new—and continuing—danger for some US passport holders

The Frederick Douglass Bill failed to pass in Congress, which might be reason to celebrate if you read my earlier posts about this bill, dangerous amendment to International Megan's Law, and call to action: fight back against IML amendment. Unfortunately, the section of the failed bill that would have expanded the reach of the sex offense registries was dropped into another bill that did pass.

My friend who has been tracking this issue writes again about the devastating impact of this legislation.

Frederick Douglass Bill 'Fails' in Congress
Many people know the story of Frederick Douglass, the escaped slave who became a hero to his nation and his people. Some people also know his famous address, "What to the Slave is the Fourth of July?" In that address Douglass lays bare the hypocrisy at the root of American virtue. That hypocrisy is alive and well today. 

Not least because Frederick Douglass' name has been on a law to fight human trafficking. The descendants of Frederick Douglass came out in support of the bill (H.R. 6552) reauthorizing funds for this law. What they chose to overlook was an unrelated section placed in that bill which would make Frederick Douglass turn in his grave.  

That section was numbered 201. It would have expanded International Megan's Law (IML), the law that brands people convicted of certain historic criminal offenses as dangerous individuals who need to be tracked to the far ends of the earth. It also would have expanded that law to track and brand individuals who already live outside the USA as well as non-US citizens from dozens of countries who fit the same general description as those Americans. 

The reason for these provisions was said to be the need to combat sex tourism. But there is no evidence that any of the tracked people are sex tourists; a person who resides outside the USA is by definition not a tourist. A non-American in their own country is not a tourist. And Americans who have been convicted of the crime of sex tourism are already barred from being issued a passport. What is really taking place is not an effective fight against sex tourism but instead the globalization of discrimination against a despised class of human beings. These human beings are statistically no more dangerous than any other group of human beings. Just more despised. 

Frederick Douglass was accustomed to this treatment. He was not issued a US passport when he applied for one because he was not considered a proper citizen. He was tracked as a fugitive slave. He was said to be dangerous, and people were warned to avoid him. He was also guilty of a sex crime, having decided to cohabit with and marry a woman of another race, which was against the law in many states. 

The lead sponsor of this legislation, Congressman Chris Smith of New Jersey, is a  persistent man. It took him almost a decade and many attempts to pass International Megan's Law. He finally succeeded in getting it passed by tying it to several uncontroversial, noble-sounding bills in 2016. 

This time he failed to cross the finish line before the end of the Congressional session. His reauthorization bill passed the House during the summer with the offensive section 201 removed after many people rightly objected to it; but it died in the Senate.  

However, the story does not end there. His allies in the Senate, Senators John Cornyn and Amy Klobuchar, both former prosecutors, succeeded in resurrecting the language of section 201 in section 323 of another bill, S. 3946, also a human trafficking reauthorization act. 

This change in the law means that the US State Department will now place "unique identifiers" on the passports of even more people. These identifiers consist of language stating that the bearer of the passport was convicted for the sexual abuse of a minor: that is to say, a very broad category of felonies including not just serial rapists but also teenagers caught sexting, viewing pornography, or streaking. 

No longer will this provision of the bill be meant for other countries to determine in advance whether a visiting American poses a danger to their citizens. Americans already living in other countries will also have their passports marked with the warning. It will not say how long ago their conviction occurred or provide any context, leaving it up to the viewer of the passport to imagine the worst; and to do whatever they like to the passport holder. 

Section 323 of the bill also contains language that allows the Department of Homeland Security to share information from US sex offender registries with foreign governments in exchange for information about about "comparable" historic convictions. It does not state what will be done with this information, where and how long it will be kept, with whom it will be shared, how or even if it its accuracy will be checked. 

Needless to say, laws and definitions vary greatly from country to country. Many countries, for example, criminalize same sex activity, or did in the past. Will foreign governments give the names of LGBTQ+ persons to the US government and identify them as dangerous criminals with historic convictions? If so, what will happen to them if they try to enter the USA, or if they're already living in the USA as law-abiding residents? Again, the bill does not say. 

Finally, Section 323 of the bill oversteps the IML by placing these two provisions under other federal laws relating to human trafficking (William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008) and terrorism (Homeland Security Act of 2002). So Americans and others with sex convictions can relax: You are no longer sex tourists! Instead, now under federal law, you are human traffickers and/or terrorists. 

Senators Cornyn and Klobuchar had more success than Representative Smith because their bill was not subject to any committee hearings or debate. Its text was not released until the final week of the session, when it landed on the floor of the Senate and then passed by a voice vote. The next day it went to the House, which passed it in the same way, just before Congress shut down for the year. 

The one detail that appears to have been lost in all this shady legislating is the name of Frederick Douglass. 

Why do such bills become law? It is easy to say that these measures are popular or that nobody wants to vote against them. But it's not that simple. S. 3946 had no co-sponsors besides the two Senators who wrote it. The bills usually pass quickly at the end of a session for a more perverse reason. The truth is that most legislators would rather not have much to do with them. They are promoted by a small, persistent minority of zealots who accede to having them buried in unrelated, uncontroversial legislation. This method is called embedding. For example, Senator Cornyn once hid an anti-abortion provision in a similar bill, and nearly succeeded in getting it passed. This method is not too different from what the notorious abuser Jimmy Savile did by hiding his own obsession in the plain sight of noble charity work. 

Chris Smith is known for his championing of human rights. His service on human rights committees and caucuses, including heading the House's special task force on combating antisemitism, another commission named for a famous Holocaust survivor (Tom Lantos), and for many years the US Helsinki Commission (which was established to defend the freedom of movement), grant him credibility and facilitate the laundering of his hatreds, his prejudices, and his passions. 

Smith comes from the same part of New Jersey as Supreme Court Justice Samuel Alito, who has said that "the United States should not be exporting its pedophile problems to other countries." But that is exactly what it is doing: the number of countries that now have sex offender registries has multiplied since the USA pioneered them. Both Alito and Smith (until recent redistricting) lived in the same town in which poor Megan Kanka, who gave her name to the IML, was murdered.  

It is understandable to want vengeance for crimes. But vengeance does not equate to justice. And collective punishment is never just. 

To put it another way, quoting the late Ruth Bader Ginsburg's dissent in Smith v Doe (2003), such registry laws are "ambiguous in intent and punitive in effect." 

It is not the inquisitors and the vengeful who are entirely to blame for injustice in this instance, however. It is the silent majority. Complicit are the human rights organizations, the clergy, the media, the bureaucrats, and the many legislators who kept silent knowing the damage the IML and related laws have done and will continue to do to the lives of more and more people. Once these provisions start extending their reach, they won't stop unless the silent majority speaks up and says, enough is enough. 

The complicit also include the president who originally signed the IML into law, Barack Obama, who often spoke of having a dignity agenda; and the president who just signed S. 3946, Joe Biden. 

They include the Douglass bill's original co-sponsor, Karen Bass, who is known to be a loyal friend of the LGBTQ+ community and who said, in defending the bill, that its aim is to "protect all of humanity equally." 

They include the three cabinet secretaries whose departments enforce it and related laws: Homeland Security, Justice, and State. All three men have gone out of their way to link their commitment to public service with doing everything they can to prevent a recurrence of the injustice, collective punishment, and dehumanization suffered by members of their families at the hands of the Nazis.  

They include the Senate Majority Leader, who plucked S. 3946 from obscurity for a last-minute vote; and the chairman of the House Judiciary Committee, who did the same before he introduced its passage in the House. Both also happen to be prominent leaders of the Jewish-American community who generally speak up in favor of civil and human rights. 

And they include the constituents of these politicians, such as the large community of Orthodox Jews living in Representative Smith's district who have voted reliably to keep him in office for more than four decades. 

For good reason, Jewish people object to being compared to convicted criminals; but it is a historical fact that no other other country besides Nazi Germany has branded the passports of a despised class of its own citizens. Before the IML the only group of people who were singled out like this were Jews. It should make not just Jewish Americans but all Americans feel sick to their stomachs. 

Yet, again, no major religious, civil or human rights organization has publicly resisted this policy affecting around a million US citizens, including juveniles guilty of nothing more than sending a selfie, and numerous others around the world who may not be guilty of anything at all under US law. None of the groups praising the State Department for recently incorporating a gender-neutral option for passports has criticized it for moving a special warning about illicit sex from the back to the front of the passport book. None of the groups whose members are now regularly praised for their courage and righteousness has spoken out against the same policies of dehumanization and discrimination that were once applied to them.  

This is the same sort of hypocrisy, fear, and cowardice in the face of what are assumed to be insurmountable public attitudes which gives the bigots and oppressors of hated minorities their power and sustenance.  

The inquisitors and their silent accomplices do not speak about such perverse ironies. But Frederick Douglass did. He said, in 1852, "The existence of slavery in this country brands your republicanism as a sham, your humanity as a base pretense, and your Christianity as a lie. It destroys your moral power abroad; it corrupts your politicians at home. It saps the foundation of religion; it makes your name a hissing, and a bye-word to a mocking earth. It is the antagonistic force in your government, the only thing that seriously disturbs and endangers your Union. It fetters your progress; it is the enemy of improvement, the deadly foe of education; it fosters pride; it breeds insolence; it promotes vice; it shelters crime; it is a curse to the earth that supports it; and yet, you cling to it, as if it were the sheet anchor of all your hopes...." 

The anchor was lifted in time, but not enough for Frederick Douglass' name later to be taken in vain. Chris Smith was just reelected. He can be expected to sponsor a good deal more legislation. [Emphasis throughout is mine.]

The existence of sex offense registries makes it possible for our own government to put people at risk both at home and abroad. International Megan's Law makes it possible for foreign governments to do the same.