Hearings on Wiretapping and other Terrorism Proposals Testimony of David B. Kopel Associate Policy Analyst Cato Institute Committee on on the Judiciary United States Senate May 24, 1995 Executive Summary
The heinous bombing of the Alfred P. Murrah federal building in Oklahoma City has understandably raised public fears of terrorism. As is common after sensational crimes, some persons have revived their call for a bigger federal government and a narrower Constitution. This Policy Analysis examines various restrictions on civil liberty which have been proposed as a response to Oklahoma City. Since draconian legislation is sometimes justified as being what the people demand, two points should be kept in mind. First, a large fraction of the population, not just a tiny fringe, is afraid of the federal government. According to a recent Gallup poll, 39 percent of Americans believe "the federal government has become so large and powerful it poses an immediate threat to the rights and freedoms of ordinary citizens." If the word "immediate" is omitted, 52% of the population is afraid of the federal government. Contrary to stereotypes about "angry white men," people fearful of misuse of federal power tend to be female more than male, black more than white, and liberal more than conservative. Repressive measures, rather than reassuring the American public, will intensify the fears which are already widely shared. Second, in the aftermath of a tragedy, it is not hard for insta-polls to report large majorities in favor of various repressive measures, especially when described at a high level of generality, with all the repressive details left out. (For example, "Should the government have more power to keep an eye on terrorist groups?" will obtain higher poll numbers than "Should the government be allowed to infiltrate non-violent, non-criminal dissident groups and be allowed to use wiretaps without a court order"?) In the long run, public officials are expected to exercise judgement, and not blindly rush into measures which may have short-term popularity. The most thorough public opinion survey of Americans' attitudes towards Constitutional rights included this question: "Suppose the President and Congress have to violate a Constitutional principle to pass an important law the people wanted. Would you support them in this action?" Twenty-eight percent said yes, "because the Constitution shouldn't be allowed to stand in the way of what the people need and want." Forty-nine percent said no, "because protecting the Constitution is more important to the national welfare than any law could possibly be."(1) Indeed, the precise reason for putting certain fundamental rights in the Constitution is to protect them from transient majorities.(2) In long-term perspective, the herding of American citizens of Japanese descent into concentration camps during WWII was a horrible human rights violation.(3) But at the time, public opinion and the press heavily favored the concentration camps, despite the total lack of evidence that these Americans were disloyal. And certainly national security was in far graver danger in early 1942 than it is today. But because terrorism, like child abuse (or Communism in previous decades) provokes such intense concerns, there is temptation to be careless in choosing the weapons to fight these evils. From the Alien and Sedition Acts in 1798 to the Palmer Raids in 1920 to McCarthyism in the 1950s, cynical politicians who have manipulated popular fears of aliens and radicals have done tremendous damage to the lives of innocent people and to the fundamental principles of Americanism. Today, Congress stands poised to repeat the mistakes of the past, as vast numbers of people are smeared with guilt by (very tenuous) association. It is not often that one sees the Presbyterian Church and the American Friends Service Committee standing shoulder-to-shoulder with the National Rifle Association and Americans for Tax Reform. That such diverse groups can find common ground, along with other organizations, to warn about the dangers of proposed legislation sharply curtailing civil liberty should indicate just how serious is the current threat to our Constitution.(4) President Clinton was right to characterize the Oklahoma City bombing as "an attack on our way of life." If Oklahoma City becomes a pretext for the constriction of the Bill of Rights, then we will have handed terrorism a victory which it could never have won for itself. There is No Terrorism Crisis "By enabling terrorists to appear much stronger than they really are, the media often find themselves working Pour le roi de Prusse," observed one historian.(5) Contrary to the imagery of some irresponsible segments of the media (and their Congressional analogues), there is no need to legislate an atmosphere of panic and hysteria. According to the State Department, international terrorist attacks are at their lowest level in 23 years.(6) In the United States in the last eleven years, according to the FBI, there have been only two international terrorist incidents. (One was the World Trade Center bombing; the other was a trespassing incident at the Iranian mission to the United Nations, in which five critics of the Iranian regime took over the mission's offices, and refused to leave.)(7) As for incidents of domestic terrorism, there were none in the United States in 1994, nor were there any preventions of terrorist incidents. In 1993, there were 11 incidents classified by the FBI as "terrorist." Nine of those eleven incidents took place one night in Chicago when animal rights activists set off small incideniary devices in four department stores that sell fur.(8) Combining domestic and international terrorism, and also accounting for suspected terrorist acts, the total terrorist incident count in the United State is as follows: Terrorist Incidents in the United States
Actual Prevented Suspected
1994 0 0 1 1993 11 7 2 1992 4 0 0 1991 5 4 1 1990 7 5 1 1989 4 7 16 Of these incidents, only one (the 1993 World Trade Center bombing) was classified as international in origin.(9) The Oklahoma City bombing was one of the most terrible single crimes in American history, but it was just that: an isolated, single crime. It was emphatically not part of a trend towards increasing terrorism. The British Tragedy More government secrecy, more police powers to detain people at will, less governmental accountability, and less freedom are not novel responses to terrorism. They are precisely the approach that has been taken in Great Britain since the early 1970s. The British lesson should be a caution to American politicians who feel confident that the only thing wrong with anti-terrorism policy is that the Bill of Rights has been taken too far. In 1974, Irish Republican Army terrorists bombed pubs in Birmingham, killing twenty-one people. Home Secretary Roy Jenkins introduced the Prevention of Terrorism (Temporary Provisions) Bill. Approved without objection in Parliament, the Bill was supposed to expire in one year, but has been renewed every year. The Bill included a smorgasboard of civil liberties restrictions, most of which are now being proposed, with some variation, in the United States. Under the Bill, the police may stop and search without warrant any person suspected of terrorism. They may arrest any person they "reasonably suspect" supports an illegal organization, or any person who has participated in terrorist activity. An arrested person may be detained up to forty-eight hours and then for five more days upon the authority of the Secretary of State. Of the 6,246 people detained between 1974 and 1986, 87 percent were never charged with any offense. Many detainees reported that they were intimidated during detention and prevented from contacting their families. The Prevention of Terrorism Bill also makes it illegal even to organize a private or public meeting addressed by a member of a proscribed organization, or to wear clothes indicating support of such an organization.(10) The Act allows the Secretary of State to issue an "exclusion order" barring a person from ever entering a particular part of the United Kingdom, such as Northern Ireland or Wales. Persons subject to this form of internal exile have no right to know the evidence against them, to cross-examine or confront their accusers, or even to have a formal public hearing.(11) The European Court of Human Rights ruled the Prevention of Terrorism Act to be in violation of Article Five, Section Three of the European Convention on Human Rights, which requires suspects to be "promptly" brought before a judge.(12) Nevertheless, the British government refuses to abandon its preventive detention policy, and evades the European Court's ruling by invoking Article 15's provision for countries to ignore the Convention on Human Rights "in time of war or other emergency threatening the life of the nation."(13) One of the most important lessons from Britain is that even a huge dose of restrictions on civil liberties, such as the Prevention of Terrorism Bill, does not long remain "sufficient" in the eyes of the government. At least in regard to civil liberties, the Domino Theory has proven correct, as one traditional Anglo-American freedom after another has fallen under the government's assertion of the need for still more anti-terrorist powers. In Northern Ireland the jury has been "suspended" for political violence cases; judges in the Diplock courts hear the cases instead. Confessions are admitted without corroboration. Confessions are extracted through "the five techniques": wall-standing, hooding, continuous noise, deprivation of food, and deprivation of sleep. Convictions may be based solely on the testimony of "supergrasses" (police informers).(14) In 1988, the Thatcher government enacted additional laws restricting civil liberties. Television stations were forbidden to broadcast in-person statements by supporters of a legal political party, Sinn Fein.(15) The ban even applied to rebroadcasts of archive films taped many decades ago, such as footage of Eamon de Valera, the first president of Ireland. A confidential British Broadcasting Corporation memo announced the government's intention to keep journalists from broadcasting any statement by U.S. Senator Edward Kennedy supporting Sinn Fein.(16) The BBC also banned Paul McCartney's "Give Ireland Back to the Irish," and a song by another group urging the release from prison of the Guildford Four (discussed below).(17) A suspect's decision to remain silent under interrogation may now be used against him in court. Although terrorism in Northern Ireland was the stated basis for the change, the change will also apply in England and Wales. No- one who has seen Great Britain's slide down the slippery slope can feel confident that repressive measures introduced solely for terrorism will not eventually seep into the ordinary criminal justice system. Wiretaps do not even need judicial approval.(18) The Security Service Act of 1989 provides: "No entry on or interference with property shall be unlawful if it is authorized by a warrant issued by the secretary of state." If committed pursuant to an order from the secretary of state, acts such as theft, damage to property, arson, procuring information for blackmail, and leaving planted evidence are not crimes.(19) As in America, gun prohibitionists have hitched their wagon to "anti-terrorism," with little regard for an actual terrorist nexus. Although British laws regarding possession of actual firearms were already quite severe, the Firearms Act of 1982 introduced restrictive licensing for imitation firearms which could be converted to fire live ammunition.(20) The sponsor of the new law against imitation firearms promised that it would help stem "the rising tide of crime and terrorism"--although there had never been a crime or terrorist act committed with a converted imitation weapon.(21) The first time the Prevention of Terrorism Act was used was after another pub bombing, in the English town of Guildford. Four people were arrested, held incommunicado in prison for a week, and coerced into false confessions by administration of drugs and by threats against their families. While the "Guildford Four" were being held, the police used the time to fabricate evidence against them. Although members of the Irish Republican Army already in prison confessed to the Guildford bombings, the Guildford Four were tried, convicted, and sentenced to life in prison. Several leading English statesmen, including Roy Jenkins, felt that the defendants had been framed. A campaign to free them continued for fifteen years, until, upon discovery of police notes of fabrication of evidence, the Guildford Four were released from prison.(22) The Birmingham bombings that had led to the Prevention of Terrorism Act resulted in the conviction of a group of defendants called the "Birmingham Six." Amnesty International charged that their confessions were extracted under torture. The forensic scientist whose testimony convicted the Birmingham Six later admitted that he lied in court. The Birmingham Six confessed while being held incommunicado by the police; the various confessions were so factually inconsistent that they could not have been true. (Civil libertarians fear that the Birmingham case is only one of many instances of police obtaining coerced confessions.(23)) The Birmingham Six were also eventually freed. Britain, fortunately, has no death penalty. In America, where before anyone had even been indicted President Clinton announced that the perpetrators of the Oklahoma City bombing should be executed, the federal death penalty would mean that vindication of persons wrongfully convicted of terrorism might be post-mortem. To state the obvious, all the legislation has hardly immunized Britain from terrorism. But Britain has, in two decades, eviscerated the magnificent structure of liberty and limited government that took over a millennium to construct. For centuries, "the rights of Englishmen" were proudly held up in contrast to the absolutism of the Continent. Far from being an examplar to the world, the modern "anti-terrorist" United Kingdom has been found culpable of human rights violations under the European Convention on Human Rights more often than any other member of the Council of European States.(24) To a student of Britain's magnificent history in the story of freedom, it is a pitiful sight to see modern Britons forced to turn to Brussels and the European Court of Human Rights as the last protector of what were formerly the unquestioned rights of Englishmen. Britain was once the freest nation in the world; today, it is one of the unfreest in Western Europe. As Britain illustrates, no matter how great a country's tradition of freedom, freedom can be lost in less than a generation if public officials, and the public, allow terrorism to destroy their traditional way of life. Weakening Restraints on FBI Political Surveillance Within days after the Oklahoma City bombings, conservative talk show host Rush Limbaugh began casting blame on civil libertarians such as former Ohio senator Howard Metzenbaum who had promoted strict guidelines on FBI surveillance of dissident groups in the United States.(25) Other persons have also called for abolition of the remaining limitations on FBI investigations. First of all, there is at present no evidence that the FBI wanted to spy on anyone suspected in Oklahoma City bombing, but was prevented from doing so by the current guidelines. Thus, persons demanding the abolition of FBI guidelines are demanding a "solution" for which there is no demonstrated problem. Second, the FBI guidelines exist for a very good reason. Before the guidelines were implemented, the FBI spied on literally hundreds of thousands of Americans who were doing nothing more than exercising their Constitutional right to question government policies. Victims of these abuses ranged from Dr. Martin Luther King, Jr., to the Ku Klux Klan, to the Congress on Racial Equality and the civil rights movement. The Counter-intelligence Programs (COINTELRPO) invaded the Constitutional rights of American people who simply were expresssing in public what Secretary of Defense Robert McNamara had concluded in private. Far from being confined to a single type of dissident, or to a few years of excess, FBI abuses dated back to the 1940s and were pervasive until brought to light by fifteen months of hearings before Senator Frank Church's special committee in 1975-76. Altogether, there were 675 FBI operations against civil rights, white supremacist, or anti-war groups, which led to only four convictions.(26) Even after all the public hearings, and the implementation of guidelines, the FBI continued to abuse the rights of dissident Americans, through a massive surveillance of people in CISPES (Committee in Solidarity with the People of El Salvador) who opposed to President Reagan's policy in El Salvador in the mid-1980s. The CISPES investigation, justifiably regarded today as shameful, would have been lawful if the anti-terrorism bills current being considered had been law. The first set of FBI guidelines were implemented by President Ford's attorney general Edward Levi in 1976. In 1983, the "Levi guidelines" were replaced by President Reagan's attorney general William French Smith. These "Smith guidelines" were far less restrictive. FBI director William Webster stated that the Smith guidelines "should eliminate any perception that actual or imminent commission of a violent crime is a prerequisite to investigation." Thus, the recent highly-publicized claim of a former FBI official "you have to wait until you have blood in the streets before the bureau can act" is patent nonsense.(27) In fact, the Reagan/Smith guidelines, which are still in force, nowhere require the completion of a violent crime. Rather they state that a: domestic security/terrorism investigation may be initiated when facts for circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States. Specifically, the guidelines already allow investigations based upon mere words: When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these Guidelines may be warranted unless it is apparent from the circumstances or the context in which the statements are made, that there is no prospect for harm. While the Smith guidelines would prevent infiltration of Second Amendment groups simply because they are sharply critical of government policy, the guidelines do not now prevent infiltration of groups which actually threaten violence. For example, in Virginia, a group of fifteen men who allegedly wanted to resist the federal government managed only three meetings before being arrested for weapons violations as a result of government infiltrator's secret tape recordings.(28) Rather than being obliterated, guidelines on FBI domestic surveillance should be brought up to full strength. A statutory version of the Levi guidelines should be enacted. Persons who eager to "unleash" the FBI against dissident groups who are not threatening illegal activity might first want to go through the mental exercise of imagining their worst nightmare as President. Liberals might imagine Pat Buchanen or Pat Robertson. Conservatives could imagine Dianne Feinstein or Jesse Jackson. In such a scenario, would we want the FBI free to spy on whomever the President does not like? Under Presidents Nixon, Johnson, and Kennedy, who were far more moderate than Jesse Jackson or Pat Buchanan, the FBI did so, with baleful results. An official at the Treasury Department, who works closely with the BATF, warned that there is "a tremendous potential for abuse" in administration proposals to loosen controls on the FBI.(29) It must be remembered that many of America's greatest organizations were, in their day, radical extremists. The abolitionists were extremists, as were the suffragettes, the civil rights movements, and many of the opponents of the War in Vietnam. If these groups seem vindicated by history, they were bitterly attacked in their day as radical and anti-American. Finally, before any additional powers are granted to the FBI, it is appropriate to investigate FBI abuses of existing powers, including the events in Waco.(30) At the least, it is well-established that the FBI used a chemical warfare agent which is banned in international warfare, against children indoors, even though Army and manufacturer manuals specifically warn that the agent indoors is flammable, and can severely injure unprotected children. In securing Attorney General Reno's consent, the FBI falsely told her that the chemical warfare agent was "a mild form of teargas." The FBI also ignored the advice of its own behavioral experts, and pressured at least one of them to reverse his advice, so as to justify an assault. This fact too was concealed from the Attorney General. FBI Foreign Jurisdiction It has been proposed that the FBI's foreign jurisdiction be expanded. Firstly, the expansion is unnecessary, since the CIA can operate overseas against terrorists. Second, allowing domestic American law enforcement agents to operate on foreign soil against foreign soil against foreign citizens creates a dangerous precedent, and will inevitably lead to demands for reciprocity. Do we really want the Russian secret police, or even the Mexican federales, operating on American soil? The Clinton bill also removes most of the limitations regarding use (including overseas) of American trainers for foreign law enforcement, and removes the restriction against American tax dollars being used to pay the salaries of foreign police.(31) Internationalizing criminal law is even more dangerous to civil liberty than is federalizing it. Felonizing Support for Peaceful Activities of Foreign Organizations Presidential Designation of "Terrorist" Groups The Clinton and Dole bills empower the President to designate "foreign terrorist" organizations which are illegal for Americans to provide any "material support."(32) Recently, the Clinton administration has retreated from its insistance that the Presidential designation be unreviewable. At the least, the potential for judicial review will reduce the risk of the terrorist designation being used against domestic dissident groups. (Since they would be able to show in court that they were not foreign.) But it should be remembered that American courts have historically been extremely deferential to Presidential foreign policy decisions. If there were even a scintilla of evidence in favor of the President's designation of a foreign group as "terrorist," then it is virtually certain that courts would not overturn the designation. Again, the reader might consider imagining this legislation in the hands of one's worst political nightmare. An organization which provides support to the government of Israel or to the Israeli Defense Forces (which are considered "terrorist" in some political circles) could be outlawed, as could (by a different President) a group which provides support to Palestinian refugees. Material Support Current federal law appropriately forbids the providing of material support to any foreign terrorist organization.(33) The law forbids investigations of people for violating this law unless there is some reasonable suspicion that they have violated or may violate the law. The restriction should of course be retained; targetting people for FBI investigations when there is not a scintilla of suspicion is not only an invitation to harassment of dissidents, it is a waste of law enforcement resources. One important distinction between the Clinton and Dole bills is that the Dole creates an explicit exception to the "material support" statute: "`Material support'...does not include humanitarian assistance to persons not directly involved in such violations."(34) Thus, sending a Christmas food package to an I.R.A. or A.N.C. prisoner would constitute material support, but giving money to a fund which assisted the orphaned children of I.R.A. or A.N.C. members would not be, under the Dole approach. Under the Clinton bill, however, the donor to the I.R.A. orphanage would be a federal felon, subject to ten years in prison, as would be a person who spent five dollars to attend a speech of a visiting lecturer from the African National Congress. When pressed about this fact at recent Congressional hearings, a Clinton administration spokesperson acknowledged that minor support for the A.N.C.'s peaceful activities could have been felonized, but that the American people should simply trust the President not to abuse the immense power which President Clinton was requesting. But as President Lyndon Johnson put it: "You do not examine legislation in light of the benefits it will convey if property administered but, in light of the wrongs it would do and the harms it would cause if improperly administered." The "terrorism" bills' overbreadth is astonishing. The Palestine Liberation Organization is permanently defined as a terrorist organization by the proposal, no matter what its future conduct.(35) Thus, if the P.L.O. should live up the peace treaty that it signed with Israel, President Clinton would be guilty of providing "material support" to a terrorist organization should he invite Yassir Arafat to the White House and give him a free meal and a night's lodging. Licensed Donations Theoretically, a license can be procured allowing humanitarian contributions to the blacklisted group. The licensing procedure is, however, very difficult to comply with. Not only does recipient group have to open its books to the Treasury Department, so does the donor. In other words, if a person wants to make a $50 contribution to buy clothes for Palestinian orphans, the person must make his financial records open for inspection, and be able to show "the source of all funds it receives, expenses it incurs, and disbursements it makes."(36) There is no limitation that the complete accounting of receipt, expenses, and disbursements be limited to the charitable donation. Virtually no-one in the United States keeps such detailed records. Knowing that a charitable donation to a politically blacklisted group would expose the donor to a nightmare audit, few donors would be courageous or foolish enough to give anyway. In addition to criminal penalties of up to ten years in prison, civil fines of $50,000 per offense may be imposed, and in civil prosecutions, the government may, upon approval of the court, introduce secret, classified evidence which remains hidden from the defendant.(37) (The Clinton and Dole bills grant similar authority to use secret evidence in proceedings under the International Emergency Economic Powers Act, which gives the President unilateral authority to regulate or prohibit all foreign exchange transactions, all imports and exports of securities and currency and foreign currency transactions, and all banking transactions involving foreigners.(38)) The Constitutional View The Constitution mandates that if a person is to be punished for association with a group which has unlawful objectives, the government must prove that the individual specifically intended to further the unlawful objectives.(39) What the Clinton/Dole bills propose is a return to practices which the Supreme Court outlawed over half a century ago. Then, the Immigration and Naturalization Service attempted to deport labor organizer Harry Bridges because of his affiliation with the Communist party. Bridges had supported only lawful Communist activities, rather than the party's unlawful ends. The INS argued that if an organization had unlawful purposes, the fact that a supporter had supported only lawful purposes was irrelevant. The Supreme Court disagreed, and dismissed the case.(40) More recently, the Court declared unconstitutional a law that was "a blanket prohibition of association with a group having both legal and illegal aims." Unless there was proof that the defendant specifically intended to support the group's illegal aims, the prohibition was a violation of "the cherished freedom of association protected by the First Amendment."(41) Defining Everything as "Terrorism" Current federal law already provides a comprehensive, realistic definition of "terrorist activity."(42) Some proposals define virtually any crime as "terrorism." For example, the Clinton and Dole "terrorism" bills define as "terrorism" virtually every violent or property crime, whether or not related to actual terrrorism. The bills impose a prison terms of up to twenty-five years (for property damage, more for violent crimes) for "terrorist" offenses which are defined as follows: any assault with a dangerous weapon, assault causing serious bodily injury, or any killing, kidnapping, or maiming, OR any unlawful destruction of property.(43) Snapping someone's pencil, breaking someone's arm in a bar fight, threatening someone with a knife, or burning down an outhouse would all be considered "terrorist" offenses. Any attempt to perpetrate any of these terrorist crimes would be subject to the same punishment as completed offense. Even a threat to commit the offense (i.e. "One of these days, I'm going to snap your pencil.") is a felony subject to ten years in federal prison.(44) Again, the extra federal power granted by the legislation is superfluous to genuine anti-terrorism. It is already a serious federal felony to make a real terrorist threat, as by threatening to set off a bomb, or to assassinate the President.(45) In order for the offense to be considered "terrorism," all that would be necessary would be jurisdictional predicate that would cover almost every crime. The jurisdictional predicate requires one of any of the following: the crime "affects commerce in any way" (not necessarily interstate commerce); the criminal used "any facility used in any manner in commerce"; the victim was "traveling in commerce" (again, not necessarily interstate); the victim was a federal employee, or the property damaged was federal; the victim was not an American national; or any of the offenders "travels in commerce."(46) If anyone involved in the crime meets the jurisdictional predicate, then jurisdiction is invoked for the entire crime.(47) Finally, in order for a prosecution to take place, the Attorney General must certify in writing that the offense "transcended national boundaries" and was intended to intimidate a foreign government or "a civilian population, including any segment thereof."(48) There is no provision for review of whether the Attorney General's certification was even remotely accurate. Nor is there any requirement that there be an actual international border crossing. Just because the law allows it, the federal government probably will not prosecute every Canadian tourist who snaps a policeman's pencil or everyone who scratches anti-war graffiti on post office tables. The proponents of these bills may expect that the essentially limitless discretion granted to the federal government will not be abused. But a fundamental principle of American law has always been that the law should control the government; citizens should not be at the mercy of the good judgement of government officials. As the Supreme Court put it, "It could certainly be dangerous if the legislature could set a net wide enough to trap all possible offenders, and leave it to the courts to step inside and say who could rightfully be detained, and who should be set a large."(49) The justification for federalizing all of the criminal law is that such federalization is necessary to make sure that every possible terrorist crime is covered. For example, it is asserted that the bombing of a Jewish hospital in, for example, St. Louis, might not be covered by current federal law. In fact, the federal arson statute has successfully been applied to the burning of a trailer that was hooked up to a power system which was part of the interstate electricity grid.(50) Thus, the fact that the hospital drew power from the same electrical grid would justify application of the current federal arson law, without the need for a new statute. Even if it is possible to imagine some bizarre hypothetical crime that would not be covered by the (very expansive) interpretation of current federal criminal statutes, every conceivable terrorist crime is subject to severe punishment under current state criminal laws. The dangers posed by the hidden federalization of the entire criminal law (all the way down to petty vandalism) become all the greater when coupled with the bill's other provisions to make the overbroad federal RICO,(51) money laundering,(52) and wiretapping laws(53) applicable to "terrorist" offenses and to authorize use of the military in domestic law enforcement for "terrorism."(54) No bail is allowed even if it is uncontroverted that the accused will not flee and will pose no danger to anyone.(55) Likewise, mandatory prison sentences, with no possibility of probation, are required for "terrorist" crimes, no matter what the circumstances.(56) Having used state law definitions to define petty property crimes as "terrorism," the bills then forbid defendants from invoking state constitutional law protections of the state where the alleged offense took place.(57) Turning every state and local petty property crime (or even a local violent crime) into a federal felony may be unconstitutional, as the Supreme Court recently ruled in the Lopez "gun-free-school-zones" case. Putting aside questions of Constitutionality, it is inappropriate that the draconian federalization of state crimes be pushed through Congress under the mask of anti-terrorism. Resisting Foreign Dictatorships Solicitude for foreign governments should not blind us to the fact that most governments in the world are dictatorships. Under the principles on which America is based, governments without the consent of the governed have no legitimacy, and it is the right of the people of that nation to overthrow the dictatorship. Yet the Clinton and Dole bills define as "terrorism" any act which plans the destruction of government property in foreign nation with which the United States is "at peace."(58) Thus, if Chinese refugees living in the United States planned a jailbreak to liberate political prisoners in China, they would be guilty of "terrorism." If Americans in 1940 had plotted the destruction of railways leading to Nazi concentration camps, they too would have been guilty of "terrorism." And so would the countless American Jews who smuggled firearms to the Jewish resistance movement in Palestine in the 1940s, making possible the eventual establishment of the state of Israel. Had such a "terrorism" law been universal in 1776, the Dutch, French, and other private citizens who provided material assistance to the American Revolution (even though their governments were at peace with the British Empire) would have been "terrorists" too. It ill becomes a nation which was born in violent revolution with foreign assistance to felonize the very types of charity which allowed our own nation to become free. Resistance to dictatorships and empires is not terrorism. Wiretapping Various proposals have been offered to expand dramatically the scope of wiretapping. For example, the Clinton bill defines almost all violent and property crime (down to petty offenses below misdemeanors) as "terrorism" and also allow wiretaps for "terrorism" investigations.(59) Other proposals would allow wiretaps for all federal felonies, rather than for the special subet of felonies for which wiretaps have been determined to be especially necessary. Notably, wiretaps are already available for the fundamental terrorist offenses: arson and homicide. Authorizing wiretaps for evasion of federal vitamin regulations, gun registration requirements, or wetlands regulations is hardly a serious contribution to antiterrorism, but amounts to a bait-and-switch on the American people. Currently, FBI wiretapping, bugging, and secret break- ins of the property of American groups is allowed after approval from a seven-member federal court which meets in secret.(60) Of the 7,554 applications which the FBI has submitted in since 1978, 7,553 have been approved.(61) Making the request for vast new wiretap powers all the more unconvincing is how poorly wiretap powers have been used in the past. Terrorists are, of course, already subject to being wiretapped. Yet as federal wiretaps set new record highs every year, wiretaps are used almost exclusively for gambling, racketeering, and drugs. The last known wiretap for a bombing investigation was in 1998. Of the 976 federal electronic eavesdropping applications in 1993, not a single one was for arson, explosives, or firearms, let alone terrorism. From 1983 to 1993, of the 8,800 applications for eavesdropping, only 16 were for arson, explosives, or firearms.(62) In short, requests for vast new wiretapping powers because of terrorism are akin to a carpenter asking for a pile driver to hammer a nail, while a hammer lies nearby, unused. Even more disturbing than proposals to expand the jurisdictional base for wiretaps are efforts to remove legal controls on wiretaps. For example, wiretaps are authorized for the interception of particular speakers on particular phone lines. If the interception target keeps switching telephones (as by using a variety of pay phones), the government may ask the court for a "roving wiretap," authorizing interception of any phone line the target is using. Yet while roving wiretaps are currently available when the government shows the court a need, the Clinton and Dole bills allow roving wiretaps for "terrorism" without court order.(63) (Again, remember that both bills define "terrorism" as almost all violent or property crime.) The Foreign Intelligence Surveillance Act (FISA) provides procedures for authorizing wiretaps in various cases. These procedures have worked in the most serious foreign espionage cases.(64) Yet the Clinton and Dole bills would authorize use of evidence gathered in violation of FISA in certain deportation proceedings. Warrantless Data Gathering Proposals have also been offered to require credit card companies, financial reporting services, hotels, airlines, and bus companies to turn over customer information whenever demanded by the federal government.(65) Document subpoenas are currently available whenever the government wishes to coerce a company into disclosing private customer information. Thus, the proposals do not increase the type of private information that the government can obtain; the proposals simply allow the government to obtain the information even when the government cannot show a court that there is probable cause to believe that the documents contain evidence of illegal activity.(66) Similar analysis may be applied to proposals to increase the use of pen registers (which record phone numbers called, but do not record conversations, and thus do not require a warrant). If a phone company has a high enough regard for its customers' privacy so as to not allow pen registers to be used without any controls, the government may obtain a court order to place a pen register. Business respect for customer privacy ought to be encouraged, not outlawed. Curtailing First Amendment Rights of Computer Users For some government agencies, the Oklahoma City tragedy has become a vehicle for enactment of "wish list" legislation that has nothing to do with Oklahoma City, but which it is apparently hoped the "do something" imperative of the moment will not examine carefully. One prominent example is legislation to drastically curtail the right of habeas corpus.(67) Although Supreme Court decisions in recent years have already sharply limited habeas corpus,(68) prosecutors' lobbies want to go even further. Two obvious points should be made: First, habeas corpus has nothing to do with apprehending criminals; by definition, anyone who files a habeas corpus petition is already in prison. Second, habeas corpus has nothing to do with Oklahoma City in particular, or terrorism in general. A second example, of piggybacking irrelevant legislation designed to reduce civil liberties are current FBI efforts to outlaw computer privacy. If a person writes a letter to another person, he can write the letter in a secret code. If the government intercepts the letter, and cannot figure out the secret code, the government is out of luck. These basic First Amendment principles have never been questioned. But, if instead of writing the letter with pen and paper, the letter is written electronically, and mailed over a computer network rather than postal mail, do privacy interests suddenly vanish? According to FBI director Louis Freeh, the answer is apparently "yes." Testifying before the Senate Judiciary Committee about Oklahoma City, director Freeh complained that people can communicate over the internet "in encrypted conversations for which we have no available means to read and understand unless that encryption problem is dealt with immediately."(69) "That encryption problem" (i.e. people being able to communicate privately) could only be solved by outlawing high quality encryption software like Pretty Good Privacy". First of all, shareware versions of Pretty Good Privacy are ubiquitous throughout American computer networks. The cat cannot be put back in the bag. More fundamentally, the potential that a criminal, including a terrorist, might misuse private communications is no reason to abolish private communications per se. After all, people whose homes are lawfully bugged can communicate privately by writing with an Etch-a-Sketch".(70) That is no reason to outlaw Etch- a-Sketch. Although Mr. Freeh apparently wants to outlaw encryption entirely, the Clinton administration has been proposing the "Clipper Chip." The federal government has begun requiring that all vendors supplying phones to the federal government include the "Clipper" chip. Using the federal government's enormous purchasing clout, the Clinton administration is attempting to make the Clipper Chip into a de facto national standard.(71) The clipper chip provides a low level of privacy protection against casual snoopers. But some computer scientists have already announced that the chip can defeated. Moreover, the "key"--which allows the private phone conversation, computer file, or electronic mail to be opened up by unauthorized third parties--will be held by the federal government. The federal government promises that it will keep the key carefully guarded, and only use the key to snoop when absolutely necessary. This is the same federal government that promised that social security numbers would only be used to administer the social security system, and that the Internal Revenue Service would never be used for political purposes. Proposals for the federal government's acquisition of a key to everyone's electronic data, which the government promises never to misuse, might be compared to the federal government's proposing to acquire a key to everyone's home. Currently, people can buy door locks and other security devices that are of such high quality that covert entry by the government is impossible; the government might be able to break the door down, but the government would not be able to enter discretely, place an electronic surveillance device, and then leave. Thus, high-quality locks can defeat a lawful government attempt to bug someone's home, just as high-quality encryption can defeat a lawful government attempt to read a person's electronic correspondence or data. Similarly, it is legal for the government to search through somebody's garbage without a warrant; but there is nothing wrong with privacy-conscious people and businesses using paper shredders to defeat any potential garbage snooping. Even if high-quality shredders make it impossible for documents to be pieced back together, such shredders should not be illegal. Likewise, while wiretaps or government surveillance of computer communications may be legal, there should be no obligation of individuals or businesses to make wiretapping easy. Simply put, Americans should not be required to live their lives in a manner so that the government can spy on them when necessary. Thus, although proposals to outlaw or emasculate computer privacy are sometimes defended as maintaining the status quo (easy government wiretaps), the true status quo in America is that manufacturers and consumers have never been required to buy products which are custom-designed to faciliate government snooping. The point is no less valid for electronic keys than it is for front-door keys. The only reason that electronic privacy invasions are even discussed (whereas their counterparts for "old-fashioned" privacy invasions are too absurd to even be contemplated), is the tendency of new technologies to be more highly restricted than old technologies. For example, the Supreme Court in the 1920s began allowing searches of drivers and automobiles that would never have been allowed for persons riding horses. But the better Supreme Court decisions recognize that the Constitution defines a relationship between individuals and the government that is applied to every new technology. For example, in United States v. Katz, the Court applied the privacy principle underlying the Fourth Amendment to prohibit warrantless eavesdropping on telephone calls made from a public phone booth-- even though telephones had not been invented at the time of the Fourth Amendment.(72) Likewise, the principle underlying freedom of the press-- that an unfettered press is an important check on secretive and abusive governments--remains the same whether a publisher uses a Franklin press to produce a hundred copies of a pamphlet, or laser printers to produce a hundred thousand. Privacy rights for mail remain the same whether the letter is written with a quill pen and a paper encryption "wheel," or with a computer and Pretty Good Privacy. Efforts to limit electronic privacy will harm not just the First Amendment, but also American commerce. Genuinely secure public-key encryption (like Pretty Good Privacy) gives users the safety and convenience of electronic files plus the security features of paper envelopes and signatures. A good encryption program can authenticate the creator of a particular electronic document--just as a written signature authenticates (more or less) the creator of a particular paper document. Public-key encryption can greatly reduce the need for paper. With secure public-key encryption, businesses could distribute catalogs, take orders, pay with digital cash, and enforce contracts with veriable signatures--all without paper. Conversely the Clinton administration's weak privacy protection (giving the federal government the ability to spy everywhere) means that confidential business secrets will be easily stolen by business competitors who can bribe local or federal law enforcement officials to divulge the "secret" codes for breaking into private conversations and files, or who can hack the clipper chip. The New Star Chamber Although the United States has suffered exactly one alien terrorist attack in the last eleven years, special harsh rules for aliens are at the top of the "antiterrorism" agenda. The most ominous proposals are those that allow secret evidence for deportation cases in which the government asserts that secrecy is necessary to the national security.(73) Georgetown University Law Professor David Cole calls the secret court the new "Star Chamber," since its powers resemble those of the inquisitorial court which the British monarchy, in violation of the common law, used to terrorize dissident subjects. Star Chamber was one of the most hated abuses of the British government. Modern Star Chamber proceedings are to be before a special court (one of five select federal district judges)(74), after a an ex parte, in camera showing that normal procedures would "pose a risk to the national security of the United States."(75) Based upon further ex parte, in camera motions, evidence which the government does not which to disclose may be withheld from the defendant, who will instead be provided a general summary of what the evidence purports to prove. In other words, secret evidence may be used.(76) Of course any of the "showings" that the government makes in camera and ex parte may be based on allegations regarding the unreviewable claims of a secret informant. Wiretap evidence is usable even if it was illegally obtained.(77) Normal procedural rules allowing for disclosure of circumstances relating to illegally obtained evidence are abolished.(78) Legal aliens do not, of course, have the full scope of Constitutional rights guaranteed to American citizens; for example, they cannot exercise rights associated with citizenship, such as voting, or serving on a jury. But it is well-settled that legal aliens enjoy the same right to freedom of speech as do citizens. Likewise, legal aliens have always been accorded the same due process protections in criminal cases. After all, the Fifth Amendment's guarantee of Due Process protects "all persons," not just "all citizens."(79) Procedures like those proposed in the Clinton and Dole bills have already been found unconstitutional. As the District of Columbia Court of Appeals, put it: Rafeedie--like Joseph K. in The Trial--can prevail before the [INS] Regional Commmissioner only if he can rebut the undisclosed evidence against him, i.e., prove that he is not a terrorist regardless of what might be implied by the government's confidential information. It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden.(80) The argument for allowing secret evidence in deportation proceedings is that otherwise the identity or operational mode of a confidential informant might be jeopardized. First of all, the very purpose of the Constitution's Confrontation Clause is to prevent people's lives from being destroyed by the type of secret accusations which had characterized the European justice systems. Moreover, the argument against endangering the secrecy of confidential accusers in deportation cases proves too much. The very same argument applies in every other case, including criminal violence or drug sales cases. Obeying the Confrontation Clause in those cases may likewise impede the short-term interests of law enforcement. But the Constitution has conclusively determined that a criminal justice system without a right of confrontation poses a far greater long-term risk to public safety than does requiring the government to disclose the reason why it wants to imprison, execute, or deport someone. Simply put, confidential informants often lie. Informants are rarely good citizens who come forward to help prevent a crime. Rather, informants are criminals who have been caught, and have turned informant in order to protect themselves from prosecution; informants have every reason to lie and falsely accuse people.(81) Confidential informants who are not professional criminals may have other reasons for lying. The type of miscarriage of justice that can occur based on confidential informants was illustated in 1950 case, in which the Supreme Court held that secret evidence could be used to prevent an alien from entering the United States.(82) (She was married to an American.) When the alien was granted a hearing, it was discovered that the confidential informant was her husband's angry ex-girlfriend. Some persons who would oppose Star Chamber proceedings for criminal trials might approve of such procedures in deportation hearings since deportation is, under most circumstances, a less severe sanction than prison. Yet if the alien cannot find a country that wants to take him (or if the State Department can quietly convince other countries not to take him), then the alien may be imprisoned for the rest of his life in the United States, at the sole discretion of the Attorney General, without even the right to ask for a writ of habeas corpus based on governmental violation of statutes.(83) Finally, some persons may accept Star Chamber for legal resident aliens under the presumption that such procedures would never be used against American citizens. Yet if there is anything the experience of Great Britain proves, it is that special, "emergency" measures implementented in a limited jurisdiction (such as Northern Ireland) soon spread throughout the nation. Cancers always start small. If one international terrorist incident in eleven years is a sufficient interest to justify a Star Chamber for certain terrorism suspects, then it is hard to resist the logic that crimes which actually are widespread (such as homicide, rape, or drug trafficking) should be entitled to their own Star Chamber. More Informants One of the reasons that many people are so frightened of the federal government is how it already uses informants to attempt to infiltrate suspicious organizations. One of the most notorious cases which helped create the militia movement was started by the attempt to creat an informant. Randy Weaver was a white separatist who lived with his family in a remote cabin in northern Idaho. There was no indication that he had ever advocated or participated in illegal violence. When he was approached by federal agents who wanted him to infiltrate violent white supremacist groups and serve as an informer, he refused. He was later entrapped (a jury later found) by repeated pestering from undercover agents into selling undercover BATF agents two shotguns whose barrels had been shortened (at the request of the undercover agents) to a fraction of an inch below the 18" legal limit. Weaver failed to appear for a court hearing resulting from the illegal firearms sale; as it later turned out, the order to appear which had been mailed to him gave an incorrect date for the hearing. A fugitive arrest warrant was issued for Weaver. United States Marshals showed up one day in August 1992. The Weavers' three dogs (two collies and a labrador) began barking, and Randy Weaver, his friend Kevin Harris, and Weaver' fourteen-year-old son Sammy grabbed their guns to run and investigate. The Marshals, wearing camouflage and carrying silenced machine guns, did not identify themselves or their purpose, but they did shoot one of the dogs. Sammy Weaver returned fire, and was promptly shot by a Marshal. Sammy turned and fled, with his nearly severed arm flopping as he ran. Sammy was promptly shot in the back. Nearby, Kevin Harris concluded that if he fled, he too would be shot; Harris fired his rifle in the direction of the marshal who had shot Sammy; the bullet killed the marshal who had shot Sammy Weaver. Randy Weaver had only heard the shooting, but had not seen what had happened. "Come on home, Sam. Come home," he yelled over and over. At last, Sammy called "I'm coming, Dad." Those were apparently the last words Sammy Weaver said before he died. Harris's shot had disordered the Marshals, and Weaver and Harris used the opportunity to retreat to their cabin. Later that day, Randy Weaver and his wife Vicki picked up Sammy's dead body and carried it to a building near the cabin, where they prepared their son's body for burial. Over 300 government agents, led by the FBI "Hostage Rescue Team" descended on Ruby Ridge, Idaho, where Weaver's two-story cabin was located. Commanding the FBI at Ruby Ridge was Richard M. Rogers, who would later serve as a field commander at Waco.(84) The FBI rules of engagement allow use of deadly force only when necessary to protect an innocent person from imminent peril. But on the plane out to Idaho, Rogers wrote new rules of engagement for Ruby Ridge. The new rules allowed FBI snipers to shoot any adult who was armed. Since virtually everyone besieged in Idaho went outside armed (in full compliance with the laws of Idaho, and of most other states, because the armed people were on their own property) everyone was a target outside the cabin. At Weaver's trial in 1993, HRT Director Rick Rogers was unable to cite any authority allowing the FBI, in violation of state law, to shoot people who were posing no threat to anyone. (A provision in the 1994 federal crime bill, removed during the bill's final movement through Congress, would have immunized federal agents from state criminal prosecution for crimes committed while on the job.) As at Waco, a siege ensued, with the "Hostage Rescue Team" surrounding the residence of people who, far from being held hostage, simply wanted to be left alone. At about six p.m. the next day, sixteen-year-old Sarah Weaver, her father Randy, and Kevin Harris walked out to the nearby shed to pay their last respects to Sammy. They were carrying firearms. Standing by the open door was Mrs. Vicki Weaver, holding her 10 month old daughter Elisheba. FBI sniper Lon T. Horiuchi said that he could hit a quarter at 200 yards. Horiuchi fired, and hit Randy Weaver in the shoulder. Horiuchi later testified that Weaver was shot to keep Weaver from shooting at a helicopter overhead. At the subsequent trial, Associate Marshal Service Director Wayne Smith testified that no helicopter was over the Weaver cabin that day, and the judge threw out the charge that Weaver had aimed a firearm at a helicopter. Sarah Weaver, Randy Weaver, and Kevin Harris fled back towards the cabin. Sniper Horiuchi fired again, this time at a person he said he thought was Kevin Harris. (Although Harris was not even alleged to have raised any gun at any helicopter.) Horiuchi later testified that he could not identify his target clearly because he could not see through the curtains of the door. After Horiuchi had testified, the government (illegally late) turned over Horiuchi's official report of the shooting; the drawing showed two figures standing in an open door.(85) The FBI sniper's .308 slug crashed into Vicki Weaver's head with such force that skull bone fragments ricocheted into Harris, as the slug exited her body and entered his.(86) Vicki Weaver's body fell to its knees, and her head came to rest on the floor, like a person at prayer. Randy Weaver took baby Elisheba from her arms, and lifted his wife's head; half her face had been blown away. Her dead body was laid out on the cabin floor, and covered with a blanket. An FBI psychological profile, prepared before the attack, called Vicki Weaver the "dominant member" of the family, thus implying that if she were "neutralized" everyone else might surrender.(87) During the next week, "the FBI used the microphones to taunt the family. `Good Morning Mrs. Weaver. We had pancakes for breakfast. What did you have?' asked the agents in at least one exchange. Weaver's daughter Sarah, 16, said the baby, Elisheba, often was crying for its mother's milk when the FBI's messages were heard."(88) Bo Gritz, a highly-decorated American soldier in Vietnam, who is now a talk-show host and a right€wing political figure, offered to try to negotiate with Weaver. Eight days after Vicki Weaver was shot, Gritz succeeded in convincing Weaver to surrender based on a promise that Weaver could meet with famed criminal defense attorney Gerry Spence. Spence agreed to take the case pro bono, and in April 1993, Kevin Harris went on trial for murder, with Randy Weaver charged with conspiracy to commit murder.(89) As with the Branch Davidians, the government attempted to portray Weaver as a political and religious zealot who prophesied and then sought to create a holy war with federal agents, even though his clear goal had been to avoid government agents.(90) Weaver and Harris claimed self- defense, and that the government unjustifiably fired first. With no defense evidence even introduced, the jury acquitted the accused of all charges of criminal violence, and the court fined the federal government for falsifying evidence, for withholding evidence, and for lying.(91) Weaver was convicted only of his failure to appear for the court hearing growing out of the BATF sting.(92) The Justice Department conducted an internal review of the incident which strongly condemned governmental actions, and recommended criminal prosecution. The report has never been released the public. Its recommendations were over- ruled by high-ranking Justice Department officials. Instead, trivial sanctions were imposed. For example, Larry Potts, the supervisor of the siege, who had approved the "shoot-to-kill" rules of engagement was given a censure, the same punishment inflicted on FBI Director Louis Freeh for losing his portable phone. Potts was then promoted to the second-ranking position at the FBI. The new training center for US Marhsals in New Orleans was named the "William F. Degan" center, in honor of the marshal who had killed Sammy Weaver. If President insists that wishes to convince the tens of thousands of Americans who belong to militia, the millions who support the patriot movement, and the 39 percent who told the Gallup poll that they think the federal government is an immediate threat to their liberty, then the President should stop the government from acting like a terrorist organization, and then slapping itself on the wrist. Rather than encouraging more use of informants, Congress should create a special prosecutor to investigate homicides perpetrated by the federal government, starting with the Weaver case. Preserve Our National Commitment to Freedom of Speech Many people, particularly people who abhor "right-wing" political viewpoints, have asserted that talk show hosts, commentators, and others who speak strongly about the need to restrain the federal government are indirectly responsible for the events in Oklahoma City. Such claims are disgraceful. When President Kennedy was assassinated in Dallas in 1963, some people attempted to link the assassination to the climate of "hate" which characterized the intense Southern opposition to President Kennedy's legislative program, including civil rights. But quite plainly, Southern segregationsists, wrong as they were on policy matters, had nothing to do with the President's murder. In 1970, anti-war radicals blew up a math building at the University of Wisconsin. These radicals lived in an "Amerika" where important intellectual, political, and media voices proclaimed that the Vietnam war was immoral, illegal, and imperialist, and the American government was guilty of crimes against humanity. The young Bill Clinton enunciated some of these views. Yet it would be improper to blame the opponents of the Vietnam war, including young Mr. Clinton, for the criminal acts of the Wisconsin bombers. Today, the Southern Poverty Law Center (SPLC) disgraces its noble history as an organization fighting bigotry by attempting to foment hysteria about militias in particular and conservatives in general. Danny Welch, an official with the SPLC, blames people who are working within the system to restrain the federal government for the Oklahoma City bombing: "I think the [extremist groups] are heartened by how much mainstream citizens seem to be voicing the same thing. They feel this is their time."(93) Columnist Suzanne Fields responds: "In other words, we must keep government as big and oppressive as we can lest the loonies get the wrong idea. This is depressingly similar to the argument of Southern segregationists of a generation ago who argued that since desegregation was espoused by Communists, who stirred up violence, it was an unworthy goal for loyal Americans."(94) The terrorist group known as "Unabom" has planted sixteen bombs in the last seventeen years. The group says that its motive is "to promote social instability in industrial society, propagate anti-industrial ideas and give encouragement to those who hate the industrial system."(95) Should anti-industrial talk show hosts, academics, and political activists who strongly advocate "deep ecology" and other anti-industrial viewpoints be held responsible for the Unabom? Of course not, and no-one would suggest that they should be. The effort to smear peaceful advocates of change with the work of bombers appears only be made when the advocates are from the right, rather than the left. Rather than causing violence, strongly-stated political criticism can prevent violence. When people who in their personal lives feel oppressed by federal bureaucrats can enjoy Rush Limbaugh lambasting the federal government on the radio, the experience may one of cathersis, rather than incitement to criminal violence. Moreover, it is inappropriate for the President to accuse anyone of divisive rhetoric. It is Clinton administration which is funneling federal money to a well- known hate group, the Nation of Islam, by allowing use of HUD funds to pay for Nation of Islam security guards at a public housing project in Washington.(96) It is Mr. Clinton who claimed that people who opposed his ban on semi- automatic firearms were immoral. Oliver Stone, a rather more effective purveyor of dishonest conspiracy theories than shortwave loudmouth "Mark from Michigan," was rewarded with a handshake at the White House.(97) Rush Limbaugh and even G. Gordon Liddy are rather mild-mannered compared to Gerry Adams, the terrorist leader recently feted at the White House. It is Mr. Clinton's appointee to the Civil Rights Commission who promotes racial hatred by warning that if racial quotas are repealed, "Asians" and "Jews" will get all the good jobs. Some Congressional Democrats, over no objection from the White House, in 1993 proclaimed a "sacred covenant" with the Nation of Islam, a hate group with an immensely-larger following than any of its right-wing counterparts.(98) Censoring the Internet Some Congresspersons have announced their dismay that a "Terrorist's Handbook" can be found on the internet. First of all, it is legal in the United States, and always has been, to publish information about how to make firearms, or explosives, or any other type of weapon. Thus, the sixties' relic The Anarchist Cookbook remains lawfully available today, and can be bought by mail- order.(99) Likewise, it it legal to purchase and read any number of books which detail how to break various laws, steal things, or resist the government, including Jerry Rubin's Steal This Book. The fact that some such books are being distributed electronically, by phone lines, rather than by printing and mail-order, hardly changes their secure status within the protection of the First Amendment, any more than the fact that the Anarchist Cookbook was (unlike its predecessors) printed with a high-speed modern printing press rather than a Franklin press took it out of the First Amendment. It is well established that government may punish persons for breaking the law, or for imminent incitement to break the law.(100) It may not punish people for reading about breaking the law. As always, proponents of censorship are misusing Justice Holmes' observation that the government can make it illegal "to shout fire in a crowded theater." To be precise, Justice Holmes wrote that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic."(101) The point of Justice Holmes' example is not that any kind of speech which might have harmful long-term consequences can be banned. Rather, the question is whether the speech makes impossible any reflection on the part of the audience, and thus impels immediate action. In a theater, when someone yells "fire," people will not have an opportunity to investigate and make their own determination about whether there is a fire; rather, they will head for the exits immediately, perhaps trampling others in a panic. As to "hate-speech" or criticism of the government, Holmes wrote: [W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so immediately threaten immediate inteference with the lawful and pressing purposes of the law that an immediate check is required to save the country.(102) As Justice Brandeis (in an opinion joined by Holmes) later elaborated: But even advocacy of [law] violations however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon....[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion.(103) Thus, when a speaker at an anti-Vietnam rally in Washington stated: "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers," the Supreme Court found the man's "political hyperbole" to be protected under the First Amendment.(104) Likewise, in a case growing out a Ku Klux Klan rally, the Court unanimously formulated the modern version of the Holmes "shouting fire" test. The government may not: forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.(105) Justice Brandeis understood that suppression of critical speech, no matter how repugnant, would in the long term breed more violence: "Repression breeds hate;...hate menaces stable government; ...the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies...."(106) Right to Keep and Bear Arms Cracking Down on Militias Equating all militias with white supremecists is nonsense. Like the Los Angeles Police Department, some militias may have members, or even officers, who are racist, but that does not mean that the organization as a whole, or the vast majority of its members are racists. Most militias are composed of people with jobs and families; people who are seeking to protect what they have, not to inflict revenge on others for their own failings. The frenzy of hatred being whipped up against law- abiding militia members is not unlike the hatred to which law-abiding Arab-Americans would have been subjected, had Oklahoma City been perpetrated by the Libyan secret service. It is not unlike the hatred to which Japanese-Americans were subjected after World War II. Ironically, some politicians who complain about the coarse, angry tone of American politics do so in speeches in which they heap hate-filled invective upon anyone and everyone who belongs to a militia. As this Issue Brief is written, no evidence has developed which ties any militia (let alone all of them) to the Oklahoma City crime. At most, two suspects are said to have attended a few militia meetings and left because the militias did not share their goals. This fact no more proves a militia conspiracy than the hypothetical fact that the suspects went to church a few times would prove that the Pope and Jerry Falwell masterminded the Oklahoma City bombings. That someone who perpetrated a crime may have attended a militia meeting is hardly proof that all militias should be destroyed. The step-father of Susan Smith (the alleged South Carolina child murderer) sexually molested her one night after he returned from putting up posters for the Pat Robertson presidential campaign.(107) What if someone suggested that the "radical" patriarchal theories espoused by Robertson and the Christian Coalition created the "atmosphere" which led to the incestuous rape, and that therefore all Christian Coalition members were responsible for the crime, and the FBI should "crack down" on them? The claim would be dismissed in a second; equally outrageous claims about gun owners should likewise be dismissed. It is a sad testament to the bigotry of certain segments of the media that totally unsubstantiated, vicious conspiracy theories of the type which were once employed against Catholics and Jews are now being trotted out against militia members, patriots, and gun owners. No militia group was involved with the Oklahoma City bombing. Despite the hate-mongering of the media, the "need" to start spying on militia groups is a totally implausible basis for expansion of federal government powers. Moreoever, militia groups hold public meetings, sometimes advertising in local newspapers. There is hardly a need for greater "surveillance" of such public groups. To respond intelligently to the militia and patriot movements, we must acknowledge that, although the movements are permeated with implausible conspiracy theories, the movements are a reaction to increasing militarization, lawlessness, and violence of federal law enforcement, a genuine problem which should concern all Americans. We must also remember that it is lawful in the United States to exercise freedom of speech and the right to bear arms. Spending one's weekends in the woods practicing with firearms and listening to right-wing political speeches is not my idea of a good time, but there is not, and should not, be anything illegal about it. If we want to shrink the militia movement, the surest way is to reduce criminal and abusive behavior by the federal government, and to require a thorough, open investigation by a Special Prosecutor of what happened at Waco and at Ruby Ridge, Idaho. If, as the evidence strongly suggests, the law was broken, the law-breakers should be prosecuted, even if they happen to be government employees. Conversely, the persons responsible for the deaths of innocent Americans should not be promoted to even-higher positions in the FBI or federal law enforcement. If the Clinton administration were trying to fan the flames of paranoia, it could hardly do better than to have appointed Larry Potts second-in-command at the FBI. Militias and patriot groups have been understandably ridiculed for a paranoid world-view centered on the United Nations and international banking. But ironically, many of the people doing the ridiculing share an equally paranoid world-view. Most members of the establishment media and the gun control movement have no more idea what a real militia member is like than militia members have about what a real international banker is like. In both cases, stereotyping substitutes for understanding, and familiar devils (the United Nations for the militia, the National Rifle Association for the establishment media) are claimed to be the motive force behind the actions of a man who (allegedly) believes that the government put a microchip in his buttocks. Nearly twenty years ago, an article in the Public Interest explained the American gun control conflict: [U]nderlying the gun control struggle is a fundamental division in our nation. The intensity of passion on this issue suggests to me that we are experiencing a sort of low-grade war going on between two alternative views of what America is and ought to be. On the one side are those who take bourgeois Europe as a model of a civilized society: a society just, equitable, and democratic; but well ordered, with the lines of authority clearly drawn, and with decisions made rationally and correctly by intelligent men for the entire nation. To such people, hunting is atavistic, personal violence is shameful, and uncontrolled gun ownership is a blot upon civilization. On the other side is a group of people who do not tend to be especially articulate or literate, and whose world view is rarely expressed in print. Their model is that of the independent frontiersman who takes care of himself and his family with no interference from the state. They are "conservative" in the sense that they cling to America's unique pre-modern tradition -- a non-feudal society with a sort of medieval liberty at large for everyman. To these people, "sociological" is an epithet. Life is tough and competitive. Manhood means responsibility and caring for your own.(108) The author explained the disaster that America will create for itself if fearful in government attempt to "crack down" on fearful gun-owners, thereby fulfilling the worst fears that each group has of the other: As they [the gun-owners] say to aman, "I'll bury my gunsin the wall first." They ask, because they do not understand the other side, "Why do these people want to disarm us?" They consider themselves no threat to anyone; they are not criminals, not revolutionaries. But slowly, as they become politicized, they find an analysis that fits the phenomenon they experience: Someone fears their having guns, someone is afraid of their defending their families, property, and libety. Nasty things may happen if these people begin to feel that they are cornered. It would be useful, therefore, if some of the mindless passion, on both side, could be drained out of the gun-control issue. Gun control is no solution to the crime problem, to the assassination problem, to the terrorist problem....[S]o long as the issue is kept at a white heat, with everyone having some ground to suspect everyone else's ultimate intentions, the rule of reasonableness has little chance to assert itself.(109) "Assault Weapons" Perhaps the most cynical effort to exploit the Oklahoma City tragedy is the effort of gun prohibition advocates to use the murders as a pretext for preserving the federal ban on so-called "assault weapons." To state the obvious, the Oklahoma City bombing was perpetrated with a bomb, not a gun. The bombers may have attended meetings of groups which support the right to keep and bear arms, but that does not proves that gun rights groups were coconspirators, despite the vicious insinuations of some gun prohibition advocates. The reasons for repealing the gun ban remain as strong as ever. First of all, Congress has no Constitutional power (under the Constitution's text and original intent) to ban the simple possession (as opposed to sale in interstate commerce) of anything.(110) Second, if one looks at actual police data (rather than unsupported claims from anti-gun police administrators), "assault weapons" constitute only about one percent of crime guns. Third, despite the menacing looks of so-called "assault weapons," they are not more powerful or more deadly than firearms with a more conventional appearance. Instead, the "assault weapon" ban is based on cosmetics, such as whether a gun has a bayonet lug--as if criminals were perpetrating drive-by bayonetings. Finally, the ban has already been nullified for all practical purposes. Since the law defines an "assault weapon" based on trivial characteristics like bayonet lugs, gun manufacturers have already brought ought new versions of the banned guns, minus the cosmetically offensive bayonet lugs and similar components. Repeal of the "assault weapon" ban makes sense as a move towards a more rational federal criminal justice policy. It makes even more sense when its social impact is considered. Many gun control advocates acknowledged that "assault weapons" were a tiny component of the gun crime problem, but they still liked the ban because of its symbolic value. A great many other people, however, were very upset by the symbolic message of the gun ban. Some of them have joined militias, patriot groups, or similar organizations. Indeed, it would be no exaggeration to say that President Clinton, Representative Schumer, and Senator Feinstein have, through pushing the gun ban through Congress, done more to promote the surge in militia membership than anyone else in the nation. If we want to reduce the number of people who are frightened by the federal government, the federal government should stop frightening so many people. Given the irrelevance of the "assault weapon" ban to actual crime control, repeal of the ban would be a very important step that the federal government could take to convincing millions of Americans that it is not a menace to their liberty. Conversely, retention of a ban on cosmetically- incorrect firearms by law-abiding citizens would be a strong statement to the American people that their federal government does not trust them; and if so, why should they trust it? Ban on Training Morris Dees of the Southern Poverty Law Center has begun promoting a federal ban on group firearms training which is not authorized by state law. First of all, state governments are perfectly capable or banning or authorizing whatever they want. The proposal for a federal ban amounts to asking Washington for legislation similar to that which various allies of Mr. Dees promoted at the state level in the 1980s, with little success. The vast majority of states having rejected a training ban, the federal government should hardly impose the will of the small minority on the rest of the states. A former direct-mail fundraiser for the antigun lobby, Mr. Dees may be forgiven for a low level of concern for the exercise of the right to keep and bear arms. But the right to keep and bear arms necessarily includes the right to practice with them, just as the Constitutional right to read a newspaper editorial about political events necessarily includes the right to learn how to read. Just as the government may not forbid people from learning how to read in groups, in may not forbid people from learning how to use firearms in groups. "Organizing, arming, and training in conjunction with a political agenda would be seen as dangerous in any other society but our own," a private security consultant recently told Congress, demanding that "these groups be flatly dealt with as `enemies of our society.'"(111) Of course the United States was founded by "religious nuts with guns," and later achieved independence as a result of a war instigated by people who organized, armed, and trained with a political agenda. The spark of the revolutionary war, the battle of Lexington and Concord, was prompted by the ruling government's attempts to confiscate the "assault weapons" of the day held by local militias.(112) It was at the Concord Bridge where militiamen were ordered to "wait until you see the whites of their eyes" and then shot government employees who were coming to arrest them for possessing an illegal "assault weapon" (a cannon).(113) The Texan revolution against Mexico likewise began over civilian possession of "military" arms, when the Mexican government demanded that settlers hand over a cannon, and the Texans replied, "Come and take it!" The militiamen of Concord Bridge and Texas may have broken the law, but they were great men, worthy of admiration by every schoolchild, and every other American. "You need only reflect that one of the best ways to get yourself a reputation as a dangerous citizen these days is to go around repeating the very phrases which our founding fathers used in their struggle for independence," observed American historian Charles A. Beard. Bureau of Alcohol, Tobacco and Firearms Some people have claimed that criticism of an alleged pattern of criminal conduct at the Bureau of Alcohol, Tobacco and Firearms is tantamount to complicity in the Oklahoma City bombing. If so, then the United States Senate is the party ultimately at fault. In 1982, the Senate Subcommittee on the Constitution investigated the BATF and unanimously concluded that the agency had habitually engaged in: conduct which borders on the criminal....[E]nforcement tactics made possible by current firearms laws are constitutionally, legally and practically reprehen- sible....[A]pproximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations.(114) If it is legitimate for a United States Senate subcommittee to find that BATF operations consist of "conduct which borders on the criminal," it is hardly inappropriate for other persons to point out similar conduct. The Waco raid was the most spectacular, but hardly the only instance of abuse of power by BATF in conducting search warrants. On December 16, 1991 (the first day of the third century of the Bill of Rights), sixty BATF agents, accompanied by two television crews, broke into the Oklahoma home of John Lawmaster. Acting on a tip (suspected to be from Lawmaster's ex-wife) that Lawmaster had illegally converted a semi-automatic to full automatic, BATF worked with the ex-wife to lure Lawmaster away from his home before the raid. With Lawmaster absent, BATF knocked down his front door with a battering ram. While some agents stood guard with weapons drawn, other agents broke open his gun safe, scattered his personal papers, spilled boxes of ammunition onto the floor, and broke into a small, locked box that contained precious coins. To look through some ceiling tiles, one agent stood on a table, breaking the table in the process. Neighbors who asked what BATF was doing were threatened with arrest. Having found nothing illegal, BATF left weapons and ammunition strewn about the home, and departed. They closed the doors, but since BATF had broken the doors on the way in, the doors were could not be latched or locked. Upon returning to the shambles that remained of his home, Lawmaster found a note from BATF: "Nothing found." Utility company representatives arrived, and told Lawmaster that they had been told to shut off all his utilities.(115) One of the field commanders of the Waco raid was Ted Royster, head of BATF operations for Texas, Oklahoma, and New Mexico. Royster also supervised the Lawmaster "raid," watching the operation from a parked vehicle with tinted windows.(116) On February 5, 1993--23 days before the Waco raid--BATF ransacked the home of Janice Hart, a black woman in Portland, Oregon, terrorizing her and her three children for hours, destroying her furniture, slamming a door on a child's foot, forcing two children to wait outside in a car while Ms. Hart was interrogated inside, and refusing to allow her to call an attorney, until BATF discovered that there was a case of mistaken identity. (BATF had been looking for Janice Harold, who bears no resemblance to Mrs. Hart.) In this case, unlike most others, BATF did at least send a check for damages, although no apology was offered.(117) As reported by the Washington Times: In 1990, [Louis Katona] lent a military-style grenade launcher to ATF for use in an unrelated prosecution, but it was never returned. In May 1992, ATF executed a search warrant at his home. During the search, Mr. Katona said his car's tires were flattened, his firearms were intentionally damaged and his pregnant wife was manhandled so roughly that she had a miscarriage. In September, he was charged with 19 felonies...When the case went to trial in April 1994, U.S. District Judge George W. White directed a verdict of not guilty--asking on the record, "Where's the beef?"(118) In a case which is widely known among the gun community, but which has been ignored by the national press, except for the Washington Times, the home of gun show promoters Harry and Theresa Lamplugh was raided by BATF in 1994. At least fifteen BATF agents, armed with machine guns, burst into the Lamplugh's home one morning. Mr. Lamplugh asked the men, most of whom were not wearing uniforms, if they had a warrant. "Shut the f___ up mother f___er; do you want more trouble than you already have?" they responded, sticking a machine gun in his face. Over the next six and half hours, BATF agents demolished the home, refused to let the Lamplughs get dressed, held a pizza party, killed three house cats (including a Manx kitten which was stomped to death), scattered Mr. Lamplugh's cancer pills all over the floor, and carted off over eighteen thousand dollars worth of the Lamplughs' property, plus their medical records. Nearly a year later, the government has neither filed any criminal charges, nor returned any property, even the medical records.(119) The first of BATF's notorious raids came on June 7, 1971, when agents broke into the home of Kenyon Ballew.(120) A burglar had told the police that Ballew owned grenades. Ballew did own empty grenade hulls, which are entirely legal and unregulated. Wearing ski masks and displaying no identification, BATF agents broke down Ballew's door with a battering ram. Responding to his wife's screams, Ballew took out an antique blackpowder pistol, and was promptly shot by BATF. Nothing illegal was found. He remains confined to a wheelchair as a result of the shooting, and now subsists on welfare.(121) If the sear (the catch that holds the hammer at cock) on a semiautomatic rifle wears out, the rifle may malfunction and repeat fire. The BATF arrested and prosecuted a smalltown Tennessee police chief for possession of an automatic weapon (actually a semiautomatic with a worn-out sear), even though the BATF conceded that the police chief had not deliberately altered the weapon.(122) In March and April of 1988, BATF pressed similar charges for a worn-out sear against a Pennsylvania state police sergeant. After a 12-day trial, the federal district judge directed a verdict of not guilty and called the prosecution "a severe miscarriage of justice."(123) Today, observes Robert E. Sanders, a former head of BATF's criminal division, the bureau's leaders, to the great dismay of many high-quality field agents, have "shifted from the the criminal to the gun," and are now waging "an all-out war against the gun." Sanders noted that "Instead of focusing on selected criminals, there is an indiscriminate focus on anyone who owns guns. They are in total consonance witht the Clinton administration's anti-gun position and with the gun control groups."(124) BATF's management has consistently proven itself unwilling to obey statutory law. The Firearm Owners' Protection Act specifically forbids BATF to gather registration information about guns or gun owners, except in connection with a criminal investigation. Nevertheless, BATF is implementing "Project Forward Trace" to register the owners of certain legal semiautomatic firearms. The Treasury Department defends the Waco attack on the basis that "the raid fit within an historic, well- established and well-defended government interest in prohibiting and breaking up all organized groups that sought to arm or defend themselves."(125) The candid admission of BATF's objective, however, conflicts with the fact that nothing in existing law makes it illegal for persons, alone or in groups, to collect large number of weapons and to defend themselves. To the contrary, the ownership of large numbers of weapons is specifically protected by federal statute, by federal case law, and of course by the Second Amendment.(126) One approach to improving BATF's conduct would be incremental reforms of the statutes governing BATF. Such an approach was attempted by the Firearm Owners' Protection Act, signed into law in 1986. The 1986 reforms, pushed by the National Rifle Association and other pro-gun organizations, reduced BATF search authority, especially for paperwork technicalities, and increased penalties for armed career criminals. Yet even today, the armed career criminal statutes are often enforced in a manner targeting small- scale, unarmed offenders.(127) The Bureau of Alcohol, Tobacco and Firearms (a descendant of the Bureau of Prohibition) enforces the federal alcohol laws in a manner also characterized by administrative abuse, over-reaching beyond statutory power, and selective enforcement against persons or companies who dare to criticize BATF.(128) Nor are people outside of BATF the only victims. Planning for the BATF raid on the Mount Carmel Center in Waco began shortly after the Bureau found out that Sixty Minutes was working on a story about sexual harassment at BATF. Months later, Sixty Minutes host Mike Wallace opined "Almost all the agents we talked to said that they believe the initial attack on that cult in Waco was a publicity stunt-the main goal of which was to improve ATF's tarnished image."(129) (The codeword for the beginning of the BATF raid was "showtime.") The Sixty Minutes report was devastating. BATF agent Michelle Roberts told the television program that after she and some male agents finished a surveillance in a parking lot, "I was held against the hood of my car and had my clothes ripped at by two other agents." Agent Roberts claimed she was in fear of her life. The agent who verified Ms. Roberts' complaints claims that he was pressured to resign from BATF. Another agent, Sandra Hernandez, said her complaints about sexual harassment were at first ignored by BATF, and she was then demoted to file clerk and transferred to a lower-ranking office. BATF agent Bob Hoffman said "[T]he people I put in jail have more honor than the top administration in this organization." Agent Lou Tomasello said, "I took an oath. And the thing I find totally abhorrent and disgusting is these higher-level people took that same oath and they violate the basic principles and tenets of the Constitution and the laws and simple ethics and morality."(130) Black BATF agents have complained about discrimination in assignments.(131) Abolishing BATF is no solution, for abolition would leave in place the federal alcohol, tobacco and firearms laws, and transfer their enforcement responsibility to some other agency. It is the very nature of the victimless crimes--such as laws criminalizing the peaceful possession or manufacture of alcohol or firearms--which lead to enforcement abuses. As long as the consensual offense laws remain in the U.S. Code, abusive enforcement is likely, as has been the historical norm since the enactment of such laws. Removing most firearm (and alcohol and tobacco) laws from the federal statutes does not imply that alcohol, tobacco, and firearms should be subject to no legal controls. Rather, the control of those objects can continue to achieved at the state level, without a redundant layer of federal control and the manifold temptations of federal abuse. Since 1985, BATF's size has increased 50%, from 2,900 employees to 4,300.(132) In a time of vast budget deficits, simply restoring BATF to its former size might save both taxpayer dollars and taxpayer lives. While BATF's performance at Waco was disgraceful, two facts should be kept in mind: First, the BATF has a large number of honorable, admirable employees who have quietly gone about their work for years, enforcing federal regulations applicable to gun dealers, and enforcing federal laws against possession of guns by persons with felony convictions for violent crime. Misbehavior of some BATF staff (and some BATF leadership) should not be taken as proof that all BATF employees are bad. The second point is that BATF is far from the only federal agency involved in illegal violent conduct, including conduct leading to the deaths of innocent people. On October 12, 1992, a multitude of federal and state agencies (including the National Park Service, the Forest Service, the Drug Enforcement Administration, the National Guard, and NASA) broke into the home of southern California millionaire Donald Scott. The no-knock, late night raid was supposedly designed to serve a warrant to look for marijuana plants growing on Mr. Scott's estate, although there was no realistic possibility that Mr. Scott could have destroyed the marijuana plants (alleged to be in trees far from his home) during the time it would have taken the police to knock at his door and demand entry. When Mr. Scott, awakened by the noise of people breaking into his home at night, ran to the living room with his legally-owned .38 revolver, he was shot dead. The search yielded no evidence of drugs or illegal activity. An investigation by Ventura County, California, District Attorney Michael Bradbury found that the basis of the warrant-a drug agents' claim that while in a surveillance plane 1,000 feet above the ground, the agent could see individual marijuana plants concealed in leafy trees-was fabricated. The District Attorney also noted that the sheriff's department which participated in the raid had conducted an appraisal of the five-million-dollar Scott ranch before the raid, apparently with the expectation that the ranch would be forfeited to the government. (133) Abolishing or Weaking the Posse Comitatus Act(134) No civil liberties issue is more important than preservation of the Posse Comitatus Act, which forbids the military to participate in domestic law enforcement. The Act is based on the traditional American abhorrence of rule by the military, and on the recognition that military personnel (who are trained to destroy rapidly) cannot be realistically expected to behave with the restraint and Constitutional sensitivity of civilian police (who are trained in force minimization, careful evidence-gathering, and Constitutional law).(135) Two proposals have been offered to increase military participation in law enforcement. Currently, military expertise may be used in cases of nuclear terrorism, since military specialists, appropriately, possess knowledge of nuclear weapons which state and local law enforcement does not. The Clinton administration has proposed adding "biological" and "chemical" exceptions to match the nuclear exception. Even if arguably legitimate, any additional exception to the Posse Comitatus Act should be strictly limited to cases where special expertise is necessary. Spraying somone with Mace(R) may be a crime involving chemical attack, but it not one requiring that we call out the army. There is no need, however, to create additional exceptions to the Posse Comitatus Act. The President has requested 1.5 billion dollars and 1,000 new federal employees to focus exclusively on terrorism. Surely some of them can be trained in use and suppression of chemical and biological weapons. Significantly, the Posse Comitatus Act does not prevent the armed forces from training civilian law enforcment in chemical and biological weapons. Use of the military for fighting terrorism is sometimes justified on the grounds that not using the military would be a waste of resources (in this case, chemical and biological warfare expertise). The argument proves too much. Why not avoid wasting resources by allowing army privates driving tanks and wielding flamethrowers and machineguns to fight terrorism too? Why not really use resources efficiently, and allow the military to fight all crimes? The answer is that military resources serve primarily as a deterrent to foreign aggression, and thus are useful even when not actually in combat. Eroding the distinction between the military and the civilian erodes the very basis of American civil society, a society which has been built up by the sacrifice of many generations of Americans. Conserving the foundation of a civil society--the distinction between civil and martial law--is far more important than is the pennywise, pound foolish use of the military in domestic law enforcement simply to avoid "wasting resources." Further, few federal government actions (other than gun confiscation) could be better calculated to frighten people and drive more Americans into militias than increasing the presence of the military in domestic law enforcement. Although the Dole terrorism bill does not contain the chemical and biological exception to Posse Comitatus proposed by the White House, both the Clinton omnibus bill (H.R. 896) and the Dole bill (S. 735) contain a clause which essentially repeals the Posee Comitatus Act. As detailed above, the bills define almost every violent and property crime, no matter how trivial, as "terrorism." The bills then authorize "the Army, Navy, and Air Force" to render assistance against "terrorism" whenever requested by the attorney general.(136) Simply put, this a formula for martial law. Incidentally, the bills also abolish all jurisdictional restraints on all federal law enforcement agencies regarding any "terrorist" offense (i.e. all property and violent crime).(137) In other words, the Bureau of Alcohol, Tobacco and Firearms would not be limited to cases involving alcohol, tobacco or firearms; the IRS would not be limited to tax cases; and the Drug Enforcement Agency would not be limited to drug cases. Moreover, state and local law enforcement officers would be, under the direction of the attorney general, authorized to operate anywhere in the United States, rather than in their state or local jurisdiction. The increasing militarization of domestic law enforcement in the United States is an ominous trend. If we examine the law enforcement policies of virtually every unfree nation in the world, we find two common traits:
Although centralized, militarized law enforcement might seem to protect public safety, the American people have historically recognized that law enforcement which is not under the direct control of the local populace, and law enforcement along military lines, creates grave threats to the safety and liberty of the American people. The healthy distrust of militarized law enforcement is the basis of the Posse Comitatus Act, by which Congress outlawed the use of military personnel in domestic law enforcement. The Posse Comitatus Act of 1878 provides: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act or Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined no more than $10,000.00 or imprisoned not more than two years, or both.(138) But since 1981 the Act has been seriously eroded. The United States is now headed in a very dangerous direction. The deadly consequences of the use of the military in domestic law enforcement are not speculative. In 1913, in Ludlow, Colorado, the National Guard machine-gunned and burned to the ground a camp of striking coal miners and their families, in the "Ludlow Massacre." Decades later, National Guard units shot and killed protesting students and Kent State and Jackson State Colleges. The National Guard killings at Kent State and Jackson State led to massive national protests. Armed Forces and National Guard Enforcement Activities Many patriot organizations are comprised of members who are have been terrified by the appearance of unmarked "black helicopters" over their rural property. These helicopters (which are actually a very dark green) have played a major role in intensifying fear of the federal government. The helicopters are not from the United Nations, but are rather part of the National Guard's marijuana eradication program. Military involvement in the interdiction of drug importation was initiated in 1981. The militarization of drug enforcement is being promoted by use of the National Guard in the Domestic Marijuana Eradication Program of the U.S. Drug Enforcement Administration. Most states have entered into agreements with National Guard units to participate in law enforcement. The Supreme Court decision in Oliver v. United States, giving law enforcement authority to trespass, has resulted in Guard troops being flown to rural areas dropped from helicopters, setting up roadblocks, and searching suspected growing areas.(139) The last decade's initiation of military enforcement of the civil laws is unprecedented in American history. Until 1981, the only acts of Congress which authorized use of the armed forces to execute the laws concerned the suppression of insurrection(140) and some other very narrow exceptions.(141) The 1981 Amendment to the Posse Comitatus Act The 1981 amendment to the Posse Comitatus Act,(142) authorized the Secretary of Defense to provide information and make available any equipment and training to federal, state, or local civilian law enforcement officers. Further, the Secretary is authorized to assign personnel to operate and maintain equipment for civilian law officers engaged in the enforcement of the Controlled Substances Act,(143) or the Controlled Substances Import and Export Act,(144) as well as certain immigration and customs laws. However, the section allowing assistance to civilians in drug enforcement(145) "is to be construed narrowly."(146) The amendment, which was broadened in 1989, provides that the Secretary of Defense shall issue regulations "to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search or seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law."(147) The Clinton and Dole anti-terrorism bills would, in effect, entirely remove the above restrictions. What is the "Posse Comitatus"? At common law, the duty of the sheriff was to pursue and take murderers and other felons. "For these purposes he may command the posse comitatus or power of the county; and this summons, everyone over the age of fifteen years, is bound to obey. . . "(148) "It is the right, as well as the duty of every citizen, when called upon by the proper officer, to act as part of the posse comitatus in upholding the laws of his country."(149) In American parlance, "posse comitatus" was often shortened to "posse," as in "the sheriff called out the posse." The nature of the posse comitatus was mentioned in passing in several nineteenth century cases. At the direction of President Thomas Jefferson, James Madison--the "father of the Constitution"--wrote a routine directive to a federal marshall which stated: "Should any aid be necessary you will call for the assistance of the good citizens of the district, as the posse comitatus or civil power of the territory."(150) Luther v. Borden, emphasized the need to suppress domestic violence by use of the militia and the posse comitatus, and not by use of martial law.(151) The historic democratic purpose of relying on the people is clear: to promote popular participation in law enforcement, and to prevent authoritarian rule by use of the military to enforce the law. As one modern court stated, the Posse Comitatus Act, "is not an anachronistic relic of an historical period the experience of which is irrelevant to the present. It is not improper to regard it, as it is said to have been regarded in 1878 by the Democrats who sponsored it, as expressing `the inherited antipathy of the American to the use of troops for civil purposes.'"(152) In Laird v. Tatum,Chief Justice Burger referred to "a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment's explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military."(153) In litigation growing out of the Wounded Knee uprising, Bissonette v. Haig, explained: Civilian rule is basic to our system of government. The use of military forces to seize civilians can expose civilian government to the threat of military rule and the suspension of constitutional liberties. On a lesser scale, military enforcement of the civil law leaves the protection of vital Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights. It may also chill the exercise of fundamental rights, such as the rights to speak freely and to vote, and create the atmosphere of fear and hostility which exists in territories occupied by enemy forces.(154) Does the Constitution Authorize Military Execution of Laws? With the 1981 amendment to the Posse Comitatus Act, and talk of its repeal altogether, the statutory safeguard has been seriously eroded. It is also being bypassed through widespread use of the National Guard in the eradication of domestic marijuana production. United States v. Walden, repeated Blackstone's definition of "posse comitatus" as "the power or force of the country. The entire population above the age of 15, which a sheriff may summon to his assistance in certain cases; as to aid him in keeping the peace, in pursuing and arresting, felons, etc."(155) The court went on to point out: "The policy that military involvement in civilian law enforcement should be carefully restricted has deep roots in American history. Whether there should even be a standing army was a question fiercely debated among the framers of the Constitution. In the congressional debate on the Posse Comitatus Act, several senators expressed the opinion that the Act was no more than an expression of constitutional limitations on the use of the military to enforce civil laws."(156) Further, many of the state constitutions contain provisions mandating strict subordination of the military to civil power such as would preclude local law enforcement from accepting assistance from the federal military. Under Article I, 8, clauses 11-13 of the U.S. Constitution, Congress has power "to declare war . . . to raise and support armies . . . to provide and maintain a navy. . . ." The evident purpose of the land and naval forces was war, or, as James Madison averred in The Federalist No. 41, for "security against foreign danger." By contrast, clause 15 empowered Congress "to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. . . ." (Emphasis added.) Further, Article IV, 4 only authorizes the use of military force to protect the states "against invasion" or (by state request) "against domestic violence." Again, the purpose and composition of "a well regulated Militia" are mandated respectively by the Second Amendment as "the security of a free State" and as "the people," whose right "to keep and bear Arms, shall not be infringed." This guarantees, inter alia, "a decentralized militia."(157) Under the above provisions, the regular military forces may be employed only to repel invasion or, in very limited circumstances, to suppress insurrection. Only the constitutional militia (which is not equivalent to the centralized National Guard),(158) may be called up "to execute the laws of the union." The framers of the Posse Comitatus Act were well aware of the above distinctions. In their experience, both regular army forces and paramilitary forces (which had already began to use the term "National Guard") had broken strikes, swayed elections, raided whiskey distilleries, and generally ruled by the bayonet. The framers saw themselves as providing criminal penalties for military activity already prohibited by the Constitution. Origins of the Posse Comitatus Act, 1877-1878 A review of congressional debates leading to passage of the Posse Comitatus Act in the years 1877-1878 reveal the extent to which the 1981 amendment to the act, and current proposals to weaken the act still more, are incompatible with the Constitution. These debates have far more significance than routine legislative history. Their compelling logic, the fact that less than a century separated them from the original framing of the Constitution, and their intimate knowledge of the actual thought of the Founding Fathers give the opinions of the congressmen who passed the Posse Comitatus Act great weight. The act originated in Army appropriation bills as an attempt to restrict military interference in elections. Representative John D. Atkins (D., Tenn.) raised the issue by advocating reduction of the standing army because "the Army as an adjunct of civil government is wholly unnecessary and actually hurtful." In Europe, large armies are kept up "to overawe the people" and "to keep their people in subjection to hated forms of government. . . ." "Even the police duty of those countries is performed by detachments from the army, while in this country, . . . the regulation of public order is left to home government or local authority, all based on the consent of the people." Detailing military interference in southern elections, Representative Atkins implored: "American soldiers policemen! Insult if true, and slander if pretended to cover up the tyrannical and unconstitutional use of the army. . . ."(159) He recalled the words of the Chief Justice in United States v. Cruikshank,: "Certainly it will not be claimed that the United States have power or are required to do mere police duty in the States."(160) The appropriation bill did not pass that session, but was reintroduced in the next session. Expounding on the narrow role of the Army under the Constitution, Atkins asked: "If the ordinary constabulary force in a State cannot preserve peace and protect life and property, and military organizations must be invoked, why not encourage the States to organize, discipline, and arm and equip their militia organizations?"(161) "We have a right under the Constitution, and it is our duty, to repel foreign invasion," Representative Singleton pointed out, finding no such right for troops to "put down insurrection."(162) Congressman Schleicher objected to use of the army as "a standing police force."(163) In reply, Representative Calkins advocated an increase in the size of the Army in order to suppress riots. "Does my friend propose to maintain a standing army for the purpose of suppressing the rights of laboring men?" queried Representative Luttrell.(164) Representative Atkins deemed it "an insult to the American soldier to make a policeman of him. The idea that we are to have a large standing army to preserve order and the peace of the country is total suppression of the theory of our republican form of government."(165) Speaker after speaker proceeded to denounce use of the Army to suppress strikes. Representative Pridemore averred that "the only danger that threatens this Government is the growing strength and ultimate power of the Army to control the citizens."(166) Debate continued the next day with Congressman Baker of Indiana opposing maintenance of "a standing army for the purpose of acting as a local police. . . ."(167) Representative Hewitt opined that federal troops must not be used to suppress riots, a "high duty which, under the Constitution, is committed to the people of the sovereign States."(168) Several speakers agreed that state militias, not federal troops, should suppress riots, for, in the words of Representative Townsend of Illinois, "it was the real design of those who framed our Constitution that the Federal Army should never be used for any purpose but to repel invasion and to suppress insurrection when it became too formidable for the State to suppress it."(169) Intent of Constitution's Framers The single most important discussion leading to the passage of the Posse Comitatus Act was the hour long speech of Representative William Kimmel of Maryland in connection with the Army appropriation bill of 1878. The significance of this speech arises out of its detailed use of quotations from the framers of the U.S. Constitution. As the U.S. Supreme Court would state almost a decade after Kimmel's oration: "It is never to be forgotten that, in the construction of the language of the Constitution . . . we are to place ourselves as nearly as possible in the condition of the men who framed the instrument."(170) Kimmel began by tracing the sources of the Founding Fathers' distrust of standing armies from ancient Rome through English history. Quoting the charge in the Declaration of Independence that George III "has kept among us in time of peace standing armies," Kimmel stated: "This dread and detestation of standing armies appears on every page of their progress toward independence and the establishment of the Constitution of 1787."(171) At least eight of the original state constitutions included prohibitions on standing armies. "In the debates in the conventions which adopted the Constitution of 1787 the spirit of resistance to standing armies is ever present," averred Kimmel, who quoted Patrick Henry, George Mason, James Madison ("the Father of the Constitution"), and William Grayson to prove it.(172) As quoted by Kimmel, standing armies were "to execute the execrable demands of tyranny" (Henry), make "the people lose their liberty" (Mason), are "one of the greatest mischiefs" (Madison), and would "deprive us of our liberties" (Grayson).(173) Kimmel also provided similar quotes from The Federalist Papers by Madison and Hamilton. Kimmel went on to demonstrate, by reference to the same sources and to the Second Amendment, that the Constitution's framers intended that a militia, composed of the armed citizens, "should be a substitute for a standing army."(174) "If insurrections should arise or invasion take place, the people ought unquestionably to be employed to suppress and repel them rather than a standing army," said Madison.(175) The remainder of the speech goes to great lengths to demonstrate the superiority of the militiaman, the armed citizen, over the professional soldier to preserve civil liberty. Kimmel argued that the posse comitatus, the people at large, could be summoned by the sheriff to preserve peace. Army intervention in civil affairs meant corruption, electoral fraud, suppression of workers, and extortion. Kimmel closed his speech by moving the adoption of a version of what became the Posse Comitatus Act. (176) Military Enforcement of Controlled Substance Laws The most frequently heard objection to the bill's pro- hibition on military enforcement of law was first stated by Representative Burchard: "In some of the interior districts of the United States--the mountain regions--there are men engaged in illicit distillation. I do not know that there is in our internal-revenue law a provision . . . which expressly declares that if there be resistance to an officer engaged in seizing an illicit distillery the soldiery of the United States may be used to assist the officers in the execution of the law."(177) Congressman Knott was unmoved: "The subordination of the military to the civil power ought to be sedulously maintained."(178) In reply, Representative Aldrich saw hidden interests behind the bill: "There is a class of men in Kentucky, who are sometimes called `moonshiners,' who make whiskey and never pay the tax upon it when they sell it, and they will be pleased to hear of the adoption of such an amendment as this."(179) Representative Southard offered the alternative of the posse comitatus: "Call upon the laboring-man to aid in the enforcement of the law and he will respond right manfully."(180) In the Senate, discussion centered on the misuse of soldiers as posse comitatus. Senator Kernan stated: "I suppose no one claims that you can use the Army as a posse comitatus unless that use is authorized by the Constitution, which it clearly is not, or by act of Congress."(181) If peace officers need assistance to quell disorders, he added, "they should summon the unorganized citizens and not summon the officers and men of the Army as a posse comitatus . . . ."(182) As in the House, Senate opponents of the bill were alarmed that the Army could not be used to assist revenue officers seize illicit distilleries.(183) Senator Merrimon replied as follows: "Suppose that a collector of internal revenue shall be about to seize an illicit distillery, and he is resisted, where is the force to come from to aid him in the execution of that law in that behalf? . . . It is not to apply for the Army; . . . but it is to call in the aid of the posse comitatus, the people around him, every citizen, everybody liable to do public duty at all."(184) Opponents of the bill were quick to recognize that the citizenry would not help enforce unpopular restrictions on whiskey. Senator Blaine recalled an old Attorney General opinion that soldiers could be used where the posse comitatus refused to assist the sheriff arrest a fugitive slave. Blaine continued: "If you attempt to seize an illicit distillery, and all the surrounding population feel in regard to that illicit distillery--and there are some parts of this country where they do feel a good deal that way-- just as the people of Boston did about the arrest of fugitive slaves, so that when you call the posse comitatus they are on the side of the illicit distiller, what will you do then?"(185) Supporters of the bill continued to view it as a needed statutory prohibition of what was already basic in the Constitution. In the words of Merrimon, "the Army has been used not once, but time and time again, in a way that not a court in this nation would sanction. The Army has not only been used in collection of the internal revenue in a way not authorized by law, but it has been used and prostituted to control elections repeatedly."(186) "It never was lawful, it never will be lawful, to employ the Army as a posse comitatus until you destroy the distinction between the civil power and the militiary power in this country," added Senator Hill.(187) Thus, the Congress which enacted the Posse Comitatus Act was quite aware that the Act would put an end to use of the Army to raid illegal whiskey distilleries. Limits Under State Law to Law Enforcement by the Military The framers of the Posse Comitatus Act were quite aware of explicit prohibitions by the state constitutions of a militarized civil society. The following language of the Virginia Declaration of Rights of 1776, Article XVIII, came to be the prototype of other state bills of rights: "That a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper, natural, and safe Defense of a free State; that standing Armies, in Time of Peace, should be avoided, as dangerous to Liberty; and that, in all Cases, the Military should be under strict Subordination to, and governed by, the civil Power." The Virginia declaration expressed the revulsion of the colonists to execution of the laws by select militias called out by royal governors as well as by the King's standing army.(188) The Founding Fathers rejected a select or elite militia, in contrast with a general militia composed of the citizens at large, because the former resembled a standing army, and could advance the arbitrary designs of despots.(189) When the populace at large was ultimately responsible for law enforcement, their refusal to act in support of the sheriff or governor would signify their nonsupport of an unjust law. Today, most state bills of rights still include lan- guage similar to that in the Virginia Declaration quoted above. The original intent of these rarely litigated provisions was to avoid a military execution of the laws. Despite this tradition, the National Guard, a select militia according to the original usage, is currently being used in domestic marijuana eradication efforts. Recent Abuses Recent court cases illustrate the abuse and terrorization of civilian populations which inevitably result from military law enforcement. Unlawful policies of California's Campaign Against Marijuana Planting (CAMP) were enjoined in National Organization for the Reform of Marijuana Laws (NORML) v. Mullen.(190) CAMP teams used airplanes and helicopters at low altitudes, thereby invading privacy, disrupting schooling and work, and endangering the public.(191) On the ground, CAMP officers ordered families out of houses, held persons at gunpoint, confiscated registered firearms, and otherwise frightened law-abiding citizens who had noting to do with marijuana.(192) Roadblocks and detentions were commonplace. The Court concluded that "the policy, no matter how well-intentioned, gives CAMP personnel virtually unbridled discretion to enter and search private property anywhere in the vicinity of an eradication raid, and to seize personal property and detain innocent citizens without probable cause or even reasonable suspicion of any criminal activity."(193) In William v. Garrett, 722 F.Supp. 254 (W.D.Va. 1989), plaintiffs complained of civil rights violations arising out of Virginia's Marijuana Eradication Program (MEP). Aerial and ground searches of the property revealed only roses and other houseplants, but one of the landowners was held at the point of an M-16 rifle. The court dismissed the action, finding that the state police and Guardsmen defendants were entitled to qualified immunity. California's major eradication efforts spawned further litigation, and the court upheld a cause of action against constitutional rights violations in Drug Policy Foundation v. Bennett.(194) Defendant included both the U.S. military and the National Guard. Armed men pointed M-16 automatic rifles at several persons not suspected of any wrongdoing, including a 16-year-old girl and a 9-year-old boy.(195) Some of these deadly force displays, the court found, deprived plaintiffs of liberty without due process of law. Fourth Amendment violations were also found. The court held that a private right of damages exists for violation of the Defense Authorization Act (i.e., the limited exception to the Posse Comitatus Act).(196) In Puerto Rico (in a program that is promoted as a national model by Rep. Charles Schumer), the National Guard participated in a "task force" in which residents of a public housing apartment were rousted from their beds at two o'clock in the morning by 300 men, all of them heavily armed. The men broke down doors, took over the apartments, and began rummaging through the occuppants' belongings. After taking the place over, some of the men began sexually harassing the women, searching through children's lunchboxes, and even inspecting babies' diapers. The Waco Tragedy Military forces were integral to the Waco disaster. To procure National Guard helicopters for use in the February 28, 1993 attack on the Mount Carmel Center, BATF falsely told the State of Texas that there was suspicion of drug activity among the Branch Davidians. Although the National Guard helicopters were claimed to be used only as a "distraction," some witnesses later reported that the roof of the Mount Carmel compound was ripped by gunfire from above, as could be the case only if the helicopters opened fire. Psychologist Bruce Perry examined the Branch Davidian children who left the compound in the weeks following the BATF raid. One child drew a picture of a house beneath a rainbow. Perry asked, "Is there anything else?" and the child then drew bullet holes in the roof.(197) Newsweek magazine reprinted Davidian girl's picture of her home with a dotted roof. "Bullets" the girl explained.(198) Jack Zimmerman, the lawyer for the late Steve Schneider, David Koresh's top aide, visited the compound during the siege. He later testified that he saw many bullet holes in the ceilings with a downward trajectory, indicating that the helicopters had been firing into the compound from above. The BATF stated that the helicopters were simply used as a "diversionary device" during the raid, and no shots came from the helicopters.(199) At least during wartime, there are sound tactical reasons for beginning an assault on a building by strafing the second story roof. The bullets coming through the ceiling will force people on the second floor to retreat to the first floor. It will therefore be easier for assault personnel to enter the second story. In addition, riflemen defending the building against ground attack will be deprived of the advantage of an elevated firing platform. But strafing a building is not a particularly effective way to rescue children who are thought to be in danger. The second story of the Mount Carmel Center was the living quarters for the women and children; men were not allowed up there. The Davidians claim that just after Jaydean Wendell fell asleep after nursing her baby, a bullet from a helicopter tore through the ceiling, entered her skull, and killed her. As her last act, she handed her baby to another woman.(200) The Treasury Department Report of the Waco incident offers no competing explanation for her death. On April 19, 1993, military tanks were used in the final assault on the Branch Davidians' home. The tanks broke down walls, and the rubble from the collapsing walls killed several people. Many of the Branch Davidian women attempted to escape from the burning building by fleeing to an underground bus which would have provided safety from the fire. Access to the shelter blocked by debris from the tank attack. The tanks were used to insert over 300 rounds of CS chemical warfare agent. CS is so deadly that its use in international warfare was banned by the Paris Convention of 1993, to which the United States is a party. Sadly, the children in the Branch Davidian compound were subjected to a chemical warfare and tank attack that would have violated international law if the victims of the attack were had been Iraqi soldiers, rather than American children. In short, to say that the National Guard, or any other protion of the military, is being used for law enforcement is to indulge in an Orwellian perversion of language. Our highest law is the Constitution, and the Constitutiona was intended to keep the military out of a domestic policing role. Remedies to Militarization of Law Enforcment Several reforms are needed to strengthen the Posse Comitatus Act, which is itself but an expression of Constitutional mandate. Reforms would include:
Tanks, helicopters, and men pointing automatic rifles at children have no place in a free society. Neither the push to make America a "drug-free" society nor desire to "do something about terrorism should be accomplished at the expense of losing our freedom. Ulitimately, the most important antidote for militirazation of federal law enforcement is the same as the antidote for the other federal law enforcement abuses that have terrified so many people. The federal government should get out of criminal issues that it has no authority over in the first place. The Constitution specifically authorizes federal enforcement of only two types of laws, both of which involve uniquely federal concerns. The first authorized federal criminal law enforcement is based on the Congressional power "To provide for the punishment of counterfeiting the securities and current coin of the United States." The counterfeiting enforcement power immediately follows the delegation of Congressional power "To coin money, regulate the value thereof, and of foreign coin..."(201) The second Congressional criminal power involves the power "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." Although currency and the high seas clearly involve areas of federal, and not state concern, it is notable that the authors of the Constitution felt a need specifically to authorize Congressional law enforcement regarding these matters. Given the need for specific authorization, it is questionable whether Congress should arrogate to itself vast criminal powers supposedly deriving from the "necessary and proper" clause, the interstate commerce power, or the taxing power. Much the expansion of federal criminal power has taken place as a result of a excessive judicial deference to Congress' proclivity for reading the interstate commerce power as a general grant of legislative authority on any subject. Most of the federal government's criminal law jurisdiction is built on an intellectual foundation of sand which will, perhaps, one day be swept away by jurists committed to the text of the Constitution rather than to the political trends of the day.(202) Antiterrorist Agenda There is no evidence that any of the repressive proposals discussed above would have prevented the Oklahama City bombing. To use the bombing as a pretext for new laws which endanger traditional American freedoms is highly inappropriate. Rather than infringing on Constitutional rights, there are two simple steps which could significantly reduce future terrorism. First, the President should announce that whenever it is determined that a foreign government has perpetrated a terrorist attack against Americans, either in America or abroad, the United States will retaliate personally against the head of the foreign government. After the Reagan administration attempted to kill Libya's Mohammer Khaddafi with a bombing raid, Libyan terrorism is said to have diminished. The state sponsors of terrorism, including Syria and Iran, are well-known. They should no more enjoy immunity for their murderous conspiracies than any other murderer should. Second, grandiose plans for "one thousand new FBI agents" to fight terrorism are as politically transparent as the previous promises of "100,000 new cops on the streets." Rather than further inlfating the already bloated federal criminal justice establishment, additional antiterrorism resources can be found be reassigning FBI (and other federal) agents who are currently assigned to matters which have no real connection to legitimate federal concerns, such as child support enforcement, obscenity cases, and non- interstate drug cases. Conclusion "Those who give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety," observed Benjamin Franklin. In the case of many current repressive proposals aimed at terrorism, America may not even get more safety in exchange for significantly less freedom. Everything that terrorists do is already illegal. Current laws already provide ample authority for investigations of potential terrorists, including persons who have done nothing more than talk big. Various proposals that are offered as supposed solutions to terrorism-- including more spying on peaceful dissidents, more electronic surveillance, trials with secret evidence, felonizing charitable donations to foreign humanitarian causes, and federalizing and militarizing criminal law--will make America more dangerous, not safer. Releasing the federal government from the rule of law would be a Faustian bargain even if terrorism were wiped out. Given the irrelvance of repressive legislation to genuine counter- terrorism, future generations may look back in dismay at officials who want to sell the birthright of all Americans for a mess of pottage. (1)Herbert McClosky & Alida Brill, Dimensions of Tolerance: What Americans Believe About Civil Liberties (N.Y.: Russell Sage Foundation, 1988). Research assistance for this testimony was provided by Chris Little and Scott Hattrup. (2)"It established some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Albert Gallatin, Congressman and Cabinet officer of the early American Republic, quoted in Richard E. Gardiner, "'To Preserve Liberty': A Look at the Right to Keep and Bear Arms," 10 Northern Kentucky Law Review 63, 79n. (1982). (3)Roger Daniels, Prisoners Without Trial. (4)American Civil Liberties Union, Americans for Tax Reform, American Friends Service Committee, American Immigration Lawyers Association, Center for Democracy and Technology, Citizens Committee for the Right to Keep and Bear Arms, Gun Owners of America, Law Enforcement Alliance of America, National Association of Criminal Defense Lawyers, National Rifle Association of America, Presbyterian Church (SA)Washington Office, Second Amendment Foundation, Open Letter to President Clinton and Congressional Leadership: a Joint Letter from a Coalition of Diverse Organizations Concerned about Civil Rights, Apr. 26, 1995. (5)Martin Van Creveld, Technology and War: From 2000 BC to the Present (N.Y.: Free Press, 1989), p. 306. (6)Associated Press, Apr. 28, 1995 (Washington). (7)Center for National Security Studies, Misleading "Findings" in Clinton Terrorism Bill (Wash., Feb. 22, 1995), p. 1. (8) Misleading "Findings", pp. 1-2. (9)Source for table: FBI data, reported in Misleading "Findings". (10)Hillyard and Percy-Smith, pp. 257-58, 272; Ewing and Gearty, p. 216. The Irish Bishops' Commission for Prisoners distributes a leaflet to Irish emigrants to Britain, warning young people that if arrested, they should expect "rough, accusational anti-Irish treatment" and should be prepared for "disorientation resulting from solitary confinement . . . and lack of contact with anyone except the police." The leaflet advises Irish to "sign nothing" without first consulting a lawyer. Mary Holland, "Ireland Laments Her Innocents Imprisoned Abroad," Observer, October 22, 1989, p. 2. (11)Hillyard and Percy-Smith, p. 273; Regina v. Secretary of States for the Home Department, ex parte Stitt, reported in The Times, February 3, 1987 (Divisional Court ruling that requiring reasons for exclusion "would be fraught with difficulty and danger"), quoted in Ewing and Gearty, p. 217. (12)Brogan v. United Kingdom (1989), 11 European Human Rights Reporter 117 (12-7 vote). (13)Kevin Dawson, "Pressure Mounts to Reopen Birmingham Case," The Sunday Tribune, October 22, 1989, p. A15; James Carvel, "PM Clings to Detention Powers," The Guardian, October 21, 1989, p. 1. (14)Barry James, "Justice in England Undergoes Stress," Los Angeles Times, April 7, 1985 (United Press International). The "five techniques" were condemned by the European Court of Human Rights as inhuman and degrading. Ireland v. United Kingdom (1978) 2 European Human Rights Reporter 25. (15)Campbell, p. 35. The ban on the use of voices of Irish nationalists was dropped after Prime Minister Thatcher left office. Serge Schemann, "Overseas, Oklahoma City Bombing is Seen through Prism of Experience," N.Y. Times, Apr. 30, 1995., p. 28. (16)Labour Member of Parliament Ken Livingstone denounced the plan to "prevent access to radio and TV by those who are critical of government policy in Ireland." On the other hand, South African President P.W. Botha applauded the move, and suggested that South Africa emulate the British plan. Campbell, p. 35. (17) Ewing and Gearty, p. 248, citing Independent, November 11, 1988; February 13, 1989. (18)DuQuesne and Goodman, p. 26, citing Interception of Communications Act, July 25, 1985. American wiretaps authorize only the recording of conversations regarding the subject of the tap. British wiretappers are required to record all conversations on the tapped line. Ewing and Gearty, p. 70. (19) 3(l); Campbell, p. 37. (20)Firearms Act, 1982; "Carry on Squirting," New Law Journal 133 (1983): 989. (21)"Firearms Act 1982," Elizabeth II, 1982 chapter 31; Green Paper, pp. 38-39; Yardley and Stevenson, p. 65; Stevenson, p. 23 (22)See generally R. C. Longworth, "Perjury, Abuse of Prisoners Lead to Criticism of British Police," C.J. International, September 1990, p. 19 (reprint from Chicago Tribune). (23)Ewing and Gearty, pp. 18-19. Among the other well-known involving Irish defendants allegedly tortured into confession by the police are the the Maguire Seven and U.D.R. Four. Craig R. Whitney, "Faith in British Justice System By Abuses and False Jailings," N.Y. Times, June 2, 1991, pp. 1, 12. (24)Hillyard and Percy-Smith, p. 274. (25)Howard Kurtz & Dan Balz, "Clinton Assails Spread of Hate through Media," Wash. Post, Apr. 25, 1995. (26)Michael Shanahan & Miles Benson, "Civil Liberties Threatened by Bombing," Rocky Mountain News, Apr. 28, 1995, p. 48A (Newhouse News Service). (27)Robert Pear, "Agencies Disagree on New Measures to Counter Terrorism," N.Y. Times, Apr. 26, 1995. (28)Peter Baker, "Va. Hunt Club was Aiming to Battle Government, U.S. Says," Wash. Post, Apr. 27, 1995. (29)Pear, "Agencies Disagree." (30)Among the more extreme proposals for more FBI power is H.R. 97, which creates a 2,500-man F.B.I. "rapid deployment force" to assist with local crime control. (31)H.R. 896, 702. Currently, federal employees are allowed to provide anti-terrorism training to foreign governments, but such training must relate to: "(i) aviation security; (ii) crisis management; (iii) document screening techniques; (iv) facility security; (v) maritime security; (vi) VIP protection; or (vii) the handling of detector dogs, except that only short term refresher training may be provided under this clause." The Clinton bill removes all these restrictions, thereby allowing training for anything to do with"terrorism." As noted elsewhere in this issue paper, the bill defines almost all property and violent crime as "terrorism." Training of foreign police also must take place "to the maximum extent possible, within the United States." This restriction too is removed, and overseas training is allowed for up to 180 days (up from the current limit of 30, a limit which was added in 1990, the law beforehand having totally barred overseas training). Current law mandates: "Funds made available to carry out this part may not be used for personnel compensation or benefits." The Clinton bill removes this restriction. (32)H.R. 896, 301(a), proposed 2339Bc); S. 750, 401(a), proposed 2339B(c). (33)18 U.S.C. 2339A. (34)S. 735, 402. (35)H.R. 896, 202(a).. (36)H.R. 896, 301(a), proposed 2339B(e); S. 750, 401(a), proposed 2339B(f). (37)H.R. 896, 301(a), proposed 2339B(i)(2)(A); (l); S. 750, 401(a), proposed 2339B(j),(m). (38)H.R. 896, 301(a), proposed 2339B(d); S. 735, 401(c); 50 U.S.C. 1701 et seq. (39)Healy v. James, 408 U.S. 169, 186 (1972): "guilt by association alone, without [proof] that an individual's assocation poses the threat feared by the Government," is an impermissible basis on which to deny First Amendment rights. The government has a burden of establishing a knowing affiliation with an organization pursuing unlawful aims and goals, and a specific intent to further those illegal aims. (40)Bridges v. Wixon, 326 U.S. 135 (1945). (41)Elfbrandt v. Russell, 384 U.S. 11 (1966). See also Noto v. United States, 364 U.S. 290, 299-300 (1961): "There is danger that one in sympathy with the legitimate aims of...an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes he does not necessarily share." Thus, the Supreme Court has declared unconstitutional many laws imposing disabilities on persons solely because of their membership in the Communist Party, a group which has legal and illegal aims, and which has supported and received support from foreign terrorist organizations (such as the K.G.B.). Communist Party of Indiana v. Whitcomb, 414 U.S. 441 448-49 (1974); Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Keyishian v. Board of Regents, 385 U.S. 589, 606-07 (1967); Apthekar v. Secretary of State, 378 U.S. 500 (1964); Schware v. Board of Bar of Examiners, 353 U.S. 232 (1957). (42)8 U.S.C. 1182(a)(3)(B), relating to exclusion of aliens: As used in this chapter, the term 'terrorist activity' means any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following: (I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle). (II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained. (III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18) or upon the liberty of such a person. (IV) An assassination. (V) The use of any (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive or firearm (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property. (VI) A threat, attempt, or conspiracy to do any of the foregoing. (43)H.R. 896 101(b)(1); S. 705 102(b)(1). Emphasis added. (44)H.R. 896, 101(d)(7); S. 735, 102(d)(1)(G). (45)E.g., 18 U.S.C. 115 (threats to families of United States officials). (46)H.R. 896, 101(c). Under current interprations of "commerce" and "interstate commerce," very few crimes would not be federal. A current federal arson statute makes it a crime to burn "any building used in an activity that affects interstate or foreign commerce." The statute has been successfully applied to the burning of a trailer that had been attacked to an electrical hookup that drew power from an interstate power grid, and to the burning of a building that was connected to interstate gas and telephone lines. Linda Greenhouse, "Justices Forgo Opportunity to Expand Recent Commerce-Clause Ruling in Gun Case," N.Y. Times, May 2, 1995. The jurisdictional predicates of the Dole bill are slightly narrower. For example, they refer to "interstate commerce" rather than "commerce," but they still allow almost any intrastate crime, no matter how petty, to become federal terrorism. S. 735, 102(c). (47)H.R. 896, 101(c)(2); S. 735, 102(c)(2). (48)H.R. 896, 101(e); S. 735 102(e). Emphasis added. (49)United States v. Reese, 92 U.S. 214, 221 (1878). (50)See . (51)H.R. 896, 603; S. 735, 726. (52)H.R. 896, 604; S. 735, 727. (53)H.R. 896, 101(e), 605; S. 735 102(f), 512. The Dole bill also authorizes wiretapping for felony offenses involving false identification documents, passport and visa offenses, and alien smuggling. S. 735, 512. (54)H.R. 896, 101(f); S. 735, 102(f). (55)H.R. 896, 101(d); S. 735 102(2). The proposal is a vivid illustration of the "slippery slope." The right to bail was first undermined by Congress in 1984 law which required the defendant in certain drug cases to prove that he was eligible for bail. 18 U.S.C. 3142(e). Having enact legislation on the basis that bail is a statutory gift of Congress rather than an unalterable Constitutional right, Congress faces ever-greater temptations to destroy the right entirely. (56)H.R. 896 & S.735, proposed 18 U.S.C. 2332b(d), forbidding use of probation for a conviction. The Dole bill contains additional mandatory minimums unrelated to terrorism. Transfer of a firearm to a person for use in a drug trafficking or violent crime is currently subject to a maximum penalty of 10 years in prison. The Dole bill adds "explosive materials" to the offense, and replace the 10 year maximum with a 10 year mandatory minimum. S. 705, 105. As with all mandatory minimums, there is no consideration of any of the particular facts of a given case. The Supreme Court has already held that "use" in a drug trafficking offense can include trading a firearm for drugs. Smith v. United States, 113 S.Ct. 2050, 124 L.Ed.2d 44 (1993). Thus, a person who traded a five dollar box of rimfire ammunition (which contains explosive gunpowder), or a five-dollar canister of blackpowder for use in an old-fashioned muzzleloader, to his cousin for a five dollar bag of marijuana, would be sentenced to a minimum of ten years in federal prison. The Dole bill also punishes such "conspiracies" the same as actually committing the crime, so making a plan (but never consummating) the ammunition for marijuana trade would likewise qualify for the 10-year-mandatory minimum, as would the most trivial facilitation of the crime (as in the case of a teenage girl who lied to her parents about what her cousins were talking about, thereby "conspiring" to facilitate the offense). (57)H.R. 896, 101(g); S. 735, 102(g). (58)H.R. 896, 102; S. 735, 103. (59)The Attorney General's certification that the crime has an international element is required for a prosecution, but not for an investigation, including a wiretap. (60)Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801 et seq. (61)Phil Colangelo, Covert Action Quarterly (forthcoming), cited in Heather Dewar and Robert A. Rankin, "Monitoring the Rright-wing Militias," Boulder Daily Camera, Apr. 30, 1995, p. 6E (Knight- Ridder). (62)Stephen Labaton, "Data Show Federal Agents Seldom Employ Surveillance Authority Against Terrorists," N.Y. Times, May 1., 1995, p. A10. (63)H.R. 896, 101(e). (64)50 U.S.C. 1801 et seq. (65)E.g., S. 735, 502 (authorizing FBI to obtain unilaterally certain information, and authorizing court orders for the FBI to obtain a full credit report), 503 (giving FBI uniltaral authority to issue administrative summons to "a common carrier or innkeeper"). (66)The proposals may not be unconstitutional under current Supreme Court doctrine that disclosure of a fact to one person (i.e. a motel clerk) is a complete waiver of any privacy interest in the fact. Even if the Supreme Court has not enforced the Fourth Amendment as fully as might be appropriate, Congress has independent authority to prevent Fourth Amendment violations. (67)S. 735, Title VII. (68)(69)Testimony before U.S. Senate Judiciary Comm., Apr. 27, 1995. (70)The United States Embassy in Moscow used Etch-a-Sketches after discovering that the building was permeated with bugs. (71)Similarly, in 1992, the federal government convinced AT&T to downgrade the privacy protection in a new portable telephone encrypter. In return, the government gave AT&T a large order for the device. (72)389 U.S. 347. (73)"National security" as staturily defined does not mean what most people would consider to be genuine national security, such as protecting the lives of undercover CIA agents, or preventing an attack on American military facilities. Rather, "National security...means the national defense and foreign relations of the United States." 18 U.S.C. Appendix, Classified Information Procedures Act, 1(b). This expansive definition is explicitly invoked in the Dole bill. S. 735, 301(a)(3). (74)H.R. 896, 503(a); S. 735, 301(b). (75)H.R. 896, 201, 502(c); S. 735, 301(e). The Dole bill contains the additional requirement that the national security danger must arise out of the prospect that normal hearings "would disclose classified information." (76)H.R. 896, 201, 502(e),(j); S. 735, 301(f). (77)H.R. 896, 201, 501(b). (78) 201(b)(2) ("The provisions and requirements of section 3504 of title 18, United States Code [litigation concerning sources of evidence], shall not apply to procedures under this title.") (79)Matthews v. Diaz, 426 U.S. 67, 77 (1976): There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of liberty without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection. (80)Rafeedie v. INS, 880 F.2d 506, 516 (D.C. Cir. 1989). See also Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) (INS may not rely on "secret evidence" in summary exclusion procedure against returning permanent resident alien). (81)Stephen Trott, U.S. Dept. of Justice, Prosecution of Public Corruption Cases (Feb. 1988), pp. 117-18 (informants are "likely to say and do almost anything to get...out of trouble..." Informants are not averse to "lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies...Many are outright conscienceless sociopaths to whom "truth" is a wholly meaningless concept.") See also United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir., 1993)(using informants is a "dirty business"). For an excellent investigative series exposing the federal government's current use of informants, see the following articles by Mark Curriden: "Secret Threat to Justice," Nat'l L.J., Feb. 20. 1995, p. A1; "Did Informer and Sheriff Plot a Political Revenge?," Nat'l L.J., Feb. 20, 1995, p. A28; "Behind the Affidavits, Some Informants Are Fiction," Nat'l L.J., Feb. 20, 1995, p. A29; "Postal Agents Stamped by Scandal," Nat'l L.J., Feb. 27, 1995, p. A1; "Early American Cops," Nat'l L.J., Feb. 27, 1995, p. A24; "Congress Investigated Investigators," Nat'l L.J., Feb. 27, 1995, p. A25; "Informer's Lies Trigger a Tragedy," Nat'l L.J., Mar. 6, 1995, p. A1; "Informant Reforms: Focusing on Oversight," Nat'l L.J., Mar. 6, 1995, p. A24; "Informants: Law and Religion," Nat'l L.J., Mar. 6, 1995, p. A24; "Rules for Use of Informants: The DEA's 22 Pages," Nat'l L.J., Mar. 6, 1995, p. A24. See also Harvey A. Silvergate, "Use of Informers Hurts Accuseds' Rights," Nat'l L.J., Jan. 30, 1995, p. A21. (82)Knauff v. Shaughnessy, 338 U.S. 537 (1950). (83)"[T]he Attorney General may, notwithstanding any other provision of law, retain the alien in custody....Any alien in custody pursuant to this subsection shall be released from custody solely at the discretion of the Attorney General." 504(a)(4). The bills recognize that habeas corpus claims for Constitutional violations cannot be barred by statute . (84)Rogers served as commander of the FBI's Hostage Rescue Team, and worked with Lon T. Horiuchi, FBI Assistant Special Agent. U.S. Department of Justice, Report on the Events at Waco, Texas, February 28 to April 19, 1993 (Redacted Version, Wash.: Oct. 8, 1993)p. 145; Jerry Seper, "FBI Sniper Testifies He Didn't Mean to Shoot Suspect's Wife," Wash. Times, Sept. 22, 1993, p. A7. (85)Idaho Statesman, June 10, 1993, at C1. (86)David Johnston & Stephen Labaton, F.B.I. Shaken by Inquiry into Idaho Siege, N.Y.Times, Nov. 25, 1993; Alan W. Bock, Ambush at Ruby Ridge, Reason, Oct. 1993, 22; Pate, Defective Warrants, at 49; Feds Lose Big, The Spokesman Review (Spokane), July 9, 1993, at A1-A10; Michele Ingrassia, Is Deadly Force Justifiable? Newsweek, June 2l, 1993. (87)Bock, at 27. (88)Jerry Seper, FBI Agents Waged War on Minds, Wash. Times, Sept. 22, 1993, at A7. (89)Jerry Seper, The shootout on Ruby Ridge, Wash. Times, Sept. 22, 1993, at A6-A7. (90)Louis Sahagan & Doug Conner, Pair Acquitted of Murder In Idaho Mountain Shootout, Wash. Post, July 9, 1993. The Weavers' cabin, built out of two-by-fours and plywood, was described by the government as a "mountain fortress." (91)Sahagan and Conner; Michele Ingrassia, Is Deadly Force Justifiable? Newsweek, June 2l, 1993, at 31; Timothy Egan, U.S. Hits Snags in Idaho Siege Trial, N.Y. Times, June 23, 1993. (92)Gerry Spence, From Freedom to Slavery: The Rebirth of Tyranny in America (N.Y.: St. Martin's Pr., 1993); James L. Pate, Standoff in Idaho: The Randy Weaver Incident, Soldier of Fortune, Mar. 1993. (93)Suzanne Fields, "Bombing Brings Reckless Charges of Blame," (Colorado Springs) Gazette-Telegraph, Apr. 27, 1995, p. B7, quoting N.Y. Times. (94)Suzanne Fields, "Bombing Brings Reckless Charges of Blame," (Colorado Springs) Gazette-Telegraph, Apr. 27, 1995, p. B7. (95)"Text of Letter from "Terrorist Group," Which Says It Committed Bombings," N.Y. Times, Apr. 26, 1995. (96)Vernon Loeb, "D.C. Hires Nation of Islam Guards for SE Complex," Wash. Post, May 4, 1995. (97)Charles Krauthammer, "Talk Radio, Ghoul Politics," Wash. Post, Apr. 28, 1995. (98)Krauthammer, "Talk Radio." (99). William Powell, The Anarchist Cookbook (Secaucus, N.J.: Barricade Books, 1971). (100)Brandenburg v. Ohio. (101)Schenck v. United States, 249 U.S. 47, 52 (1919) (Holmes, J., dissenting). (102) Abrams v. United States, 250 U.S XXX, 616, 630 (1919) (Holmes, J., dissenting). (103)Whitney, pp. 376-77. (104)Watts v. United States, 394 U.S. 705 (1969) (per curiam). (105)Brandenberg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). (106)Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) (Justice Holmes joined in the concurring opinion). (107)"The Company You Keep," The New Republic, May 15, 1995, p. 11. (108)B. Bruce-Briggs, "The Great American Gun War," The Public Interest 45 (Fall 1976), p. 61. (109)Id., p. 62. (110)For an overview of the interestate commerce clause issue, see Glenn Harlan Reynolds, Kids, Guns, and the Commerce Clause: Is the Court Ready for Constitutional Government? Cato Institute Policy Analysis no. 216 (Wash. 1994). (111)Francis X. Clines, "F.B.I. Chief Seeks Orders for Inquiries," N.Y. Times, Apr. 28, 1995, p. A25. (112)Essex Gazette, Apr. 25, 1775, p. 3, col. 3. (113)Gross, pp. 60, 117-29; Coakley and Conn, pp. 25-26. Total deaths were 273 British and 95 Americans. Culberson, p. 70. British seizure of gunpowder led to the first confrontation with rebel militia in that state. Thomas M. Moncure, Jr., "Who is the Militia--The Virginia Ratification of the Right to Bear Arms," Lincoln Law Review 19 (1990). P. 6. (114)Senate Committee on the Judiciary, Subcommittee on the Constitution, The Right to Keep and Bear Arms, 97th Congress, 2d sess., Senate Doc. 2807 (Feb. 1982), pp. 20-23. (115)James L. Pate, No Longer Untouchable, Am. Spectator, Aug. 1993, at 35; Moore, at 6; James R. Lewis, Showdown at the Waco Corral: ATF Cowboys Shoot Themselves in the Foot, in Lewis, at 89. (116)Pate, Day of Infamy, at 50. (117)"BATF Under Fire for "Horror" Raids," Gun Week, Apr. 14, 1995, p. 10 (describing Mar. 23, 1993 BATF oversight hearing of Senate Subcomm. on Treasury, Postal Service and General Government); Moore, at 6. (118)Seper, "ATF's Enemies." (119)Micheal Hedges, "Family Recounts Terror at Hands of ATF Agents," Wash. Times, Apr. 13, 1995, p. A1; Seper, "BATF's Enemies." (120)At the time, BATF was the Alcohol, Tobacco, and Firearms Division of the Internal Revenue Service. The Division was separate from IRS, and given status as a Treasury Bureau in 1972. Christi Harlan, Bureau of Alcohol, Tobacco and Firearms Gains New Attention Following Waco, Texas, Disaster, Wall St. J., Apr. 26, 1993. (121)David Hardy, The B.A.T.F.'s War on Civil Liberties (Bellevue, Wash.: Second Amendment Foundation, 1979)(the Hardy report contains numerous other stories of abuse); Lewis, Showdown, 90-91. (122)James J. Baker, "Assault on semi-Autos," Am. Rifleman, Apr. 1987, p. 42. (123)United States v. Corcoran, Crim. no. 88-11 (W.D. Pa, April 6, 1988) (Ziegler, J.). (124)Jerry Seper, "ATF's Enemies Grow across the Spectrum," Wash. Times, Apr. 28, 1995, p. A1. (125)Frederick C. Calhoun, Federal Law Enforcement Training Center, A Brief History of Federal Firearms Enforcement, appendix G to Treasury Report, at G-7. (126)Firearm Owners' Protection Act 21; United States v. Anders, 885 F.2d 1248 (5th Cir. 1989). One possible BATF reform would be for the bureau to adopt internal guidelines similar to those at the Department of Justice which prohibit investigating groups based solely on First Amendment or other legal activities. (127)The relevant federal statute provides a mandatory five-year sentence enhancement for "use" of a gun in a drug sales crime. BATF routinely brings cases where the gun was not "used" in any normal sense of the word, but simply lay inert in the same house where BATF agents convinced a person to complete a drug transaction. BATF's approach has been validated by the courts. Cases which sound worth a mandatory minimum in the abstract ("ex-felon with a gun") do not also remain so in the particular. In an Indiana case, a man named David Eubank who had served a prison sentence for robbery was released, and put on probation. He went straight, and checked in regularly with his parole officer. He asked the officer if it was alright to get a .22 rifle for hunting for food, and the probation officer said yes. The probation officer was correct under Indiana law, which allows ex-felons to own long guns, but was incorrect under federal law, which does not distinguish long guns from handguns. A while later, Indiana police and federal officials raided Eubank's home, searching for evidence that he was committing robberies again. They found no such evidence, but they did find a .22 rifle. Eubank was then prosectued for possession of the rifle. Ironically, he faced a longer term for possessing the gun (a 15 year mandatory minimum)--after his probation officer told him it was alright--than he would have served if he actually perpetrated more robberies. Eubank went to trial, and, apparently in act of jury nullification, was acquitted. He had already served several months in jail, while he was held awaiting trial. An El Paso case had a different result. Bill Keagle, who had committed burglaries in 1978, went straight after release from prison, and, unaware of the federal act, took the .22 rifle and a shotgun he owned down to a pawnshop and sold them. As part of the sale, he filled our the federal gun registration document, Form 4473. Since Keagle had sold the guns, and had been willing to fill out a registration form when he did so, he obviously was not planning to use the guns in a crime. But after the El Paso police inspected the pawnshop and found the 4473 form, the federal prosecutor joined the case. In exchange for dropping charges which would have led to the 15 year mandatory minimum, Keagle was forced to accept an eight year prison sentence. Dennis Cauchon, Trapped by the Law, USA Today, July 6, 1992. Federal firearms laws should be revised to specify that "use" of a gun in a crime means use of the gun for its purpose as a weapon, and not incidental use. In addition, the mandatory sentence laws for felons in possession should be altered to allow, but not require, the imposition of the15 year sentence, based on all the facts of the case. The Bill Keagles of the world are different from active violent criminals, and federal statutes ought to recognize the difference. For the same reason, proposals to restrict bail for all cases involving felons in possession may create injustices. E.g., S. 735, 731. (128)Jacob Sullum, "B.A.T.F. Out of Hell," Reason, May 1994, p. 25. (129)Sixty Minutes (CBS television broadcast, May 23, 1993). (130)Sixty Minutes (CBS television broadcast, Jan. 10, 1993). (131)Stephen Labaton, "Saved from Extinction, Agency Faces New Peril," N.Y. Times, Mar. 4, 1993. (132)U.S. News & World Report, Mar. 15, 1993. (133)Michael D. Bradbury, District Attorney, Report on the Death of Donald Scott (Off. of the D.A., Ventura County, Calif., 1993). (134)The discussion about the Posse Comitutus Act is based in part on testimony which the author delivered, in conjunction with Dr. Stephen P. Halbrook, at Congressional hearings in October 1994. Much of the testimony was based on Dr. Halbrook's article "Military Enforcement of the Drug Laws," in K. & E. Zeese, Drug Law (N.Y.: Clark Boardman, Callahan, 1993), and is used with his permission. (135)Like the FBI, the Army infiltrated antiwar groups in the 1970s and kept dossiers on opponents of the war. "Congress not Ready to Alter Law Banning Police Role for Military," Crime Control Digest, May 5, 1995, p. 3 (quoting Lawrence Korb, a Pentagon personnel chief during the Reagan administration). (136)H.R. 896, 101(f); S. 735, 102(f). (137)"Violations of this section shall be investigated by the Attorney General. Assistance may be requested from any Federal, State or local agency, including the Army, Navy, and Air Force, any statute, rule, or regulation to the contrary notwithstanding." Id. (138)18 U.S.C. 1385, as amended. (139)466 U.S. 170 (1984). Several state supreme courts have rejected Oliver and found that under a state bill of rights guarantee, trespass is an illegal search. E.g., People v. Scott, 1992 N.Y. Lexis 40 (N.Y. 1992); State v. Myrick, 102 Wash.2d 506, 688 P.2d 151 (1984); State v. Dixson, 307 Or. 195, 766 P.2d 1015 (1988); State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991), companion case State v. Chester, 587 A.2d 1008 (Vt. 1991). Guard trespass in such states would be illegal unless the Guard unit is federalized. (140)10 U.S.C. 331 et seq. (141)House Judiciary Comm., H.R. Rep. No. 9771 [to accompany H.R. 3519] 67 (June 12, 1981). (142)10 U.S.C. 371 et seq. (143)21 U.S.C. 801 et seq (144)21 U.S.C. 951 et seq., (145)I.e., 10 U.S.C. 374. (146)See House Report, supra, at 12 (147)10 U.S.C. 375. (148)South v. Maryland, 59 U.S. 396, 402 (1856). (149)In re Quarles, 158 U.S. 532, 535 (1895). (150)Livingston v. Dorgenois, 11 U.S. 577, 579 (1813). (151)48 U.S. 1, 76 (1849). (152)Wrynn v. United States, 200 F. Supp. 457, 465 (E.D.N.Y. 1961) (Air Force participation in execution of law wrongful, but not cause of injury under Federal Tort Claims Act). (153)408 U.S. 1, 1516 (1972). (154)776 F.2d 1384, 1385 (8th Cir. 1985), adhered to on rehearing, 788 F.2d 494 (1987), aff'd Haig v, Bissonette, 485 U.S. 264 (1988). (155)490 F.2d at 374 n.2. (156)Id. at 375 (emphasis added). (157)Earl Warren, "The Bill of Rights and the Military," 37 N.Y.U.L.R. 181, 184 (1962). (158)The National Guard is subject to the Posse Comitatus Act when "federalized" into the military service, because then it is part of the Armed Forces and has no state militia character. Perpich v. Department of Defense, 110 S.Ct. 2418, 2424-25 (1990) (also finding that the reserve militia includes all able-bodied citizens). But the Act does not restrict use of the Guard for law enforcement when in state militia status. And yet federal dominance over the Guard (see 10 U.S.C. 101(10) & (11); 332 & 333; and Title 32) and its select character, in contrast to the unorganized militia of all ablebodied males, (10 U.S.C. 311 and most state codes) undermines its claim to be the militia envisioned by the framers of the U.S. Constitution in Article I, 8. See S. Ambrose, "The Armed Forces and Civil Disorder," in The Military and American Society 241, 245 (1972); United States v. Miller, 307 U.S. 174, 179 (1939) ("the Militia comprised all males physically capable of acting in concert for the common defense . . . . These men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time"). The excuse that the National Guard, in its state incarnation, is not the equivalent to the federal standing army hinges mostly on legal fictions. At all times, the National Guard uses military equipment supplied by the federal government. Guard members follow a course of training prescribed by the federal, not the state governments. If there are ever conflicts between the President's preferences and a Governor's preferences for use or deployment of the Guard, the President always wins. (159)5 Cong. Rec. 2112, 44th Cong., 2d Sess., pt. 1 (Mar. 2, 1877). (160)Id. at 2117, citing 92 U.S. 542, 556 (1876). (161)6 Cong. Rec. 287, 45th Cong., 1st Sess., pt. 1 (Nov. 8, 1877). (162)Id. at 294. (163)Id. at 295. (164)Id. at 296. (165)Id. at 297. (166)Id. at 298. (167)Id. at 307 (Nov. 9, 1877). (168)Id. (169)Id. at 322. (170)Ex parte Bain, 121 u.s. 1, 12 (1887). (171)7 Cong. Rec. 3579, 45th Cong., 2d Sess. (May 20, 1878). (172)The quotes are from debates in the Virginia convention. The standard source for convention debates today remains J. Elliot, Debates in the Several State Conventions (Philadelphia: 1836), and any scholar familiar with this source knows that antistanding army sentiment was fairly unanimous. (173)7 Cong. Rec. at 3579. (174)Id. at 3579. (175)Id. (176)Id. at 3586. (For later versions, see id. at 3845, 4686.) (177)Id. at 3848 (May 27, 1878). (178)Id. at 3849. (179)Id. (180)Id. at 3850. (181)Id. at 4240 (June 7, 1878). (182)Id. (183)Id. at 4242 (Senator Edmunds). (184)Id. at 4243. (185)Id. (186)Id. at 4245. (187)Id. at 4246. (188)E.g., R. Meade, Patrick Henry 5053 (1969). (189)See R.H. Lee, Additional Letters from the Federal Farmer 53, 16970 (Philadelphia 1788). (190)608 F.Supp. 945 (N.D. Ca. 1985), aff'd 796 F.2d 276 (9th Cir. 1985), related case 112 F.R.D. 120 (N.D.Ca. 1986) (appointment of special master to monitor government's compliance with injunction), aff'd 828 F.2d 536 (9th Cir. 1987). (191)608 F.Supp. at 950. (192)Id. at 950-52. (193)Id. at 953. (194)U.S. Dist. Ct.--N.D. Ca., No. C-90-228 FMS, Order on Defendants' Motions to Dismiss (Dec. 20, 1991). (195)Slip Op. at 34-36. (196)Id. at 38-47. (197)Sue Anne Pressley, Wash. Post, May 5, 1993, at A17. (198)Newsweek, May 19, 1993. (199)Defense Rests without Calling Cultists, supra note XXX. (200)Pate, What the Feds, supra note XXX, at 101-02. (201)U.S. Const., Art. I, 8. (202)Contrast, for example, the Court's 1915 opinion upholding the Harrison Act (controlling opiates), in which the court, expressing "grave doubt as to its constitutionality," construed the Act "as a revenue measure" in order to uphold it, with the court's opinion six years later in a drug prohibition case, in which the court asserted without support that congressional power to prohibit dangerous drugs "is too firmly established to be called into question." United States v. Moy, 241 U.S. 394, 394 (1915); Whipple v. Martinson, 256 U.S. 41, 45 (1921). Most of the court's criminal jurisprudence since 1921 has, unfortunately, followed Whipple's vacuous approaching of implicitly assuming a general congressional power to create criminal law, as some sort of penumbra from other congressional powers. The effect, of course, is to undermine the Constitutional system of granting congress only limited, enumerated powers, rather than authority to legislate at large. |