Wednesday, January 25, 2006

New National Police?

A lot of conspiracy theorists are upset over claims that there's going to be a "new" national police force. As Paul Craig Roberts says:
A provision in the "PATRIOT Act" creates a new federal police force with the power to violate the Bill of Rights. You might think that this cannot be true, as you have not read about it in newspapers or heard it discussed by talking heads on TV.

Go to House Report 109-333 USA PATRIOT Improvement and Reauthorization Act of 2005 and check it out for yourself. Section 605 reads:

"There is hereby created and established a permanent police force, to be known as the 'United States Secret Service Uniformed Division.'"

This new federal police force is "subject to the supervision of the Secretary of Homeland Security."

The new police are empowered to "make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony."

The new police are assigned a variety of jurisdictions, including "an event designated under section 3056(e) of title 18 as a special event of national significance" (SENS).

"A special event of national significance" is neither defined nor does it require the presence of a "protected person" such as the president in order to trigger it. Thus, the administration, and perhaps the police themselves, can place the SENS designation on any event. Once a SENS designation is placed on an event, the new federal police are empowered to keep out and arrest people at their discretion.

The language conveys enormous discretionary and arbitrary powers. What is "an offense against the United States"? What are "reasonable grounds"?

You can bet the Alito/Roberts court will rule that it is whatever the executive branch says.

The obvious purpose of the act is to prevent demonstrations at Bush/Cheney events. However, nothing in the language limits the police powers from being used only in this way. Like every law in the U.S., this law also will be expansively interpreted and abused. It has dire implications for freedom of association and First Amendment rights. We can take for granted that the new federal police will be used to suppress dissent and to break up opposition. The Brownshirts are now arming themselves with a Gestapo.
One reason that newspapers haven't reported on this new national "Gestapo" is that newspapers generally expect at least a minimal amount of fact-checking. Consider the following points:

1. The Secret Service Uniformed Division is not new at all. It has existed in some form since 1860, and has used its current name since 1977.

2. In fact, the "new" 18 U.S.C. 3056A is very similar to the current 3 U.S.C. 202, which also states that it creates a "permanent police force," calls it the "Secret Service Uniformed Division," makes it subject to the "Department of Homeland Security," etc.

3. What then is the point of the "new" 18 U.S.C. 3056A? According to the Joint Explanatory Statement of the Committee of Conference:
This section places all authorities of the Uniformed Division, which are currently authorized under title 3, in a newly created 18 U.S.C. § 3056A, following the core authorizing statute of the Secret Service (18 U.S.C. § 3056), thereby organizing the Uniformed Division under title 18 of the United States Code with other Federal law enforcement agencies.
In other words, Congress is basically reorganizing the United States Code. i.e., taking one statute that governs the Secret Service, and putting it next to another statute that governs the Secret Service as well. This does NOT mean that Congress has now created a "new federal police force."

4. What about the provision that authorizes the Secret Service to: "make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony"?

Actually, this statutory authority is word-for-word the same as the authority that is already given to Secret Service agents under 18 U.S.C. 3056(c)(1)(C). And even the most elementary legal research would have revealed that the exact same authority is given to a wide variety of federal agents, including FBI agents (18 U.S.C. 3052), special agents of the Department of State (22 U.S.C. 2709), United States marshalls (18 U.S.C. 3053), ATF agents (18 U.S.C. 3051), and even Post Office Inspectors (18 U.S.C. 3061). It is rather startling that Roberts (or his followers) could claim that this statutory authority is something "new," much less akin to the "Gestapo."

Besides, consider the alternative: Without this authority, the FBI or Secret Service wouldn't be able to arrest someone who committed murder right in front of their eyes.

5. What about "special events of national significance," of which Roberts makes so much? These "special events" are already covered by the existing 18 U.S.C. 3056. This statute provides that the Secret Service can collaborate with the Dept. of Homeland Security to plan and implement "security operations" at special events, which would presumably include political conventions, state dinners, and the like. Then, every fiscal year, the President is required to "report to the Congress -- (A) what events, if any, were designated special events of national significance for security purposes under paragraph (1); and (B) the criteria and information used in making each designation." 18 U.S.C. 3056(e)(2).

Again, consider the alternative: Without this already-existing statute, the Secret Service wouldn't have explicit authority to coordinate security activities with the Dept. of Homeland Security at a speech by a visiting head of state, etc.

6. Needless to say, the reference to the "Alito/Roberts Court" is just scaremongering.

UPDATE: It looks like there are a couple of provisions in the law that do extend -- rather modestly, it seems to me -- the applicability of "special events of national significance" and the penalties for breaching security at such events. There may be good reasons to be concerned about the expansion of authority here, but that in no way detracts from my overall point that the Secret Service is not a "new" national police force merely because its governing statute has been relabeled.

2 Comments:

Blogger Seamus said...

Besides, consider the alternative: Without this authority, the FBI or Secret Service wouldn't be able to arrest someone who committed murder right in front of their eyes.

I thought everyone had the right to arrest for felonies committed in their presence. The so-called "citizen's arrest". That it used to take a warrant to authorize peace officers to arrest for felonies (and misdemeanors) committed outside their presence. This statute (whether new or old) appears to throw out the warrant requirement. (Nothing new for this administration, of course.)

3:10 PM  
Blogger Dick Tatlow said...

I think it's a big mistake to assume that every arrest and every search/seizure requires a warrant signed by a judge. The Constitution is quite clear that only "unreasonable" searches and seizures require a warrant. As a case in point, listening in on phone conversations between terrorists and whoever is on the end is certainly "reasonable".

6:15 PM  

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