Doesn’t anyone bother to read the thread before posting?
Calliope, the New Mexico act was brought up on page 1 by Attrayant. I’ll say again what I said back there:
To which I will add, the mere passage of the NM act would not trigger judicial review of Patriot I. Someone would have to bring a lawsuit claiming either a conflict between the NM act and Patriot I (which, if found, would cause the NM act to be unconstitutional under the Supremacy Clause) or claiming that Patriot I itself is unconstitutional (in which case the NM act is irrelevant to the analysis).
That doesn’t matter; I wasn’t presenting it to present a principle that applies in this situation, but to counter your claim that there is something contradictory about there being a law which is constitutional, but a government body cannot enforce.
Even if the Constitution specifically says that there is a problem?
:rolleyes:
An ad hominem and a strawman! Two for the price of one! I never said that it was an enhancement of state power.
I’m not saying that I have this idea, but that perhaps the writers had this idea.
How would this be in violation?
[quote]
Are you suggesting that something in the Constitution plus amendments 1-13 prevented them from doing so? [/quoite]
I believe that the 14th amendment is what’s under discussion. I.e. did the writers read the 14th amendment as restricting the federal government ?
So going back to the beginning of your post:
But you agree that this law is being applied to people that are citizens. This “Well, stripping citizens of their citizens of their citizenship is fine, because the people who have has their citizenship stripped aren’t citizens” argument is bizarre (to even call it a circular argument would understate its absurdity). Under that reasoning, no one should ever be convicted of murder, because the victim is dead, and how can anyone be convicted of murdering someone who’s already dead?
Did you miss the part where I cited to cases interpreting the 14th amendment privileges and immunities clause? **
Fine. Let me rephrase my formulation. Absent principles of federalism and the Supremacy Clause, reading an amendment as restrictive on the states but not on the federal government is contradictory and nonsensical. Happy?
I’ve underlined the part of the sentence you deleted, which makes my meaning clear. I was specifically addressing the notion of your interpretation being contradictory and your counter that some such contradictory readings are permissible. As noted, the only examples I can think of are where federalism or the Supremacy Clause are implicated. As there is no such implication in this case, your counterargument is faulty.
**
So even you don’t believe this ridiculous idea, eh?
More crucially, on what basis do you suggest that the writers believed such a thing?**
It wouldn’t be. The point is that this is an area historically governed by federal legislation. It is presented in response to your argument that the federal government was incapable of this kind of legislation prior to the 14th amendment because of the greater emphasis on state’s rights at that time. **
It is nothing of the kind. The point is that the 14th amendment only covers state action; it does not constrain the federal government. Since the federal government is making the determination as to citizenship, the states are not implicated in that process. If the federal government is acting constitutionally, then the person is no longer a citizen after the proceedings are over, and thus after those proceedings the person has no privilges and immunities which the individual states must respect.
In short, the point is one of federal versus state responsibilities. If the federal government is acting constitutionally (and if it isn’t, it is because they are violating some other provision besides the 14th amendment), then the states do not owe privileges and immunities to a person because citizenship has been properly removed. **
The same factfinder who can determine if you’ve joined a foriegn military under existing law.
Look, you seem to be arguing two inconsistent positions. It hinges on this: does the 14th amendment bind the federal government? (hint: no)
If it does bind the federal government, I’d love to hear your rationale for why, especially since earlier in this thread you made a big to-do about my not noticing you had limited your post to the states.
If it doesn’t bind the federal government, then why bother talking about it? The act in question is federal in nature. It can only be enforced when the accused is out of the country. There really isn’t any way state or local governments would be involved in the process at all. That being the case, 14th amendment privileges and immunities analysis is wholly moot.
I mean, that Mr. Dewey Cheatem Undhow has been arguing all along explaining 8 USC sec 1481 to us, without realizing that the biggest fallacy of his and John Ashcroft’s is that they both think that intent can be derived from conduct.
There’s nothing more anti-logic than that.
Did it occur to him that even John Walker, after fighting shoulder to shoulder with the Talibans, still wanted to be an American citizen? Fighting with Talibans certainly didn’t indicate his desire to give up the citizenship, if he told you that he did not.
The very first paragraph of 8 USC 1481 says it very clear: “A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality”
Man, that is a big WITH.
The problem of section 501 of Patriot Act II is that Mr. Dewey Cheatem Undhow can infer to say you are giving up your citizenship, and that’s not up to you.
Christ, how many times do I have to say this? Deriving intent from conduct is not only possible, it is commonplace. Let’s use existing law as an example. Say you run off and join a foriegn military. That’s pretty good evidence that you intended to relinquish your citizenship, since that act is radically inconsistent with a desire to remain a US citizen.
It’s important to remember that this is just a rule of evidence – it creates a rebuttable presumption in favor of the requisite intent. The accused is perfectly free to rebut that presumption by providing evidence of his own. If John Walker Lindh so desires, he can testify that when he ran off to join Al Qaeda, he did not intend to relinquish his citizenship. And if he is a credible witness, then he will have successfully prevented proof of all the elements required under the statute.
It’s stupid to do this any other way. How many people who, say, run off to join foriegn militaries do you think will honestly and voluntarily state that they intended to relinquish their citizenship? If you trash that presumption, you effectively trash not only Patriot II but also every facet of Section 1481 as it is currently written outside of the voluntary statement rule.
First of all, let me say THANK YOU. This is actually a substantive point by someone who clearly read the proposal and understands how it fits into the statutory scheme. Compared to most of the posts I’ve been dealing with, it is a real breath of fresh air to have a question like this.
I admit I missed this section in my perusal of the proposal, so thank you for bringing it to my attention. It’s a little weird – if you skip to the actual language of Section 402 near the back of the PDF you’ll see that it is a proposed amendment to Section 2339A, but when you look at the actual text of Section 2339A (linked to earlier) it’s not clear how the amendment fits into the text – it says the first sentence of sub (a) becomes paragraph 1, and the second sentence becomes paragraph 3, but when I look at the existing statute, sub (a) is just one long sentence. Very weird. If anyone can figure out what the deal is, please let me know.
Anyway, as best I can glean, the amendment essentially just adds another act to the existing list of crimes, specifically “international terrorism,” as defined in 18 USC 2331. If you’ll peruse that definition I think you’ll find it sufficiently concrete that it won’t trip the “sky is falling” scenarios others in this thread have bandied about. Also, the proposed amendment retains the knowledge qualifier – the accused must still actually know that his support is going to assist in an act of international terrorism (as defined) – so that statement of mine remains true.
Yeah, that’s the theory. I already know that the theory of law is very easy to suspend whenever it is inconvenient to some jackass with a goverment post. The more potential power we give, the more it will be abused. Government is never anything better than a necessary evil.
If this act is passed, it will be abused–that is the nature of government. The severity of abuse that this act will allow is too great.
Potential law should not be evaluated on the basis of how it would function if everything in the system works as its supposed to. It should be evaluated on the basis of just how much abuse of the propose law we are willing to tolerate.
Dogface, I’m talking about the specific text of the act itself. You’re right that ambiguities are often abused, but in this case the text does not present such an ambiguity: it clearly requires knowing support for a terrorist act (either a listed crime or “international terrorism”, both of which are defined in concrete terms).
Anyone can casually toss off charges that “this will be abused!” To be taken seriously, you have to explain how it would be abused and why the proposal is not concrete enough to prevent such abuse. If you can’t do that, you aren’t making a substantive argument – you’re just ranting.
Ah yes now terrorism itself is a crime. Sounds good on the surface. But without reference to specific acts I think it can be dangerous let’s look at the definition of international terrorism as ammended by this draft
Note that the definition of domestic terrrorism is also included in the revised sec. 402 as well as “in or affecting interstate or foreign commerce”. Unfortunately I have been unable to find the definition of domestic terrorism that Patriot Act II refers to. However in they state their intent that domestic terrorism is also similarly modified on p21.
Now that terrorism itself is a crime, we are actually left with some very vague qualifiers such as “dangerous” or “intimidate or coerce” and the mere fact that it violates any criminal law.
Let’s say I illegally block an interstate freeway as part of a peace demonstration.
Does it violate the laws of the US or states? Yes.
Is this “dangerous to human life”? Yes.
Is it intended to intimidate or coerce". Not if you ask me. But it could be argued that blocking the free flow of traffic (which if successful enough can effect the economy and the functioning of government) is a way to coerce the populace and affect the policies of the government. And since the protestors stated motivations are now irrelevant, we only need to deal with it’s appearance or context.
I hope this example is a little extreme, but you can see we are left with vague qualifiers instead of actual statutes referencing specific crimes and situations.
AND since violating any law can now become one part of a grounds for terrorism charges, there may examples where currently providing assistance to an activity may not have already been a crime.
Not just any violation of law can become grounds for terrorism charges; as you note, the crime must be violent in nature.
Let’s not forget the other elements in the proposal: the support must be given with the knowledge that it’s going to help a terrorist act; the support must be given to a designated “terrorist organization” (I assume your peace protest was not organized by Hamas); and the organization must be engaged in hostilities with the US.
While I understand what you’re saying, I think you might be making a fetish out of concreteness. Plenty of states include in the definition of murder an act done with “depraved indifference to human life.” Well, gee, what’s “depraved indifference”? Yet somehow the justice system muddles through.
Having said all that, I think you’ve made a decent case for tightening up the language in the proposal. You’re right that “intimidate or coerce” could be a little more firmly defined. I would have no problem with adjustments in that sense.
Hey, I never said this proposal was a perfect example of legislative drafting. It was never my intent to suggest that the proposal was 100% perfect and ready to be rubberstamped into law. The proposal, like any proposal, could certainly use a good going-over to improve its wording.
Let’s remember this is just a proposal, and a draft proposal at that. I’d be pretty surprised if the folks at the AG office who wrote this expected it to remain completely untouched throughout the legislative process – I’d frankly even be surprised if they weren’t planning to tighten it up themselves before formally proposing it publicly in the first place (recall that the draft was leaked).
My only goal in this thread was to point out that the proposal isn’t the “sky is falling” kind of thing the OP suggested. I hate overwrought hysterics, especially in this type of situation where it’s expressed by people (not you, BTW) who clearly haven’t bothered to read what they’re expressing outrage over. I think that sort of thing is counterproductive, and typically leads to throwing the baby out with the bathwater. If you’ll look back over the thread, you’ll see a lot of wild-ass claims that could easily be shown as false by simply reading the proposal and its cross references.
At any rate, it is a real pleasure to deal with substantive, sober criticism rather than hysterics. My hat is off to you.
Not in committee – not even on the Hill, AFAIK. My understanding is that this is a proposal that was still being worked on internally in the AG’s office and was leaked to the press.
violent OR dangerous to human life. Whose life it is, is not specified. There are many non-violent acts which risk the life of the participants and might unintentionally risk the lives of others. Blocking a freeway is good example of this.
Well if the civil disobedience (not some legal protest) is deemed a terrorist act then they could be de facto a terrorist organization especially if we are in a state of emergency (such as war) and terrorist organizations can be determined without even the authorization from congress.
Yes it is a draft and there will be more work done on it. But it states that clearly its intent to make terrorism itself a crime. The current one paragraph definition hardly seems enough to me. Just adding a sentence here or there would still be a significant leap in prosecuting power versus a laundry list approach that clearly sets out the crimes. This intent, regardless of the wording seems reckless and worthy of critiquing.
The procedures for naming an organization as a “terrorist organization” have been dealt with in this thread. It is not done on a whim, even under the IEEPA (for which there is a significant requirement to report to Congress, thus allowing for Congressional oversight).**
Well, it seems to me that “making terrorism itself a crime” is a laudable goal. If you believe there are technical defects in the proposal, fine – again, I’ll happily cede that some of the language could be improved upon and made more concrete. Heck, I can even buy that the amendment to 2339A should be done away with, thus restricting support to specifically listed crimes. But that’s pretty much a technical criticism, the kind of thing that gets a proposal amended rather than rejected outright.
But that’s hardly the same thing as crying “the sky is falling” and suggesting this proposal is the next coming of Big Brother. The proposal, while not perfect, simply is not the juggernaut of evil that some in this thread have suggested.
Well if a poorly written bill suddenly becomes a well written bill then I guess there’s nothing to complain about. But I have a feeling my objections will remain if and when this bill moves forward.
So, if you belong to the ‘I love trees’ organization and that organization is later determined by the AG and congress to be supporting terrorism, you can be de-citizenized?
Does that, then, mean that you should avoid memberships in all organizations because they could possibly be declared terrorist organizations in the future?
Actually you should avoid doing anything at all since, as I pointed out in the first thread on this subject, you can already lose your citizenship for “committing an act of treason or other seditious act” and a “seditious act” is anything the legislature wants it to be.
And “they” can already “infer” your intent from your conduct according to the Supreme Court. So if you really want to indulge in silly paranoid fantasies, go right ahead. There’s absolutely no need to wait on Patriot II.
urban1z: In addition to zigaretten’s spot-on criticism, please read the remainder of this thread. The issue of how an organization is designated as “terrorist” and the fact that you must provide support or be a member at a time when such designation is in effect (i.e., not before) has already been hashed out.
No. I don’t see how the issue of what the P&I consist of is relevant unless you are claiming citizenship itself is not a P&I.
No. Why would I be? Here’s what I expect to see when someone is arguing that something (let’s call it C) is contracdictory:
A statement P
An argument proving that if C is true, P is true.
An argument proving that if C is true, not P is true.
So what is this statment P, and what are the arguments proving it to be both true and not true?
Okay, I’m completely confused as to what your argument is. The best I can come up with is this:
DCU: Your interpretation is contradictory.
Me: No, it’s not. Look at these other cases. They’re not contradictory. [note this is an analogy, not a “counterargument”. You have presented no argument that it is contradictory, therefore there is nothing to counter.]
DCU: Those all involve the Supremacy Clause. Yours doesn’t. Therefore it’s contradictory.
Surely you’re not implying that any law that does not implicate the Supremacy Clause is contradictory? Or that a law that would otherwise be contradictory becomes noncontradictory simply by implicating the Supremacy Clause?
So no, even with the underlined bit, your meaning is not clear. You presented why a particular possible Constitutional conflict does not arise. I don’t see how that in any way addresses my claim that there is a different Constitutional conflict.
I think we can do without loaded questions.
It seems odd to me that they would restrict the states, but not the feds.
I don’t recall making any such argument.
But I’m not basing my argument on the claim that the states must respectthe P&I of the former citizen. Here’s my argument explicitly stated:
Patriot II would abridge the P&I of citizens.
Therefore, if Patriot beomces law, it would be a law which abridges the P&I of citizens.
The 14th Amendment prohibits states from enforcing laws which abridge the P&I of citizens.
Therefore, if Patriot II becomes law, states would be prohibited in participating in its enforcement.
Could you be more explicit?
If I could convince you that states are prohibited from enforcing it, wouldn’t you agree that either
the federal governemnt is prohibited from enforcing it or