Re: On the crime bill and remailers

[nobody@kaiwan.com (Anonymous)]

>From: Black Unicorn <unicorn@access.digex.net>
>Subject: Re: On the crime bill and remailers 
>
>Anonymous must be a Baker & Botts associate.
Now that's funny.

>> 1) The act does not make it a per se offense to have a remailer.

Below it is asked whether this is assertion or assumption.  Neither.  It
is obvious.  If the act wished to make running a remailer a per se offense
it would simply say so.  It doesn't say anything like that. 

[...much deleted.  Time preses and this is unpaid...e$ anyone?...]
>
>Instead you might ask how the statute will be read in the context of the 
>differing language between the investigation threshold requirement and 
>the definition of offense.  Why would one mention intent so explicitly 
>and the other ignore it?  Did congress anticipate the difficulty of 
>showing intent in this type of prosecution and structure the act 
>accordingly?  This would be my argument as a prosecuter.

This argument is not frivolous.  But I doubt it would work, particularly 
since the counterweight is constitutional due process. 
>
>> 3b) Query: why would it be a violation of due process to
>> have a ban on unknowingly aiding terrorists in the manner Mr. Unicorn 
>> wishes to read the satute?
>
>Ah, but the counter to this arguement (obviously structured well into the 
>statute) is that there will never be any investigation into the offense 
>without resonable facts to suggest intent.  (This is the killjoy to the 
>due process arguement.)

This won't work either.  First, it is not "obviously structured well into
the" badly drafted statute.  Second, a limit on investigations does not in
this world of police and prosecutorial discretion operate as a meaningful,
or even mesurable, limit on prosecutions.  Suppose the police get
information in the course of a separeate investigation?  Suppose they are
following Carlos and see him go into your resturant? 

[...] 
> 
>You rely on the construction tending to constitutionality here, but it is 
>equally valid to construct the statute as meeting the due process 
>requirement via the investagatory intent requirement.  This was my entire

I disagree completely. See above.

>point.  Given the difference in the requirements between allowing 
>investigation and definition of offense, there is a basic imbalance in 
>the act.  Why?  Accident, poor drafting? Intent?

Neither.  A guess, and only that: the investigation limit (which I would
argue is uneforceable) is intended as a signal to cops/sop to civil
libertarrians that the act should not start witch hunts. 

>
>> N.B. these problems could be cured, and due process observed, by finding a
>> duty to make enquiry or imputing a negligence standard of some sort, but
>> we do not see any hint of this in the statute. 
>
>Exactly.  So why are they not?  Why is this never mentioned.  I can only 

stupid drafters is the most likely explanation

>believe that the structure of the statute is intended to provide this 
>arguement as a loophole.  I'm not paranoid enough to want to claim that 
>this is to peg remailer operators specifically, (duh) but what are the 
>implications for a very soft offense definition in a federal crime bill?

Standard operating procedure these days. Hmmm...maybe a literal-minded
court is not so bad? 

[...]
>> Ratzlaf v. United States,
>> 114 S.Ct. 655 (1994) [summary quoted below], in which the Supreme
>> Court imputed a scienter requirement into a money laundering
>> statute which on its face required no such scienter at all.  
>
>I have not had time to look at 31 USC 5324(3) in detail with reference to 
>this problem.  Nor have I looked at the case.  At first glance it looks 
>promising, but I remain a skeptic.  It is too tempting to use the 
>language in the investigatory intent requirement to dismiss the 
>arguements you make.
>

I disagree.  Intent from investigation won't cure the due process problem. 
Intent -- at a minimum in the sense of knowingly committing the act of
aiding a terrorist, not necessarily in the sense of knowing that it is
illegal to do so -- must be read into the offence itself.  Only a very,
very clear statutory command to the contrary would suffice to avoid this
reading -- and then we have pretty much created a per se offense of
running an open remailer since it is impossible to know who you are
dealing with. 

I might add that I believe it would be a violation of the First Amendment
to make running a remailer a per se offense, but that's not required for
the argument 

[...] 
> 
>> //QUOTING-- 
>> SYLLABUS:  > 
>> time it is called into play. Because currency structuring is not 
>> inevitably nefarious, this Court is unpersuaded by the United 
>> States' argument that structuring is so obviously "evil" or 
>> inherently "bad" that the "willfulness" requirement is satisfied 
>> irrespective of the defendant's knowledge of the illegality of 
>> structuring. 
> 
>In any event, this is the real key here.  What do you think a judge will 
>find encrypted remailing rates on the "nefarious" scale?  In context I 
>think it will be quite harsh.  Especially given the very nature of the

Given the importance of money laundering to drug deals, and the 1st
Amendment aspect of remailing, I rate it at least a tie or better. 

[...]

Since we are now being civil, I should note that the Ratzlaf case has been
criticized by almost every commentator as wrongly -- even insanely --
decided, and I tend to agree with the critiques.  Nevertheless, the
decision is of a piece with other odd, hyper literal, statutory
construction cases in the past two years and the odds are it will be
followed. 

SOLONg