Bleg: Help me find the “John Doe” provision in the Homeland Security bill; Update: Attorney’s fees provision found
posted at 12:18 pm on July 27, 2007 by Allahpundit
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The Senate passed it last night so it’ll only be a bill for a few more days. A kindly tipster saw my post yesterday questioning whether John Doe immunity matters and told me something I didn’t know — apparently, this is also in the bill:
“Any person or authorized official found to be immune from civil liability under this section shall be entitled to recover from the plaintiff all reasonable costs and attorney fees.”
That’s reassuring. My worry was that there was nothing to deter CAIR from filing bad faith lawsuits with an eye to discouraging reports of suspicious activity. Who wins is almost irrelevant; it’s the threat of expensive protracted litigation that’s the real chiller. The attorney’s fees provision makes that calculus more painful for the plaintiff (although I still prefer my idea for absolute immunity inside airports).
I told the tipster I wanted to see the provision for myself and they told me to look here, but I can’t find it at a glance and don’t have time to pick through it. It’s not in section 1606; that appears to apply to DHS officers only, not passengers. The attorney’s fees provision was in Susan Collins’s Senate amendment that was defeated last week and to the best of my knowledge wasn’t reinserted wholesale into the conference committee version of the bill. Anyone willing and able to help out? If you find the section, e-mail me.
Update: Many thanks to RW Wacko for finding it. I completely missed it — it’s section 1206, starting on Adobe page 322. The attorney’s fees provision is in subsection (c) on the following page.
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Section 1206 Page 323
Your welcome.
jdog on July 27, 2007 at 12:42 PM
Whoa. That’s a relief.
PRCalDude on July 27, 2007 at 12:45 PM
Ummm… is John Doe in Section 1206? Because if not, its not covered….
Romeo13 on July 27, 2007 at 12:47 PM
AP;
My mail server is down. See below.
Sec. 1206. Immunity for reports of suspected terrorist activity or suspicious behavior and response.
Document page 321
captivated_dem on July 27, 2007 at 12:52 PM
Romeo, yes section 1206 is “Immunity for Reports of Suspected Terrorist Activity or Suspicious Behavior and Response”
It covers anyone, not just officials.
You’re welcome, Allah.
RW Wacko on July 27, 2007 at 12:54 PM
jdog on July 27, 2007 at 12:42 PM
Dang yer kwick!!!!
captivated_dem on July 27, 2007 at 12:55 PM
Thanks… finally got it to open, actualy looks better than I thought it would except for one little problem…
You cannot, under the Constitution create Ex Post Facto law… CAIR will go after this on Constitutional grounds.
Romeo13 on July 27, 2007 at 12:59 PM
LOL, you had me there for a second. You can’t … Constitution! Haha, that still cracks me up.
Tell me the one about social security again.
pedestrian on July 27, 2007 at 1:10 PM
Attorney’s fees are a distinct improvement from what we all thought was the entire provision yesterday.
But as much as that might possibly deter CAIR, et al., it still requires the John Doe to defend himself through litigation. I still think the best answer is to form an organization that works with litigators ready to defend these cases pro bono, so that the John Does know they won’t have to front the money for their own defense.
Attila (Pillage Idiot) on July 27, 2007 at 1:48 PM
I meant to highlight the text that says “found to be immune from civil liability.”
Attila (Pillage Idiot) on July 27, 2007 at 1:49 PM
Beautiful!!
And if this fails in action I’m sure that we can improve it with another amendment.
Mcguyver on July 27, 2007 at 2:15 PM
I really think that it should go beyond attorney,s fees. There are many hidden costs involved here. It should include transportation, lost time from work, or in the case of a small business owner who needs to close for court, a recovery of lost income.
I have always been against punitive damages, but I do believe that people should be able to recover what they actually lost.It could make someone think twice before they file a suit.
Big pockets could break the average defendent on hidden costs alone. Take a look at the “Pants” lawsuit. Those people lost a lot of money and time because of some idiot thinking his pants were worth millions of dollars.
BobK on July 27, 2007 at 2:21 PM
Pretty clear to me… this is trying to create an Ex Post Facto law… if they attack this on Constitutional grounds they’ll win.
Romeo13 on July 27, 2007 at 2:42 PM
Hmmmmm…from your news at the top:
Cooties?
Sheikh delays plane over seating
Connie on July 27, 2007 at 3:08 PM
Romeo13,
Ex post facto laws are criminal in nature. This is civil. You can have retroactive effect in a statute governing civil cases, with some limitations.
Attila (Pillage Idiot) on July 27, 2007 at 3:09 PM
Actualy, most of the Civil Law is State law, and thus not covered by the prohibitions on Congress in the Constitution… they are covered by their State Constitutions.
Or is this like the 2nd Amendment… where the right to keep and bear arms shall not be infringed has been interpreted???
A law is anything signed into law by the President, Criminal or Civil IMO… its pretty darn clear.
Romeo13 on July 27, 2007 at 3:14 PM
Romeo13, Congress passes civil law, too. I think the civil/criminal issue was resolved by the Supreme Court in Calder v. Bull in 1798 — yes, 1798 — but you can check me on that. I haven’t read the decision in quite a few years.
Attila (Pillage Idiot) on July 27, 2007 at 3:34 PM
Interesting… so the Supreme Court decided that even thought the Constitution says…
Section. 9.
No Bill of Attainder or ex post facto Law shall be passed.
That Civil law is not covered as a law??? Weird….
Guess they started down that “interpretation” path earlier than I thought….
Romeo13 on July 27, 2007 at 3:39 PM
This article from Cato looks like something you’d enjoy. I’ve just scanned the opening.
Attila (Pillage Idiot) on July 27, 2007 at 3:44 PM
I wonder if Jay Sekulow’s American Center for Law and Justice or Tom Fitton’s Judicial Watch would be appropriate organizations, as both have national security as one of their areas of interest. It might be easier to support them in this sort of focus rather than coming up with a whole new organization. Being in the (geographical) area, Atilla, do you have any idea whether or not this might be a feasible consideration?
eeyore on July 27, 2007 at 4:13 PM
I really don’t know that much about either organization, except that Judicial Watch seems to strike off on its own all the time. Your idea’s good in principle.
Attila (Pillage Idiot) on July 27, 2007 at 4:29 PM
interesting stuff… read up on the case a bit, and you know it does NOT look like they bothered to ask the Framers of the Constitution what they meant? Can’t find any record of testimony… even though this was 1798 and some of them were still alive?
Talk about Judicial activism…. started a LOT earlier than I thought…
Romeo13 on July 27, 2007 at 4:31 PM
What is and what is not an “ex post facto” law is a bit more complex than that Romeo13. The Supreme Court decided quite a long time ago that the prohibition applies to criminal laws. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) - there are some other problems with laws that purport to retroactively change substantive law, but in this case there are good arguments to save it from those problems, given that the real change is procedural rather than substantive.
SPQR on July 27, 2007 at 5:32 PM
SPQR on July 27, 2007 at 5:32 PM
Whats interesting is that these cases will need to be heard by a jury… to decide what is “reasonable”… just now CAIR will have to pay up after the fact…
Romeo13 on July 27, 2007 at 5:48 PM
OT: Apparently MSM means “men having sex with men”.
“Naugle also called upon “responsible members of the homosexual community” to help the city put a stop to this public homosexual behavior. He stated that the county health department recently announced that Broward County is leading the nation in new HIV/AIDS cases in the MSM (men having sex with men) category and criticized the Tourist Board for inviting homosexuals to Broward County with the HIV/AIDS health crisis ongoing.”
aengus on July 27, 2007 at 7:03 PM