Can second-class US citizens be required to carry second-class US passports with a conspicuous stigmatizing “scarlet letter” label? Congress has now said yes.
Yesterday Congress completed its approval of a bill which, assuming it is signed into law by the President, will stigmatize and surveil the international movements of certain US citizens by (1) requiring the State Department to mark their passports with a modern equivalent of an “A for Adulterer” or “J for Jew” (a “visual designation affixed to a conspicuous location on the passport indicating” their status), (2) requiring these individuals to notify the government, in advance, of any intended travel outside the US, including their complete itinerary and any details of their planned movements demanded by the Attorney General, and (3) creating a new pre-crime travel surveillance and policing agency within the DHS to track, log, and alert foreign governments to the intended movements of these travelers.
The bill, H.R. 515, obtained final approval yesterday in the House of Representatives by voice vote, with no real debate and only a handful of members present, under procedures allowing for suspension of normal Congressional rules. [The bill had already been approved by the Senate in December.] But in previous statements about the bill and its predecessors, which Congress has been considering for years, members of Congress have made clear their hope that the combined effect of stigmatized passports, deliberately burdensome reporting requirements, and advance notice to foreign governments from the US government (carrying with it an implicit message that the US wants those foreign governments to deny entry to these US citizens) will effectively prevent these US citizens from traveling abroad at all, and confine them within the borders of the USA.
In an astonishing Orwellianism — but one that perfectly describes the fallacy of the vision embodied in the law — Congress has named the new pre-crime travel policing unit within the DHS the “Angel Watch Center”, claiming for the DHS the omniscient and infallible divine predictive ability of angels to watch over us and protect us from the people they think, or “know” by means that mortals cannot question, are going to commit future crimes.
Demonized categories of individuals are always the guinea pigs for restrictions later extended to the population at large, and this law is no exception. The registration requirements resemble those formerly applied to Communists and other “subversives” and still applied to “foreign agents“, while the stigmatizing labels resemble the blacklisting of supposed “terrorists” on euphemistically-named “watchlists“. In this case, however, the first targets of the new travel surveillance and control measures are so-called “registered sex offenders”.
Just as most of the million people on “terrorist watchlists” are not terrorists, and few have been charged with any crime much less one of terrorism, most of the three quarters of a million people in the USA who have completed their criminal sentences but who are still are required to register with the government as “sex offenders” have neither been accused nor convicted of the crimes that the label “sex offender” connotes to most people who hear it.
“Sex offenders” include people convicted of such mundane and unthreatening “crimes” as public urination, skinny-dipping, or nude sunbathing in a place where that isn’t permitted. Perhaps a third of the people who are required to register as “sex offenders” committed their special crimes when they were juveniles. Consensual sexual activity between teenagers of the same or similar ages can be prosecuted as statutory rape. Because the age of consent for participation in erotic photography is typically higher than the age of consent for sexual intercourse or marriage, “sexting” of naked or suggestive selfies between teenagers old enough to legally engage in sexual intercourse or legally marry and procreate can be, and sometimes is, prosecuted as production and distribution of child pornography! Here’s a TEDx talk on what it means to be a “sex offender” and more from other research and advocacy organizations.
Registration requirements for “sex offenders” can continue for many years, or for life, even after the completion of any criminal sentence of imprisonment, probation, parole, or supervision of the former offender by any court or law enforcement agency other than the “sex offender” registry. These registration requirements are not part of criminal sentences and are not supposed to be part of the punishment for past actions for which offenders have been convicted. Rather, “sex offender” registration schemes are explicitly justified as pre-crime policing to protect the public, especially children, against people who have been deemed likely to commit future offenses. Those pre-crime determinations of likely future behavior are made by legislatures or administrative agencies, not by judges or juries. And they ignore the fact that most sexual abuse of children by adults is perpetrated by family members, not strangers.
(The epitome of pre-crime policing in the USA today is the indefinite civil imprisonment, purportedly neither punitive nor criminal, of so-called “sexually violent predators” who have completed their criminal sentences but who are determined, on the basis of predictive psychological assessments and civil proceedings that fall short of the due process of a criminal trial or the requirement for proof beyond a reasonable doubt, to be “likely” to commit future sexual offenses.)
With respect to travel and movement, Federal law already requires registered “sex offenders” to appear in person at a designated registry office and report any change of residence within the USA within 3 business days. There’s a split between the Federal Circuit Courts as to whether that reporting requirement also applies to registrants who move outside the USA. So a registered “sex offender” leaving the US has to figure out, based which which Federal Circuit in the US they last resided in and the status of the case law in that circuit, whether they are required to report their intended or actual departure from the US.
The Supreme Court is scheduled to hear arguments on March 1, 2016, in a case that might resolve that split between circuits. But the law approved yesterday by Congress is likely to render that question moot by imposing much more extensive reporting requirements for all foreign travel by registered “sex offenders”, including not just departures from and returns to the US but movements while outside the US. Each person subject to the registration requirement must report:
Information relating to intended travel of the sex offender outside the United States, including any anticipated dates and places of departure, arrival, or return, carrier and flight numbers for air travel, destination country and address or other contact information therein, means and purpose of travel, and any other itinerary or other travel-related information required by the Attorney General…. in conformity with any time and manner requirements prescribed by the Attorney General.
The DHS already logs the movements in and out of the US of of all US citizens as well as all foreigners in lifetime personal travel histories included in the Automated Targeting System (ATS). Airlines are already required to transmit both information identifying all passengers (API data) and complete flight itineraries and associated commercial records (PNR data) for all flights to and from the USA to the DHS for inclusion in ATS files. So neither the new international travel reporting requirements nor the new “scarlet letter” on US passports are necessary or useful for US border controls or enforcement of any US law.
The only conceivable purpose of the new reporting requirements — aside from their deliberate burdensomeness and the effect their sponsors hope they will have in deterring legal travel by registrants — is to enhance the ability of the US government to track these US citizens’ movements between places outside the US. The purpose of this global surveillance of movement is unspecified, but all US citizens should be disturbed that the US government is asserting authority to require us to report to the US government all of our our movements from place to place, even when we are moving between places outside US territory or jurisdiction.
The DHS already claims the authority to link ATS records to existing “sex offender” registries or any other government or commercial databases. Visible stigmata on passports are not necessary to flag registered “sex offenders” to US passport inspectors at airports or borders.
The sole purpose that leaves for the conspicuous visible indication on the passport of the passport holder’s status is to induce foreign governments or other third parties to discriminate against holders of those effectively second-class passports. No doubt these passports will still contain the boilerplate language, “The Secretary of State of the United States of America hereby requests all whom it may concern to permit the citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection.” But we have no doubt that foreign governments will get the message that in practice, the US government neither expects nor desires them to act on this request with respect to holders of passports that are conspicuously marked with the “sex offender” scarlet letter. The US might as well designate these citizens as unprotected “outlaws”, since other countries will undoubtedly regard them as fair game for harassment or exclusion.
All US citizens should be terrified by the threat to our right to travel posed by this law, which violates both the US Constitution and the International Covenant on Civil and Political Rights. The Human Rights Defense Center is looking for plaintiffs to challenge this law. We offer them our full support, and we wish them all success.