By Mary Mostert, Editor, Michael Reagan's MONTHLY MONITOR
April 15, 1996
It was not the purpose of the Environmental Protection Act to close down the logging industry or to put thousands of people out of work and cause economic hardship in hundreds of communities across the West. If it had been so, no one would have voted for it. What happened of course is that the power to enforce the law, to interpret it, and to convict and punish those who broke it was placed in the hands of a single regulatory agency. There was no separation of powers in the agency between legislating (writing the regulations, interpreting the legislation), and the enforcement of that legislation. The regulators not only wrote the rules, they then served as judge, jury, and executioner too.Within 20 years the Endangered Species Act grew under regulatory interpretation, to not only protect a dozen whooping cranes from becoming extinct, but to protect every noxious weed, wet weather bug, and kangaroo rat. Each of these suddenly had more "rights" than the human beings who owned the land that each species lived on. We must remain aware that laws once passed by Congress take on a life of their own - growing and behaving in ways not predictable at their birth. We must be particularly careful when Congress considers laws involving "internal security." While it may not be the intention of the good men and women that author internal security bills, invariably individual liberties are put at risk.
Three major anti-terrorism bills have been introduced in the 104th Congress. The purpose of each of the three bills is to prevent terrorism and enhance the internal security of the United States. This is certainly a noble objective. Unfortunately, some provisions of the proposed legislation could also be used to lay the foundation of a police state. Furthermore, none of the proposed bills, even with their broadened "conspiracy" provisions, could have stopped the Oklahoma City bombing. Each of the bills hold the potential of expanding the Federal Government's involvement in the lives of both native born Americans and hundreds of thousands of naturalized citizens and legal aliens. This is dependent on how future law enforcement agents and a handful of federal judges interpret the word "conspire." Could a radio talk show host or a group of people discussing federal regulatory intrusion in their lives be accused of "conspiring?"
Under existing laws, perpetrators of the bombing in Oklahoma City can be and undoubtedly will be punished if convicted. However, America once again faces an emotionally trying debate about how to balance security and personal freedom. Many of the new powers that would be granted to federal law enforcement officials by the anti-terrorist bills are frequently modified by the phrase, "must be consistent with the Constitution." However, it is left up to un-elected judges to determine exactly what that means.
In this sensitive time, any bill labeled "anti-terrorist measure" sounds good to most Americans. So, many politicians feel a need to pass a new law so they can appear to be doing something to improve the situation. However, it is important for the people to read the fine print before they jump on the legislative bandwagon to control terrorism. It is disturbing to note that in the Senate, the bill S735 was voted on before hearings were held in committee, without a committee report.
Each of the proposed anti-terrorist bills leave the Espionage Act of 1917 (Title 18 of the United States Code) and parts of the other Internal Security Acts intact. In fact, both S390 - Clinton's Omnibus Anti-terrorism Bill introduced in the Senate by Senator Joseph Biden (D), and S735 - introduced by Senator Bob Dole were basically amendments to Title 18. S735 was passed by the Senate on June 7th. The House is scheduled to consider S735's counterpart, HR 1710 in late June or early July.
In the 1950's and 1960's a favorite Communist trick to stir-up unrest was to organize ad hoc committees, or infiltrate organizations that wanted to preserve Constitutional Rights, or work for Peace, or for Freedom, or for Civil Rights. Many organizations which had no connection or sympathy with Communism were "suspect" if the words Peace, Freedom, or Civil or Constitutional Rights were in their names. We are already seeing a 1990's version of that technique used by the press and by the President in their treatment of conservative talk show hosts, citizen militias, gun-owners and even speech on the internet. These terrorism bills can be thought of as 1995's re-runs of some of our history's worst attacks on individual liberty. Each could give the President potentially unlimited power to determine who is a "terrorist."
The Senate: S735: Too Much Power For Any Man
What is the definition of a terrorist? And when do professional terrorists, i.e. Nelson Mandela, Yassir Arafat, or Sean Finn no longer qualify as terrorists? The provision of this bill that prohibits TERRORIST FUND-RAISING provides dictatorial control by the President over the fund-raising activities of foreign organizations which the President may designate as "engaging in terrorism." This would appear to be a simple reworking of the provision in the 1954 Internal Security Act which made it a crime to belong to an organization which was deemed "Communist," or as a "Communist Front." It was not required that any illegal action be committed by the offender; all that was required was simply belonging, at some point in time, to an organization which may have been correctly or incorrectly labeled "Communist."For example: Since the Catholic Church is headquartered in Rome, could it be designated a terrorist organization for its firm opposition to abortion? Under S735, perhaps a possibility. An Irish Catholic priest could be accused of 'association' with the "terrorists" of the IRA. The definition of "terrorist" is left in the hands of one person - the President. Under such a scenario it would be "unlawful for any person ....to directly or indirectly raise, receive or collect on behalf of, or furnish, give, transmit, transfer or provide funds to or for an organization or person designated by the President." Under the Subversive Activities Control Act of 1950 those people with unpopular views had the opportunity to argue their case with the Subversive Activities Control Board. Under this Anti-Terrorism Bill, anyone the President deems a terrorist is a terrorist he has no opportunity for appeal.
Interestingly, those with an actual history of terrorism, i.e. Nelson Mandela of the African National Congress or Yassir Arafat and the Palestine Liberation Army, presumably would not be terrorists unless the President said they were. That would be unlikely under the Clinton Administration. Mandela himself freely admits his terrorist activities and simply justifies them as "necessary." Mandela is a hero to Bill Clinton, he was given an honored seat at the Clinton inauguration in January 1993. Yet, presumably under the S735 bill, successful terrorists who end up controlling their nations could not be provided American foreign aid to expand their efforts into other nations.
Conspiracy Clauses Opens the Door to Tyranny
Unfortunately, S735 also contains a section (102) which adds 'conspiracy' to existing provisions of Title 18 of the Criminal Code. The problem with the conspiracy clause is that abuse can occur when malicious or politically motivated individuals accuse someone of being a "terrorist." Adding conspiracy clauses to the Anti-Terrorism Bill opens the door wider to malicious character assassinations than the Subversive Control Act of 1950 did. At least the Subversive Control Act stated that people had to be members of the Communist Party.The House: HR 1710: Recipe for a Police State
HR 1710, introduced May 25 by Rep. Henry Hyde may, have the unintended result of building the foundation of a police state. Under our Constitution the purpose of the police is to protect the people. In a police state, the purpose of the police is to protect the government. Any person working for the government is given a complete legal shield against any citizen who threatens to conspire against him.HR 1710 modifies the US Criminal Code to provide imprisonment for anyone who gives material support to any person who violates any of 17 different sections of the Criminal Code. Material support is defined as "currency, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation and other physical acts." Under that clause, if you rented a room to Timothy McVeigh, who is accused (but not yet convicted) of destroying the federal building in Oklahoma, and he talked to you about his crazy ideas you could be "fined" or "imprisoned for not more than ten years or both."
International Terrorists: 20th Century Pirates
Prior to the bombing in Oklahoma City there had been plans to introduce Anti-terrorism legislation, mainly targeted at foreign terrorists and terrorist states. In fact, much of the 72 pages of S735 are devoted to preventing international terrorist activities. But there may be a simple and more effective way to solve international terrorism without endangering the civil liberties of Americans.Dreaded and vicious, the international terrorist of two hundred years ago were called pirates. For many years the "pirate states" of what is now Algeria, Morocco, Tunisia and Libya harassed the nations of the civilized world. To prevent ships from being seized and their crews enslaved, England, France, Spain, and even America paid "tribute" to pirates. Currently, some "pirate" states are again receiving tribute. These days we call it "foreign aid."
When Thomas Jefferson became President, he refused to pay the tribute to the "pirate states." In response Tripoli's leader seized an American ship, the Philadelphia. Although the US paid a ransom for the prisoners who had been captured, Jefferson ordered an expedition into Tripoli in order to capture and burn the Philadelphia to prevent it from being used by the pirates. Jefferson, and then Madison after him, sent the Marines to Tripoli, successfully ending the pirates reign of terror.
Congress has a clear responsibility under Section 8 of the Constitution to "define and punish piracies." Traditionally piracies are defined as terrorist acts for private, not political gain. However, in the case of the Barbary pirates, bandit governments were very much involved. If Congress were to pass an amendment to the piracy laws that clearly identified terrorist actions from overseas as acts of piracy, the President would be able to respond to terrorist as Presidents Jefferson and Madison did.
We should learn a lesson from our fore fathers. With the determined application of force against those nations that support terrorism, we could put an end to the 20th century pirate states.