HR495 See Something Say Something Act American Islamic Congress (AIC) Analysis Paper Office of Government Relations

(OGR) HR495 See Something Say Something Act By John T. Pinna Executive Summary The HR495 See Something, Say Something Act, the newest amendment to the Homeland Security Act of 2002, directly violates the constitutional rights of U.S. citizens and challenges the efficiency and efficacy of the American judicial system and law enforcement operations. It does so by encouraging ordinary citizens to suspect and report someone based on perceived ethnic background, demeanor, and/or overall appearance without the usual requirement of substantial evidence. Due to the vague language of the proposed legislation, the legality of the proposed measures will inevitably be found unconstitutional on various grounds. The 5th, 6th, 7th, 14th and 15th amendments of the Constitution come into immediate conflict with the proposed bill. Furthermore, basic human rights as outlined in the articles of The Universal Declaration of Human Rights are challenged. If HR494 passed, the bill would undermine the efforts of local communities, civil rights organizations and the government to ensure equality and social justice for all people of all nationalities, races and religions. In practice, encouraging U.S. citizens to report each other without actual evidence opens the door for bias, prejudice, and intolerance to become the law of the land. The bill will do more to harm individual citizens than to protect them from terrorist acts. Introduction Since the 9/11 terrorist attacks, the United States government has explored many options to ensure the safety of U.S. citizens against future terrorist attacks, including the National Security Agency (NSA) electronic surveillance program and the USA Patriot Act. There have been many documented challenges to the constitutionality of such warrantless surveillance programs.1 HR495 follows the trend as another bill that legalizes the invasion of an individuals privacy and violates individual rights without the constitutional guarantee of presumed innocence. Moreover, it prevents the accused from due process, a right that is inherently belonging to all American citizens and granted by the U.S. Constitution. Under the proposed law, See Something, Say Something would allow immunity for individuals who incorrectly or maliciously report suspected terrorists to law enforcement. One of the primary sponsors of the bill, Peter King (R-NY), repeatedly has cited observant, diligent citizens as the reason why many would-be acts of terror were thwarted by law enforcement. He argues that giving immunity to both law enforcement and the individuals who report suspicious activity provide a critical layer of homeland security. Good citizens who report suspicious activity in good faith, he says, should not have to

Halperin, Morton H. A Legal Analysis of the NSA Warrantless Surveillance Program. Director of US Advocacy, Open Society Institute and Senior Fellow, Center for American Progress. 6 January 2006, pp 3

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HR495 See Something Say Something Act American Islamic Congress (AIC) Analysis Paper Office of Government Relations (OGR) worry about being sued.2 King seeks to protect the accuser while the reputation and good name of the falsely-accused can be compromised without recourse. Constitutional Violations Rep. Kings own choice of words good faith appear in Section 890 (a)1: Any person who, in good faith and based on objectively reasonable suspicion, makes, or causes to be made, a voluntary report of covered activity to an authorized official shall be immune from civil liability The vagueness of the language good faith and objectively reasonable suspicion invites a slew of troublesome issues. First of all, there is no objective method of distinguishing a persons good faith and reasonable suspicion from bigotry or ignorance. In fact, ignorant actions are almost always in good faith, since those perpetrating them are ignorant of the truth. There is no way to prove if someone acted in good faith, or from ignorance or prejudice. Due to the obscurity of this crucial section of the bill, those who report suspicious activity can hide behind these words hatred, bigotry, and ignorance are cloaked behind good faith and reasonable suspicion. The bill also serves to exculpate those who are acting out of spite or bigotry. People acting in good faith should have nothing to fear by raising a flag, but people acting out of bigotry should encounter some deterrent. The ambiguity of the bills terminology allows for profuse violations of ones Constitutional rights. They are as follows: Amendment V) The 5th amendment to the Constitution protects citizens from the abuse of government authorities, including law enforcement. HR495 gives immunity to law enforcement who detains suspected terrorists without physical evidence, which produces a clear conflict.3 VI) The 6th amendment guarantees a speedy trial for the accused. Because suspected terrorists are subjected to domestic terror laws, they can be indefinitely held in a

Rep. Peter King (R-NY) in a speech during a session of The House Committee on Homeland Security, dated 26 January 2011. Reprinted: http://homeland.house.gov/press-release/king-introduces-legislationencourage-continued-citizen-involvement-fighting-terrorism 3 Amendment V of the Constitution of the United States: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Transcribed from the Bill of Rights Transcript, Archives.gov (http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html)

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HR495 See Something Say Something Act American Islamic Congress (AIC) Analysis Paper Office of Government Relations (OGR) detention facility despite evidence against an individual, and without a legal representation. This violates the right for a speedy trial.4 VIII) The basis of an arrest under this bill, which includes race and assumed religion, is discriminatory and qualifies as cruel and unusual punishment. XIV) The 14th amendment ensures that all citizens benefit from equal protection of the law.5 The bill not only violates these articles of the Constitution but also existing legislation. Title I Section (102) of the USA Patriot Act states: the civil rights and civil liberties of all Americans, including Arab Americans, Muslim Americans, and Americans from South Asia, must be protected, and that every effort must be taken to preserve their safety6 This provision in the Patriot Act, in Title I section 102, was added after an increase of retaliatory violence against Middle Eastern and South Asian minorities in the United States in the immediate aftermath of 9/11. The main group that was targeted was South Asian Sikhs, who are not Muslim (or terrorists), but fit a stereotypical description of what Middle Easterners may look like. This suggests that although diligent citizens are needed in the fight against terror, they are unfit to judge who or what is supposedly a terror threat.

Amendment VI of the Constitution of the United States: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; 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. Transcribed from the Bill of Rights Transcript, Archives.gov (http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html).
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Amendment XIV of the Constitution of the United States: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Transcribed from the Bill of Rights Transcript, Archives.gov (http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html).
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Sense of Congress condemning discrimination against Arab and Muslim Americans. Title 1. Section (102) of the USA Patriot Act, 26 October 2001

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HR495 See Something Say Something Act American Islamic Congress (AIC) Analysis Paper Office of Government Relations (OGR) Violations to basic and fundamental human rights as declared in The Universal Declaration of Human Rights (UDHR) The See Something, Say Something Act undermines the basic tenets of The Universal Declaration of Human Rights and contradicts the fundamental human rights of the individual in a free society. The UDHR declares that basic human rights must be protected by the rule of law and human beings shall enjoy freedom from fear. This bill negates the principle of innocent till proven guilty and creates and fosters a climate of suspicion and fear. Article I states that All human beings are born free and equal in dignity and rights [and] should act towards one another in a spirit of brotherhood. Basic human rights are given to all men by nature of their birth and because they are human beings. These basic human rights are given to all men without regard to race, color, or creed. The See Something, Say Something Act does not protect the dignity and rights of the individual who is falsely accused. Moreover, it tears at the fabric of diversity and does not promote a spirit of mutual understanding, respect, and tolerance for those who are different from oneself. Article VII states that All are equal before the law and are entitled without any discrimination to equal protection of the law. This act discriminates against a particular group of individuals and allows a biased and prejudiced citizenry cavalierly to accuse others without substantiated evidence or proven facts. There is the assumption of guilt without proof or trial, thus suspension of the basic right of due process. Article IX states that No one shall be subjected to arbitrary arrest, detention or exile. This act functions on the premise that a person can arbitrarily accused and detained merely on supposition and without a speedy trial. Article XI states that Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law This bill assumes the accused is guilty without the benefit of trial or due process which is a basic contradiction to the rights guaranteed by our forefathers in a democratic society. Article XII states that No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against interference or attacks. The See Something, Say Something Act encourages arbitrary accusations without proof and with no consequences or repercussions for the accuser if proven false. On the other hand, the person who is falsely accused suffers a loss of dignity, the possibility of a tainted name, and a ruined reputation.

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HR495 See Something Say Something Act American Islamic Congress (AIC) Analysis Paper Office of Government Relations (OGR) Interference with Law Enforcement At the House Subcommittee on the Constitution, Salt Lake City Police Chief Chris Burbank gave his testimony, which was overall against the See Something, Say Something Act. He expressed concern over the expansion of authority of the police, due to the bills guarantee of immunity to law enforcement. He argues that race, ethnicity and religion cannot be utilized as factors to create suspicion,7 for it builds an environment of mistrust between the police and local communities. Representative Kings own admission is that citizens provide a critical layer of defense against terrorism, but only if they can trust their local and federal police departments. If police are no longer accountable for the miscarriage of justice, they are no longer a resource. A Parallel System of Justice Alleged terrorists who are reported by citizens and apprehended by local police are not subjected to local or state laws, but the domestic terror laws that are enforced by the Federal Bureau of Investigation. The procedures of the F.B.I. are drastically different than those of local police, and they often wobble on the line of legality. For example, an F.B.I. memorandum dated October 21, 2010 stated that agents were to ask any and all questions reasonably prompted before advising the arrestee of his or her Miranda rights. The memorandum also encouraged agents to detain the suspect for a period of time upon the determination of the agent for more questioning, without the presence of a lawyer, to gather timely intelligence.8 Recommendations The American Islamic Congress (AIC) promotes moderation, interfaith dialogue, and understanding among religious and cultural groups. Many people with whom AIC has worked have expressed fear in the other the unknown majority that overwhelms them, or the new minority that scares them. AICs conflict resolution programs in places like Basra a place rife with sectarian violence revealed that people are ignorant because they are fearful. People commit crimes not only because they hate, but they fear the consequences of their inactions. The only way to eradicate this fear is to have an open, continuous dialogue between different religious and cultural groups and, in the spirit of brotherhood, to educate others toward understanding and acceptance of those who are different from themselves.

Burbank, Chris in a HR495 Hearing in the House Subcommittee on the Constitution. 24 June 2011. Reprinted: http://www.slcpd.com/Newsroom/Press_Releases/SLCPD/Chief%20Burbank's%20Testimony%20on%20'S ee%20Something99CM%20Say%20Something%20Act%20of%202011'/
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Federal Bureau of Investigation, 21 October 2010. Custodial Interrogation for Public Safety, reprinted

by the New York Times on 25 March 2011: http://www.nytimes.com/2011/03/25/us/25miranda-text.html. The memo was internal and unsigned.

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HR495 See Something Say Something Act American Islamic Congress (AIC) Analysis Paper Office of Government Relations (OGR) H.R. 495 encourages fear of the other and provides a platform to legalize bigotry without culpability. Bigotry should not be protected by law. Lawmakers in Congress should reject H.R. 495 because it is a violation of the United States Constitution. Conclusions The bill will not only violate several laws and the privacy of others and basic human rights as protected in our Constitution and declared in The Universal Declaration of Rights, it will infringe upon the fragile correspondence between law enforcement and the people they protect. It will make a mockery of the rule of law as citizens are accused and detained without proof and without due process. It removes all disincentive for ordinary citizens to spy upon others and to make accusations without proof and without repercussions or consequences if proven wrong. Essentially, the authors of the bill do not articulate their language clearly enough to ensure it is not abused, and the result will be fundamentally detrimental to society. This bill will created a climate of fear and suspicion and foster more division rather than promote solidarity. This bill cuts against the core principles and values of our democratic society and the protections our forefathers intended for all of us to enjoy. Clearly, people will make judgments upon one another based on their upbringing, political beliefs or social background, but their ignorance should not be enforced or validated by the laws of the United States, which are intended to protect us all. Sources 1. Federal Bureau of Investigation, 21 October 2010. Custodial Interrogation for Public Safety, reprinted by the New York Times on 25 March 2011: http://www.nytimes.com/2011/03/25/us/25miranda-text.html. 2. Sense of Congress condemning discrimination against Arab and Muslim Americans. Title 1. Section (102) of the USA Patriot Act, 26 October 2001 3. Amendments IV-XIV of the Constitution of the United States. 4. Halperin, Morton H. A Legal Analysis of the NSA Warrantless Surveillance Program. Director of US Advocacy, Open Society Institute and Senior Fellow, Center for American Progress. 6 January 2006 5. Rep. Peter King (R-NY) in a speech during a session of The House Committee on Homeland Security, dated 26 January 2011. Reprinted: http://homeland.house.gov/press-release/king-introduces-legislation-encouragecontinued-citizen-involvement-fighting-terrorism 6. Burbank, Chris. Testimony before the House Subcommittee on the Constitution, on HR495 See Something, Say Something Act of 2011, Washington, DC, 24 June 2011 7. The Universal Declaration of Human Rights. United Nations. 1998. For questions, comments or corrections please contact John T. Pinna, Government Relations Coordinator, American Islamic Congress (AIC) at: john@aicongress.org

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