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The BIRCH BARK BBS / 414-242-5070

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THE NEW AMERICAN -- July 24, 1995
Copyright 1995 -- American Opinion Publishing, Incorporated
P.O. Box 8040, Appleton, WI  54913

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ARTICLE: Front Page
TITLE: Chipping Away at Freedom
AUTHOR: William Norman Grigg

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In an address denouncing the French revolutionary terror two
centuries ago, Noah Webster observed that governments always
justify the criminal aggrandizement of their powers by deploying
"the old stale plea of necessity." As Congress finishes work on the
"Comprehensive Terrorism Prevention Act," a measure which will
continue the unconstitutional enrichment of federal police powers,
the air is thick with invocations of the "necessity" defense.
"Necessity" has no stronger champion than Representative Charles
Schumer (D-NY), a veteran anti-gun zealot. Schumer explains that
restraints on federal power must be lifted, because "in wartime,
it's different than peacetime. In terrorism time, it's different
from peacetime."

Remarkably, at least one supporter of the Senate version of the
Terrorism Prevention Act has candidly admitted that the measure
will lead to abuses of individual liberty. During Senate debate
over the bill, Senator Patty Murray (D-WA) declared, "It is
disturbing to me when the Congress is faced with a decision to
increase protection for the people by chipping away at the edges of
freedom. But in this case, the imperative is clear." Although
Murray admonished her colleagues that "we as elected officials have
an ... obligation to keep from unnerving the people we are trying
to protect," her remarks could not fail to unnerve the attentive:

"We have no idea what kind of mistakes will be made, or whose
rights will be infringed, when this bill is implemented.... While
we can take comfort knowing this bill strengthens the hand of law
enforcement to aggressively pursue terrorists, none of us should
take comfort in what it might mean for innocents caught in the
middle as the anti-terrorism effort intensifies."

"It will be critically important," emphasized Murray, "for law
enforcement officials of all types ... to protect the citizens that
go along with the kind of broad new powers we are bestowing upon
them."

Centralization of Power

The rationale for this enrichment of federal power, of course, was
the April 19th bombing in Oklahoma City. However, there was public
ambivalence regarding the proposed anti-terrorism legislation even
in the immediate aftermath of the bombing. A Time/CNN poll
conducted on April 27th found that 61 percent of the surveyed
public believed that "the federal government ... already has enough
power" to investigate U.S. citizens; 60 percent of those polled
responded that they were worried about abuses of power "if the
federal government were given more powers in order to combat
terrorism."

In spite of the public's unease, President Clinton has insisted
that an anti-terrorism measure must be passed as quickly as
possible, before political support for new federal powers
dissipates altogether. As of this writing, the Senate has passed
its version of the bill (S.  735),* and the House version (H.R. 
1710) has been voted out of committee for consideration by the
entire House.

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*NOTE: See Senate vote #20 in the Conservative Index (page 30).

------------------------------------------------

Both the Senate and House versions of the measure would create new
federal powers to conduct wiretap surveillance and to collect
information from private transactions. The Senate bill provides
$1.8 billion to hire new federal law enforcement officers and
creates a new FBI counter-terrorism center. In addition, S.  735
expands the predicate offenses under the Racketeer-Influenced and
Corrupt Organizations Act, a measure which may be used to
criminalize political associations (it is already being used
against pro-life activists). Both the Senate and House measures
would relax the posse comitatus guidelines which prevent the direct
involvement of the military in domestic law enforcement.
Furthermore, the House version of the measure would permit the
federal government to define nearly any crime involving a gun as an
act of "terrorism" that would therefore fall under the scope of the
bill.

The Senate's bill does contain some useful provisions dealing with
the threat posed by international terrorism. The measure provides
for more rapid deportation of suspected aliens and bans
organizational and fund-raising efforts on behalf of foreign
terrorist groups. It also contains a welcome limit on death row
appeals. Significantly, these provisions, which target real
terrorists and convicted criminals, were loudly denounced by many
liberal senators who eventually voted for the measure.

Hastily Crafted Bills

The Clinton Administration's original bill, H.R. 896 (sponsored by
Representative Charles Schumer), contained all of the troublesome
provisions which are found in the present Senate and House bills.
Further, as David Kopel of the Independence Institute observes, the
Administration's original bill "abolished ... all jurisdictional
restraints on federal agencies." Additionally, the President would
have been given the power to designate any group, foreign or
domestic, as a "terrorist" organization. Given Mr. Clinton's
dyspeptic fulminations about "right-wing extremists," talk radio
hosts, and gun rights advocates, it is not difficult to imagine how
such powers would have been used.

In modified form, the original Clinton Administration bill was
adopted by the Republican Senate leadership. Mike Hammond, a
legislative analyst for Gun Owners of America, told The New
American, "The Senate leadership simply took the Schumer bill,
added some things, and removed some of its more objectionable
features, and claimed it as its own. There were no hearings or
witnesses."

The result met with the Clinton Administration's unqualified
approval. As the New York Times pointed out, "Although drafted by
the Republican majority, the legislation would give President
Clinton most of the provisions he requested in a counter-terrorism
measure."

As Senator Murray's remarks suggest, the Senate measure is intended
to cast a wide and indiscriminate net. A crime may be designated a
"terrorist offense" if it involves "the mail, or any facility
utilized in interstate commerce," or "obstructs, delays, or affects
interstate or foreign commerce in any way or degree...." This
promiscuous use of the Constitution's commerce clause runs contrary
to the Supreme Court's recent Lopez decision, in which the Court
reaffirmed the embattled principle that the powers delegated to the
federal government are "few and defined," and that they do not
amount to a general grant of police power over the nation. The
substance of S.  735 illustrates that preserving the
unconstitutional police power of the federal government is a
priority for both the Clinton Administration and the Republican
Senate leadership.

Another provision of the Senate measure states that federal
jurisdiction "shall exist over all principals, co-conspirators, and
accessories after the fact" in any terrorism prosecution.
Furthermore, one may be implicated as a "co-conspirator" or an
"accessory" if he "transfers an explosive material, knowing or
having reasonable cause to believe that such explosive material
will be used to commit a crime of violence." This remarkably
subjective standard could be used to prosecute law-abiding firearms
and explosives dealers -- or, for that matter, fertilizer and fuel
oil salesmen -- who innocently make a sale to the wrong person; all
the feds would be required to prove in such a case would be a
"reasonable cause" to know how the products would be used. This
offense carries a mandatory ten-year prison sentence.

The Senate bill also contains a statement of "findings" which
encourages the President to "undertake immediate efforts to develop
multilateral efforts" to prevent international terrorism, and to
use "all necessary means," including "military force." While
American Presidents can properly use military force to prevent and
punish acts of international terrorism, the Senate's findings use
the threat of terrorism as a pretext for continued entanglement in
NATO and other multilateral relationships which have no
relationship to America's national interests.

Furthermore, S.  735 actually expands presidential authority to
provide military assistance to terrorist states. Although the
Senate measure decrees that "no assistance ... shall be provided to
the government of any country that provides lethal military
equipment" to recognized terrorist states, it contains a self-
nullifying codicil stating that such assistance may be provided if
the President "determines that furnishing such assistance is
important to the national interests of the United States...." This
provision will be welcomed by the Clinton Administration, which has
dispensed aid and other favors upon North Korea, China, and Russia
-- all of which sponsor terrorists -- and upon such practitioners
of terrorism as Hafez al-Assad and Yasir Arafat.

Discretion and Rectitude

The House Judiciary Committee approved H.R. 1710 by a 23-12 vote on
June 14th. Among the opponents of the measure were found several
conservative Republicans who objected to its excessively broad
firearms-related language: Terrorism, as defined in the measure,
includes "the use of any explosive or firearm (other than for mere
personal monetary gain) with intent to endanger, directly or
indirectly, the safety of one or more individuals." The New York
Times observed, "The committee members received [this] language
just moments before it was to vote on it." The committee members
therefore voted up-or-down on statutory language the implications
of which were not entirely understood by the legislators.

Seeking to placate concerned members of his House Judiciary
Committee, chairman Henry Hyde (R-IL) declared, "The use of a gun
in a crime is a serious act. That doesn't offend my sense of
rectitude to have that defined as terrorism." Representative Martin
Hoke (R-OH) rejoined, "We don't want crimes of passion to be
suddenly federalized." Hyde parried this complaint by asserting
that "prosecutorial discretion" on the part of federal authorities
would prevent such a result. Besides, Hyde insisted, an act of
domestic violence "sounds pretty terroristic to me." Observing that
his motivation was "to move the bill," Hyde assured his colleagues
that a "better, more accurate definition" of terrorism could be
substituted in the final version of the measure. "But meanwhile, we
have a workable [definition]. It's not the worst in the world."

If constitutional limitations on federal police powers are to be
limited only by the "prosecutorial discretion" of federal officials
and Henry Hyde's storied "sense of rectitude," the Republic is in
serious trouble. Associate Deputy Attorney General Andrew Fois, who
was assigned by the Justice Department to monitor the legislation,
approved of the committee's definition, explaining that "we
proposed a definition that is broad enough to enforce our needs.
The efforts are to narrow it. Our concern is that it doesn't get
too narrow." In short, the Clinton Administration's motley band of
regulatory zealots, gun-grabbers, and property-seizers will be
satisfied with nearly any definition which enlarges federal
authority. So much for "prosecutorial discretion."

As for Hyde's "rectitude," this dubious attribute led the
congressman to support last year's ban on "assault" weapons; it has
also inspired him to denounce as obsolete the Constitution's
allocation of war-declaring power to the Congress (see page 19 in
this issue).

Other Republicans in Hyde's committee did not share their
chairman's cavalier attitude regarding constitutional limitations
on federal power. Following the vote, Representative Bob Barr (R-
GA) remarked, "Under this definition, any crime that involves the
use of firearms becomes a terrorist act, and then the provisions of
this bill -- making it easy for the federal government to wiretap
or obtain financial records -- apply.... In addition, these all
become federal offenses, and that cuts squarely against the grain
[of] what I and the people in my district want me to be doing up
here, which is to be narrowing the scope of federal activity, not
vastly expanding it."

Similar views were expressed by Representative James Sensenbrenner
(R-WI), who was also among the Republicans who opposed the bill in
committee. Kathy Benz, Sensenbrenner's press secretary, told The
New American that Sensenbrenner was firmly opposed to the measure
on federalist grounds. Furthermore, recounted Benz, "The bill will
give Janet Reno's Justice Department vastly expanded powers to
intrude into the lives of private, law-abiding citizens on the
basis of political beliefs."

Militarizing Law Enforcement

It has been frequently recalled in these pages that every
dictatorship makes use of centralized and militarized law
enforcement to suppress its subjects. Both of these tendencies were
manifest in last year's Omnibus Crime bill, and they are powerfully
reinforced by this year's Terrorism Prevention Act. Liberal Senator
Russ Feingold (D-WI), who voted against last year's crime bill on
federalist grounds, was also among the eight solons who voted
against the Senate's version of the anti-terrorism bill. He regards
the terrorism bill as "a vehicle to undo some of the traditional
barriers which separate the federal government from state and local
law enforcement."

Feingold particularly takes issue with the revision of posse
comitatus guidelines, which would allow the Attorney General to use
the military to investigate incidents of biological and chemical
terrorism: "This really goes over the line, because what it does is
give the military, in cases of biological and chemical terrorism,
new powers it has never had before, including the power of arrest
in what are called exigent circumstances. I think this is a
dangerous precedent." Extending the principle contained in S.  735,
Feingold explained, "It is possible to argue that the military
should be involved in some sort of gun-related items [because] that
involves the whole country. So this is a dangerous precedent, as
well as one of the most dangerous departures from the protection of
civilian law enforcement in this history of our country."

The Independence Institute's David Kopel shares Feingold's
misgivings about weakening the posse comitatus guidelines. Kopel
told The New American, "This is really a solution in search of a
problem -- or maybe a solution which can evolve into a real
problem." While acknowledging that chemical or biological terrorism
is not an impossibility, Kopel indicated that there are preemptive
measures which are compatible with the earlier posse comitatus
guidelines:

"There are perfectly permissible ways for the military to share its
expertise regarding chemical and biological warfare with civilian
law enforcement personnel. For example, it could train the FBI to
deal with such threats, and the FBI could pass this along to local
police, or perhaps military experts could train local police
directly, as long as the military is not actually enforcing
civilian law. This is a more elaborate solution, but it would help
maintain one of the most important characteristics of a free
society -- a clear separation of roles between the military and
civilian law enforcement."

Kopel is also critical of what he calls a "massive expansion of
federal jurisdiction" created by the anti-terrorism legislation.
Although Kopel is not sanguine about the threat of terrorism, he
concludes that "there is nothing in this legislation that would
have prevented the tragedy of Oklahoma City. There is, however, a
lot which could be used to increase the vulnerability of American
citizens to abuses of government power -- state terrorism."

An American Enabling Act?

Professor Angelo Codevilla of Boston University has written that
the Terrorism Prevention Act "portends trouble" for American
liberty, as "the President's rhetoric has made it perfectly clear
who, in his view, the country's potential terrorists are, and hence
who the targets of the government's attentions will be. The
standard developed after Oklahoma City -- namely that possession of
literature and frequent expression of opinions similar to those of
people involved in violence constitutes a 'link' to violence --
will enable the Clinton Justice Department to treat a wide variety
of conservatives as threats to internal security."

"These are not 'paranoid fantasies,'" Codevilla maintains. "This is
the legacy of almost thirty years of the federalization and
militarization of American law enforcement. What will happen if
this panoply of weapons is put to the service of political passions
and bureaucratic self-interest?"

One of the most prominent profiles in bureaucratic self-interest is
that offered by ATF director Stephen Higgins, the official who
supervised the raid on the Branch Davidian congregation. In a July
2nd Washington Post op-ed column, Higgins petulantly attacked
critics of the Waco raid and reiterated a string of weary
falsehoods and misrepresentations in an effort to forestall a
congressional inquiry into the tragedy. Higgins justified the
lethal raid as part of a necessary campaign against religious
"extremists" and concluded, "The day has long passed when we can
afford to ignore the threat posed by individuals who believe they
are subject only to the laws of their god and not those of our
government."

In predictably self-serving fashion, Higgins ignores an even
greater danger: a government which presents itself as God. One
example of such a government was that of National Socialist
Germany, which used "anti-terrorism" laws to obtain total power.
Following the arson attack on the German Reichstag on February 27,
1933, German President Hindenburg signed an executive decree "for
the protection of the people and the state." Interpreting the
attack as the opening salvo in a terrorist campaign against the new
National Socialist government, the decree enlarged the powers of
the central government to permit "restrictions on personal liberty,
on the right of free expression of opinion, including the press ...
on the rights of assembly and association, and violations of the
privacy of postal, telegraphic and telephonic communications," and
specified that "warrants for house searches, orders for
confiscations as well as restrictions on property, are also
permissible beyond the legal limits otherwise prescribed."

Less than a month later, the Reichstag enacted a "Law for Removing
the Distress of People and Reich," also known as the "Enabling
Act," in which it essentially renounced its residual powers by
assigning all legislative authority to the Reich cabinet for a
period of four years. Hitler, who at that time was Chancellor,
promised, "The government will make use of these powers only
insofar as they are essential for carrying out vitally necessary
measures.... The number of cases in which an internal necessity
exists for having recourse to such a law is a limited one."

However, the unlimited powers granted to Hitler's government
through the Enabling Act allowed him the luxury of defining
"essential" powers and "vitally necessary measures" according to
his ideological needs. Although he promised that "the separate
existence of the federal states will not be done away," the
National Socialist central government consolidated all powers to
itself. Although he promised that "the rights of the churches will
not be diminished," his government aggressively persecuted
religious "extremists" who insisted that the state was accountable
to God's authority. The Enabling Act, which had been created as a
"counter-terrorism" measure, provided a legal, democratic rationale
for national socialist dictatorship.

Although the federal powers created by the Comprehensive Terrorism
Prevention Act fall far short of those granted to Hitler's
government by the Enabling Act, they not only manifest the same
tendency toward radically centralized police authority, but (if
enacted) will set the stage for even more oppressive legislation.
Once again, a nation is being told to entrust its government with
vastly increased powers, which will supposedly be used in a
"limited" way. In such fashion is the "old stale plea of necessity"
renewed, to the detriment of individual liberty.

END
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THE NEW AMERICAN -- July 24, 1995
Copyright 1995 -- American Opinion Publishing, Incorporated P.O.
Box 8040, Appleton, WI  54913

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