Integrity Legal

Posts Tagged ‘Patriot Act’

1st June 2011

It recently came to this blogger’s attention that the administration of President Barack H. Obama is poised to take a more commonsensical approach to issues pertaining to United States Immigration. In order to shed further light upon this issue it may be best to quote directly from an article entitled New Common-Sense Immigration Reforms to Strengthen Our Economy written by Aneesh Chopra & Alejandro Mayorkas and posted on the White House blog at WhiteHouse.gov:

President Obama recently reaffirmed the urgent need to fix our broken immigration system, so that America can compete and win in the 21st century.  Immigrants make extraordinary contributions to our economic well-being, as demonstrated in study after study. For evidence, you can turn to recent analyses from the Treasury Department, the bipartisan Partnership for a New American Economy, or the U.S. Chamber of Commerce.

Or simply visit Silicon Valley.  Aneesh participated in a roundtable yesterday hosted by the Silicon Valley Leadership Group where nearly half of the executives in the room were immigrants. They were unanimous in their call for action in the high skilled area — a top priority for the group, along with a new service campaign to connect the  best and brightest in the Valley with  kids in need.  But they were also frustrated with our inability as a country to tackle these issues as it has been several years since they began such conversations.

Aneesh did review the White House’s Blueprint for Building a 21st Century Immigration System, reinforcing what they already knew — that our economic competitiveness would be strengthened by a legal immigration system that reflects our values and meets our diverse needs…

The administration of this web log strongly encourages readers to click on the hyperlinks noted above to read further from this insightful piece.

This blogger is personally anxious to see a new common sense strategy employed in the administration of America’s immigration system. In a previous posting on this blog it was noted that the Obama administration in conjunction with Senator Amy Klobucher have taken steps to move forward on legislation designed to reform certain aspects of the American visa system. This initiative appears to be undertaken in an effort to generate further revenue for America in the form of tourist dollars. Furthermore, there are some who would argue that a reform of the immigration system would result in an increase in foreign direct investment in the USA as foreign nationals travel to America on visas such as the E-2 visa or the EB-5 visa in order to engage in trade or start a business.

Credit where credit is due: the administration appears serious about making positive changes to the US visa process and for this reason their efforts to that end should be admired. However, not everyone is enthusiastic about every aspect of the Obama administration’s policies and procedures as was recently discovered by this blogger while surfing the internet for information regarding the recent Patriot Act Extension. It would appear as though the issue of the Patriot Act’s extension is not the salient point for some as the President’s method of “signing” the recent legislation has been called into question. To quote directly from an article written by Benjy Sarlin posted on the website TalkingPointsMemo.com:

President Obama’s use of a mechanical “autopen” to sign the new PATRIOT Act extension from abroad has at least one Republican lawmaker worried about a “dangerous precedent.” According to Rep. Tom Graves (R-GA), using a machine to sign legislation could one day bring about a dystopia in which robotic writing utensils are used to enact all manner of phony legislation.

“I thought it was a joke at first, but the President did, in fact, authorize an autopen to sign the Patriot Act extension into law,” Rep. Tom Graves (R-GA) said in a statement. “Consider the dangerous precedent this sets. Any number of circumstances could arise in the future where the public could question whether or not the president authorized the use of an autopen. For example, if the president is hospitalized and not fully alert, can a group of aggressive Cabinet members interpret a wink or a squeeze of the hand as approval of an autopen signing? I am very concerned about what this means for future presidential orders, whether they be signing bills into law, military orders, or executive orders.”

The administration of this web log recommends that readers click upon the relevant hyperlinks noted above to read this interesting posting in its entirety.

Representative Tom Graves is not the only one with concerns regarding this method of enacting legislation via “autopen” as those who subscribe to a so-called “formalist” or plain language interpretation of the United States Constitution (which this blogger has been known to agree with on certain issues) seem to have taken some offense to the notion of being able to sign legislation, especially legislation as important as the Patriot Act extension, into law through usage of an “autopen” especially in light of a plain language interpretation of the U.S. Constitution itself. To further elucidate this point it may be best to quote directly from a very astute comment on the CBSnews.com website attributed to Bojax39 on May 31, 2011:

Justice Department’s Office of Legal Counsel: “…we conclude that the President need not personally perform the physical act of affixing his signature to a bill he approves and decides to sign in order for the bill to become law. Rather, the President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President’s signature to such a bill, for example by autopen.”Article 1, Section 7 of the U.S. Constitution: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approves he shall sign it…” Now how the name of chicanery did the OLC “conclude” that? Just where does the Constitution say it’s okay for a machine to sign laws? What happens years from now when the government wants to prove to the people that it’s had the power to do some legal trickery for years? Drag out a former president’s autopen program to retroactively sign an empowering bit of “legislation”, wait for the ink to dry and tell us the law is really decades old?..

The administration of this blog again strongly recommends that readers click upon the hyperlinks noted above to read this comment fully. That stated, one is always encouraged to take some opinions posted on the internet with a proverbial “grain of salt,” but under the circumstances the points raised in the citation above are valid.

Clearly, there is room for debate as to the legitimacy of “autopen” usage in the adoption of legislation. In fact, there could be an argument that failure to fully adhere to Article 1 Section 7 noted above creates an implication that the extension of the Patriot Act fails to conform to notions of due process of law under the American Constitution. How this issue will play out in the months and days ahead remains to be seen, but it seems likely that further discussion of “autopen” usage may arise in the future.

For related information please see: Legal.

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10th April 2011

In previous postings on this blog it was noted that the issue of impeaching of President Barack Obama was brought up in the context of the administration’s current position regarding enforcement of the provisions of the so-called “Defense of Marriage Act” (DOMA). At the time of that posting, the notion seemed a bit more far fetched compared to the tone some lawmakers and advocates on Capital Hill are now taking especially in light of the recent events in Libya and what appeared to be partisan acrimony in the lead up to the 11th hour agreement to keep the United States government funded.

Many legislators seem rather fixated upon the President’s recent actions in Libya and elsewhere in North Africa. To quote Representative Ron Paul directly from his recent speech on the floor of the United States House of Representatives (as found at approximately the 2:00 minute mark of the YouTube video referenced in the aforementioned hyperlink):

“It is against international law and it challenges the war powers resolution…”

Meanwhile, dissenting voices are not only heard on the Republican side of the current political aisle as Democratic members of Congress have voiced concern about Mr. Obama’s recent decisions regarding the situation in Libya. To quote directly from Representative Dennis Kucinich (approximately the 2:40 mark) in a video on YouTube from a broadcast which would appear to have initially aired on Russia Today, the Representative summed up his position on Obama’s decision regarding Libya, when asked if the President’s actions were impeachable and for further elaboration on that subject:

…He did not abide by the Constitution…

Readers of this blog are highly encouraged to click upon the hyperlinks above to view these videos in detail in order to gain real insight on these issues. Concurrently, it would appear as though American advocates for Constitutional adherence are becoming increasingly vocal in their opposition to recent policies of the Obama Administration as writer Ben Smith noted in a concise and interesting article on the website Politico, to quote directly from Mr. Smith:

A prominent libertarian constitutional lawyer and civil libertarian has drafted an article of impeachment against President Obama over his attack on Libya, throwing down a legal gauntlet that could be picked up by some Congressional Republicans

Bruce Fein, a former Reagan administration official in the Department of Justice and chairman of American Freedom Agenda writes in his 15-page argument of Obama’s course that “Barack Hussein Obama has mocked the rule of law, endangered the very existence of the Republic and the liberties of the people, and perpetrated an impeachable high crime and misdemeanor.”

This blogger undertook some research regarding Mr. Bruce Fein as he appears to be a very learned individual especially regarding the subject and intentions underlying the drafting of the United States Constitution. Recently, Mr. Fein was featured in a 2 part interview on YouTube’s Alex Jones Channel and his analysis of the issues at play as well as the Constitutional legal principles underlying those issues was highly insightful, especially for those who may be unaccustomed to a truly thoughtful analysis of Constitutional law and the original intentions behind the adoption of the Checks and Balances system inherent to the Separation of Powers embodied within the provisions of the Constitution itself. Many people are under the mistaken impression that the only issues that come up with regard to the United States Constitution pertain to the so-called “Bill of Rights”, the reference to the original 10 Amendments to the Constitution which most clearly elucidates the rights, privileges, and immunities of States and People of the United States of America. However, the provisions regarding the relationships and interrelationships between the Several States and the Federal Government, the People and the Federal Government, the States’ relationships amongst themselves, and the States’ relationship to the People are more clearly defined within the provisions of the US Constitution itself.

One quote that this blogger felt was of most significance during the interview came when Mr. Fein stated (at approximately the 5:20 minute mark of the interview mentioned above):

“…The fundamental rule of law is at stake here.”

Later in this same interview (at approximately the 8:30 minute mark at part 2 of this interview) Mr. Fein went on to take exception with an apparent policy that Americans can be placed upon “assassination lists” if found to be an imminent threat to the country. Mr. Fein took exception with this policy based upon a belief that the United States government is not permitted to take the life of an American Citizen without the due process of law.  He went on to note that the so-called “Patriot Act” is “being used against us” (use of the word us implying the American People). Those interested in these issues are strongly encouraged to click on the links above and review this interview as it is quite insightful.

That said, a final resolution to the issues being brought to the foreground by Representatives such as Mr. Kucinich and Dr. Paul as well as advocates such as Mr. Fein has yet to manifest itself from the bubbling cauldron that is the American political system. To paraphrase Ted “Theodore” Logan from one of this blogger’s all time favorite movies, Bill & Ted’s Excellent Adventure: Strange Things Are Afoot On Capital Hill. How the issues noted above will play out in a Congress that just barely managed to patch together an 11th hour resolution to keep the government funded remains to be seen.

Strictly speaking, proceedings such as impeachment have a more political character compared to, say, a legal proceeding, but the outcomes of such proceedings can have legal consequences as well as consequences in the policy arena. To be candid, such events can even have geopolitical consequences as evidenced in the waning days of the Presidency of William Jefferson Clinton or, arguably, those of Richard Nixon or even Andrew Johnson. Therefore, in today’s interconnected world American Presidential impeachment can have ramifications for people as geographically distant as China or the Nations comprising the Association of Southeast Asian Nations (ASEAN).

In real terms, all hyperbole aside: is impeachment possible? Certainly, it is always a technical possibility under the provisions of the United States Constitution. The question to be asked by the observant student of political and legal history in the United States is: can Senatorial removal be considered a real possibility? This is a much murkier issue as the Senate of the United States is currently dominated by members of the Democratic Party who would likely prove less-than-willing to vote to remove a President of their own Party. To put it as simply as possible, it is this blogger’s opinion that notwithstanding the possibility that articles of impeachment may be introduced against Mr. Obama, the possibility of seeing those articles of impeachment adopted by the full House of Representatives is simply that: a possibility.

To sum up, whatever one’s opinions are regarding Mr. Obama’s administration there is one thing that is certain: he will be running for a second Presidential term. Mr. Obama recently announced that he would be seeking the office of the Presidency for a second time. To quote directly from The Link Paper at thelinkpaper.ca:

US President Barack Obama announced his decision to run for a second term as he called upon his supporters to mobilise for the 2012 election campaign. “This campaign is just kicking off,” Obama said on his official website. In a message to his supporters through email, text and video, titled ‘It Begins with Us’, Obama said he would be filing his papers to launch his campaign for a second term.

As of yet, it would appear as though Mr. Obama’s main Presidential challengers have yet to officially reveal themselves. Although the reconvening Congress may be more interesting even than that which very nearly shutdown only mere hours ago.

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6th February 2011

Those who read this blog frequently may have noticed that the administration has been keeping track of the proposed extension to the so-called “Patriot Act.” It appears that there are efforts being made on Capitol Hill to streamline the passage of a bill which would extend this important Act. To quote directly from a recent article on RT.com a Russian News Source for global news:

Now that the major provisions of the Act are about to expire, the US Senate’s Judiciary Committee is in a real hurry to rubberstamp the extension of the Act rather than discuss and debate the far-reaching measures.

As the US Senator Dianne Feinstein of California put it “They expire in three weeks and I think there’s no time really to go into the changes.”

Let’s take a look at the above quotation for a moment. The Senator would appear to be saying that the bill should be passed “as is” without significant discussion due to the fact that there is “no time” for any discussion. Doesn’t this conflict with the fact that within the same quotation the Senator notes that there are three weeks left before the Patriot Act expires? How then is there “no time” to discuss the bill, when there are in fact approximately 3 weeks left to discuss the bill? This blog posting was not written to discuss the details of the Patriot Act, but instead to discuss the issue of what appears to be legislative shirking. In recent history there have been several examples of a disturbing trend within the Federal Legislature. Namely, the notion that bills coming before said legislature which have incredible ramifications for the American people and the Institutions that make up the American way of life should be “passed first and discussed later”. RT.com delves into this issue further:

There was ‘no time’ either for real debate back in 2001, when the Patriot Act was adopted weeks after the 9/11 attacks.

According to Congressman Dennis J. Kucinich of Ohio, the lawmakers had not even read what they were passing.

“What happened once the Patriot Act was passed, the Fourth Amendment right – to be protected from unreasonable searching was just thrown out.”

To provide clarity to the reader, Congressman Kucinich is referring to the Constitutional Rights guaranteed under the 4th amendment to the United States Constitution which, to quote from Wikipedia, states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

RT.com continues:

The Congressman was one of the very few who openly opposed the Act.

“We have a challenge to the essence of democracy with the very existence of the Patriot Act,” Denis Kucinich warns. “And of course its name – the Patriot Act – who would want to oppose the Patriot Act, because it makes it sound as though you’re a patriot if you are for it. But actually the idea of tying patriotism to the destruction of cherished constitutional privileges needs in itself to be challenged.”

This blogger does not point this out in an effort to criticize Mr. Kucinich, but strictly speaking pursuant to the plain language of the 4th Amendment to the United States Constitution, as quoted above, the freedom from unreasonable searches and seizures is a RIGHT, not a privilege. Those reading this posting who would accuse this blogger of being overly interested in semantics should note that there is a substantial distinction between rights and privileges in jurisprudence. As usual, Wikipedia turns out to have the most concise synopsis of the differences between rights and privileges in layman’s terms. To quote directly from Wikipedia’s entry on the issue of rights vs. privileges:

A privilege is a special entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis. It can be revoked in certain circumstances. In modern democratic states, a privilege is conditional and granted only after birth. By contrast, a right is an inherent, irrevocable entitlement held by all citizens or all human beings from the moment of birth.

The above digression is not intended to be a jab against Mr. Kucinich as his use of the term privilege was likely unintentional. Instead, this digression was an attempt to elucidate the importance of the distinction between rights and privileges.

To get back to the issue of the Federal Legislature’s apparent reluctance to discuss the Patriot Act extension on the basis of “time constrains” the question must be posed: what is the United States Senate’s job if it is not to discuss pending legislation? According to the website senate.gov, United States Senators are paid 174,000 USD per annum. To quote another page from senate.gov:

Members of Congress are eligible for a pension at age 62 if they have completed at least five years of service. They are eligible for a pension at age 50 if they have completed 20 years of service, or at any age after completing 25 years of service. The amount of the pension depends on years of service and the average of the highest three years of salary. By law, the starting amount of a member’s retirement annuity may not exceed 80 percent of his or her final salary.

The compensation of United States Senators is not really the crux of this posting, but the above cited figures are noted in an effort to show that US Senators are not uncompensated for their service to the United States of America. This begs the question: what are they compensated for? The short answer: to legislate, which includes discussing pending legislation or proposed extensions to previously enacted legislation! In many ways, the United States Senate was specifically designed to be a deliberative body which would slowly and intelligently scrutinize proposed legislation, or to quote US Senator John Kyl on senate.gov:

George Washington likened the House to hot tea, and the Senate was the “saucer” that cooled it.

Clearly, the Senate’s raison d’etre is to do exactly the opposite of what Senator Feinstein has suggested. Instead of acting as a “rubber stamp” the Senate is to be the great “scrutinizer” of proposed legislation. It should be noted that this is not the first instance in recent American history that expedience has been cited as a valid reason for railroading through legislation with little or no scrutiny. To cite just one example: the bailout legislation. To quote Representative Brad Sherman from California when discussing said legislation on the House floor:

The only way they can pass this bill is by creating and sustaining a panic atmosphere. That atmosphere is not justified. Many of us were told in private conversations that if we voted against this bill on Monday, that the sky would fall, the Market would drop two or three thousand points the first day-another couple thousand the second day-and a few members were even told that there would be martial law in America if we voted no. That’s what I call fearmongering. Unjustified. Proven wrong. We’ve got a week, we’ve got two weeks to write a good bill. The only way to pass a bad bill: keep the panic pressure on.

Clearly, Representative Sherman was not a supporter of the “legislate first, ask questions later” philosophy. That said, the financial legislation that resulted in the banking bailouts would appear to have been, at least partially, the result of high pressure tactics utilized by those hoping to see that legislation’s passage. What was the result of passing such important legislation without careful analysis? Significant amounts of money allocated as a result of the bailouts has not been accounted for and many Americans have noted their disapproval of the way in which public funds were allocated. Meanwhile, the economy continues to be turbulent. Prior to the passage of the bailout bill, expediency was one of the major themes trumpeted by those in support of the legislation’s passage. In the aftermath of the bill’s passage there are many who wonder if it might not have been better to have taken a more deliberate approach toward that legislation.

Federal legislators’ seeming lack of enthusiasm about discussing the extension of the Patriot Act comes on the heels of recent announcements that Federal agencies such as the Federal Bureau of Investigation appear to have violated the civil rights of a substantial number of Americans during the last decade. To quote directly from the Electronic Frontier Foundation’s official website eff.org:

EFF has uncovered widespread violations stemming from FBI intelligence investigations from 2001 – 2008. In a report released today, EFF documents alarming trends in the Bureau’s intelligence investigation practices, suggesting that FBI intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed.

The Patriot Act was signed into law on October 26, 2001. There are some who may infer that the passage of the Patriot Act is linked to the apparent violations which have been discovered by EFF.org. Those interested in the the full story on the apparent violations allegedly perpetrated by the FBI are encouraged to check out the full story on EFF.org.

Readers should note that this blogger believes that there is room for debate on any issue which is being proposed for passage by the US Congress and that all Americans are entitled to their opinion regarding the Patriot Act, or any other law for that matter. However, failure to properly vet legislation prior to passage by the US House and Senate should be alarming to anyone no matter what the subject matter of the proposed legislation may be. The following is quoted from a recent article posted on the Voices section of the official website of the Washington Post, WashingtonPost.com:

The Sensenbrenner bill [The House's version of the proposed Patriot Act Extension Bill] is expected to easily pass the Republican-led House next week. The measure would then go on to the Senate, which will be in recess the latter part of next week. The Senate would next be able to take up the bill when it comes back during the week of Feb. 14.

Both chambers are in recess during the week of Feb. 21 for the President’s Day holiday, and by the day they come back — Feb. 28 — the provisions will have already expired.

That means that if the Senate doesn’t act on the House-passed legislation during the week of Feb. 14, the provisions would either expire or both chambers might be forced to call a pro-forma session during their President’s Day recess.

Again, the implication of this quote would seem to suggest that there is not a great deal of time to pass this legislation. In reality, at the time of this writing there are 22 days left before the expiration of the Patriot Act. If the House or Senate is required to come out of recess or forgo a vacation in order to facilitate debate or discussion on a bill that has a dramatic impact upon the rights of US Citizens wouldn’t that be a good thing? After all, isn’t that what legislators are paid to do? Again, the substance of the Patriot Act is not the main point of this article. Instead, this post is written in an attempt to point out the apparently recent habit of the US legislature to enact important legislation with little or no discussion or debate in the name of expedience.

It should be noted that President Barack Obama in conjunction with the previous Congress authorized a previous extension to the Patriot Act in February of 2010. To quote directly from the website ThatsMyCongress.com:

Yesterday, to top it off, the Democratic-controlled U.S. Senate passed a reauthorization of Patriot Act provisions without any reform to them. This passage was made via voice vote, a move for secrecy so that no one could track the vote of a specific senator on the issue. The vote to make American citizens’ private lives transparent to the U.S. Government was made in a way to make American senators’ votes opaque to U.S. citizens.

The 2008 promise by Democrats to reform warrantless wiretapping, intrusive surveillance, restore constitutional protections, reject national security letters and reform the Patriot Act has not simply been forgotten. The promise has been broken.

Again, to reiterate, any piece of legislation that would allow the government to gain access to “any tangible thing” during an investigation is, by virtually anyone’s estimation, an important piece of legislation. Therefore, in extending such legislation shouldn’t there at least be discussion? One would think.

For related information please see: Patriot Act Extension.

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1st February 2011

In recent days this blogger has been reading a great deal about both the proposed extension of the USA PATRIOT ACT and the proposed “Internet Kill Switch” which would allow Federal authorities to unilaterally shut down the internet services in much the same way that Egyptian authorities have restricted the access to internet services in Egypt. The first issue is the extension of the Patriot Act. Notwithstanding what appears to be broad popular support calling for the repeal or “sunsetting” of the Patriot Act, lawmakers on Capitol Hill continue to push for a further extension of this questionably Constitutional piece of legislation. To quote directly from a piece on the RawStory.com website:

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) introduced legislation to the Senate Wednesday that would extend expiring provisions of the controversial PATRIOT Act.

“Congress now faces a deadline to take action on the expiring provisions of the USA PATRIOT Act,” Sen. Leahy said in a statement. “The USA PATRIOT Act Sunset Extension Act of 2011 will preserve law enforcement and intelligence techniques that are set to expire on February 28, 2011, and extend them to December 2013.”

The legislation, titled “The USA PATRIOT Act Sunset Extension Act of 2011,” would extend the roving wiretap provisions, the “lone wolf” measure and the “library records” provision. The provisions allow authorities to conduct surveillance without identifying the person or location to be wiretapped, permits surveillance of “non-US” persons who are not affiliated with a terrorist group, and lets the government gain access to “any tangible thing” during investigations, respectively.

Roving wire taps, library records surveillance, access to “any tangible thing” during an investigation, the question must be posed: is this really what is best for the United States of America? The USA was founded upon principles which run completely counter to all of these notions. Furthermore, vague definitions in bills such as the Patriot Act (eg. “any tangible thing”) makes this blogger think back to a time in the United Kingdom when blank warrants were utilized as a circumvention by authorities to search people without probable cause. Again, those who follow United States politics and policy with any kind of regularity must have noticed what appears to be a movement toward a more authoritarian regime in Washington D.C. Why do the American people need to continue to be placed under a regime of such heavy surveillance and scrutiny with no definitive end? Yes, there are threats in the world today, but it has always been America’s ability to remain free in spite of war, terrorism, and general unrest that, if anything, once made the American people “exceptional”. In much the same way that the British pride their “stiff upper lip” so too did Americans once prize their self-reliance and liberty. Why are these principles being undermined by the very lawmakers who have sworn to protect and defend the US Constitution?

Meanwhile, as the Patriot Act extension awaits Congressional approval, it appears that a bill may be proposed which would give Federal authorities the ability to unilaterally shut down the internet and thereby deprive the citizenry of free access to open source information the likes of which can sometimes only be found online. To quote directly from a recent piece on the website DailyMail.co.uk:

While the Egyptian government has drawn international criticism for shutting down internet and mobile phone access during civil unrest, it might alarm many Americans to learn that Barack Obama may soon have the same powers.

Lawmakers are set to debate a controversial new plan to give the President the power to shut down the Internet in case of a cyber emergency.

The proposal is certain to meet opposition, but Senator Susan Collins, the co-sponsor of the bill, insisted today that the legislation would not be used for censorship.

This bill, referred to currently as the Protecting Cyberspace as a National Asset Act of 2010 has yet to be voted upon by the American legislature. Thus far, this blogger has yet to find any concrete definition of what would constitute a “cyber emergency”. According to OpenCongress.org the bill:

Creates the Office of Cyberspace Policy and National Center for Cybersecurity and Communications to set standards and coordinate cybersecurity efforts within the government. Gives the NCCC broad powers over “critical infrastructure” in the case of a “national cyber emergency” (as declared by the President).

There would seem to be a great deal of controversy surrounding this bill which may be most concisely summed up by quoting from an excerpt in Wikipedia.org‘s entry on the subject:

Senator Lieberman [The Senator who proposed the legislation] has been criticized for giving the President the power to use a “kill switch” which would shut off the Internet. He has called these accusations “total misinformation” and said that “the government should never take over the Internet”.[3] Lieberman further inflamed skeptics when he cited China’s similar policy in a backfired attempt to show the policy’s normalcy.[4] However, the bill would allow the President to enact “emergency measures” in the case of a large scale cyber attack.[2] The original bill granted the US President the authority to shut down part of the internet indefinitely, but in a later amendment the maximum time for which the President could control the network was reduced to 120 days. After this period, the networks will have to be brought up, unless Congress approves an extension.

The question must be posed: is the controversy surrounding this bill legitimate or simply “misinformation”? Clearly under such a scheme, as stated above, the President would have some sort of “Emergency Powers” over the internet pursuant to the language of this bill. What is most ominous to this blogger is the notion that abridgment of freedom (both online and in the real world) is okay so long as it only occurs in 120 day spurts. Furthermore, at first blush, the provisions regarding restriction and Congressional extension would seem to mitigate the rather broad powers being granted to the President and the Federal government, but, in this blogger’s opinion, these measures are chimerical as can be seen by the Congressional actions which have consistently resulted in extension of the Patriot Act (a bill which also had sunset provisions, but provided Congress with the ability to make extensions). Does the American Constitution and Bill of Rights not clearly state that those enumerated powers not expressly granted to the Federal government are to remain with the States and the People respectively? If so, then why has the Federal government continued to usurp, or in the case of the “kill switch,” attempted to usurp; State and individual rights to liberty and the free access to information? In fact, it would seem that this bill is expressly intended to obstruct the free flow of information during a time of crisis, which some would argue, is the exact time when people would need such information the most. Perhaps the reasoning behind this bill cannot be fully discussed within the confines of this blog post, but readers can still ponder these questions while researching these issues.

Finally, the most noticeable aspect of both of these seemingly unrelated pieces of legislation is the use of the idea “Congressional Extensions” to act as a salve to those initially opposed to passage of such legislation. The notion that dramatic abridgment of liberty is permissible so long as Congress has to continually re-adjudicate the extension of such abridgment is simply ridiculous. In fact, such a statutory scheme would seem to simply make Congress a periodic accomplice to the abrogation of American State Sovereignty and individual personal freedoms. The Patriot Act has continued to be extended long after the date upon which it was originally supposed to expire and these extensions were permitted by a Democratic Congress. Bear in mind that a Republican President and Congress promulgated the PATRIOT ACT in the first place. Clearly, the notions of personal liberty and freedom of access to information are issues which transcend political party. As Congress continues to pass more questionably Constitutional legislation it is the job of the American people make informed decisions regarding whom they elect to office and it may also be incumbent upon Americans to understand their rights and understand the myriad ways in which such rights can be infringed by the Federal authorities.

For related information please see: 5 Worst Laws in American History.

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4th April 2009

During the week, this blog is dedicated to providing legal information about both Thailand and the USA. However, on the weekend we like to write something that feels a little less like work. The following list is composed of laws that have been controversial over the years. It should be noted that many of these laws have had positive side effects, but overall, I felt that whatever benefit they conferred was outweighed by the harm they caused. Either that or I was trying to be funny (and probably failed), that being said, judge the following US Laws for yourself…

5. The Federal Income Tax Amendment

The next time you are frustrated at filling out your tax forms, just thank the American people at the turn of the century for voting in the Federal Income Tax Amendment.

Who enjoys paying their income tax? Well at one time in the United States federal income tax was unconstitutional. At some point around the 1900s some brilliant politicians decided that it was time this was remedied and put forward the 16th Amendment to the US Constitution, also known as the Federal Income Tax Amendment. This Amendment made it legal to levy a direct federal income tax upon the American Citizenry. The pertinent language in the Amendment reads:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Keep in mind the next time you pay your taxes that apparently at one point in America this seemed like a good idea. (In its defense, the Federal Income tax has decreased the massive disparities between rich and poor that caused much upheaval in the Early 20th Century, so it has had some positive effect, I just hate paying taxes).

4. The Smoot Hawley Tariff

In 1929, the prevailing wisdom regarding economic stimulus was something akin to an ostrich firmly planting its head in the sand. Apparently, the idea was that if the US raised its tariffs, then all other nations would simply be content to have no foothold in the American market, but not petition their own governments to enact the same tariffs in their countries. As it turned out, this economic reasoning was a tad shortsighted, to say the least.

Smoot and Hawley: An Economically Deadly Combination

Smoot and Hawley: An Economically Deadly Combination

The Smoot-Hawley Tariff Bill was signed into law on June 17, 1930. Its purpose was to raise US Tariffs on over 20,000 imports to unprecedented heights. At the time, more than 1,000 economists signed a petition denouncing the Tariff and, subsequent to the Bill’s passage, many European countries responded by drastically hiking tariffs on products manufactured in the USA, as a result, American imports and exports declined by nearly more than 50%. Contemporary economists argue that the Smoot-Hawley Tariff was the driving force behind the steep decline in U.S. trade and one of the main precursors to the Great Depression.

3. The Alien and Sedition Acts

The Patriot act of its time, the Alien & Sedition Acts were actually enacted by the original Patriots in an effort to stifle domestic opponents to the sitting Administration. John Adams signed the bill into law at the behest of is Federalist comrades (keep this in mind when fawning over the late second President in the form of Paul Giamatti).

These acts were promulgated at a time in America when the ruling party was embroiled in a Quasi-war and felt the need to repress dissension among both Americans and “undesirable aliens.” Sound familiar? The most repugnant portion of the legislation made it a criminal offense to publish “false, scandalous, and malicious writing” against the government, its agents, or officials.

Thomas Jefferson, Author of the Declaration of Independence (and all around pimp), passionately opposed the Act and even wrote state nullification legislation rejecting the bill as unconstitutional. The Act never was reviewed by the Supreme Court, but many legal scholars believe that it never would have withstood constitutional scrutiny.

TJ Keeping It Real

TJ Keeping It Real

2. The Gulf of Tonkin Resolution

Lyndon Johnson was a master at manipulating the American legislative process for his own ends and the Gulf of Tonkin Resolution was possibly his masterpiece of political subterfuge. Framed as a seemingly limited and innocuous joint congressional resolution, the enactment gave the President the authority “to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.”

This Resolution was used as the legal reasoning behind the Administration’s use of armed force in Vietnam without an overt declaration of war by the US Congress.

Not His Best Moment

Not His Most Statesmanlike Moment

In one of the few prescient quotes from an American politician, Senator Wayne Morse exclaimed, “I believe this resolution to be a historic mistake.” His feelings were vindicated, but only after thousands of lives were lost and American international credibility was drastically tarnished.

1. The Patriot Act

Quite possibly the single most despised piece of modern legislation since the Gulf of Tonkin Resolution, this law basically allows the US government to do whatever they want with regard to citizens and foreign nationals. An excerpt from Wikipedia sums it up nicely (if somewhat dispassionately):

“The Act increases the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial, and other records; eases restrictions on foreign intelligence gathering within the United States; expands the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and enhances the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expands the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.”

So Orwellian

So Orwellian

This law was passed by some of the widest margins in history and has subsequently become almost universally reviled proving once again that when unrestrained and fueled by fear a government can make some pretty rash and poor decisions. Hopefully, this act will one day be repealed and stand as a reminder that repressive and tyrannical laws are seldom the answer to safety issues.

Thanks for reading.

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