The Grand Illusion
A few weeks ago, the Canadian science fiction writer Peter Watts was convicted of “assaulting” U.S. border guards because he failed to listen/heed instructions to remain in his car when he was pulled over for a search at a border crossing. Although the guards’ testimony that Watts had physically assaulted them was refuted, Watts was found guilty because, under the law, failure to follow instructions constituted “assault,” although the only action he took was to be stupid enough to get out of his car when he was told not to. While he was fined and given a suspended sentence, as a now-convicted felon, Watts will henceforth be denied entry to the United States, and, if he were careless enough to sneak in and were discovered, he’d be in much more serious trouble. While more than a few readers and supporters were outraged at Watts’s treatment, Watts and others were even more outraged at a law that classes “failure to obey” the same as assault.
Unfortunately, this sort of legal trickery and legerdemain has a long and less than honorable history in the United States, and probably elsewhere in the world. The American justice establishment has found a number of indirect ways to place people in custody and otherwise convict and sentence them. Perhaps the most well-known was the conviction of the gangster Al Capone, not for the murders, fraud, and mayhem he perpetrated, but for, of all things, income tax evasion.
In 1940 the Congress passed, and the president signed the Alien Registration Act, otherwise known as the Smith Act, which made illegal, among other things, either the membership in any organization which advocated the violent overthrow of the U.S. government or even helping anyone who belonged to such an organization. In effect, that meant the government could legally prosecute anyone who had ever been a member of the Communist party or anyone who ever helped anyone who had ever been a member of that party with any party-related activities, no matter how trivial. Initially, the Act was used only against those who had actually been involved in such activities, but in the late 1940s, the FBI and Senator Joe McCarthy and the House Committee on UnAmerican Activities charged thousands of Americans with violation of the provisions of the Smith Act. If someone admitted helping another who had belonged to the Communist Party, they could theoretically spend up to 20 years in jail. If they denied it and proof was found otherwise, they were guilty of perjury and could also go to jail. Eventually, the Supreme Court declared many of the more far-reaching interpretations and prosecutions under the law unconstitutional, but not before hundreds of people had been sent to jail or had their lives and livelihoods destroyed, either directly or indirectly, for what often amounted to association with friends and business associates.
Flash to the present. According to the Salt Lake Tribune, the U.S. Customs and Border Protection Form No. 1651-0111 asks the following questions:
Have you ever been or are you now involved in espionage or sabotage, or in terrorist activities, or genocide, or between 1933 and 1945, were involved in persecutions associated with Nazi Germany or its allies?
Are you seeking entry to engage in criminal or immoral activities?
Now… it’s a safe bet that no one will ever check the “yes” box following either one of these questions, and many people will ask why the government bothers with asking such stupid questions.
The government knows no one will ever admit to either set or acts or intentions. But… if anyone is ever caught even doing something immoral, not necessarily illegal, if the prosecutors can’t come up with as much evidence as they’d like to lock someone away, they can dig out the handy-dandy form and charge the “entrant” in question with perjury, etc. It’s effectively a form of after-the-fact bureaucratic insurance.
Personally, I can’t say that it exactly reinforces my confidence in American law enforcement’s ability to find and prosecute the worst offenders when every immigrant who even shop-lifted or visited an escort service could be locked away. But then, they did lock up Big Al, even if they couldn’t prove a thing against him on the worst crimes he ordered or committed. So… maybe I shouldn’t complain. Still… Peter Watts is now a felon for what amounts to stupidity, or at the least, lack of common sense, although he never threatened anyone or lifted a hand against either guard.
I’ve studied a fair bit of history, and am having a hard time thinking of a positive example of bureaucracy. Necessary sometimes, but seldom (if ever) actually positive.
Living in Arizona, the immigration issue is very prominent in our every day lives, especially now when the country’s political spotlight is blaring in our eyes over SB1070. So, I have heard about the stupid questions that are asked of people entering the U.S. legally and I couldn’t figure out their purpose until reading this blog. I wonder then, if Steve Nash, a basket ball player for the Phoenix Suns and a Canadian resident alien, could be legally in trouble for his comments to the media about 1070. Could it be pursued that he is trying to subvert our government?
I don’t want to see people in legal trouble over speaking their minds but I really do wish they would do their research before speaking. I am sure Nash did not intend any overthrow of our government but for some reason people listen to “celebrities” as if they are authorities rather than just a professional in their field. (Danny Glover and Shakira both came to AZ to oppose SB1070 and who the are they to comment on AZ’s legal system?)
If you have time Mr. Modesitt, I would like to read your thoughts on AZ’s SB1070 and the media surrounding the bill. Having read and listened to several of your books, most recently Haze, I can respect your opinion as being one of informed thinking.
I look forward to your response.
I am not a lawyer, although I have written regulations and helped draft legislation, but after reading the text of Arizona S.B. 1070. I have to say that I would be very surprised if a number of the provisions, if challenged, are not struck down as unconstitutional, particularly the sections which make it a violation/crime for anyone who “restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.” As I read this, the Arizona code essentially criminalizes any action that doesn’t demand the full maximum penalties and enforcement. Laws are written with a certain flexibility to take into account differing circumstances. Just from reading the text of the bill, I get the impression that the legislation is designed to impose the maximum possible penalties on anyone or everyone who is technically in violation, and could conceivably result in charges against even law enforcement officials if they did not seek maximum penalties and enforcement. This strikes me as a politically punitive law, not one that will solve the serious immigration questions. What tends to get overlooked in the heat of the debates on this issue is that every single human being outside of the continent of Africa is either an immigrant or a descendant of immigrants. Many of the original settlers in Texas, New Mexico, and Arizona, I suspect, would have fallen into the description of illegal immigrants to Mexico before the U.S. acquired the territory. Like today’s “illegals” entering the U.S., those settlers were seeking a better life. So long as conditions in Mexico are so bad that risking life, limb, and imprisonment look preferable to many rather than remaining in Mexico, it’s going to be difficult to stop illegal immigration, at least without a police state mentality and the American equivalent of the Berlin Wall between Mexico and the U.S. Frankly, I doubt we can afford that kind of expense, and something like S.B. 1070 will either result in overloading the Arizona and federal prison system, which will cost taxpayers far more than does illegal immigration or create more innovative counterfeiting of papers and more and more legal actions.
Terrific work! This is the type of information that should be shared around the web. Shame on the search engines for not positioning this post higher!
Living in Arizona, the immigration issue is very prominent in our every day lives, especially now when the country’s political spotlight is blaring in our eyes over SB1070. So, I have heard about the stupid questions that are asked of people entering the U.S. legally and I couldn’t figure out their purpose until reading this blog. I wonder then, if Steve Nash, a basket ball player for the Phoenix Suns and a Canadian resident alien, could be legally in trouble for his comments to the media about 1070. Could it be pursued that he is trying to subvert our government?
I don’t want to see people in legal trouble over speaking their minds but I really do wish they would do their research before speaking. I am sure Nash did not intend any overthrow of our government but for some reason people listen to “celebrities” as if they are authorities rather than just a professional in their field. (Danny Glover and Shakira both came to AZ to oppose SB1070 and who the are they to comment on AZ’s legal system?)
If you have time Mr. Modesitt, I would like to read your thoughts on AZ’s SB1070 and the media surrounding the bill. Having read and listened to several of your books, most recently Haze, I can respect your opinion as being one of informed thinking.
I look forward to your response.
My opinion is listed above in the comments.
No matter what you think of this law, the businesses of Arizona should not be boycotted. They didn’t make the law, the politicians did. This boycott talk is ridiculous.
Excellent. It’s the same here in Auckland. Can be extremely annoying, but that’s how it is in this day and age.
This is the reason I keep going to this blog. I can’t believe I missed so much since the last time!
I’ve studied a fair bit of history, and am having a hard time thinking of a positive example of bureaucracy. Necessary sometimes, but seldom (if ever) actually positive.