A Weekly View from the Foothills of Appalachia
July 5, 1998 #92
by: Doug Fiedor
E-mail to: firstname.lastname@example.org
Copyright © 1998 by Doug Fiedor, all rights reserved
This text may be copied and distributed freely
but only in its entirety, and with no changes
Previous Editions at:
UNCONSTITUTIONAL IN ANY FORM
We enjoy watching two old authoritarian Congressmen argue publicly on a Constitutional issue. And, it's especially interesting when they are both wrong.
Representative Henry Hyde, Chairman of the House Judiciary Committee, claims that his amendment to HR 1965, "The Civil Asset Forfeiture Reform Act," puts the burden of proof back where it belongs -- with the government. In a "Dear Colleague" letter, Hyde writes in part:
Over the last decade, our two-century old civil asset forfeiture laws have been recruited in the war against crime. The federal government is taking in hundreds of millions of dollars a year in proceeds from cash and property used in criminal activities. Unfortunately, it has become all too apparent in recent years that those civil asset forfeiture laws are sometimes being used in terribly unjust ways, depriving innocent citizens of their property without basic due process. Believe it or not, Federal officials have the power to seize your home, your car, your business and your bank account -- all without indictment, hearing or trial.
Imagine this. You make the mistake of buying an airplane ticket with cash -- behavior that is deemed to fit a drug courier profile -- so you are detained and searched. No drugs are found, but the agents seize the cash in your wallet saying they have "probable cause" to believe that the money was intended to buy drugs. You are allowed to leave and are not charged with any crime, but the agents keep your property.
What recourse do you have to get your property back? Very little, because the law treats the property, rather than you, as the offending object. None of the Constitutional or procedural safeguards of the criminal law are available, because you are not being threatened with a deprivation of liberty. In fact, the law doesn't require that you ever be charged with a crime. You have to prove a negative, that your property was never used in a crime, that it was "innocent" But the alleged criminal conduct needn't even involve you -- it could just as easily be a crime allegedly committed by the previous owner of your property, or by someone who, unbeknownst to you, used your property in a criminal endeavor.
Lest we forget here, the Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As we understand the meaning of the words "shall not," the Fourth Amendment is rather straightforward and easy to understand. But, if there is any doubt, the Fifth Amendment carries that thought on a little further, stating: "No person shall be . . . deprived of life, liberty, or property, without due process of law."
Legalizing asset forfeiture, then, would make the above words of the Fourth and Fifth Amendments insignificant. Legalizing forfeiture is analogous to providing the police with a general warrant with which to search and seize anything they wish. That is, as we saw, unconstitutional.
Throughout the years Hyde, of course, approved forfeiture in numerous bills. For instance, readers may remember that he gave us that wonderfully crafted piece of unconstitutional legislation called the Anti-terrorist Act.
Anyway, along comes Representative Gerald Solomon, chairman of the Rules Committee. Solomon's "Dear Colleague" sounds like he believes the government owns everything and can take back whatever it wants. He complains that Hyde's amendment would: Elevate the burden of proof on the Government to the "clear and convincing evidence" standard; take money from the Assets Forfeiture Fund to pay for defense counsel; allow criminals to protect their ill-gotten property by transferring it to third parties such as spouses, minor children and friends; and, give seized property back to the defendant, pending trial -- allowing it to be depleted or hidden.
"Because of these provisions," Solomon writes, "there is not a single law enforcement organization that supports the manager's amendment. In addition, the Clinton Administration is adamantly opposed to Chairman Hyde's bill."
Yeah. No doubt. Law enforcement will miss all that money they have been stealing from people. One little known fact is that it is not just the departments that benefit from the money. Many police officers around the country have been supplementing their personal incomes with a little unauthorized forfeiture, too.
In any form, forfeiture is thievery under color of law.
H.R. 1965 can be found at:
Much has been written here, and in other publications, about Clinton's Executive Order (13083, dated May 14, 1998) on Federalism and there is no need to repeat that. However, when we compared Clinton's order line by line with Ronald Reagan's Executive Order on Federalism (12612, dated October 12, 1987), we couldn't help but notice that Clinton may have had a very specific reason for issuing his order and repealing Reagan's.
Throughout Section 2, Reagan ordered that "There should be strict adherence to constitutional principles." Reagan instructed that "Federal oversight of State administration is neither necessary nor desirable." And he added a number of limits to the regulation process that would protect States rights. For Instance, in Section 2(g) President Reagan orders:
Acts of the national government -- whether legislative, executive, or judicial in nature -- that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers.
In Section 2(i) Reagan ordered:
In the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual States. Uncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level.
By voiding President Reagan's order, Clinton removed most of the constraints on federal agencies in relation to State governments. Federal agencies are to be free to do as they wish. We still have the words written in the Constitution itself, of course. But lately, no one in Washington even refers to the Constitution unless it happens to benefit a personal argument.
For reference, readers may find both Executive Orders at: http://www.uhuh.com/laws/list-law.htm
So, why did Clinton gut the Federalism concept so imbedded in our American history and allow federal agencies to ride roughshod over State governments? For clarification, we have to look to the specific definition of "agency" Clinton referenced in his Executive Order.
44 USC 3502 reads in part:
The term 'agency' means any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.
Well, well, well . . . we see that now the military may promulgate rules and regulations of national impact. Yeah, the military; as in Army, Navy, Air Force, Marines, and Coast Guard. The full text of the law is at:
http://www.law.cornell.edu/uscode/44/3502.shtml Read it and weep. It appears we've been hoodwinked by the Slickster.
There's even more though: A few members of Congress are upset about the War and Emergency Powers laws Clinton has available to him. The background buzz is that they mean to change those laws as soon as possible.
Under the law today, only the president may declare a national emergency, and only the president may end one. Worse, during a national emergency, the president wields nearly dictatorial powers. This very same arrangement was allowed by Article 48 of the German Constitution in the 1930's. That was how the German President -- Hitler -- was able to suspend the Constitution by presidential decree alone. Many Americans believe we should repeal those war and emergency power laws before we end up with a dictator, too.
Already, federal agencies operate like little Soviet Politburos. FEMA is no different. In fact, in any type of major emergency, FEMA actually becomes a real American Politburo! It is responsible to no one, other than the president. And, it has full authority to control everything, other than the president. And remember, under Clinton's new Executive Order, the military, which will be under direct control of FEMA, can also promulgate regulations. Convenient, isn't it.
Looking a little deeper: Today, the Director of FEMA is none other than Clinton's Arkansas crony James Lee Witt. Witt was a high ranking Arkansas State Police officer before moving to FEMA. He was also profiled in a number of publications as being instrumental in the cover-up of the Clinton's Whitewater affair.
For some reason, the White House is centralizing power and allowing the federal 'agencies' (including FEMA and the military) unprecedented power over State and local governments -- and hence, the American people. This is all quite unconstitutional, of course. Nevertheless, if Clinton declares martial law under guise of a national emergency no one, except the military, could stop him.
The craven Congress is, of course, collectively sitting on one hand and covering its mouth with the other. Obviously, there will be no support for our Constitution in Congress unless we force it.
NOTE: We thank the many people who forwarded us a copy of their letters to Congress on this issue. As always, we recommend sending a simple message on a postcard; such as: Remove Clinton's Executive Order on Federalism, and restore Reagan's, or we will not be desiring your services in Congress any longer.
It's interesting how that type of message works in an election year.
GOOD COURT, BAD COURT
Some police are of the opinion that they can stop and search anyone at any time (like at airports), but the courts are starting to disagree.
In Norwood v. Bain last month, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit upheld a lower court decision that mass searches of motorcyclists were unconstitutional. However, the court said that videotaping them during a license check was permissible.
The problem started in September 1995, during a fundraising event for the Piedmont Red Cross sponsored by ABATE, a motorcycle enthusiast organization. As the bikers entered the Piedmont Fairgrounds, each of the approximately 500 attendees were required by the City of Spartanburg Police to show identification. They were also videotaped, and some of them were required to fill out questionnaires and submit to a search of their possessions.
The police, of course, gave no explanation for their actions at the time. Later, the police department used the excuse that it heard rumors that gang members from Pagans and Hells Angels planned to clash at the event. The two motorcycle gangs have a history of fighting but, of course, neither group attended the charity fundraising event.
Under the sponsorship of the ACLU, Columbia civil rights attorneys W. Gaston Fairey and Rochelle Romosca McKee filed suit against the Spartanburg Police Department on behalf of more than 100 of the motorcyclists who had been detained and searched.
"We are pleased the court again found that searching a motorist without probable cause of wrongdoing violates the 4th Amendment guarantee against unreasonable search and seizures," said Steven Bates, Executive Director of the American Civil Liberties Union of South Carolina.
This is a good win for the ACLU and the area's outstanding citizens who also like to ride motorcycles. Police may stop drivers and ask for a license, says the court. They may also videotape the process if they have equipment available. But, that is as far as it goes. No searches.
Darn. That's almost Constitutional. . . . .
We do not agree, however, with another American Civil Liberties Union case settled last month. The National Capital Area ACLU brought a lawsuit on behalf of a group of D.C. children and their parents, which they laud as a grand victory for the rights of kids and families.
In 1995, the D.C. government passed a curfew law for kids. The law prohibited children under age 17 from being in any public place or private establishment between 11 p.m. and 6 a.m. on weekdays, and between midnight at 6 a.m. on weekends. In a 2-1 decision, the United States Court of Appeals for the District of Columbia Circuit, affirmed a lower-court decision that permanently prohibited enforcement of the curfew.
All three judges issued separate opinions. However, the majority agreed that although the city had a strong interest in preventing juvenile crime, there was no good reason to believe that the curfew law would have any significant impact on that problem, and it would seriously infringe on the basic right of liberty.
"The enactment of the curfew law created a new casualty in the 'war' against crime -- the Bill of Rights," said Robert Plotkin, an attorney at the D.C. law firm of Paul, Hastings, Janofsky & Walker who handled the case for the ACLU. "The court's ruling today restores it to life."
The court, therefore, allows every juvenile delinquent in the city to run wild all night long -- and D.C. has an abundance of juvenile delinquents. And by the way, since when did children get liberty? Have American kids suddenly been emancipated?
Kids need rest in order to do well in school. The neighborhood needs peace and quite at night so working people can rest. And the government has a duty to keep these kids safe and away from the riffraff lurking in the shadows at night.
Many children in "murder capital USA" will die because of this ruling. And at least half of them will be innocent bystanders. Children need strong supervision and direction, not liberty.
THE FAILED DRUG WAR
A June 8 press release from the "Speaker's Task Force for a Drug-Free America" caught our eye for many reasons. One reason, of course, is because illegal drug use among junior high and high school kids has nearly doubled under the Clinton Administration.
The Committee Chairman is J. Dennis Hastert (R-IL); and the Co-Chairmen are Rob Portman (R-OH) & Bill McCollum (R-FL). The press release states in part:
In comments to regional economic leaders in DeKalb and Sycamore, Congressman J. Dennis Hastert (R-IL) stated, "The Congress is committed to a World War II-style battleplan to win the War on Drugs from the grassroots up. We are combining national leadership with community activism. In late April, our 36-member Task Force deployed a legislative battleplan to win the War on Drugs on three major fronts: deterring demand because prevention starts at home; stopping supply because it is our duty to control our borders; and, increasing accountability because everyone must be held responsible for their actions.
Interesting rhetoric, but there are a few problems with that statement. The Congressman is correct. It is definitely their Constitutional duty to control our borders. But that is a failed duty! Our borders are like a sieve. Thousands of illegal aliens enter this country daily. Illegal drugs enter by the ton. Interdiction procedures for both illegal aliens and drugs are a joke, and everyone in Congress knows that.
Then he said, "increasing accountability because everyone must be held responsible for their actions." That's the scary part. From coast to coast, police harass thousands of innocent people every day in the name of the "war on drugs". All Congress is doing is adding yet more laws and creating a police state. We have more Americans in prison per capita than any country in the world. Yet, illegal drugs are still plentiful in Anytown, USA.
As the war on illegal alcohol was lost years ago, so too is the war on illegal drugs lost today. More laws are useless. Congress must accept this, because the collateral damage produced by this war on drugs has become totally unacceptable.
While the President talks about the drug problem, the Congress is taking necessary action to win the War on Drugs. I hope that as our legislative agenda continues to advance on Capitol Hill that the President joins our national commitment by signing these bills into law. Quite frankly, I'm somewhat encouraged that the White House is recognizing the need to fight on both the demand side and supply side and hopefully we'll get them to add accountability to the fight. But more than that, we need action, not just words, when it comes to this Administration's drug war.
No, we need police foot patrols around schools and in those neighborhoods with continuing open-air drug bazaars. That works. We also need to close our borders, and allow any sworn peace officer in the country to apprehend illegal aliens wherever found. Then we need to decriminalize some of the less addictive street drugs and save prison space for violent criminals.
The Drug-Free Border Act of 1998 promises to add more than 1,700 border agents and increases funding for drug-screening equipment and resources along our borders. That is a step in the right direction, but only a small step. Much more is needed.
In just over a month, we've already passed five bills and we're well on our way over the next few weeks to passing the rest. The bottom line, though, is that this battle must start with mothers and fathers, teachers and preachers, civic leaders and others all working together to win the War on Drugs to protect our kids. The Congress will help provide national leadership to facilitate work with folks at home so local solutions can be developed to beat this national problem.
Congress introduced 11 new anti-drug bills this round. That is not "providing leadership." That is little more than heaping more bad law on an already bad situation.
The federal government should stay out of the personal lives of the American people. Rather, the government must concentrate on its duty of protecting our borders.
In summary, the federal government has become a wayward employee. It's time "We the People" start holding federal officials accountable. Instead of the federal government inflicting many thousands of pages of unnecessary and oppressive laws rules and regulations on the American people annually, it is time the central government gets back to doing those things mandated to it by its job description: The Constitution.
At this point, nothing else should be acceptable to the American people.
-- End --