefore”, as you seem to believe.

My understanding – gleaned from perusing the text of Patriot II – is that Section 501 of Patriot II is the only provision that deals with stripping of citizenship. Hence it is the only section under discussion here. Why you would think differently is beyond me. **

As discussed above, it is not just the commission of a crime, but (i) knowing assistance (ii) for a listed crime (iii) in support of a specifically-designated terrorist organization (iv) which is engaged in hostilities with the US. The act’s requirements are quite specific. And note that it only creates a prima facie case for intent to relinquish citizenship: the accused can present evidence to rebut that presumption. **

Most crimes have an intent element (the exception would be “strict liability” crimes like statutory rape). In virtually every one of those crimes, intent can be inferred from action. In this narrow area (inferring intent), the statute is not treating terrorism differently from other crimes – it is in fact treating it in the same manner as other crimes. **

The standard is most likely preponderance – beyond a reasonable doubt is a standard only applied to the prosecution in criminal cases (e.g., when the defense wishes to prove an “affirmative defense” – say, self-defense to a murder charge – the defendant only needs to prove such by a preponderance standard. Evidence could be anything, including the testimony of the defendant and yes, continuing to vote. **

Read ALL of 2339A. Just providing lodging isn’t enough; you have to provide lodging KNOWING that your aid is going to assist in one of the listed crimes. In which case I have little sympathy for you: if you help out an organization KNOWING that they are going to commit a listed crime (and they are all serious crimes), frankly, you deserve what you get. If you help out Al Quada on the next 9/11 KNOWING that the culprits are going to commit aircraft piracy and destruction of aircraft (listed crimes, both) then I don’t think forfeiting your citizenship is too steep a price to pay for your actions. **

The 14th amendment only applies to the states. Note the wording of the amendment: “No State…shall abridge the privileges and immunities of citizens of the United States…” Your analysis is flawed for a couple of reasons:

  1. The law is federal, not state. Thus the 14th amendment does not apply.

  2. The law does not deal with a “privilege and immunity” of citizenship but rather to citizenship itself – a topic well within the power of Congress to legislate.

Don’t worry VBD, New Mexico is working an anti-patriot act bill through their House Judiciary Committee.

I wonder if Bush will declare the whole state a terrorist organization.

The New Mexico act is directed towards Patriot I and thus is irrelevant to the current discussion.

Also note that to the extent the New Mexico act actually conflicts with Patriot I, if at all, the New Mexico act will be unconstitutional under the Supremacy Clause of the US Constitution.

DCU

As far as what intent is inferred, this crime is very much being treated differently from other crimes.

I said

I was quite aware that the 14th Amendment does not explicitly state that it applies to the federal government.

Every set is a subset of itself. The whole of all privileges and immunities of citizenship clearly falls under the category of privileges and immunities of citizenship. If citizenship is taken away, then the privileges and immunities of citizenship are obviously taken away as well. And Congress does not have a free hand in legislation regarding citizenship, as you imply. For instance, a law which declares that no one born to an illegal alien is a citizen would be unconstitutional. This law also has constitutional problems. Citizenship is defined by the 14th Amendment, which supercedes any congressional decision. If the 14th Amendment says that a terrorist is still a citizen, and congress says he isn’t, then it’s the Amendment that has ultimate authority.

Fair enough. But given that Section 1483 limits the applicability of Section 1481 to those instances where the accused is outside of the country, I find it difficult to imagine a situation where state or local authorities would be involved in the first place.

Furthermore, even if that wasn’t the case, if the act is a constitutional exercise of congressional power, then I fail to see why it would be unconstitutional for state or local authorities to assist in its enforcement. A constitutionally-justifiable stripping of citizenship would, I think, not be violative of a “privilege or immunity” of citizenship by definition. **

Again, the privileges and immunities clause of the 14th amendment only applies to the states. As this is a federal act, it is not the states who are removing anything – it is an exercise of federal power. Even if in some weird oddball way that I can’t imagine the states has a hand in enforcing the act, their participation would not be unconstitutional under the privileges and immunities clause, because the federal government is the source of authority for the removal of citizenship. **

While Congress cannot constitutionally strip away citizenship without a finding of intent (see Afroyim v. Rusk, 387 US 253 (1967)), it is well-established that Congress can set parameters for stripping one’s citizenship, and it is perfectly permissible for such intent to be inferred from conduct. Vance v. Terrazas, 444 US 252 (1980) ("…whether the intent is expressed in words or is found as a fair inference from proved conduct."; “Voluntary relinquishment is 'not confined to a written renunciation, but ‘can also be manifested by other actions declared expatriative under the [A]ct, if such actions are in derogation of allegiance to this country.’” (the latter quote citing to an Attorney General Opinion)).

Terrazas also holds that Congress, under its power to create inferior courts (Art. I, s. 8, cl. 9), has the power to prescribe rules of evidence and standards of proof in expatriation proceedings. Such power would include setting out any rebuttable presumptions.

To be clear: the burden of proving intent lies with the government, but Congress may constitutionally set out a rule that creates a rebuttable presumption based on the accused’s conduct. That is a mere rule of evidence. The government still has the burden of proof: it must prove the conduct that gives rise to the presumption.

N.B.: The answer would probably be different under Afroyim if the rule established a conclusive presumption, because that would in essence eviscerate the requirement to prove intent. There’s a big difference in telling the factfinder “you may find intent from proved conduct” and telling him “you must find intent from proved conduct.”

I think that the states do have some part in the effects of having/not having citizenship. Don’t the states decide who goes on their voting rolls? Do they have any authority in enforcing immigration laws? I don’t see any exception in the Amendment being made for laws with the federal government as authority. It says that no state shall enforce such a law. While it may seem to be bizarre that there is no Constitutional prohibition on the federal government passing a law, but there is on a state enforcing it, I don’t see that you have offered any reason why this is not the case.

Determinations of US citizenship are not made at the state level. **

Yes, but this is hardly relevant. A state could presumably constitutionally allow non-US citizens to vote in state and local elections if it so desired. That is not the same as saying the state has a hand in determining if a person is a US citizen. **

No, they do not. Immigration is an area wholly preempted by federal law. The states have exactly zero to say about it. Immigration law is made at the federal level and adjudicated by federal tribunals.

About the only area where I could see state or local government entering the picture might be certain types of enforcement – e.g., state police assisting in the capture of Mexicans illegally crossing the Rio Grande.

Needless to say, that is not the case here, for two reasons:

  1. The Section 1483 limitation means that the accused must be out of the country for his citizenship to be stripped. Ergo, there’s really no way for a state or local agency to get involved in the first place.

  2. Even without Section 1483, Section 1481 determinations would be made by federal tribunals (either administrative immigration panels or the federal courts) anyway. The states just don’t enter into the picture. **

That is simply a ridiculous interpretation. You are saying that the 14th amendment disallows the state governments from assisting in the enforcement of federal acts which are themselves perfectly constitutional. That is sheer nonsense. What possible rationale could such an interpretation have? Do you seriously think that such a contradictory policy is what the framers of the 14th amendment had in mind when they drafted the text?

Furthermore, your interpretation fails a basic reading of the text. The amendment forbids a state from enforcing a law which abridges the privileges and immunities of citizenship. But as noted, it is the federal government that is making the determination as to the stripping of citizenship. If the federal government conclusively (and constitutionally) determines that a person is no longer a citizen, that person is no longer entitled to the “privileges and immunities” of citizenship, by definition. Any act taken by a state subsequent to such determination to assist in the enforcement of that act (say, by assisting in preventing the person from re-entering the country) is not a denial of privileges and immunities because the person is no longer a citizen.

Well, sometimes case law is stranger than fiction. “Intent,” to me, is a very squishy concept, as is “knowingly providing material support.” Are we going down the road of “well, he should have known that these guys were involved in terrorist activities, all the signs were pointing toward it?”

My brain may not be twisted enough to come up with a proper analogy, but here’s a “should have known” situation: a friend of mine, before I knew him (in high school), had a serious drug problem, to the extent that there are periods of several weeks at a time of which he has absolutely no memory. He used to skip class for days/weeks at a time, flunk classes which he should have been able to ace with his eyes closed, stash large quantities of drug paraphernalia rather openly in his room, have extremely bizarre sleeping/eating patterns, reek of pot smoke, etc. His mother, a social worker who specializes in treating troubled adolescents, never had a clue, although the evidence was pretty much in front of her. He says he used to deal, too. If he were making bombs instead of packing dime bags, would she have been providing lodging to a terrorist?

OK, here’s an immigration-related analogy for you: until 1994, I was an employee of the Office of the Immigration Judge (an interpreter, not a lawyer). We used to take super-fun business trips to various prisons to hold deportation hearings for convicted felons, so they could be deported straight from prison after serving their sentences, rather than being released on bond and disappearing.

One case I interpreted for involved a woman who’d gotten a huge mandatory minimum for conspiracy to import/traffic in narcotics…which, if you know anything about immigration law, is basically a Go Back to Your Country, Do Not Pass Go, Do Not Collect $200 card. Her offense? Her boyfriend was negotiating a huge coke deal in her livingroom while she was in the shower (and while her 4 young kids were elsewhere in the apartment), involving several big, scary guys with heavy weaponry. She overheard what was going on through the door and realized she had to get herself and her kids the hell out of there, but before she could act, the Feds busted in and arrested everyone. Nobody would believe that she wasn’t involved, and so she was screwed. Believe me, the INS trial attorney would have presented contrary evidence if there had been any, so I doubt there was; the conviction was evidence enough of her involvement, and away she went, leaving her 4 U.S. citizen kids the choice of going back to a country where they’d never been and didn’t speak the language, or staying in the U.S. and going into foster care, since there were no other relatives in the U.S. who could take them in.

Now imagine if this woman had been a U.S. citizen rather than a permanent resident, even a native-born U.S. citizen. What did her actions have to do with her citizenship? Nothing. But what if these guys had been building bombs instead of swapping cash for coke? She’d be SOL, all because of inferred intent.

But she’s still in the U.S.,! you say; the new law doesn’t apply! Well, what’s to prevent the government from waiting to prosecute the charges until she decides to go to her home country for a visit? The same has happened to numerous permanent residents with relatively minor convictions; they think the conviction is no big deal immigration-wise, until they go home for a visit and are stopped, detained, and placed in removal proceedings on the way back into the U.S. This even happens if the conviction is expunged; an expungement for criminal court purposes may not mean squat in immigration proceedings.

Is that a decent enough set of parallels/hypotheticals for you?

No, it is not. Actual knowledge that the support is going towards a listed crime is a requirement under the definition of material support. That means the government must prove, and the factfinder must find, that the accused actually knew what end her support was going towards. There is not a “should have known” component – the factfinder must find actual knowledge.

And yeah, if your poor US citizen knows that she’s harboring members of a terrorist organization engaged in hostilities with the US who are building bomb to use against innocent American civilians, I have absolutely no problem with that person losing their citizenship. Just as I would have no problem with her losing her citizenship under existing law by running off and joining Saddam’s October Guard.

I never said they did. But whether or not you are a citizen will affect how your state treats you. Do you dispute this?

But could it constitutionally deny US citizens the right to vote? I don’t see anything in the Constition specifically prohibiting it, but it seems questionable to e.

Which is good, because I never said that.

Well, it’s too bad you think that the 14th Amendent is sheer nonsense.

First of all, “contradictory” is not quite an accurate word. There’s nothing contradictory about allowing one governmental body to do something another can’t. For instance, state governments can pass speed limits. The federal government cannot. AFAIK, if John Ashcroft were to try to prosecute me for speeding, he’d be laughed out of court.

As for what I think the intent was, I’m not sure, but I think that it was understood that the federal government couldn’t do this either. At the time this was written, there was a much higher emphasis on state’s rights. Quite possibly the writers expected those reading this to say “Well, if the states can’t do this, then obviously the federal government can’t.” But that’s just one possibility.

This may seem like a nitpick, but it’s it response to a nitpick, and I think that’s it’s important in understanding your argument. Say someone is convicted of one of these offenses. Someone (I’m not clear on who; since it’s a finding of fact, it seems like the jury should include it as part of their verdict) declares that the person intended to relinquish their citizenship. Which of the following best describes what you think happened:
The jury (or whoever) takes away the citizenship. The defendent walks into the courtroom a citizen, and leaves a noncitizen.
The jury (or whoever) declares that the defendent has already relinquished his citizenship. The defendent was already a noncitizen when he walked into the courtroom; he lost his citizenship the moment he committed the crime. The declaration in the courtroom was simply a recognization of previously existing condition.

Also, am I correct in assuming that all crimes which would trigger this are felonies? Would a conviction be required, or could it be determined that the defendent is quilty through a separate legal process (something like a wrongful death suit, in which the plaintiff is allowed to establish elements of a muder charge without going through a criminal prosecution).

Eva Luna: so your client was convicted by a jury?

[nitpick] She wasn’t my client; I was a Federal employee, and she was simply someone moving on her way through the system. [/nitpick] And to answer your second question: yes, the narcotics conspiracy case involved a conviction by a jury (I think; it’s been a while, and we don’t necessarily get into the details of plea-bargains and such at the deportation case stage, but a jury was certainly an option.) Once the conviction was handed down, though, her permanent residency was stripped and she was ordered deported by a Federal administrative judge. No jury necessary for Part 2.

Also, to clarify, there are numerous crimes which are misdemeanors under various state laws which fall under the Federal immigration definition of “aggravated felony.” I’ve never seen a case where soeone was ordered deported without having received a previous criminal conviction, but I believe it’s theoretically possible, as in principle one can be deported or denied certain immigration benefits simply for admitting or having been found to have committted the essential elements of a crime, even if one was never convicted, or if ne was convicted but the conviction was later reversed.

Obviously, I’m not a lawyer, and this is an extremely complex and constantly changing area of law, so if you’re looking for particulars I’m going to have to do some poking around from work. (I do work in the immigration field now, but as a paralegal doing work visas, so this stuff isn’t exactly central to my daily life these days.)

No, but it is irrelevant. If you are not a citizen, you are not entitled to the privileges and immunities of citizenship, and the privileges and immunities clause of the 14th amendment is simply not triggered.

FWIW, the 14th amendment’s privileges and immunities clause has largely been a dead letter since the Slaughterhouse Cases; indeed, with one exception (Saenz v. Roe, 526 US 489 (1999), a right to travel case) the court has simply not used the 14th amendment P&I clause to strike anything down.

Also FWIW, the privileges and immunities which the 14th amendment protects are listed in Twining v. New Jersey, 211 US 78 (1908). They are: the right to travel from state to state, to petition Congress, to vote for national (not state) offices, to enter public lands, to be protected while in the custody of US Marshals, and to inform US (not state) authorities of violations of federal law. They key is that, under the Slaughterhouse Cases, the amendment only protects incidents of national, not state, citizenship. **

Of course they can. They have. Prior to 1971, for example, it was perfectly constitutional to deny a citizen the right to vote on the basis of age even if he was over the age of 18 (and, of course, it is still perfectly fine to deny that right to those 17 and under). Prior to 1920, it was perfectly constitutional to deny the right to vote on the basis of sex. And poll taxes and literacy tests are perfectly constitutional so long as they do not violate the equal protection clause of the 14th amendment (though admitttedly due to their ignoble history, it is doubtful that they ever would be found not to violate that clause). **

I don’t think the 14th amendment is sheer nonsense. I think your reading of the amendment is sheer nonsense. Because it is. **

First of all, I suspect that under commerce clause jurisprudence, the federal government could regulate highway speeds and enforce violations of same if it so desired (it would, of course, have to pass a law enabling it to do so). And I shouldn’t have to point out that the federal government has in fact effectively set highway speed limits via the attachment of strings to federal highway funds. Remember the “double nickel”?

Second, those limitations on the federal government are based on notions of federalism – that the state governments are soveriegn except in limited areas where the federal government holds sway. The reverse of that doctrine would be the Supremacy Clause of the Constitution – where there is a conflict with federal law, or where federal law wholly preempts a field, the states cannot legislate. Neither is triggered here. Obviously, state involvement in federal policy enhances rather than harms the notion of federalism, and since the Supremacy Clause is only targeted at actual conflicts, if the feds wish to allow the states to assist in enforcement, there is no conflict and thus no constitutional problem.
**

Which really shows your ignorance of the history of the Civil War amendments. They were not enhancements to state’s rights; they were assertions of federal power, widening the scope of federal oversight over state laws.

At any rate, where do you get the idea that “the federal government couldn’t do this” at the time of the amendment? Are you denying that the federal government established naturalization procedures and legislated other key aspects of citizenship during the time in question? Are you suggesting that something in the Constitution plus amendments 1-13 prevented them from doing so? What? How? **

The former. As a practical matter, you’re a citizen until you get a formal declaration that you are not. This is so even if you voluntarily expatriate – if you write down “I wish to relinquish my citizenship” and announce same to the world, you nonetheless are still a citizen until you take whatever steps the government prescribes in order to register that renouncement. **

Based on the language of the statute, criminal conviction does not appear to be a prerequisite. Only a finding of fact by the factfinder that the knowing assistance was rendered.

I am sure you hold the same view as Johnny, the dear Attorney General.

IMO, no matter how you, Mr. Dewey Cheatem Undhow, slice it, The gist of section 501 of Patriot Act II is trying to take away the inalienable citizenship of an American as a harsh, rightwing, fundamentalistic, hardcore punishment for those whom John “I want to strip your citizenship” Ashcroft believes be terrorists. It is a realization and implementation of his world view of “black & white high moral rectitude” with which hatred is the central theme.

Now is it their overlook or their carelessness that 8 USC 1843 wasn’t modified in tandem (which it should) with 1841? I do not know. But by the look of the mean spirited Patriot Act II, I guess that they didn’t have the best lawyers working for the team to be the reason. Under Bush and Ashcroft, America will never be the same. Dreadful.

Can you cite a case where (a) & (b) of 8 U.S.C. 1481 were actually being applied?

I have no idea if or to what extent I share views with John Ashcroft. I can, however, read a damned statute, including cross-references, and figure out what it means, something you apparantly cannot do. **

Whatever Mr. Ashcroft’s motiviations, the fact remains that the statute as modified would be quite a bit more limited than your characterization suggests.

There is an old saying: when the law is on your side, argue the law; when the facts are on your side, argue the facts; when neither are on your side, bang the table. You are banging the table.

You are not arguing not from the text of the proposal itself; instead, you’re reduced to just calling John Ascroft eeeeevvvilll and hoping that your characterization by extension will stick. Pathetic. **

This is patently stupid. Look, if the goal is to treat membership in a terrorist organization in the same fashion as joining a foriegn military, it makes perfect sense that the Section 1483 limitation remains – it is a limitation on those accused on joining foriegn militaries under current law, so it’s perfectly sensible that it would also be a limitation for those accused of joining a terrorist organization.

Secondly, the simple fact remains that Section 1483 is unmodified by the proposal. Given the thoroughness with which the proposal was clearly prepared (full citations not only to existing statutes, but to case law as well; detailed section-by-section analysis in the cover memo), the logical thing to figure is that this was intentional (particularly given my point in the paragraphy above). Yet you suggest it was oversight or carelessness…on what grounds? **

As modified? Of course not, you silly boy, it isn’t law yet.

You’ll note that the immigration cases I cited earlier deal with other aspects of 1481, IIRC.

This is my favorite bit. You go buy a few Cuban stogies on a trip to Canada? You’ve just given “material support” to Cuba.

Now, can we have an utterly perfect, iron-clad, 100% enforced guarantee that some petty jackass Fed official won’t use that possibility? If so, then I’ll consider the law possibly worth the risk.

The reason that we should give the government as little power as possible is because government power will always be abused. The more they have, the worse the abuses will be. Government is never anything better than a necessary evil.

Someone does have such a site. The ACLU is opposed (hardly suprising) and I have already faxed my objections to my senators and representatives.

Granted that this might not be the right time, since the legislation has not yet been submitted, however, it’s a good pre-notice that I am not in favor.

Bob

No, you have not. This has been pointed out repeatedly in this thread. “Material support” under the proposal has a very specific definition, a definition that includes knowledge that the support is assisting in a listed crime.

Read the thread before you post.

It looks like the state of new Mexico is no longer playing along. Here is a Joint Memorial rejecting the Patriot Act and directing state police to refrain from a host of activities deemed an infringement of civil rights.

Interesting. Will it result in a constitutional review of the PA?