Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

August 13, 2007

THE TERROR ATTACK ON CIVIL LIBERTIES

America has lauded itself as a country that cherishes individual liberty. Our constitution and the Bill of Rights are held out as models for the rest of the world to immolate. But America has never been comfortable protecting civil liberties in times of national crises.

Former U.S. Supreme Court Justice William Brennan in a 1987 speech at the Law School of Hebrew University in Jerusalem pointed out that “[t]he ink had barely dried on the First Amendment” when Congress passed the Alien and Sedition Acts of 1798. The Act authorized the President to deport any alien shown to be working against the newly-formed government’s national interest. The Act explicitly barred publication of “any false, scandalous and malicious writing” designed to hold the government in contempt or disrepute. See, Block, Frederic, “Civil Liberties During National Emergencies: The Interactions Between the Three Branches of Government in Coping with Past and Current Threats to National Security, 29 N.Y.U.Rev.L.&Soc.Change 459 (hereinafter “Block”)

“The enforcement of these statutes, particularly the Sedition Act, constitutes one of the greatest blots on our country's record of freedom. Publishers were sent to jail for writing their own views and for publishing the views of others. The slightest criticism of Government or policies of government officials was enough to cause biased federal prosecutors to put the machinery of Government to work to crush and imprison the critic. Rumors which filled the air pointed the finger of suspicion at good men and bad men alike, sometimes causing the social ostracism of people who loved their free country with a deathless devotion.” See, Community Party of the United States v. Subversive Activities Bd., 367 U.S. 1, 155 (1961)(Black, J. dissenting).

Block pointed out that during the Civil War President Lincoln suspended the writ of habeas corpus permitting the detention of 20,000 suspected of disloyalty. One of those detained was a Maryland man named John Merryman who advocated Maryland’s secession from the Union. The Chief Justice of the U.S. Supreme Court, John Taney, ordered Merryman released but the order was ignored by military officials. Frustrated, Taney wrote that he “exercised all the power which the constitution and laws confer[red] on [him], but that power [was] resisted by a force too strong for [him] to overcome” and it was up to President Lincoln “in fulfillment of his constitutional obligation … to determine what measures he will take to cause the civil process of the United States to be respected and enforced.” See, Ex parte Merryman, 17 F.Cas. 144, 153 (C.C. Md. 1861) (No. 9,487).

President Lincoln took no action. John Merryman remained incarcerated.

In 1866 the Supreme Court in Ex parte Milligan dealt with another case in which a military tribunal had convicted an Indiana man, who belonged to what Block called an “insurgent group” named Sons of Liberty, and ordered him hanged. The man sought a writ of habeas corpus which had by then been restored. The court said that the Constitution applies “equally in war and in peace,” and that since Milligan neither a resident of any state in rebellion nor a prisoner of war, the military tribunal had no authority to try him. See, 71 U.S. 2, 120 (1866).

In 1917 Congress enacted the Trading with the Enemy Act (TWEA) shortly after it declared war against Germany. Block wrote that as the Act was originally enacted it permitted “the President to declare a national emergency following a congressional declaration of war ‘if [he] shall find it compatible with the safety of the United States’.” Id. Under TWEA, the President assumed almost unlimited power “with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest.” Id

TWEA would prove for decades to come a valuable asset to any President who deemed the country faced with a “national emergency. Block wrote that President Wilson utilized the Act “as the basis for suspending the gold standard, conscripting soldiers, and taking over portions of railroad, ocean shipping, and communications industry.” Id.

Congress in 1993 expanded the reach of TWEA during the height of the Depression to allow the President in peacetime to declare a “national emergency” if he felt a social crisis threatened the interests of the country. President Roosevelt immediately jumped on TWEA like molasses on pancakes to support many of his radical “New Deal” programs. The same year Congress gave him the TWEA authority, Roosevelt used it to declare a “Bank Holiday” to prevent what Block called “hoarding of gold and currency.” Id. [President Truman used in 1950 to seize control of many of the nation’s steel mills and President Nixon used it twice: one to stop a Postal Service work stoppage in 1970 and again in 1971 to impose tariffs on imported goods to halt the decline of international monetary reserves of the United States.]

In 1917 Congress also passed the Espionage Act which, as Block wrote, “criminalized the making of false statements during times of war with the intent to undermine the success of the war effort and which, for the first time, granted federal courts the power to issue search warrants.” Id. As it did with TWEA, Congress in 1918 expanded the Espionage Act to prohibit the publication of “any disloyal, profane, scurrilous, or abusive language” about the government of the United States,

Criminal convictions under the Espionage Act quickly made their way to the United States Supreme Court. In Schenk v. United States the general secretary of the American Socialist Party was convicted of distributing leaflets that read “Assert Your Rights” and “Do Not submit to Intimidation.” In upholding Schenk’s conviction on the premise that the leaflets posed a “clear and present danger,” the Supreme Court said that “[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Id., 249 U.S. 47, 51-52 (1919).

That same year the Supreme Court used the same “clear and present danger” test to uphold the conviction of Eugene Debs who, in a public speech, told the audience that “you need to know that you are fit for something better than slavery and cannon fodder.” See, Debs v. United States, 249 U.S. 211, 214 (1919). See also: Block, supra.

Renowned Supreme Court Justice Oliver Wendell Holmes authored both the Debs and Schenk decisions. But the brilliant jurist had an immediate change of mind. Federic Block explained:

“When, in 1919, another Espionage Act leafleting conviction made its way to the Supreme Court, however, Justice Holmes dissented--not because the Court overturned the conviction, but because he had reconsidered his position regarding the boundaries of permissible anti-war speech. In that case, Abrams v. United States, the Court upheld the defendant's conviction for the distribution of leaflets critical of United States policy at home and in Europe. In his dissenting opinion, Justice Holmes, joined by Justice Louis D. Brandeis, introduced the ‘marketplace of ideas’ approach to the First Amendment, writing that ‘the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market’.” Block, supra. See also: Abrams, 250 U.S. 616, 651-72 (1919)(Holmes, J. dissenting).

Justice Holmes noted that the judiciary has a fundamental duty to be “eternally vigilant” against government efforts to “check the expression of opinions” unless the suppression of such opinions was necessary “to save the country.” Id. Joined in the “marketplace of ideas” approach, Justices Holmes and Brandeis dissented in two other similar cases. See, Gitlow v. New York, 268 U.S. 652, 672 (1925)(Holmes, J. dissenting); Whitney v. California, 274 U.S. 357, 372 (1927)(Brandeis, J. concurring).

World War II was not a period friendly to civil liberties. Justice Holmes’ “marketplace of ideas” doctrine became a vague memory. In 1940 Congress enacted the Smith Act which provided that “[w]hoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence” could subject to imprisonment up to twenty years.

While the Supreme Court joined Congress in the assault on civil liberties during the “war years” with its “clear and present danger” mindset, the Court was also in a cauldron of legal and political turmoil.

For example, in Minersville v. Gobitis upheld the school expulsion of Jehovah’s Witness children who refused to daily recite the “Pledge of Allegiance.” The Court said that the flag promoted “national cohesion” and that “national unity is the basis of national security.” See, 310 U.S. 586, 595-96 (1940). The Supreme Court, however, three years later reversed its position in Gobitis, saying that those “who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsion unification of opinion achieves only the unanimity of the graveyard.” See, West Virginia v. Barnette, 319 U.S. 624, 641 (1943).

But that judicial warning was short-lived under the weight of war politics and social hysteria. That same term in 1943 and the following term in 1944 the Court dealt with two cases involving decisions made by President Roosevelt, with Congressional approval, that took away the freedom of movement, right of expression, and ultimately the physical freedom of Japanese-American citizens. The Court in Hirabayashi v. United States and Korematsu v. United States addressed the constitutionality of these measures: “ ...{t]here is support for the view that social, economic and political conditions … have .. prevented [the] assimilation [of Japanese-Americans] as an integral part of the white population [therefore] Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions.” See, Hirabayashi, 320 U.S. 81, 96-98 (1943); Korematsu, 323 U.S. 214 (1944)

“We cannot say that these facts and circumstances,” the Hirabayshi court continued, “considered in the particular war setting, could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States. . . . We cannot close our eyes to the fact, demonstrated by experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry. Nor can we deny that Congress, and the military authorities acting with its authorization, have constitutional power to appraise the danger in the light of facts of public notoriety.” Id., at 101-102.

But the Court was kinder to three other cases in consecutive years involving alleged threats to national security. In 1943 the Court in Schneiderman v. United States overturned a governmental decision to revoke the citizenship of a member of the communist party. 220 U.S. 118 (1943). In 1944 the Court in Hartzel v. United States upheld the right of an anti-Semite to send political literature to members of the armed forces, no matter how immoderate or vicious “without running afoul of the Espionage Act of 1917.” See, 322 U.S. 680, 689 (1944). In 1945 the Court in Bridges v. Wixon halted government efforts to deport a labor organizer who had ties to the communist party. See, 326 U.S. 135 (1945). The Court stated:

“It is clear that Congress desired to have the country rid of those aliens who embraced the political faith of force and violence. But we cannot believe that Congress intended to cast so wide a net as to reach those whose ideas and program, though coinciding with the legitimate aims of such groups, nevertheless fell far short of overthrowing the government by force and violence.” Id., at 147-48.

In the wake of World War II the global “threat of communism” had become the latest crisis faced by the United States. In response to that threat Congress enacted the Internal Security Act of 1950 and the Communist Control Act of 1954. And shortly after the invasion of South Korea by Communist forces, Congress enacted the Emergency Detention Act of 1950 which authorized the president to declare an “Internal Security Emergency” during times of war, invasion or “[i]nsurrection within the United States in aid of a foreign country.” The Act bestowed upon the U.S. Attorney General the authority to detain “each person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with other to engage in, acts of espionage or of sabotage.” Block, supra.

In 1951 the Supreme Court in Dennis v. United States upheld the convictions of leaders of the United States Communist Party under the Smith Act, saying:

“[T]he leaders of the Communist Party in this country were unwilling to work within our framework of democracy, but intended to initiate a violent revolution whenever the propitious occasion appeared[;] . . . that the Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use of aliases, and double-meaning language; that the Party is rigidly controlled; that Communists, unlike other political parties, tolerate no dissension from the policy laid down by the guiding forces, but that the approved program is slavishly followed by the members of the Party; that the literature of the Party and the statements and activities of its leaders, petitioners here, advocate, and the general goal of the Party was, during the period in question, to achieve a successful overthrow of the existing order by force and violence. “ See, 341 U.S. 494, 497 (1951)

The following year the Supreme Court drew a constitutional line in the sand in its landmark decision in Youngstown Steel & Tube Co. v. Sawyer. President Truman facing a potential steelworkers’ strike in the middle of the Korean War order the Secretary of Commerce to seize control of and operate the nation’s steel mills. Truman acted without Congressional authority. The Supreme Court said the seizure was illegal, saying that “the President’s power, if any, to issue the [seizure] order must stem either from an Act of Congress or from the Constitution itself.” See, 343 U.S. 579, 585 (1952).

The Court added that “even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.” Id.,at 587

Presidents like the authority to unilaterally declare national emergencies. Following the Roosevelt-Truman precedents, Presidents Kennedy, Johnson, Nixon, and Carter all used the vestiges of TWEA to deal with “national emergencies.” In 1977 Congress decided to curtail this presidential authority with the passage of the International Emergency Economic Powers Act (IEEPA). While IEEPA maintained the president broad authority to declare national emergencies during war time, it amended the TWEA which reduced the president’s power to declare a national emergency in peacetime. However, once a national emergency has been declared, the President still enjoys the broad powers under TWEA. See, Block, supra. These powers include the authority to confiscate “any property” belonging to an individual, organization or country which “has planned, authorized, aided or engaged in such hostilities or attacks against the United States.”

Then came the “threat of terrorism.” With the passage of the Foreign Intelligence Surveillance Act of 1978 (FISA), the first legal definition of “terrorism” was introduced to criminal law in the United States: “international terrorism.” This term was defined as activities that:

“ (1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.”

The “threat of terrorism” moved America beyond the narrower confines of “national emergencies.” The “crisis” became “international terrorism.” The very word “terrorism” would assume a life of its own. By 1983, a mere five years after the enactment of FISA, Alex P. Schmid had catalogued 109 different definitions of terrorism which had been used between 1936 and 1980. See, Political Terrorism: A Research Guide to Concepts, Theories, Data Bases and Literature 119-52 (1983). See also: Perry, Nicholas J., The Numerous Federal Legal Definitions of Terrorism: The Problem of Too Many Grails, 30 J.Legis. 249 (2004).

Today, through Congressional enactments and Executive Orders issued by the President, there are as Perry reported “nineteen different definitions of terrorism, as well as three terms relating to the support of terrorism.” The word “terrorism” is a loose label. Both the legislative and executive branches of our government have been unable to agree upon a uniform legal definition of “terrorism.” This governmental indecision is fueled by a national media that uses the term so loosely that it hinders creation of a precise legal definition.

For example, Nelson Mandella, Yassar Arafat, and Menachem Begin, all Nobel Peace Prize winners, were once universally considered “terrorists” by the media and the governments they challenged. The adage applies: “One man’s terrorist is another man’s freedom fighter.” Nicholas Perry, an attorney with the Homeland Security Department, offered the most current legal definition of “terrorism”:

“Title 18 of the United States Code--the Criminal Code--contains the most definitions of terrorism; it includes a chapter entitled ‘terrorism,’ as well as definitions of terrorism in other parts of the title. The basic definitions of terrorism in the terrorism chapter, found in 18 U.S.C. § 2331, mirror the FISA definition. The definition of ‘international terrorism,’ enacted in 1992 and amended slightly in 2001 by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), is a verbatim copy of the FISA definition, with the exception that the motivation component includes affecting governments by ‘mass destruction’ in addition to assassination and kidnapping. Likewise, the definition of ‘domestic terrorism,’ enacted in 2001 as part of the USA PATRIOT Act, is identical to the definition of FISA except for the inclusion of ‘mass destruction’ in the motivation component and the jurisdictional requirement that limits the definition to ‘domestic.’ The definition of ‘domestic terrorism’ requires that the event ‘occur primarily within the territorial jurisdiction of the United States’ as opposed to requiring conduct outside of the United States or transcending national boundaries under the FISA and § 2331 ‘international terrorism’ definitions. Both definitions are deductive with a requirement that the conduct ‘appear[s] to be intended’ to affect or influence a government or population and potentially include all acts of terrorism.”

Recently ten members of the Earth Liberation Front and the Animal Liberation Front pled guilty in federal court in Eugene, Oregon to nearly two dozen arson counts. The defendants were accused of setting the fires to protest the slaughter of wild horses and stop logging. The government said these defendants set 40 fires between 1996 and 2001, including a ski resort in Vail, Colorado that did $40 million in damages, national forest ranger stations, meat packing plants, research laboratories, and an automobile dealership that marketed SUVs.

Prosecuting attorneys compared the actions of these defendants to the actions of the Ku Klux Klan who burned churches in the South. U.S. Attorney Stephen Peifer said the fires qualified as “terrorism” because they were intend to coerce a change in government policies concerning logging, selling wild horses for slaughter, and genetic engineering.

Peifer is relying upon United States Sentencing Guideline § 3A1.4 which was established under the authority mandated by the Antiterrorism and Effective Death Penalty Act of 1996 and the Violent Crime Control and Law Enforcement Act of 1994. This guideline allows a U.S. Attorney to request and the court to grant an upward sentencing adjustment for felonies that involved or was intended to promote "federal crime[s] of terrorism."

The first court to address the legality of §3A1.4 was the Second Circuit in United States v. Meskini in 2003. The defendant was convicted of conspiracy to provide material support to a terrorist act and a number of other criminal convictions. The issue before the Second Circuit was whether §3A1.4 impermissibly double counts by increasing both the offense level and the criminal history category for a felony involving or intending to promote an act of terrorism. The Second Circuit held that double counting under §3A1.4 is permissible because Congress has the authority to establish a sentencing formula that accounts for the same factor more than once. The Meskini court said the language of § 3A1.4 plainly manifests the intent of both Congress and the Sentencing Commission to account for an act of terrorism in calculating both the offense level and the criminal history category. See, 319 F.3d 88 (2nd Cir. 2003)

The American Law Reports discussed a Sixth Circuit case in United States v. Graham which expanded the application of §3A1.4 by ruling the guideline applies to conviction not specifically enumerated in 18 U.S.C. §2332g)(5)(B) if the defendant has been convicted of conspiracy to commit terrorism. In Graham the defendant was convicted under 18 U.S.C.A. § 371, which makes it illegal for two or more persons to conspire to commit any offense against the United States and to take an act in furtherance of the conspiracy, for his involvement in a scheme to target for attack certain interstate commerce facilities. The Sixth Circuit held that the domestic terrorism sentencing enhancement could be applied to a sentence for conviction of the general conspiracy statute, which is not mentioned in § 2332b(g)(5)(B). The court's conclusion was based on the distinction between Guideline 3A1.4's "intended to promote" as opposed to its "involved in" language, the first expression, which it believed more closely reflected the defendant's situation here, not requiring conviction of a specific offense. The District Court had pointed to six statutes enumerated in § 2332b(g)(5)(B) and had held that the defendant's intent was to participate in a conspiracy to promote those crimes of terrorism. For example, one of the enumerated statutes, 18 U.S.C.A. § 844(i), holds punishable anyone who "maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." There was no need, the Sixth Circuit said, to determine that the defendant had conspired to commit a particular object crime alleged in the general conspiracy count, where his crimes were part of a broader conspiracy intended to promote such specifically enumerated crimes of terrorism. The Graham court, therefore, held that the sentencing enhancement of § 3A1.4 applied no matter which crimes were assumed in the jury's guilty verdict. See, 275 F.3d 490 (6th Cir. 2001), cert. denied, 122 S.Ct. 1625 (2002). See also: 186 A.L.R.Fed. 147 (2003)

The Earth Liberation Front’s website says that one of the originators of the term “eco-terrorism” was Ron Arnold who founded the “wise-use movement” – a collection of groups that oppose environmental regulation and who advocate for greater industrial development of public lands. The ELF charges that Arnold once told the TORONTO STAR that he wanted to “eradicate the environmental movement.” Arnold is now vice-president of the Center for the Defense of Free Enterprise, a pro-business organization, and that “he has pushed the concept of the eco-terrorist threat in his published writings, media appearances and congressional testimony.”
There is no comparison between criminal arson and terrorism, such as church burnings by the Klan that killed innocent children. The ELF and ALF have made organizational decisions to engage in criminal activity (namely, arson and other forms of property destruction) as a form of political expression. Criminal activity has always been an integral component of political dissent: release of the Pentagon Papers; sit-ins at nuclear facilities; disclosure of classified information; property destruction; and a litany of other forms of civil disobedience. The ELF and ALF have not advocated violence as a political strategy.

The use of organized violence in opposition to government policy, or to intimidate the general populace, or to promote any political objective can be described as “terrorism.” Violence induces “terror.” The fundamental objective of terror-caused-by-violence is to intimidate, coerce, and, most significantly, destroy an individual’s sense of personal safety.

Burning trees, car dealerships, and ski resorts, and property attacks on animal research facilities do not induce “terror” in the community. While these criminal acts certainly anger or outrage the body politic, they do not threaten the peace of society or infringe upon the safety of the individual.

To classify criminal activity, regardless of its political motivations, as “acts of terror” diminishes the impact of terror. Once private industry or certain political interests can dictate government’s policies on shaping legal definitions of “terrorism” – as is being done in the ELF and ALF cases – then no form of human behavior, political or otherwise, is immune from a “terrorist” designation. The “retarded kid” down the street can become a “terrorist” to the other kids at the playground, or training a pit bull to fight can become a “terrorist activity.”

Who could possibly compare the Vail, Colorado ski resort fire to the Oklahoma City Federal Building bombing? If the government is allowed to expand the definition of “terrorism” to cover crimes like those committed by the ELF and ALF, then all forms of political dissent can become targets of “terrorism” definition.

For example, a transient who accidentally, or intentionally, starts a forest fire, or the Muslim high school dropout who spray paints Al Qaeda on the courthouse steps can be designated as “terrorists.”

The bottom line is that terror is spawned by violence. The ELF and ALF are non-violent groups. They do not work with any violent political groups dedicated to the overthrow of the United States. They have not tried to induce terror in society. They have not tried to overthrow the government. They have tried to call attention, albeit with criminal means, to issues they feel are inhumane. This is not terror. It was once called “political dissent” or “political expression.”

Are we truly a Democratic society? Do we truly believe in our constitutionally guaranteed freedoms? Is the Bill of Rights relevant? Are we as a people prepared to sacrifice all our civil liberties in support of the government’s effort to “defeat the threat of terrorism”?

History teaches that we have abandoned our cherished Democratic values in times of “national emergencies.” Our society must now face the “global threat” of terrorism. If we succumb to the evils of torture, elimination of judicial review for “enemy combatants,” and attempt to brand political dissent as “terrorism,” then those cherished Democratic values will become mere relics of another failed civilization.

While our history is littered with horrific abuses of civil liberties and denials of constitutional protections, the American judicial system is still the very best and most uniquely qualified to protect this society from the “politics of terror.” It is the duty of every defense attorney in this country, when faced with the occasion, to navigate through this political mine field to protect the rights of the individual at all costs.