by Rand Paul
I. Background
The Lacey Act is a conservation law that attempts to prohibit trafficking in “illegal” wildlife, fish and plants. The original law was passed in 1900 for the purpose of protecting against interstate poaching. Congress later amended and expanded the Lacey Act to make it a crime to import or take any wildlife, fish, or plants “in violation of any foreign law.” Since its passage in 1900, subsequent amendments (in 1935, 1969, 1981, 1988, and most recently 2008) have produced what today is an extremely broad and vague law that contains harsh criminal penalties.
As Paul Larkin, senior legal fellow at the Heritage Foundation explains, “The Lacey Act would not raise concern if the only penalty were a civil fine, but the law authorizes up to one year’s imprisonment for every violation of the act. A one-year term of confinement may not seem onerous (unless, of course, you have to serve it), but a combination of one-year sentences could add up quickly. For example, if each fish taken in violation of the act were to constitute a separate offense, a fisherman could wind up with a three-or four-figure term of imprisonment just by bringing aboard one net’s worth of fish.”
Notably, the original Lacey Act of 1900 contained a penalty “not exceeding two hundred dollars,” and there was no provision imposing jail or prison time. When the Lacey Act was significantly amended in 1981—an amendment that expanded the potential penalties to allow for felony criminal convictions—a representative of the National Rifle Association specifically voiced civil liberties concerns with the changes, stating that his “first concern [was] with the broad expansion of criminal liability.”
II. The Lacey Act Is Unconstitutional
I believe that the Lacey Act in its current form violates our Constitution in a couple of significant ways. First, its broad and unspecific delegation of congressional power to foreign governments violates Article I of the Constitution, which vests all legislative powers in the United States Congress alone. By making it a federal offense to import fish, wildlife, or plants “in violation of any foreign law,” Congress essentially delegates lawmaking authority to other nations.
Second, the Lacey Act is unconstitutionally vague, and fails to satisfy basic due process requirements of fair notice. As the Heritage Foundation notes, the Lacey Act in fact “violates one of the fundamental tenets of Anglo-American common law: that ‘men of common intelligence’ must be able to understand what a law means.… The criminal law must be clear not to the average lawyer, but to the average person. Even if there were lawyers who could readily answer intricate questions of foreign law—and do so for free—the criminal law is held to a higher standard.”
Consider the practical effect of having a law such as the Lacey Act on the books that makes it a federal crime to violate any fish, wildlife, or plant law or regulation of any country in the world. The Heritage Foundation’s Paul Larkin writes:
No one should be held accountable under this nation’s law for violating a foreign nation’s law. Laws come in all forms (e.g., statutes vs. regulations); in all shapes and sizes (e.g., the Sherman Act vs. the Clean Air Act); and in all degrees of comprehensibility (e.g., the law of homicide vs. the Resource Conservation and Recovery Act). Different bodies have authority to promulgate laws (e.g., legislatures, courts, and agencies); to interpret them (e.g., the president or an agency’s general counsel); and to enforce them (e.g., city, state, and federal law enforcement officers and prosecutors). And that is just in America.
Foreign nations may have very different allocations of governmental power, bureaucracies, and enforcement personnel. Some will speak and write in English; some will not. Some will make their decisions public; some will not. Some will have one entity that can speak authoritatively about its own laws; some will not. And different components of foreign governments may change their interpretations of their own laws over time, perhaps nullifying the effect of a prior interpretation, or perhaps not.
It is sheer lunacy to assume that the average citizen can keep track of such laws, let alone do so by him-or herself without a supporting cast of lawyers—that is, assuming that the average citizen could find a lawyer knowledgeable about the intricacies of a particular foreign nation’s law.
A particularly tragic real-life example of the manner in which the Lacey Act violates basic constitutional requirements of due process and fair notice occurred with the convictions and imprisonment of Abner Schoenwetter and David McNab [in the previous chapter]. There are violent criminals who spend less time in prison than did these two innocent men.
The FOCUS Act would alter the Lacey Act by removing all references to “foreign law.” It would also remove the Lacey Act’s criminal penalties and substitute a reasonable civil penalty system. Lacey Act violations with a market value of less than $350 would be subject to a maximum penalty of $10,000, and other violations would be subject to a penalty of up to $200,000. These changes would remove the constitutional flaws inherent in the Lacey Act in its current form.
At this juncture I had explained not only the origins and subsequent misuse of the Lacey Act, but also that our Constitution doesn’t give the federal government such authority to begin with. Washington leaders operate daily thinking they can simply do whatever they like, whether the Constitution they took an oath to uphold gives them the power to or not. The Lacey Act is but one small example.
But the immediate damaging effects of such law is unquestionably overcriminalization—where government bureaucrats blur the line between legal and illegal beyond any commonsense recognition. Normal, everyday business activity all of the sudden becomes a “crime.” Or as I said during my testimony:
III. The Problem of Overcriminalization
The Lacey Act is but one example of the ever-growing problem of overcriminalization that we face in this country. Criminal law is increasingly being used as a tool by our government bureaucracies to punish and control honest businesspeople attempting to make a living. Historically, the criminal law was intended to punish only offenses that were known and understood by all people to be inherently evil or wrongful, offenses such as murder, rape, theft, arson, etc. Yet today the criminal law is constantly used to punish behavior such as fishing without a permit, packaging a product incorrectly, or shipping something with an “improper” label.
The plain language of our Constitution specifies a very limited number of federal crimes. But we have now moved so far away from the original intent of our Constitution that we don’t even know or have a complete list of all the federal criminal laws on the books. There are over 4,450 federal statutory crimes scattered throughout the U.S. Code. And it is estimated that there are tens of thousands more crimes that exist among all our federal regulations. But no one—not even criminal law professors or criminal lawyers—actually knows the exact number with certainty.
In addition to not knowing the exact number of federal crimes, another serious problem is that many of the criminal statutes that have been passed by Congress in recent years lack adequate mens rea requirements. In other words, Congress passes laws that either completely lack—or have an extremely weak—“guilty mind” requirement, which means that someone charged under the statute could be convicted of a federal offense when he or she simply made an honest mistake, or did not possess the criminal culpability traditionally necessary for a criminal conviction.
The Lacey Act is a frightening example of this trend of overcriminalization. I urge my colleagues to support Congressman Broun and me in our efforts to pass the FOCUS Act. As Justice Scalia recently stated, “We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws.… In the field of criminal law, at least, it is time to call a halt.”
Though introduced on its own and through the amendment process, the FOCUS Act has yet to become law. The bill has made it through at least one committee process in the House, but Senate Democrats refused to vote on it when I last proposed it in Jun
e 2012. Regardless, I will keep fighting for it. We must all fight to make sure Americans are never treated in this horrible manner ever again by government bullies.
PART 3
Enemies Foreign and Domestic—The TSA and Bullies Abroad
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
—UNITED STATES CONSTITUTION, AMENDMENT IV
13
Touching and Squeezing America
“Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”
—BENJAMIN FRANKLIN
“If you want total security, go to prison. There you’re fed, clothed, given medical care, and so on. The only thing lacking… is freedom.”
—DWIGHT D. EISENHOWER
America’s airports have become something between a joke and a nightmare. From infants to grandmothers and everyone in between, no one is spared the routine indignities forced upon travelers by the Transportation Security Administration.
A primary goal of Islamic terrorists, whether on 9/11 or just in general, is to radically change and negatively impact Americans’ way of life, to lessen or damage the day-to-day freedoms that Americans have long enjoyed. Terrorists want to make us feel unsafe and scared. They want us to spend America’s great wealth chasing them down and occupying countries overseas, to our financial detriment. This is what Islamic extremists did to another global superpower, the Soviet Union, in Afghanistan.
Now they’re doing it to us.
The TSA is a grand testament to Islamic terrorists’ success—the scene in any airport pre-9/11 verses post-9/11 is now perceived as a major victory by our enemies. We have given up so many of our liberties, all in the name of preventing another tragedy like 9/11—and that’s a tragedy in itself.
There are many parts to this tragedy: great expansion of unchecked federal power; agencies first distorting then growing entirely beyond their mission. The combination of all of this has left us where we are today—in a mess. It’s funny, I always thought the often uncooperative and time-consuming Department of Motor Vehicles was the worst government department citizens had to deal with on a daily basis—but at least DMV employees stay politely behind the counter and keep their hands to themselves. At the airport, government officials grab our “junk.”
In the beginning, it seemed the TSA would simply take over the role of security screening at airports from the private sector, not changing many if any of the standard rules. We were told that these agents would be better trained and better able to treat airport security more like law enforcement. Even the original language used when the TSA was first organized made it sound like it would have more highly trained agents. They weren’t even allowed to be unionized, as is much of the federal workforce.
But like most new government programs, the TSA grew and mutated in a very short time.
During my first year in office, public concern over the TSA and its offenses grew stronger. First came the introduction of the “naked body” scanners, which some have accurately dubbed “porno scanners.” For years, passengers on airlines, just like visitors to a secure building, have gone through metal detectors to ensure they were not carrying a weapon. In recent years government bureaucrats at the TSA decided that such measures were inadequate. A few isolated and sometimes questionable incidents led to a government and media clamor for even more “security.”
Not surprisingly, with each new security “measure” the power of the TSA grew and our individual liberties diminished. Today, our ever-growing national security state shows no signs of slowing.
All of this to keep us “safe.” Why? Why don’t we take a moment to see how other countries handle airport security.
Israel—perhaps the most secure airline and airport system in the world—has not implemented the use of naked body scanner technology in their airports. Why? Rafi Sela, the thirty-year former head of Israel’s airport security, who as part of his tenure helped implement Ben-Gurion International Airport’s security, says of these scanners, “You are reacting to incidents instead of being one step ahead of them. I don’t know why everybody is running to buy these expensive and useless machines. I can overcome the body scanners with enough explosives to bring down a Boeing 747. That’s why we haven’t put them in our airport.”
That is astounding. The nation most at risk for terrorist attacks—a country considered by nearly everyone to have the best airport security in the world—roundly dismisses the efficiency of the naked body scanner.
So, again, why do we use it? At this point we must revisit a common theme in modern American politics and in this book—the revolving door of politics and business, where the former official becomes able to enrich himself at the taxpayer’s expense.
In 2005, the first orders for full body scanners were placed. They were to be part of a test program, commissioned by the Department of Homeland Security and its chief officer, Michael Chertoff.
I am going to give you one guess at what Mr. Chertoff’s job became after he left public service.
Chertoff became a lobbyist for the manufacturer of these body scanners, Rapiscan, which at that time was an obscure and fairly small company. But in 2010, after the underwear bomber incident, Chertoff used his credibility as the former head of Homeland Security to make media appearances urging the government to use more naked body scanners. Chertoff became a one-man band in this mission, appearing on talk shows, news programs, radio, print interviews, you name it. You could barely read or watch a report about the failed underwear bomber without also hearing from Michael Chertoff about the need for naked body scanners.
It is hard to blame the media for this. For four years, Chertoff was in charge of Homeland Security. He was an easy and obvious person to reach out to on matters of national security. But did any reporter attempt to investigate exactly what, and who, he was advocating for?
Let’s be clear, Michael Chertoff was not acting as a security expert in these interviews. He was acting as a paid spokesman for an industry with a huge financial interest in what he was advocating. How much of an interest? It has been estimated that at least one thousand scanners are being used in U.S. airports—at a cost of between $150,000 and $250,000 apiece. Michael Chertoff, former head of Homeland Security and current spokesman for the scanner industry, was advocating for nearly $250 million in sales for his industry.
Is this really how we want our airport security handled? The scanners have a lot of unanswered questions, not the least of which is what level of radiation from these machines is safe. We don’t know because this hasn’t been studied.
Many Americans were outraged over these new scanners. Whether the argument was safety, privacy, or that they just plain didn’t work (they don’t), the public outcry was big and loud.
So how did the government address this outcry? They tried to squash it. Patdowns became even more aggressive—especially for anyone who tried to opt out of going through the scanner. Was the government trying to punish those who opted out? It certainly seemed that way. But these increased and more aggressive patdowns are where the TSA may have made a serious miscalculation concerning what behavior Americans will and will not accept from their government.
Last spring, a six-year-old girl from Bowling Green—a kid from my own backyard—was subjected to a ridiculously invasive search despite her parents’ objections. Fortunately for the family, and unfortunately for the TSA, the entire episode was videotaped. It was then shared publicly, embarrassing the TSA—to the degree that this seemingly shameless government agency can even be embarrassed.
I sit on the Senate Homeland Security and Governmental Affairs Committee, which has jurisdiction over part of the TSA. Soon after this incident, the committee held an unrelated hearing with the head of the TSA, John Pistole. I told the story of this six-year-old girl’s ordeal with the TSA and asked Mr. Pistole if he could explain the utterly unexplai
nable event that had just happened to one of my constituents.
Mr. Pistole didn’t do himself or his agency much credit that day. He insisted that small children were indeed a risk because a girl in Afghanistan had exploded a bomb in a market. Every single person I talked to after Mr. Pistole’s comments, back home or in Washington, D.C., was astounded that his response was to further defend TSA policies.
I could not hold back my disdain for Pistole’s analogy. I responded while pointing to the picture of the six-year-old from Kentucky, “You must be clueless if you think this little girl from Bowling Green might be a terrorist!”
I also sent Pistole a written response:
Thank you for your letter of June 30, 2011. I appreciate your inclusion of the materials and your response to our discussion at the recent hearing.
I have to tell you, I was a bit surprised by both the tone and substance of your letter. Your assertions without fact and your wildly unanalogous references to bombings in Afghanistan only reinforce what I thought at our first meeting: The TSA simply does not understand what it should be doing, or how to do it while respecting the rights of law-abiding American citizens.
Equating the groping of a six-year-old girl from Bowling Green, Kentucky, to a jihadist bombing in Afghanistan tells me you either don’t understand the problems you are confronting, or simply won’t admit the failure of the TSA administrators to write proper rules and procedures.
The logical error here is that you suggest that because a young child in Afghanistan carried a bomb for a terrorist, therefore all American children should be regarded as potential terrorists. Perhaps by searching all American children we are neglecting individuals visiting from countries that have significant jihadist movements.