BUSH'S CHILLING NEW DEFINITION of "UNLAWFUL ENEMY COMBATANT"

[Jcrowley]

A BUZZFLASH GUEST CONTRIBUTION

by Elliot D. Cohen, Ph. D.

George W. Bush has repeatedly warned, "Either you're with us or you stand with the terrorists." Now he has gotten through legislation that allows him to back it up. On Thursday, September 28, 2006, in a hastily drawn decision that will likely live in infamy, the Senate nodded assent to the Military Commissions Act (PDF).

According to this Act, an "unlawful enemy combatant" is to be defined as:

"an individual engaged in hostilities against the United States who is not a lawful enemy combatant."
This basically means that if a person is not a soldier in the service of a foreign government, but is nevertheless engaging in "hostilities" against the United States, then this person is an unlawful enemy combatant. Notice that this definition does not require that such a person be an "alien," which accordingly leaves open the possibility that this designation could also be applied to an American citizen.

This definition as contained in the approved version of the Act, is substantially broader than that included in an earlier version (PDF), according to which a person so designated must also be

(A) part of or affiliated with a force or organization-including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces-engaged in hostilities against the United States or its co-belligerents in violation of the law of war;

(B) to have committed a hostile act in aid of such a force or organization so engaged; or

(C) to have supported hostilities in aid of such a force or organization so engaged.

According to the definition approved by the Senate, you don't even have to be part of a terrorist organization. Nor does your "hostile" act have to be done to aid such a force; nor do you have to have supported such acts. Nor do you have to be in violation of the "law of war." Nor is there anywhere in the act where the term "hostilities" has itself been defined. For example, is an anti-war activist an unlawful enemy combatant? What about an American journalist who publishes leaked information damaging to the Bush administration? What about an anti-Bush blogger? In short, the definition is broad (and vague) enough to include any American citizen who is acting in a way the President deems "hostile" to the United States. As such, it is difficult to imagine a single piece of legislation with greater potential to undermine freedom and democracy in America.

http://www.buzzflash.com/articles/contributors/442

[leftchick]

1. read it and weep!

The colossal blunder of the Democrats in the Senate will haunt/hunt us. Not them, us.

:argh:

:cry:

[pat_k]

35. 53 Repub & 12 Dem Senators have earned a reserved seat at the Hague. . .

. . .if this once great nation ever returns to sanity.

They have not only betrayed the nation, they became "Accessory After the Fact" War Criminals. (Under both international and U.S Code.)

ACCESSORY AFTER THE FACT - Whoever, knowing that an offense has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact; one who knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon in order to hinder the felon's apprehension, trial, or punishment. U.S.C. 18

They are heading home this week.

We can blast them at close range.

http://voiceoutrage.com">voiceoutrage.com

Pass it on!

[bdamomma]

41. yes, all those Senators should hear our voice.

[indepat]

2. An unlawful enemy combatant is one the decider decides is eos

[Supersedeas]

3. the politics of rubber stamping

[lebkuchen]

4. Hastert said that Pelosi coddled terrorists

How soon before he has Pelosi arrested?

[Freedom_from_Chains]

5. Hmmm, I'm thinking that voting Democrat could be consider

"an individual engaged in hostilities against the United States who is not a lawful enemy combatant."

Or at least that's how Republicans would construe such activities.

[wtmusic]

6. So if you protest this government, don't do it in a "hostile" way

or you may end up in Gitmo

[stop the bleeding]

7. sleep tight America

the storm is coming

[IChing]

8. I went into mourning that day as I would for the death of an old friend

the constitution, bill of rights, the republic and the freedoms that were lost.

[kimmerspixelated]

11. It is sad

and frightening to think that because of this-we will, or our children will eventually become residents of some kind of concentration camp!

[genie_weenie]

9. The Government is the State is the People

I can't wait until a sitting politician uses this to label a political opponent (or anyone telling the truth about illegal activities) as an Enemy Combatant.

The Fed is the State...

[robertpaulsen]

10. The scariest word is the word "or"

Just to highlight what you're pointing out:

(A) part of or affiliated with a force or organization-including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces-engaged in hostilities against the United States or its co-belligerents in violation of the law of war;

(B) to have committed a hostile act in aid of such a force or organization so engaged; or

(C) to have supported hostilities in aid of such a force or organization so engaged.


Translation: They get to pick and choose at their own biased discretion which provision you violated and to what degree. This is arbitrary enough, to use an extreme example, that our posts here constitute a violation of this "law". Will we likely be questioned for this? No. But is it probable that, in this age of warrantless wiretaps, that they are making lists and taking down names? You bet.

[Jcrowley]

24. Are You an 'Unlawful Combatant'?

Are You an 'Unlawful Combatant'?
Maybe so…

There has been a great deal of discussion about the Military Commissions Act of 2006 <.pdf>, recently passed by both houses of Congress, and most of it has to do with the provisions allowing torture of alien detainees, that is, of non-citizens apprehended in, say, Afghanistan or Iraq, and their treatment at the hands of their American captors. Senators John McCain, Lindsey Graham, and John Warner, all Republicans, grandstanded for weeks over the torture provisions, then capitulated. Another "Republican maverick," Arlen Specter, zeroed in on the real issue, however, when he said the bill would set us back 800 years by repealing the habeas corpus protections against arbitrary arrest and jailings – and then went ahead and voted for it, anyway.

Liberal opposition mainly centered around the morality – or, rather, immorality – of torture, but the debate largely ignored the ticking time-bomb at the heart of this legislation, scheduled to go off, perhaps, in tandem with some future crisis, e.g., another terrorist attack on American soil: the redefinition of the "unlawful combatant" concept that lays the foundations for this administration's reconstruction of the gulag. Here is the new, broadened definition, as enunciated in the legislation recently passed by the House:

"The term 'unlawful enemy combatant' means – (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the president or the secretary of defense."

It doesn't say "alien" or "terrorist," although it specifically includes members of the Taliban and al-Qaeda. It says "person" – any person, including American citizens. As Bruce Ackerman, professor of law at Yale and author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, puts it:

"Buried in the complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights."

Congress has now granted the president the powers of a dictator. The rest of the story of our slide into absolutism is merely a matter of filling in the details.

http://www.antiwar.com/justin/?articleid=9779

[johnnie]

12. So then..

If, for instance, a president puts thousands of United States military citizens at risk which resulted in thousands of United States military citizen's deaths from a war that was started on lies and known bad information, that president can be deemed an "UNLAWFUL ENEMY COMBATANT"? And can that also mean that people who aided this president in the unlawful act against American citizens can be considered "UNLAWFUL ENEMY COMBATANTS" too?

[DKRC]

15. Good point! The SCOTUS could be charged also

under this since they installed Bush & his regime back in 2000. Our Constitution has been destroyed by this crew & SCOTUS made it all possible. I'd call that hostile to the USA.

Now we just need someone to stand up and call for their arrests.

[EVDebs]

39. A Republican conspiracy to deprive their perceived 'enemies'

of due process and voting rights under the Constitution. Despicable. Exposing them should be punishment enough but come Nov. 7th they should ALL be voted out of ofice.

[elehhhhna]

13. AmeriKan Gulags, here we come!

[Az_lefty]

14. Protesters beware...between this new law and microwave ray-guns

your about to be in for a very difficult time. This admin is the closest this county has come to fascism since McCarthy.

[warrens]

16. Better go join Pray for President Bush at FRetard City

Actually, that would be kinda fun, have thousands of people putting up extremely double-edged prayers for the punk.

Lord, show President Bush the same mercy he has shown the Iraqi people. Be as just and fair to him as he has been to the Palestinians. Etc, etc,

[Oeditpus Rex]

17. The way I interpret it

anyone who posts at DU could be considered an "unlawful enemy combatant."

[Jcrowley]

26. Only

if they're a Dodgers fan.


Laughin' in the American Coliseum.

[pat_k]

18. War Crimes Proven -- the War Criminals Protection Act itself is the proof

a very interesting phrase was omitted from the final version of Bush's War

The phrase in itself proves the intent to commit a war crime with malice aforethought.

The phrase: "RIGHTS NOT JUDICIALLY ENFORCEABLE."

The phrase itself demonstrates a recognition that rights actually existed, and the intent to violate those rights through non-enforcement.

Yes. It is just that simple.

Case Closed on the newly inaugurated War Criminal Nation.

If they are Rights they Cannot be Unenforceable.

Final version
(Enrolled Bill) as passed by both Houses

SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN CLAIMS.
(a) In General- No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.

To view the bill search at http://thomas.loc.gov (enter "S.3930.ENR" and select the Bill Number radio button. The printer friendly version is easiest to search)

Original
White House version
SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.
(b) RIGHTS NOT JUDICIALLY ENFORCEABLE.— (1) IN GENERAL.—No person in any habeas action or any other action may invoke the Geneva Conventions or any protocols thereto as a source of rights, whether directly or indirectly, for any purpose in any court of the United States or its States or territories. . .
From http://www.law.georgetown.edu/faculty/nkk/documents/MilitaryCommissions.pdf

Are you outraged?? If you are, don't keep it to yourself!!

voiceoutrage.com

(They are heading home -- we can blast them at close range!

[leftchick]

19. bump

.

[leveymg]

20. This stinks of overly-broad, vague and unconstitutional categories

By the time it reaches the S. Ct., the Rethugs will already be out of the majority in the House and/or Senate and will be running away from this ill-conceived monster.

Curse and pity them for passing something so un-American.

[Elidor]

21. A similar take on it here:

After five hours of searching through the 80-plus page bill, Alex Jones, who won the 2004 Project Censored award for his analysis of Patriot Act 2, uncovered numerous other provisions and definitions that make the bill appear as almost a mirror image of Hitler's 1933 Enabling Act.

<snip>
The media has spun the bill as if it outlaws torture - it only outlaws torture for "enemy combatants," and in fact outlaws the retaliation of any military against the United States as "murder." Those deemed "enemy combatants" are not even allowed to fight back yet the government affords itself every power including the go-ahead to torture.

Further actions that result in the classification of an individual as a terrorist include the following.

- Destruction of any property, which is deemed punishable by any means of the military tribunal's choosing.

- Any violent activity whatsoever if it takes place near a designated protected building, such as a charity building.

- A change of the definition of "pillaging" which turns all illegal occupation of property and all theft into terrorism. This makes squatters and petty thieves enemy combatants.

In light of Greg Palast's recent hounding by Homeland Security, after they accused him of potentially giving terrorists key information about U.S. "critical infrastructure" when filming Exxon’s Baton Rouge refinery (clear photos of which were publicly available on Google Maps), sub-section 27 of section 950v. should send chills down the spine of all investigative journalists and even news-gatherers.

"Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct."

For an individual to hold an allegiance or duty to the United States they need to be a citizen of the United States. Why would a foreign terrorist have any allegiance to the United States to breach in the first place?

This is another telltale facet that proves the bill applies to U.S. citizens and includes them under the "enemy combatant" designation. We previously cited the comments of Yale law Professor Bruce Ackerman, who wrote in the L.A. Times, "The compromise legislation....authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights."

http://www.informationliberation.com/index.php?id=16337

This legislation conflates the head of state with the state, and could be construed as criminalizing dissent. Obviously, they won't take it that far today. They're doing it by degrees. But this sloppy legislation leaves it to the whim of the man in power. No one should be subject to the whims of any president.

[Jcrowley]

22. What we will see

is that among others activists will be targeted with this legislation with a few test cases initially and on a more regular basis if the legislation is upheld in the courts.

Remember back to the massive global uprisings pre-Sept. 11th as a result of these seemingly endless uprisings the categorization of crimes were altered. What were once misdemeanors now become low-level felonies. So the levels changed, the system became more punitive so as to send out a chilling mechanism and to crack down on dissent.

In a similar vein I believe we will also see varying gradations of what are considered "enemy combatants", which is a term the Bush admin. completely pulled out of its ass as there is no such thing in international law,
and with the differing categories there will be differing degrees of judicial "benefits" if you will.

These fuckers know very well how the tide is moving in the world and are setting this legislation in place, though this legislation should only be seen in light of all that has come before it, to legitimize the furtherance of the corporate police state which will be necessary if the State is to protect itself from the unruly masses as the energy supplies dwindle.

This bill, like most others, was made for and by Corporate America.

[Elidor]

46. Yes, that's exactly how they're unfolding it

And somewhere down the line, we'll have to listen to all the stupid people say "I didn't think they'd do this to citizens!"

[Jcrowley]

28. In Terror War, 2nd Track for Suspects

In Terror War, 2nd Track for Suspects
Those Designated 'Combatants' Lose Legal Protections

by Charles Lane
 
The Bush administration is developing a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.

The notion that the executive branch can decide by itself that an American citizen can be put in a military camp, incommunicado, is frightening. They're entitled to hold him on the grounds that he is in fact at war with the U.S., but there has to be an opportunity for him to contest those facts.

Morton H. Halperin, director of the Washington office of the Open Society Institute
The elements of this new system are already familiar from President Bush's orders and his aides' policy statements and legal briefs: indefinite military detention for those designated "enemy combatants," liberal use of "material witness" warrants, counterintelligence-style wiretaps and searches led by law enforcement officials and, for noncitizens, trial by military commissions or deportation after strictly closed hearings.

Only now, however, is it becoming clear how these elements could ultimately interact.

For example, under authority it already has or is asserting in court cases, the administration, with approval of the special Foreign Intelligence Surveillance Court, could order a clandestine search of a U.S. citizen's home and, based on the information gathered, secretly declare the citizen an enemy combatant, to be held indefinitely at a U.S. military base. Courts would have very limited authority to second-guess the detention, to the extent that they were aware of it.

Administration officials, noting that they have chosen to prosecute suspected Taliban member John Walker Lindh, "shoe bomber" Richard Reid and alleged Sept. 11 conspirator Zacarias Moussaoui in ordinary federal courts, say the parallel system is meant to be used selectively, as a complement to conventional processes, not as a substitute. But, they say, the parallel system is necessary because terrorism is a form of war as well as a form of crime, and it must not only be punished after incidents occur, but also prevented and disrupted through the gathering of timely intelligence.

<snip>

"So the government starts off using secret surveillance information not to gather information upon which to make policy, but to imprison or deport an individual, and then it never gives the individual a fair chance to see if the surveillance was lawful," Martin said.

http://www.commondreams.org/headlines02/1201-01.htm

[madrchsod]

23. the aryan nations are in deep shit

deep deep shit...these guys acrually try to overthrow the government. we just want to change it...

[AspenRose]

27. Nah.

They're not going to overthrow a government sympathetic to them.

If the current administration was serious about 'terrorism,' they would have done something about the homegrown terrorists a long time ago.

[Swamp Rat]

25. Well, so much for "Western Civilisation."

:eyes:

[NMMNG]

29. "If you're not for us you're against us--and we're coming for you."

:scared:

[Vidar]

30. Basically applies to anyone who disagrees with da shrub.

[Jcrowley]

31. RIP Bill of Rights

On February 19, 1942, President Roosevelt signed Executive Order 9066, which led to the internment of 120,000 Japanese civilians, 2/3 of whom were US citizens, in military camps across the western half of the country. Effectively stripping Japanese Americans of virtually all constitutional protections (including rights to property, trial by jury and habeas corpus), 9066 is now widely decried as one of the darkest moments in US history. In 1988, Congress passed Public Law 100-383, which apologized to Japanese internees, provided reparations and created a public education fund to "inform the public about the internment of such individuals so as to prevent the recurrence of any similar event."

Congress should have enrolled in its own re-education program.

By passing the Military Commissions Act (a.k.a. the torture bill), Congress has granted the Bush administration extraordinary powers to detain, interrogate and prosecute alleged terrorists and their supporters. Anyone anywhere in the world at any time may be summarily classified an "unlawful enemy combatant" by the executive branch, seized and detained. Only aliens are subject to military trials (I've updated my original post here to more accurately describe persons subject to military commissions; see sec. 948a-c in text of legislation). As Bruce Ackerman points out in the LA Times, the definition of "unlawful enemy combatant" includes those who "purposefully and materially supported hostilities against the United States" (by say, writing a check to a Middle East charity) and may extend to US citizens. Thanks to the Supreme Court's decision in Hamdi v. Rumsfeld, US citizens at least appear to retain habeas corpus rights, a foundation of Western jurisprudence. Foreign nationals do not; the Act explicitly denies them the writ of habeas corpus (the right to be charged and tried and the right to appeal any convictions in a court of law).

These wartime powers rival and exceed those assumed by Roosevelt during WWII. Even worse, unlike the case of Executive Order 9066, Congress has given President Bush the stamp of legislative authority. In this context, perhaps the most craven vote cast for the torture bill came from Senator Arlen Specter. Though he believes the bill to be "patently unconstitutional on its face," he voted for it anyway because he hopes "the court will clean it up." But there's no reason to believe the courts will act in such a manner.

As Ackerman points out, the Korematsu case, which validated Japanese internment, still stands as precedent. Since September 11, federal courts and the Bush administration have used Korematsu-like language to define a state of emergency and justify racial profiling. (And wing-nuts like Michelle Malkin have argued that racial profiling and detention of Japanese during WWII was justified, as is profiling and detention of Arabs in the war on terror). As Ackerman argues "congressional support of presidential power will make it much easier to extend the Korematsu decision to further mass seizures."

Moreover, Hamdan v. Rumsfeld, the Supreme Court case that temporarily jeopordized Bush's extra-judicial detentions, specifically cited lack of Congressional approval. Now Congress has given him this approval.

http://www.thenation.com/blogs/notion?pid=126220

[GeorgeGist]

32. Lawful enemies...

what a ludicrous concept.

[Kablooie]

33. I predict that Bush will start using this soon after the elections.

If the Democrats take power, Bush will have to seriously defend his presidency. He could use this law to instill fear by having a few strategically placed foes arrested. This would give him the same power over the country that Sadaam had over his. You oppose the leader's view, you disappear. Simple. Easy to understand.

It's a definite possibility that we'll be hearing of him using it on citizens before long.

Does anyone know when this officially becomes actionable law?

[onenote]

37. I believe it is effective immediately

Its a horrific law. But I see nothing in it that allows its application to citizens. While the term "unlawful enemy combatant" is not defined in terms of citizenship, pretty much whenever the term is used -- and in particular the jurisdiction of the military commissions and the restrictions on habeas corpus -- are explicitly limited to "alien" unlawful enemy combatants.

We do ourselves no good to make arguments that can be rebutted, especially when the problem with the law is not that it could impact citizens (query: would you support the law if the term unlawful enemy combatant was defined so that it only covered aliens?), but because it is contrary to American values of due process and fairness, is antithetical to international norms, and ultimately makes us less safe.

[Lydia Leftcoast]

34. Stuff like THAT is why I'm marching on October 5, and I

don't care who's sponsoring it.

If the Democrats want to get a clue and organize their own march, I'll join that.

[NVMojo]

36. the horse is dead ...they have beaten America to death ...

[EVDebs]

38. Ah, a new Alien and Sedition Act appears from the fog of war...

Oozing out of a corrupt House and Senate composed of R's who wipe their feet on the Constitution. We need a Democratically controlled House and Senate in order to revisit the AUMFs of Sept 2001 and Oct 2002 (which gave the language 'as he --Bush--determines')

Congress abdicated its responsibilities for war powers and checks and balances due to lies and pretexts; time for REAL investigations into 9-11 and the WMD fiasco. War Powers Resolution of '73 requires truthful 'clear' 'situations' and 'circumstances' before troops are committed to battle.

[Jcrowley]

44. Power to detain indefinitely and torture

Power to detain indefinitely and torture

On this issue, Amnesty international notes that the Act will:
• Fail to provide any guarantee that trials will be conducted within a reasonable time.
• Permit the executive to convene military commissions to try “alien unlawful enemy combatants”, as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes. This would violate the prohibition on the discriminatory application of fair trial rights.
• Establish military commissions whose impartiality, independence and competence would be in doubt, due to the overarching role that the executive, primarily the Secretary of Defense, would play in procedures and in appointments of military judges and military officers.
• Permit, in violation of international law, the use of evidence extracted under cruel, inhuman or degrading treatment or punishment, or as a result of “outrages upon personal dignity, particularly humiliating or degrading treatment”, as defined under international law.
• Permit the use of classified evidence against a defendant, without the defendant necessarily being able effectively to challenge the “sources, methods or activities” by which the government acquired the evidence.
• Give the military commissions the power to hand down death sentences, in contravention of international standards…. The clemency authority would be … President Bush has led a pattern of official public commentary on the presumed guilt of the detainees, and has overseen a system that has systematically denied the rights of detainees.
• Permit the executive to determine who is an “enemy combatant” under any “competent tribunal” established by the executive.

 

Giving US officials immunity from prosecution

On this issue, Amnesty international notes that the Act will:
• Narrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute “outrages upon personal dignity, particularly humiliating and degrading treatment” banned under Article 3 common to the four Geneva Conventions.
• Prohibit the US courts from using “foreign or international law” to inform their decisions in relation to the War Crimes Act. The President has the authority to “interpret the meaning and application of the Geneva Conventions.”
• Endorse the administration’s “war paradigm”—under which the USA has selectively applied the laws of war and rejected international human rights law.

http://www.zmag.org/content/showarticle.cfm?SectionID=40&ItemID=11095

[bdamomma]

40. are we going to stand for this shit, no dissent for King George

what BS!!!! scare scare fear fear and more fear

[EVDebs]

45. We need SOME KIND OF demonstrations in the streets

with those Guy Fawkes masks or something and just show in shere numbers that this kind of trashing of the Constitution can't go on any longer. If only we could get the time off from work to do it !!

[Subdivisions]

42. George loves to imagine sinister things so let's imagine this:

Imagine W signing this thing into law and, within days, thousands of the bodies behind the names of their "enemies" on a list that has been developed for at least six years begin to be rounded up, siezed, reminiscent of Saddam Hussein's rounding up of detractors both in the goverment and the streets and summarily executing them.

If that bill gets his signature, he will have the power to do just that to US.

[latebloomer]

43. K&R

and thanks to all the good "Democrats" who helped make this happen.

[Jcrowley]

47. Re: Animal Enterprise Act, S. 1926 and H.R. 4239

ACLU Letter to Congress Urging Opposition to the Animal Enterprise Act, S. 1926 and H.R. 4239 (3/6/2006)

Re: Animal Enterprise Act, S. 1926 and H.R. 4239

Dear Member of Congress:

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we write today to explain our opposition to the Animal Enterprise Terrorism Act, S. 1926 and H.R. 4239 (AETA), a bill that amends the Animal Enterprise Protection Act (AEPA), now 18 U.S.C. § 43.  The AETA criminalizes First Amendment activities such as demonstrations, leafleting, undercover investigations, and boycotts.  The bill is overly broad, vague, and unnecessary because federal criminal laws already provide a wide range of punishments for unlawful activities targeting animal enterprises.

It’s important to let the reader know what conduct is criminal under current law, too.  What are the elements of the crime?  Setting them forth now is useful to make your point that the bill criminalizes speech.  The AEPA, which passed in 1992, created a penalty of $10,000 or 10 years to life imprisonment for any physical disruption that leads to $10,000 in damages to an animal enterprise.  AETA expands the class of criminal behavior in 18 U.S.C. § 43, by changing the term used to described activity “for the purpose of causing physical disruption” to activity “for the purpose of damaging or disrupting” an animal enterprise.  The overbroad class of “disruptive” activities apply to any and all activities that result in “losses and increased costs” in excess of $10,000.

 Lawful and peaceful protests that, for example, urge a consumer boycott of a company that does not use humane procedures, could be the target of this provision because they “disrupt” the company’s business.  This overbroad provision might also apply to a whistleblower whose intentions are to stop harmful or illegal activities by the animal enterprise.  The bill will effectively chill and deter Americans from exercising their First Amendment rights to advocate for reforms in the treatment of animals.

Alarmingly, the bill would also make the expanded crime a predicate for Title III federal criminal wiretapping.  This provision could be used for widespread domestic surveillance of animal rights organizations.  A court will be far more likely to find probable cause for a vague crime of causing economic damage or disruption to an animal enterprise than for a crime that requires some evidence that the organization plans to engage in activity causing illegal “physical disruption.”

While the bill provides an exemption for “lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise,” that exemption applies only to claims of economic “disruption” and not claims of economic “damage.”  It also does not necessarily cover the entire range of expression protected by the First Amendment, which covers more than a lawful “reaction” to a “disclosure of information.”  Ordinary persons would not understand which activities are prohibited and which are lawful. 

http://www.aclu.org/freespeech/gen/25620leg20060306.html

[Jcrowley]

48. ACLU Letter to Congress

ACLU Letter to Congress Urging Opposition to the Animal Enterprise Act, S. 1926 and H.R. 4239 (3/6/2006)

Re: Animal Enterprise Act, S. 1926 and H.R. 4239

Dear Member of Congress:

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we write today to explain our opposition to the Animal Enterprise Terrorism Act, S. 1926 and H.R. 4239 (AETA), a bill that amends the Animal Enterprise Protection Act (AEPA), now 18 U.S.C. § 43.  The AETA criminalizes First Amendment activities such as demonstrations, leafleting, undercover investigations, and boycotts.  The bill is overly broad, vague, and unnecessary because federal criminal laws already provide a wide range of punishments for unlawful activities targeting animal enterprises.

It’s important to let the reader know what conduct is criminal under current law, too.  What are the elements of the crime?  Setting them forth now is useful to make your point that the bill criminalizes speech.  The AEPA, which passed in 1992, created a penalty of $10,000 or 10 years to life imprisonment for any physical disruption that leads to $10,000 in damages to an animal enterprise.  AETA expands the class of criminal behavior in 18 U.S.C. § 43, by changing the term used to described activity “for the purpose of causing physical disruption” to activity “for the purpose of damaging or disrupting” an animal enterprise.  The overbroad class of “disruptive” activities apply to any and all activities that result in “losses and increased costs” in excess of $10,000.

 Lawful and peaceful protests that, for example, urge a consumer boycott of a company that does not use humane procedures, could be the target of this provision because they “disrupt” the company’s business.  This overbroad provision might also apply to a whistleblower whose intentions are to stop harmful or illegal activities by the animal enterprise.  The bill will effectively chill and deter Americans from exercising their First Amendment rights to advocate for reforms in the treatment of animals.

Alarmingly, the bill would also make the expanded crime a predicate for Title III federal criminal wiretapping.  This provision could be used for widespread domestic surveillance of animal rights organizations.  A court will be far more likely to find probable cause for a vague crime of causing economic damage or disruption to an animal enterprise than for a crime that requires some evidence that the organization plans to engage in activity causing illegal “physical disruption.”

While the bill provides an exemption for “lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise,” that exemption applies only to claims of economic “disruption” and not claims of economic “damage.”  It also does not necessarily cover the entire range of expression protected by the First Amendment, which covers more than a lawful “reaction” to a “disclosure of information.”  Ordinary persons would not understand which activities are prohibited and which are lawful. 

http://www.aclu.org/freespeech/gen/25620leg20060306.html