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We are, all of us, standing on a civil liberties precipice. The systematic degradation of the rights of all citizens is now well underway. Through the pretext of safeguarding safety and security and, ironically, our “way of life,” governments worldwide are imposing limitations (and, within the U.S., unprecedented limitations) on our freedom of movement; rights stripped from us in the name of safety and security.
That the worst of these violations are, for the time being, born disproportionately by those occupying society's margins and whose social value is seen, and treated, as inferior to all others should provide us no comfort nor assurances for our future. Nor does it relieve us of the burden of our complicity or of our conscience.
The emergent “zero tolerant” society has taken, as its central conceit, the proposition that all human affairs must now be intensely scrutinized, and mediated, through the obsessive ministrations of government. The utility of fear in facilitating this continuous erosion, especially the obligatory appeal that all such fearful erosions are “for the benefit of children”, has become the time-honored mechanism through which the rights of all people are routinely diminished.
We should be especially dubious of that appeal when the victims of these laws are, increasingly, children, themselves. Children who are routinely deprived of their own liberty, and permanently and dramatically diminished - as citizens - for crimes that often consisted of nothing more than mutual exploration; explorations once accommodated within a rational society which had yet to lose all sense of fairness or proportion.
The Snowden Alarm Which Finally Woke Us
We have learned, in extraordinary detail, of the wanton illegality in which our governments now engage through the remarkable revelations of Edward Snowden as well as those of Bradley Manning, William Binney, Thomas Drake and others. They have all taken a courageous stand to insist that government must be held to account for policies which identify liberty as incompatible with the interests of safety and security, policies which are, in any case (at least, in the United States) unconstitutional and illegal. [1]
We have also learned, from the treatment of journalists such as American documentary filmmaker and recent Polk Award recipient (and Academy Award and Emmy Award Nominee), Laura Poitras, of the power of the U.S. government, through its Border & Customs authority, to subject anyone, including journalists, whose message they find inconvenient or embarrassing (such as Poitras' searing reporting on U.S. involvement in Iraq and Afghanistan) to repeated harassment upon their return to the United States.[2] [3] Poitras has had to endure hours of detention and threatening interrogation (without benefit of counsel) as well as the repeated search and seizure of her laptop computers and electronic devices along with the digital data found within them. [See the companion piece to this article: “'HOMELAND SECURITY'S' ASSAULT ON FREEDOM OF MOVEMENT: How America's sex laws endanger you, your children's and everyone's freedom to travel.”]
We now know that the U.S. Government routinely uses U.S. Customs' warrantless powers of search to record all data contained on the laptops, cellphones and other digital devices of anti-war activists, political dissidents, journalists or of anyone else whom they wish, especially when they possess no probable cause to obtain that information through other means. This is a deliberate program in which law enforcement, and perhaps any government agency, can alert Customs officials to intercept specific individuals in the event that they travel internationally. That most people now store enormous amounts of data - often inadvertently - on their cellphones and laptops represents an opportunity for government to lay claim to the myriad details of their lives when reentering the U.S.[4]
In Poitras' case, she has endured this treatment more than forty times and with such regularity that she simply picked-up and moved to Berlin; rarely returning to the U.S. where she finds her treatment, at her own government's hands, deeply frightening and disturbing. And this, even before she met or became aware of Edward Snowden (who she then introduced to her colleague, Glenn Greenwald) in what would become one of the most extraordinary journalistic collaborations and achievements of all time.
The Next Step Down The Road To Oblivion
It is into this civil liberties and constitutional milieu which International Megan's Law, not yet enacted (but already partially in force), now emerges; as an additional power of the advanced global security state to strip citizens of the fundamental right to travel and of the expanded powers of two agencies within the Department of Homeland Security (DHS): Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) and which are the faces of its implementation. The stark implications for freedom imposed by this law have, thus far, escaped the serious attentions of civil libertarians. It is my hope to make them aware of its dangers which go well beyond its stated goals and which pose a grave threat to the free movement of people today and with even broader implications for the future.
Understanding “International Megan's Law”
“It is imperative that we take the lessons we have learned on how to protect our children from known child sex predators within our borders and expand those protections globally,” declared a triumphant U.S. Representative Chris Smith, Republican of New Jersey after successfully pushing his bill, the “International Megan's Law” through the U.S. House of Representatives.
“Child predators thrive on secrecy, a secrecy that allows them to commit heinous crimes against children with impunity and without any real accountability. Megan’s Law must go global to protect American children and children worldwide.”
Smith has been introducing one version after the other of this bill, named after a child murder victim for whom any number of federal and state laws have been named, for the past six years, but without much success. That is, until this year.
Having finally passed in The House and now being considered by The Senate, “International Megan's Law to Prevent Child Sex Trafficking” is half-way to its goal. Halfway, since it is unimaginable that President Obama would not grace it with his signature were it to reach his desk after a win in both Houses of Congress.
Following the wildly successful formula of adorning criminal statutes with the names of murdered child crime victims, this bill is, nevertheless, something new altogether.
Since the appalling Supreme Court decision in 2002 in “Smith v. Doe”[5] [6] in which the Justices held, in a six-to-three decision, that sex offender registration laws were perfectly constitutional since they do not represent retroactive ex post facto punishment (in the criminal sense) but civil regulation as a means of ensuring public safety (yet imposing criminal sanctions for non-compliance) there has been a succession of laws blithely unencumbered by constitutional concerns for sex offenders which restrict where they can live, work, visit and even who they can associate with as well as dictate the frequency with which they must report the myriad details of their lives to law enforcement.
Most of those constitutionally suspect laws have, until now, concerned themselves with regulating the lives of registered sex offenders within the borders of the United States.
“International Megan's Law” represents a breathtaking leap beyond those constraints which burden sex offenders with domestic restrictions on where they can live, work or visit in the U.S., and expands them to the world, as a whole.
Its primary purpose is twofold: first, to prevent all child sex offenders from leaving the United States and visiting other countries where they might commit an illegal sexual act (as anyone might do) and secondly, to provide U.S. authorities with similar notice from other countries when a child sex offender plans to visit the U.S. (as if that is a problem unaddressed by law enforcement today). It is important to note that the U.S. already bars all alien convicted sex offenders from entering the U.S. when it is able to identify them as such. This bill, by alerting foreign nations to the intended visit to their country of an American sex offender, makes fully bilateral the reciprocal exchange of the criminal background of travelers.
Following is a synopsis of this bill which conveys its essential elements as well as its intent: [7]
“The International Megan's Law”, An Analysis
To “eliminate the demand” for child sex tourism and child sexual exploitation outside of the U.S. by making it extremely difficult, if not impossible, for American child sex offenders to be permitted entry to any foreign country and, further, as a quid pro quo to ensure that similar information be provided to the U.S. from foreign governments whose own “child sex offenders” intend to visit the U.S. (where they will be refused entry). Its effect will certainly be to virtually eliminate child sex offenders leaving the U.S.
The following is what this law will do:
● Burdens the Child Sex Offender (includes those convicted of possessing or viewing child pornography and other non-contact offenses), with the legal obligation to notify authorities, in advance, of their intention to travel internationally along with extensive travel plans and destinations. Failure to provide such information will result in felony criminal prosecution and imprisonment.
● Establishes a new office, The “Angel Watch Center” within ICE (Immigration & Customs Enforcement, Department of Homeland Security) which acts as an intermediary between the U.S., foreign governments and Interpol. However, this bill does not directly reference Interpol, even though it is clearly designed to integrate directly with Interpol and its own much publicized program to identify sex offenders in international travel. Discussions amongst policymakers clearly identify Interpol as the intermediary which facilitates such notifications. One could surmise why they fail to mention Interpol but I would suggest it is because its formal role in U.S. law would strike many Americans (including this one) as an advance towards “world government”. ICE will also act with final authority in issuing notifications to foreign governments, other agencies of the U.S. government, such as the U.S. Marshall's National Sex Offender Targeting Office and the U.S. Department of State as well as to American sex offenders themselves. Needless to say, the “Angel Watch Office” will come with a very big “database” (actually, many databases) with vast inter-connectivity.
● Through the “Angel Watch Center”,[8] provides advance warning to foreign destination countries of the travel plans of American child sex offenders, alerting them to their arrival and of the entirety of their travel plans and locations and affording that government the opportunity to refuse them entry. If the destination country were to allow them entry (perhaps to enable a “criminal investigation”, as helpfully suggested in House hearings), they will be, as Rep. Smith has said, “watched like a hawk while they're there.” We are assured that (as an inducement for Americans to urge its passage) the receipt of advance notice of travel and criminal background of travelers to the U.S. will be conditioned upon the U.S. reciprocating in providing foreign governments the criminal records of Americans who travel outside of the U.S.
● The “Angel Watch Center” will consult with non-governmental organizations, including those which are “faith-based”, who are said to have “expertise” in matters of “child sex trafficking” and other “sex crimes” and who will also liaise with those organizations in conducting criminal investigations, such as covertly surveilling identified American sex offenders in “hot spots” said to be rife with “sex trafficking” (in one scenario enthusiastically envisioned by Rep. Smith). “Faith-based” is a clear reference to fundamentalist Christian organizations who have explicitly religious missions to advance a “social-purity” agenda with some actively proselytizing native peoples (who, in Asia, are often Buddhist, Hindu or Muslim).
● Purports to simply transmit criminal conviction data to foreign governments without the expectation that it will necessarily result in the sex offender having his (or her, increasingly) travel rights restricted. But the speeches on the floor of the House tell a different story with Rep. Smith explicitly identifying refusal of entry, and keeping sex offenders confined within the U.S., as a clearly desirable goal and preferred outcome.
● Purports to provide “constructive notice” to sex offenders which will include a good-faith attempt to advise them prior to their departure if the Office believes they are likely to be refused entry (as a result of foreign government notification). It exempts itself from such reporting when the sex offender is the target of an ongoing investigation, in which case he may well be walking into a trap set by the U.S. in conjunction with a foreign government or NGO. This vague assurance (with no real teeth) is one of the few “bones” being thrown to those with constitutional reservations about this bill. It was one of the tepid “compromises” hammered out before House passage to which Smith could point as emblematic of both the unanimity and “bipartisanship” behind this issue.
● Purports to provide an appeals process although one which appears to offer no actual remedy (coming, as it would, after foreign entry and travel had already been refused) and is entirely ex-parte that is, the sex offender is not present during the process and the “Angel Watchers” word is final.
● Provides “technical assistance” to foreign authorities to enable them to participate in the global program.
● In part, appears simply to be codifying practices already in place within the U.S. government in cooperation with Interpol and other nations. By that I mean: for some unknown (to this writer) period of time but at least since March, 2013, the U.S. has already been providing data about child sex offenders to those governments to which they travel as it is able to do so. Many such U.S. policies have been introduced “administratively” i.e. under broad discretionary powers of federal departments, rather than by law. This timeframe coincides with Interpol's stated (in 2013) timetable for the implementation of its own program to issue “Green Notices”,[9] [10] [11] to be available worldwide, when sex offenders travel internationally. This current practice lacks several crucial elements which they wish to implement and which this law will achieve:
- . Makes more rigorous and thorough the process of monitoring the movement of sex offenders.
- . Gets the information to foreign governments well in advance of the sex offender's arrival so as to better enable the foreign country to refuse them entry which is, after all, the explicit goal of the bill's author (in his remarks to The House).
- . Codifies the practice of providing this information to foreign countries and demonstrates (to their minds) both a degree of “due process” extended to the sex offender as well as establishing the framework for a reciprocal international agreement.
- . Current practice does not provide for the criminalization of the sex offender to travel without having provided government with advance travel intentions (UNLESS they are resident in a “SORNA-compliant” state, in which case it is already a legal obligation). In this way, International Megan's Law can be seen to be an end-run around most individual states' failure to comply with the SORNA requirements of the Adam Walsh Act. [Note: SORNA refers to the “Sex Offender Registration and Notification Act” which is part of the Adam Walsh Child Protection and Safety Act (AWA). SORNA provisions were a sweeping expansion of federal laws and restrictions imposed on registered sex offenders and represented a major incursion into what had once been almost entirely the sole authority of individual states. States failing to comply with Adam Walsh/SORNA face losing federal monies as a consequence. Years after its passage, most states - in a rare instance of “push-back” which can be seen as an index of the Fed's extreme overreach with AWA - still have not complied with all the law's elements. Nevertheless, sex offenders in those non-compliant states are still subject to many of AWA's provisions.] [12]
The “Exterminating Angel” In the Driver's Seat
This is an extraordinarily powerful law that will further degrade the liberty and citizenship of those Americans who have once been convicted of any kind of “child sexual offense” (including those who were, themselves, children at the time of its commission), permanently exiling them to within the borders of the U.S., regardless of their reason or need to travel and regardless of the number of years that have elapsed since their conviction and completion of sentence. Because of the judicial and legislative conceit that sex offender registration laws are “civil and not criminal”, they have no right of appeal in challenging their status and are subject to any additional regulations and restrictions which an election-year politician might imagine (2014 being such a year) because they are not protected by ex post facto limitations on punishment.
This bill should be seen as of a piece with concerted global and law enforcement efforts (which include both statutes as well as the very broad powers of authority typically granted immigration authorities to issue administrative policy) to fully internationalize America's approach to the total marginalization of the sex offender which has emerged as the dominant standard to which all countries are now judged and expected to conform. Many countries have already enacted laws which hold their citizens criminally prosecutable for sex crimes committed in foreign countries and with the stunning assertion that individuals, when traveling abroad, are to be held accountable to their home countries' criminal laws (and prosecuted in their home country), not those of the country where the alleged offense took place.
The more recent efforts to prevent anyone previously convicted of sex offenses to travel internationally is driven by numerous governments, the United Nations, the European Union, Interpol, international abuse and trafficking conferences and NGOs worldwide and include a number of countries who have specifically barred foreign sex offenders from entering their countries for any reason.
In this juggernaut, the media has played a vital role in propagating misinformation spoon-fed to it by these many players through the wholesale abandonment of basic journalistic principles. In clarifying its own code of journalistic ethics, the Los Angeles Time's sole recommendation, when reporting on sex offenses, is that the name of victims should rarely, if ever, be mentioned.
The Poynter Institute, a U.S. journalism school and foundation dedicated to “journalistic excellence” appears to have few, if any, concerns for the state of reporting on “sex offenders” with the exception of its sharply critical dressing-down of “The Boston Globe” for failing to report that, in a story about two “Occupy” protesters who fell in love after meeting at an Occupy demonstration, the man was a registered sex offender! They seem to have been utterly silent on that same newspaper's scurrilous treatment of Fr. Paul Shanley who had been convicted on the strength of the - already widely discredited - pseudo-science of recovered memories.
In the U.S., the bill's justification can be discerned in the “The Commerce Clause, Article I, Section 8, Clause 3, of the U.S. Constitution" which reads, simply: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. It is under the authority of the “Commerce Clause” that the backers of International Megan's Law now assert its legitimacy. Without the ongoing support of the Supreme Court in affirming the Commerce Clause' applicability in all manner of human activity (which clearly lie beyond the scope of governmental authority) this law, and many others, would be unable to usurp the rights of so many Americans.
PART II
The Actors:
The National Security State, Post Snowden and Greenwald (& Manning & Assange & Scahill & Binney & Drake)
It has been one year since the revelations of Edward Snowden in which a shocked world began to learn of the scope and extent of U.S. government surveillance upon the world's citizens, one which is conducted without regard for either their privacy interests or their capacity for terrorism. These bombshell revelations have made absolutely clear that the U.S. has targeted the concept of privacy, itself, and as a concept, both too 'quaint' and too inconvenient to the exigencies of fighting terrorism or, as we are coming to realize, crime.
As governments arrogate to themselves the power to collect every telephone conversation, email, instant message, blog post
Endnotes:
- ↑ “Privacy under attack: the NSA files revealed new threats to democracy and, thanks to Edward Snowden, we know the apparatus of
repression has been covertly attached to the democratic state,” The Guardian, May 27, 2014
http://www.theguardian.com/technology/2014/may/27/-sp-privacy-under-attack-nsa-files-revealed-new-threats-democracy
- ↑ “Laura Poitras (journalist/ documentary filmmaker) Held, Questioned Some 40 Times at US Airports.” Video: https://www.youtube.com/watch?v=KhnGrCbaUI8
- ↑ “Jacob Applebaum's (Tor developer/Wikileaks activist) Repeated Harassment by Border Agents.” Quote:“I dread US Customs more than I dreaded walking across the border from Turkey to Iraq in 2005.” http://boingboing.net/2011/01/12/wikileaks-volunteer-1.html
- ↑ Edward Hasbrouck, “Travel Surveillance, Traveler Intrusion,” speaking at Cato Institute on C-Span (video)
Quote: “The ID-linked personal travel history of your movements: The government has instituted a system to ensure that each act of travel can be logged and correlated into an ID-linked lifetime personal travel history of your movements on the basis of which the government has been able to move to a permission-based travel control regime in which real-time decisions are made each time you want to go somewhere and whether the government will let you. Your identity is linked to a dossier of your history.” Once that permission system is in place the government has made the final step of flicking the default switch from “yes” to “no” so that, rather than a presumptive right to travel which can only be interfered with on the basis of judicial action, the presumption is that no one’s allowed to travel unless they have received affirmative government prior-permission. “ http://www.cato.org/events/travel-surveillance-traveler-intrusion
- ↑ Smith v. Doe, 538 U.S. 84 (2003) http://en.wikipedia.org/wiki/Smith_v._Doe
- ↑ Catherine Carpenter: "Sexual Offense Laws and Constitutionality." Excellent overview of issues as well as “Smith v. Doe”. YouTube:
https://www.youtube.com/watch?v=9qyA9TU8nE8
- ↑ Full-text of amended Bill as passed by The House (recommended to anyone likely to be directly effected by this law. http://beta.congress.gov/bill/113th-congress/house-bill/4573/text?q=%7B%22search%22:[%22hr+4573%22]%7D
- ↑ 'Registered Sex Offenders: Sharing More Information Will Enable Federal Agencies to Improve Notifications of Sex Offenders' International Travel' which was released on February 14, 2013. http://www.gao.gov/assets/660/652212.txt
- ↑ INTERPOL Washington FY 2011 Performance Budget Congressional Submission
http://www.justice.gov/jmd/2011justification/pdf/fy11-usncb-justification.pdf
- ↑ The Interpol 'Green Notice' To provide warnings and intelligence about persons who have committed criminal offences and are likely to repeat these crimes in other countries. http://www.interpol.int/Crime-areas/Crimes-against-children/Sex-offenders
- ↑ Note: the press release from Interpol in which it announced the implementation of its system of worldwide alerts, issued in the early part of 2013, with an announced rollout date of March 2013, has simply disappeared from the web (but with different content under an identical URL [the link immediately above this one]), as best this author can tell. If someone has had the prescience to save it, I would be most grateful to receive a copy.
- ↑ "The Adam Walsh Act Study Guide" by Derek Logue. November 13, 2013. http://www.oncefallen.com/AdamWalshAct.html
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