Tag: constitution

US v. Sineneng-Smith: Does Immigration Law Trump Freedom of Speech?

Thomas L. Knapp

Are you free to express your opinions? The First Amendment says yes, but 8 US Code § 1324 says no. A case currently before the US Supreme Court, United States v. Sineneng-Smith, will presumably clarify the matter, hopefully in favor of free speech.

Evelyn Sineneng-Smith, an immigration consultant, allegedly cheated her clients by charging them $5,900 to file applications for a permanent residency program she knew they didn’t qualify for.

In 2013, a jury convicted  Sineneng-Smith on three counts of mail fraud and three counts of “encouraging or inducing illegal immigration for private financial gain.”

Under that US Code provision, “Any person who … encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” can be sentenced to hard time — five years in prison, ten years if it’s for financial gain, life imprisonment or even execution if someone is injured or put in jeopardy of death by that “encouragement.”

The US Court of Appeals for the Ninth Circuit set aside Sineneng-Smith’s convictions on those “encouragement” counts, ruling that the law is “unconstitutionally overbroad in violation of the First Amendment.”

Federal prosecutors appealed the Ninth Circuit’s ruling to the Supreme Court because that’s what federal prosecutors do .  Their case seems to be that we obviously can’t just have people out there saying whatever they want to say.

But we CAN, and SHOULD — in fact, according to the Constitution, MUST — have people out there saying whatever they want to say.

I encourage anyone and everyone who wants to come to the United States in search of work and/or safety to do so, and to stay here for as long as they please, whether the US government likes it or not.

I just broke the law.

And I did so partly for purposes of “commercial advantage or private financial gain.” I consider unfettered immigration an economic boon to everyone, myself included.

As the late economist (and apparent scofflaw) Milton Friedman noted, “Mexican immigration, over the border, is a good thing. It’s a good thing for the illegal immigrants. It’s a good thing for the United States. It’s a good thing for the citizens of the country.”

The Supreme Court should affirm the Ninth Circuit’s ruling.

If it doesn’t, I guess you’ll be waiting ten years or so for my next column.

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Democracy: Holy Mob Rule

Kent McManigal

Holy Pole Quilt isn’t the only vulgar thing considered holy by “American” government supremacists.

Many have joined the international cult of democracy worshippers.

They worship Holy Mob Aggression.

The Holy Hive Mind or the Holy Mindless Mob. However you want to describe it.

Some try to hide this uncomfortable truth by claiming America is a “constitutional representative republic”, not a democracy. This is evidence that many worship the Holy Slave Documents as well.

It’s also a denial of the fact that all republics will devolve into democracies– given time and politics.

But in practice— Right boot, left boot, crushing the throat… what difference is there?

I don’t need to be ruled, nor do I need you to be ruled on “my behalf”. Not by a dictator nor by a dictating mob.

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A Loophole for the Lawless: “Qualified Immunity” Must Go

Thomas L. Knapp

On August 11, 2014, officers from the Caldwell, Idaho Police Department asked for Shaniz West’s permission to enter and search her home. They were looking for her ex-boyfriend. West authorized the search and handed over her keys.

Instead of entering and searching the home, though, the police brought in a SWAT team, surrounding the building.  “[P]olice repeatedly exceeded the authority Ms. West had given them,” a lawsuit she filed complains, “breaking windows, crashing through ceilings, and riddling the home with holes from shooting canisters of tear gas, destroying most of Ms. West and her children’s personal belongings.”

The “standoff” lasted ten hours. But it wasn’t really a standoff. The only mammal in the home larger than a mouse was West’s dog.

Then the cops went on their merry way, leaving West homeless for two months, with three weeks in a hotel as her only compensation.

She wants more, including the costs of repairing and replacing her ruined personal property, damages for pain, suffering and emotional distress, and punitive damages for the assault on a home she gladly authorized a search of, not an attack on. She deserves all of that.

She isn’t getting it — yet, at least — due to a loophole baked into a vile judicial doctrine called “qualified immunity.”

Qualified immunity protects government employees from liability for things they willfully decide to do while on duty, unless those actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The loophole is the phrase “clearly established.”

The Ninth Circuit US Court of Appeals ruled that “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent.”

How’s that for circular reasoning? “You can only sue over X if someone else has previously successfully sued for X. ” And no one CAN have successfully sued for X, at least since the loophole was introduced in 1982, because they would have been turned away on the same grounds!

The Institute for Justice wants the US Supreme Court to take up West’s case.

It should do so, and when it rules it should go beyond nixing the “clearly established” loophole and do away with the doctrine of “qualified immunity” entirely.

42 US Code § 1983 provides that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” may be sued for damages.

Not just if someone has successfully sued on the same grounds before.

And not just if a “reasonable person” would have known better.

Government employees are supposed to know their jobs, including the limits on their authority. If they don’t, they shouldn’t be given guns and badges, let alone protection from liability when they exceed those limits.

“Qualified immunity” is the opposite of “equality under the law.”

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The Soleimani Assassination: Worse Than a Crime, a Mistake

Thomas L. Knapp

In March of 1804, French dragoons secretly crossed the Rhine into the German Margraviate of Baden. Acting on orders from Napoleon himself, they kidnapped Louis Antoine de Bourbon, Duke of Enghien. After a hastily convened court-martial on charges of bearing arms against France, the duke was shot.

“C’est pire qu’un crime, c’est une faute,” a French official (supposedly, but probably not, Talleyrand) said of the duke’s execution: “It is worse than a crime, it is a mistake.”

That terse evaluation came immediately to mind when news broke of a January 3 US drone strike at Baghdad International Airport.  Iranian general Qasem Soleimani, commander of the Islamic Revolutionary Guard Corps’ “Quds Force,” and nine others, died in the attack. US president Donald Trump claimed responsibility for ordering the strike and has subsequently defended that decision.

The duke’s execution outraged Europe’s aristocrats, and in particular brought Russia’s Alexander I to the conclusion that Napoleon’s power must be checked. The international reverberations created by Soleimani’s assassination are already shaping up in similar fashion.

Yes, Iran’s government is outraged and vows revenge, but that’s not surprising. It would be hard for US-Iran relations to get much worse short of all-out war.

Five of those killed in the strike were Iraqi military personnel from the country’s Popular Mobilization Forces, including their deputy commander, Abu Mahdi al-Muhandis.

Iraq’s outgoing prime minister denounced the strike as a violation of Iraqi sovereignty and  of the US/Iraq Status of Forces Agreement. The speaker of the country’s parliament vowed to “put an end to US presence” in Iraq. Powerful Shiite religious and political figure Muqtada al-Sadr, whose militia forces bedeviled the US occupation after the 2003 invasion, is re-mobilizing those forces to “defend Iraq.”

NATO, the Secretary General of the United Nations, and several leaders of regimes putatively allied with the United States have likewise responded negatively to Soleimani’s assassination.

Trump’s order wasn’t even remotely legal, according to Hoyle, under US law or the 400-year international order since the Peace of Westphalia.

The attack occurred without congressional approval or even notification, let alone the declaration of war that the ever-deteriorating US Constitution requires. Unfortunately, while Congress perpetually rumbles discontent over such things, it’s likely to continue enabling, rather than punish and rein in, such abuses of presidential power.

The attack occurred on the supposedly sovereign soil of a putative ally, killing that ally’s officials and invited guests. While it’s merely an escalation, not a new phenomenon — the previous president, Barack Obama, also claimed and exercised a “right” to murder on foreign soil at will — it’s a significant escalation by a president with fewer and less loyal friends on the global stage.

Whether Trump is “wagging the dog” in an attempt to distract from impeachment, or playing “6D chess” in an attempt to get the US out of Iraq at the demand of the Iraqis themselves (I’ve heard both claims), he’s turning friends against him and currying renewed European sympathy for Iran.

The prospects for peace on Earth have receded significantly since Christmas Day.

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A Modest Proposal for Improving Senate Impeachment Trials

Thomas L. Knapp

US Senator Lindsey Graham (R-SC) makes no bones about his position on the likely upcoming impeachment trial of US president Donald Trump. “I am trying to give a pretty clear signal I have made up my mind,” he tells CNN International’s Becky Anderson. “I’m not trying to pretend to be a fair juror here.”

Well, okay, then. Graham has publicly disqualified himself as, and should be excused from serving as, a juror.

Republican politicians, including Graham, have spilled quite a bit of verbiage whining — ineffectually and incorrectly — about a lack of  “due process” in the House segment of the impeachment drama.

Their errors on those claims are simple: Impeachment isn’t a criminal prosecution, nor is a House impeachment inquiry a trial.

There won’t be any “nature and cause of the accusation” for Trump to be “informed of” until the House passes articles of impeachment.

If impeachment was a criminal matter,  he would be constitutionally entitled “to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence” at trial. And in fact he will be treated as entitled to those things, even in the Senate’s non-criminal equivalent.

But Graham and friends want to talk about due process, so let’s talk about due process.

In addition to those aforementioned items, the Sixth Amendment also mandates “an impartial jury.”

If you’re accused of armed robbery, your brother won’t be allowed to serve on the jury at your trial. Neither will the bank teller who was ordered to stuff money in a sack at gunpoint, or the police officer who arrested you, or anyone else who’s known to likely be prejudiced either way.

Is there any particular reason why the due process requirements Graham hails as paramount wouldn’t mandate a similar standard for impeachment trials in the US Senate? I can’t think of one.

In Senate trials of impeachment cases, the Chief Justice of the United States (in the current controversy, John Roberts) presides as judge.

Once the House passes articles of impeachment, Roberts should order his clerks to drop everything else and get to work examining the public statements of all 100 members of the US Senate. His first order of business at the trial should be to excuse any and all Senators who have publicly announced their prejudices on Trump’s guilt or innocence from “jury duty.”

Yes, Democrats too. That should come as a relief to several Democratic presidential aspirants who would probably rather spend their time on the 2020 campaign trail than as impeachment jurors.

The Constitution only requires the votes of 2/3 of US Senators PRESENT at the trial to convict, so excusing those members who have announced their prejudice and partiality wouldn’t prevent a valid verdict.

Would “impeachment voir dire” render future impeachments more “fair” and less “partisan?” Probably not. But it would at least spare us some theatrics from the likes of Lindsey Graham by making pretrial silence a condition of participation.

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Meet Virgil Griffith: America’s Newest Political Prisoner

Thomas L. Knapp

On November 29, FBI agents arrested hacker and cryptocurrency developer Virgil Griffith. His alleged crime: Talking.

Yes, really.

The FBI alleges that Griffith “participated in discussions regarding using cryptocurrency technologies to evade sanctions and launder money.”

Griffith, a US citizen who lives in Singapore, gave a talk at conference on blockchain technology in April. Because that conference took place in North Korea, the US government deems him guilty of violating US sanctions on Kim Jong-un’s regime.

But last time I checked, the First Amendment protected Virgil Griffith’s right to speak, without exceptions regarding where or to whom.

And last time I checked,  the US Department of Justice’s jurisdiction didn’t encompass Singapore (where Griffith lives), China (which Griffith traveled through), or North Korea (where Griffith spoke). The charges against him include traveling, while outside US jurisdiction, to places the US government doesn’t like.

In what universe is it the US government’s business where an individual travels to or what that individual says while he’s there, inside or outside the US itself? Certainly not any kind of universe in which America remains a free society.

What kind of state arrests people for going where they please and saying what they choose without that state’s permission? A police state.

Griffith’s arrest is wholly illegal under the US Constitution and wholly unacceptable to anyone who holds freedom as a cardinal value.

Virgil Griffith is just the latest political prisoner of the US government to come to public notice.

The US government imprisoned US Army intelligence analyst Chelsea Manning, journalist Barrett Brown, and others for telling us the truth about that government’s conduct, and would love to do the same to Julian Assange,  Edward Snowden, and others for the same reason.

The US government imprisoned Ross Ulbricht for running a web site on which people bought and sold things that government didn’t want them to buy and sell.

The US government has held, and continues to hold, too many political prisoners to name in a single column.

The US government increasingly attempts to dictate where all of us may go, and what we may say while there, on pain of arrest and imprisonment.

That’s not right. That’s not freedom. That’s not America.

Virgil Griffith and the others I mention aren’t the criminals — their persecutors are. At some point, we must bring them to justice if human freedom is to survive. Until then, resist much, obey little.

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