Tuesday, September 29, 2015

When Insulting the Police is a "Crime"

Three residents of Arena, Wisconsin posted critical and provocative messages on the Facebook page of the local police department. All of those comments were purged by the officer who administered that page. Only one of them, however, resulted in criminal charges.

Thomas Smith was arrested and charged with “disorderly conduct” and “unlawful use of a computerized communication system” in a fashion that “tended to cause a disturbance.” Following a brief and perfunctory trial in which Smith's written comments were the only “evidence” used against him, the 23-year-old was convicted and sentenced to a year of probation and 25 hours of “community service.”

The settlement would probably be enough to cover Smith's legal expenses. It certainly wouldn't be adequate compensation for a three-year legal ordeal orchestrated by petulant, power-intoxicated police officers and city prosecutors who pretended to be enforcing community standards, rather than engaging in transparent retaliation against a critic. In addition to serving a day of pre-trial detention, Smith was subjected to bail conditions that denied him use of a computer or a cell phone for any non-employment-related purpose, and as a condition of bail he was required to share his passwords with the Iowa County Sheriff's Office.

In substantive terms, Smith was subjected to a form of probation as punishment for an “offense” that had yet to be proven.
Arena PD Chief Lonnie Drinkall (r.).

The comments that prompted the malign attention of the Arena PD were posted on a July 20, 2012 Facebook thread in which department announced the arrest of three African-American males suspected of trespassing and breaking into homes in the village the previous day. 

Reacting to previous comments that had been critical of the department's performance – an important point to which we will return -- Smith posted two brief contributions in which he gave unfiltered (and ungrammatical) expression to his views regarding law enforcement and race relations.

F**k the f***ing cops,” Smith opined. “They ain't sh*t. But f***ing racist bastards and f****g y'all who is racist. F**k them n****rs policy b*tches. What the you got on us? Not a dam thing so f**k off d*cks.”

During the trial, defense attorney Thomas Aquino pointed out that the defendant “ is not accused of hitting someone or stealing anything. What he is accused of is writing some words on Facebook.” Yes, Aquino acknowledged, the words were “uncivil” and even “naughty,” but posting them wasn't a crime.

Rising from his fainting couch and primly clasping a handkerchief to his breast, Iowa County Assistant District Attorney Matthew Allen insisted that by writing those comments Smith had not engaged in “constitutionally protected speech,” but rather in “indecent, profane and boisterous conduct” that was an incitement to a public “disturbance.”

In this day and age … where more communication is done by e-mails and texts and social media it's all the more important that standards be enforced with respect to written comments such as the ones posted by Mr. Smith,” Allen piously admonished the jury, urging them not to allow the author to “evade accountability.”
Arena PD Officer Stroik with a fellow LEO.

Smith's comments were discovered two days after they were posted by Officer Nicholas Stroik, who served as the administrator for the department's Facebook page. Stroik, predictably, made a hard copy of the offensive post and then deleted it from the page. Significantly, he also deleted negative comments posted by Arena residents Kim Marks and Dana Willey, both of whom also accused – albeit in more oblique fashion – the department of racism. In fact, they had made those accusations before Smith happened upon the Facebook thread.

Marks and Willey “did not use profanity,” Allen pointed out to the jury. “They did not use the `n-word,' no vulgar comments or attacks [were involved], and that's why we're here prosecuting Mr. Smith's post.”

Allen insisted that Smith had written his comments with the purpose of “intimidating” the bold and valiant paladins of public order who patrol the forbidding streets of Arena, Wisconsin – two square miles inhabited by about 800 people whose ethnic homogenity makes the Osmond family look like the United Colors of Benetton.

Now, I grant that no amount of body armor adequate to protect the uniquely vulnerable egos of police officers who are targeted for abuse and ridicule. This is why we are told that growing – and still woefully inadequate – public criticism of law enforcement is nothing less than a “war on police,” and that high-profile criticism of cops is akin to ISIS-caliber terrorism.

Even if we accept that premise as applied to Smith's Facebook postings, however, we're left with the insurmountable fact that Thomas's comment was not primarily directed at the police. He was replying to the previous remarks published by Marks and Willey, who had introduced the subject of race into the discussion. That critically important fact fell victim to the prosecutor's skillful misdirection.

Smith's splenetic outburst protested what he perceives to be the ubiquitous plague of racism, which he considers especially acute among police officers. Rather than threatening the police, Smith's comments urged them – using language of the kind that routinely emerges from the tax-devouring gullets of police officers – to leave him alone.

The observations offered by Marks, on the other hand, were forthrightly contemptuous of the Arena police.

Marks began that discussion by offering a sarcastic “You're so very welcome” to the statement from the Arena PD thanking local residents for helping to apprehend the suspects.

Thanks for searching my house and accusing me of harboring so-called dangerous fugitives that I don't even know,” she continued. “Wasting time searching people's houses when the fugitives were no where near there. And since when is it okay for a resident to point a gun at a couple of kid's heads? If that was anyone else's kids [I'm] pretty sure it would be a big deal. Oh, wait though. They were black so it's okay. Thanks to everyone that made our town look like nothing but a racist, prejudice[d] place to live. I'm embarrassed to say I'm part of that kind of community. If I were black, I'd run, too.”

And don't anybody say it isn't about race because it is when I ask the cop specifically what they look like and his response is they will stand out because they don't belong here,” Willey replied a few minutes later.

As ADA Allen pointed out, neither of those posts contained vulgarity or racial epithets. They did, however, contain what could be characterized as “attacks” on the professionalism, competence, and integrity of the police department, in addition to overt accusations of racial bias. This is why Officer Stroik removed them from the comment thread, while preserving several others that were laudatory. Since this was done by a government agency, that selective deletion must be regarded as content-specific censorship of citizen complaints.

Shortly before closing arguments, Judge William Dyke sent the jury out to lunch while he considered – in the most perfunctory fashion imaginable – a motion for summary judgment from defense attorney Thomas Aquino. Dyke batted away Aquino's argument that Smith had engaged in protected political speech by ruling that “there was a display of hostility, provocatory [sic] language and inciting or inviting controversy, inviting what would appear as the messages progressed to be intending to incite illegal behaviors. That it held the community and the police up to ridicule and contempt and contumely....” (Emphasis added.)

Judge Dyke was clearly holding Smith solely responsible for “incitement” during a conversation in which all three participants displayed potentially provocative and inciteful “hostility” toward the Arena Police.

Recall that Marks, who is white, described herself as “embarrassed” to live in a community that could be perceived as racist. Furthermore, by her own admission, she deliberately cast aspersions on the police department. During her brief testimony in Smith's trial, Willey explained that she wrote her critical comment “because I didn't think that the Arena Police Department did a very good job in locating the suspects when the citizens of Arena are the ones who actively detained them.”

All three of the negative Facebook comments met Judge Dyke's definition of unprotected, disorderly “electronic communications” – a standard that does not require the use of profane language. Yet after he deleted all three of those messages, Officer Stroik focused only on the one posted by Smith.

Twenty minutes after Stroik excised the comments from the Facebook page, Smith was contacted by Officer Nicholas Zimpel, who “invited” the twenty-two-year-old to visit the Arena PD headquarters to “discuss” the post. Zimpel didn't bother to disclose that Stroik had filed a six-count criminal complaint against him. At the time, Smith was headed to the Milwaukee County Fair and – as his Facebook post made clear – he understandably had no interest in having anything to do with the police. Determined not to allow “contempt of cop” to go unpunished, the Arena police materialized at Smith's home the following day and placed him under arrest.
The pitiless streets of Arena, Wisconsin.

Both Marks and Willey, who had publicly ridiculed the Arena PD and accused it of racism, were known to the police, yet Stroik simply deleted their comments rather than pressing charges. By focusing exclusively on Smith, a young black man, the department arguably validated those accusations.

Predictably, the prosecution in Smith's trial, anticipating an appeal, implanted the notion that the Facebook post constituted “fighting words” and was thus a form of criminal conduct. They were probably aware that the claim was facially absurd.

I agree with the State that context matters, but the facts of this case do not persuade me that Smith’s comments had a tendency to incite an immediate breach of the peace by others against the police,” wrote Judge Paul Lundsten on behalf of the Court of Appeals. “The State’s argument and supporting evidence are simply too vague as to who Smith’s comments would have incited and what immediate breach of the peace might have resulted.”

Even if Smith's comments had found a receptive audience in Arena, the torpid hamlet doesn't have a population large enough to generate a riot. However, five of its residents belong to that segment of society claiming the right to initiate violence and escalate it until those thus targeted either submit or die – and it was those state-licensed practitioners of coercion who committed a breach of the peace by abducting Smith at gunpoint.  

Police in Evansville, Indiana respond to a "provocative"social media comment.
Thomas Smith, who eventually received modest compensation for his suffering, is one of a growing number of citizens who have faced retaliation by police for critical comments made through social media. Impudent Mundanes have been targeted by orchestrated police union campaigns intended to destroy the livelihood, hit with felony “witness intimidation” charges, and even prompted no-knock SWAT raids.

It's worth noting that although locating and detaining three young men suspected of property crimes was beyond the competence of the Arena PD, the department was a model of efficiency in tracking down and arresting a harmless fellow who had posted an offensive note on their Facebook page. In that contrast we see a splendid example of the institutional vanity of government law enforcement – and a good and sufficient illustration of why we would be much better off without it. 

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Dum spiro, pugno!

Monday, September 21, 2015

He Wouldn't Back Down: The Bittersweet Victory of Brian McNelis

He wouldn't back down: Brian J. McNelis, left, with his companion, Leslie White.

Brian McNelis was still recovering from a police raid that wrecked his home and threatened to destroy his commercial painting business when he learned that the state intended to separate him from his daughter. 

On January 6, 2010, a counter-narcotics task force headed by the Ada County Sheriff's Office invaded McNelis's home in Boise, brandishing a warrant claiming that Detective Stephen Craig had discovered “marijuana trimmings” during an early-morning “trash pull” earlier that day. 
McNelis and his companion Leslie White were arrested on drug-related charges. Two days later, as Brian prepared for an “emergency shelter care” hearing for his teenaged daughter Dory (whose name has been changed for the purpose of this article), he was confronted by a deputy, identified in court documents as “Officer Rodante,”who demanded that he surrender custody of the girl. 
I was told that if I proceeded with the hearing, and tried to assert my parental rights, I would be arrested on the spot on felony charges of child endangerment and injury to a child,” McNelis told me. “I didn't have any real choice in the matter. If I had tried to protect my daughter, I would have been taken away in handcuffs, and she would have been seized by the state anyway.”

Brian hasn't seen Dory since that day. Interviewed by a social worker a few days later, she was furious over being separated from her father and angrily defended him against the allegations, according to Brian. As the years accumulated, however, she came to believe what she was being told by the officials who had abducted her – and who, after all, controlled the information she received about her father. 
She is a brilliant, talented young woman who was the center of my existence,” Brian sadly recalled. “Like other people close to me, she now believes that I'm a drug dealer.”

Ada County Mundanes admire their overlords' lethal toy.
If Dory, who is now a young adult, had been allowed to remain with her father, she could have helped celebrate his victory over the people who had torn their family apart.

The abuse inflicted upon McNelis is infuriatingly commonplace in post-constitutional America. The legal vindication he won last May 15 following a five-year legal ordeal was very much out of the ordinary. Following a four-day federal civil trial in which McNelis represented himself, a jury ruled that Detective Craig had perjured himself in order to obtain the warrant that led to the January 6, 2010 raid on McNelis's home.

In his affidavit requesting a search warrant, Deputy Craig reported an anonymous tip from someone identified only as “Damien” who said that there were “a half-dozen” marijuana plants growing outside McNelis's home. In December 29, 2009, Craig reportedly conducted a “trash pull” outside the residence that yielded no evidence of a crime. A second “pull” allegedly carried out after midnight on the morning of January 6 supposedly yielded “clippings of suspected marijuana plants” that “produced a presumptive positive for marijuana” in a field test. He also to have “located mail bearing the name Brian McNelis with the address of 2830 Cloverdale, Boise, Idaho” in the same container.

How much stuff was there?” Craig was subsequently asked by ACSO internal affairs investigator John Lewis.

I really don't know,” Craig replied.

Did you take any pictures of any of this stuff?” Lewis inquired.

No, I did not,” Craig admitted.

You didn't send it to the ISP [Idaho State Police] forensic lab, correct?” persisted Lewis.

That's correct,” Craig responded, explaining that “I felt that there was no need to. It was a small quantity, field test was positive.” For the same reason, Craig continued, he didn't bother to tell his patrol supervisor about his discovery at the time.

Not only did Craig not bother to document his alleged discovery, the “evidence” he supposedly used to confirm that the trash through which he had rummaged had actually belonged to McNelis – an unremarkable white envelope bearing the suspect's name – was unpersuasive. 
I don't know if it was junk mail or a bill,” Craig explained to the internal affairs officer. “I didn't look at it.”

Implausibilities, misrepresentations, and errors abounded in Craig's affidavit. In describing the trash pull, Craig incorrectly listed BFI as the trash removal company, rather than Allied Waste, and listed the wrong day for garbage removal. 
Despite his claims to have conducted an investigation that lasted nearly half a year, Craig could not accurately describe McNelis's home. He gave the wrong street as McNelis's address. He described the house as having “white vertical siding and white trim,” when it was actually brown, referred to one outbuilding when there were two on the property, and referred to multiple “windows” in the garage when only one existed. McNelis misreported the time of the second trash pull, offering a chronology that would have had him working a 20-hour shift. 
Most seriously, Craig falsely claimed to have submitted evidence from the trash pull to the Ada County Sheriff's Office property room on December 30. It wasn't until nearly a month later – January 20, two weeks after the raid on McNelis's home – that Craig and his Deputy Jose Del Rio, his comrade in the ACSO's “ACTION" (Anti-Crime Team In Our Neighborhood) unit placed evidence of any kind in the property room. 
In sworn testimony at the probable cause hearing, Craig insisted that the supposed clippings had been “stored in the property room” by the time of the raid, and that “I did not transfer property” following service of the warrant. However, Craig later insisted that the original marijuana evidence had been kept in a safe in the ACTION unit's office – which would mean, in any case, that the chain of custody had been broken.

During the January 6 search of McNelis's home, Craig claimed to have seized “grow lights” and a substantial quantity of processed marijuana. None of that evidence was properly accounted for or ever produced. Three invoices from the ACSO's property room all have handwritten alterations to back-date receipt of the evidence. 
Yes, Craig is a liar: Judge Hansen.

Roughly a year after the raid on McNelis's home, Judge Timothy Hansen of Idaho's Fourth Circuit Court ruled that the search warrant was invalid.

In a Memorandum and Order issued on April 15, 2011, Judge Hansen found that Deputy Craig had “knowingly, intentionally, or with reckless disregard for the truth” incorporated false statements into his affidavit. Judge Hansen reiterated that finding on August 8 in response to a plaintive motion to reconsider filed by the Ada County Prosecutor's office.

If Craig's affidavit had been truthful, his behavior would have been “legal” – and utterly mortifying: Following an anonymous tip, he would have kept a home under surveillance for months, picking through garbage in pursuit of a handful of dried vegetable matter that would have “justified” a raid, criminal charges, and the disruption of a loving family. Judge Hansen's ruling certified that that Deputy Stephen Craig, in addition to being suitable for service in the Stasi, is a liar. 
Judge Hansen's ruling led to the interview with ACSO internal affairs investigator John Lewis, whose highest priority was to save the deceitful deputy's career, rather than to protect the public or provide redress to Brain McNelis.

As in all exercises of this kind, the officer was informed of his “Garrity” privileges – under which his disclosures could be used only for disciplinary purposes, rather than to build a criminal case. When a mere commoner is interrogated by a police officer, the investigator will often seek to prompt the subject into making damaging admissions, or even confessing to an offense he didn't commit. Lewis used similar tactics in an effort to elicit self-serving answers from Craig that would help his superiors exonerate him.

Sir, I'm not here to hang you out to dry,” Lewis assured Craig. “I'm just trying to get the facts and try to make sure that your career is not going to end up in the shambles.... [T]he more than I can come up with and show the prosecutor's office, the better they're going to be able to go back to the judge and say, `This guy didn't lie. He just made some administrative errors in the thing.'”

Not surprisingly, Lewis found that Craig had committed “errors” and omissions, but declined to rule that the detective had submitted a false report. Shortly thereafter, Craig's boss, former Ada County Sheriff Gary Raney, notified the deputy that he would be suspended “without pay for one day or the equivalent of eight (8) hours” on the following September 30 as punishment for “administrative violations.”

Rather than manning up and accepting that trivial and inadequate punishment, Craig decided to quit.

“This letter is to notify you of my decision to tender my resignation as an Ada County Detective in order to pursue other employment opportunities,” Craig informed Sheriff Raney in a letter dated September 26, 2011.

This allowed Craig to use his accumulated vacation and “compensatory” time to secure a job with another law enforcement agency – Idaho's Canyon County Sheriff's Office, where he remains employed today. Just as importantly, by ducking the suspension Craig may have obscured the fact that he is a repeat offender: While employed as a police officer in Howard County, Maryland in 2000, Craig was suspended for an unlawful search by “popping open” the trunk of an automobile without a warrant or probable cause.

Craig's actions display “a serious pattern of continued disregard for the laws of the United States,” complained McNelis in a May 12 letter to Assistant U.S. Attorney Lynn Lamprecht. Protesting that Craig “attacked me, my family, and my home” by lying to a judge to obtain a search warrant, McNelis told the federal prosecutor that he fears “for the safety of my family, myself, and all Idaho citizens [who] are subjected to this man's unchecked, illegal means and methods as a police officer.”

Apart from the likelihood that Craig -- an impenitent perjurer and serial violator of the Fourth Amendment -- could abuse the rights of other innocent citizens, his well-documented hostility to the truth could easily compromise investigations involving crimes of violence, McNelis warned Lamprecht: “Will the mandatory release of `Brady material' on Stephen Craig provide the loophole that allows a murderer, child molester, or rapist to walk free?”

In his letter to Lamprecht, McNelis also referred to a May 11 conversation in which he asked the assistant U.S. attorney to investigate Craig -- and described the stone wall of stolid indifference upon which that request shattered.

After speaking to you personally … I was contacted by an FBI agent two hours later who did not provide his last name or badge number and only identified himself as `Kyle,'” McNelis recalled. “Kyle informed me that due to your unsupported decision to not pursue any form of criminal charges against Stephen Craig he would be unable to initiate any investigation whatsoever into this matters.”

Preening racketeer Gary Raney, now enjoying a federal sinecure.

Predictably, nobody has been held accountable for what was done to McNelis and his family. Like Craig, Officer Del Rio remains in law enforcement as an officer with the Boise Police Department (where he is paid more than $61,000 a year). Sheriff Raney resigned earlier this year, roughly half-way through his third elected term, to take a new position with the Justice Department that is essentially a well-compensated sinecure. Raney, who had been one of the highest-paid government officials in Idaho, arranged for his resignation to take effect the day that he became eligible to collect his $64,000 annual pension. (Idaho's average annual household income in 2014 was a little less than $48,000.)

Ada County spent more than a half-million dollars in their futile effort to defeat McNelis's pro se civil rights lawsuit. This included dispatching deputies to Florida in an effort to interview his hostile ex-wife, and retainers for “expert witnesses” – including Les Kjemhus, a drug war profiteer and former RCMP official who now operates a lucrative drug war consulting business. 
Take off, eh! Former RCMP pot "expert" Kjemhus.

Without the benefit of legal training or tax subsidies, McNelis spent a considerable amount seeking redress for “irreparable damages” to family relationships (beginning with losing custody of his daughter), his business, and his personal reputation.

Untutored in law but armed with an agile mind and an invincible determination to pursue justice, McNelis stood alone against the Ada County government – represented in court by a panel of five well-paid government attorneys – and won. 

The jury that ruled in McNelis's favor – acknowledging the injuries that had been inflicted on him and his family through the dishonesty of Deputy Craig and the agency that employed him – awarded the victim damages in the amount of a single dollar.

Obviously, the jury that heard the case couldn't ignore the facts, but it also couldn't conceal its contempt for a man who impudently refused to submit to his overseers. That doesn't diminish in any way the magnitude of McNelis's victory over the corrupt agency that laid siege to his family: They took his daughter, so he kicked their ass. 

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Dum spiro, pugno!

Thursday, September 17, 2015

“We Do Not Need You”: The Blue Supremacist Credo

I was thrown under the bus for expressing my First Amendment rights,” complained former Surf City, North Carolina Police Chief Mike Halstead following his compelled resignation on September 15. Halstead was ousted after publishing a Facebook post in which he regurgitated a pre-digested slurry of punitive populist talking points about the nonexistent “war on police.”

The focus of the controversy was not upon Chief Halstead's derivative, predictable, and predictably ill-informed political opinions, or the adolescent vulgarity he used to express them, but the fashion in which he reduced the matter of lethal force by police into purely tribalist terms.

Now let me say this, and this is not a threat but common knowledge,” wrote Halstead. “I have instructed my officers to be vigilant, if threatened take appropriate action. If that means shoot a thug, then do it and answer for it while you are still alive not dead. Law Enforcement is fed up with this murderous society who want to take out those who protect and serve.” (Emphasis added.)

With a slight transposition, that admonition would be treated as a prosecutable threat. A Facebook post urging citizens to shoot police officers whenever they feel threatened by them because the public is “fed up with this murderous institution that routinely kills those whom it supposedly protects and serves” would lead to an immediate arrest and criminal charges against its author. This is not a hypothetical proposition, as several cases of this kind attest. 
One unintended service offered by Halstead was his candid expression of the defining conceit of law enforcement – namely, that Mundanes exist to be ruled, not to be served, by the police:

Imagine if all law enforcement shut down for just [one] day. There would be murders, rapes, robberies, you name it. America wake up, all of you black, white, Mexican whatever you need the police, we do not need you.(Emphasis added.) As documented in a survey conducted by the Police Foundation decades ago, police patrols do nothing to deter violent crime, which means that their absence for a day would not have the catastrophic impact Halstead pretends it would.

Last fall, in an entirely typical fit of union-facilitated petulance, New York City's Thin Blue Whine conducted what it called a “work” stoppage in certain neighborhoods, declining to enforce “quality of life” ordinances. Neighborhoods targeted for what had been intended as punitive neglect were exhilarated by the absence of armed pests, plunderers, and parasitesand the city witnessed a historic decline in the murder rate.

Chief Halstead's unwarranted confidence in daring people to imagine an un-regimented society brings to mind a similarly ill-conceived rhetorical gambit by high-viscosity cartoon attorney Lionel Hutz.

Can you imagine a world without lawyers?” Hutz asked, only to shudder in horror as he saw a vision of spontaneous cooperation and goodwill among people in a society free from litigious discord.

Halstead made a feint in the direction of social harmony, urging activists to end “this Black Lives Matter bull sh*t and start a movement that all lives matter.” Like others in his tax-feeding cohort, however, what Halstead means is that only “Blue Lives” matter – or that, at least, they matter more than any others: “Be safe all of my Brothers and Sisters in blue, not white, black, yellow or brown [--] BLUE.”

Halstead insists that he is giving expression to the otherwise unspoken sentiments of his comrades in the State's coercive caste. There is every reason to believe this to be true. His is the authentic voice of Blue Supremacism.

Given the power and privileges of his position, and his professional connections with people with the means to commit acts of aggressive violence, Halstead's Facebook post could be construed as a “true threat” – if he had been subject to the same standards that govern the public at large. 
Although he lost his job, Halstead doesn't face the prospect of being prosecuted. That kind of treatment is reserved for uppity Mundanes like Meridian, Idaho resident Matthew Townsend, who faces a trial in January on charges of “witness intimidation” for a Facebook post protesting the abuse he suffered at the hands of Meridian PD Corporal Richard Brockbank.

At a pre-trial conference held today – September 17, which as it happens is Constitution Day – the Ada County Prosecutor's Office made it clear that it was not interested in settling the case.

If convicted, Townsend would face a prison term of up to five years. 
Townsend was conducting a street protest in front of a tax preparation service in Meridian, Idaho when he was arrested by Officer Brockbank for “resisting and obstructing” on January 30. Although Brockbank claimed to have witnessed Townsend jaywalking, his incident report does not describe conduct amounting to a violation of the relevant statute.

During his contact with the protester, Brockbank tried to get him to admit to obstructing traffic. After a brief discussion, Townsend asked if he was being charged; when the officer didn’t reply, Townsend ended the contact and legally crossed the street. Brockbank arrested Townsend on the other side of the street without incident – yet charged him with “resisting and obstructing” for the act of walking away from him without permission.

Townsend’s March 18 Facebook post – characterized repeatedly by Ada County assistant prosecutor Tanner Stellmon as “threats levied against the officer” – was a conditional promise to engage in a “non-violent and legal shame campaign” involving “peaceful but … annoying avenues” of protest. By announcing his planned protest, Townsend “sought to thwart the criminal justice system at its most base level,” contended ADA Stellmon.

During an April 15 probable cause hearing, District Judge Judy Gardunia agreed, claiming that by warning of “consequences” that would follow if the charge against him weren’t dropped Townsend went “well beyond just making a statement.” Gardunia ruled that there was probable cause to prosecute the author of that post, local activist Matthew Townsend III, on a charge of “felonious intimidation of a state witness” despite the fact that nothing in his Facebook post or conduct meets the relevant definition under existing state or federal precedents.

The prosecution's objective in the probable cause hearing was to demonstrate that Richard Brockbank is the kind of timid, cringing creature who can be deterred from offering testimony by the “threat” of facing public criticism. The officer was equal to that task: Attired in body armor, carrying a gun and several other “less-lethal” weapons, Corporal Richard Brockbank swaggered to the witness stand in Boise’s Ada County Courthouse to testify that he had been intimidated by what was described as a “contentious and hostile” Facebook post by a citizen he had arrested.

When he looks in the mirror, Richard Brockbank probably sees an intrepid badass; his behavior is akin to that of an ideologically enraptured feminist who is sensitive to “trigger warnings” and perceives “micro-aggressions” in unremarkable everyday conversations.

Two versions of the Facebook post were published by Townsend, both of which notified Brockbank and other public officials that “I know where you all live” while offering the explicit disclaimer that “this is notification of knowledge and future protests, not a threat.” In his testimony, Corporal Brockbank – who seems to claimed that “in my world” such language is perceived as “a threat to my personal safety.” Once again, this is the kind of thing that could be expected from people who promote campus speech codes and similar ventures in ideological hypersensitivity.

Seeking to validate his concerns, Brockbank alluded to a recent case in which “an officer in Idaho Falls had his house burned down” by someone he had arrested. Although he offered no specifics, he appeared to refer to a December 15 incident in which Idaho Falls resident Melvin Savage set fire to the home of attorney Laurie Gaffney, who had represented Savage’s wife in a tumultuous divorce. Gaffney’s husband is Idaho Falls police officer Eric Andersen. 

Although Savage clearly nursed a grudge against Gaffney, there is no record that he was ever arrested by her husband. During the two week period leading up to the arson attack, an unknown perpetrator believed to be Savage repeatedly slashed the tires on Andersen’s patrol car, which was parked in the driveway of the couple’s home.

Savage, who subsequently pleaded guilty to a charge of arson, worked up to that offense after sending Gaffney a sending the attorney a series of threatening emails, including one in which he promised to visit her office and sign the final divorce decree “in blood.” That overt threat of violence, and the acts of vandalism he is suspected of committing, stand in sharp contrast to Townsend’s publicly announced intention to use peaceful and legal means to protest what he believed to be an unlawful and vindictive arrest.

At the April 15 hearing the prosecution focused intently on the fact that the first version of Townsend’s post described three “options”: “Drop the charges and leave me alone”; “Endure my non-violent retaliation (do you want to be the focus of my rage?)”; or “Kill me and deal with those that know, love, and care about me.” (Emphasis added.)

Townsend has explained that the third “option” reflects his belief that government is legalized lethal force, and that Brockbank’s actions display a willingness to use force and continue escalating it without clear justification. After all, that's the purpose of all the implements of violence with which Brockbank was accoutered when he testified that Townsend's Facebook post made his little heart quiver.

During cross-examination by defense attorney Aaron Tribble, Meridian Police Department Deputy Chief Tracey Basterrechea said that Townsend’s statement that “we could kill him” seemed “threatening to me.” A spectator who involuntarily reacted to that statement with an incredulous chuckle was rebuked by Judge Gardunia, who threatened to have him removed from the courtroom if he engaged in “another outburst.”

After repeatedly describing the Facebook post as an implicit threat of physical harm to Brockbank, prosecutor Stellmon repeatedly objected on the grounds of “relevance” each time defense counsel Tribble asked the witnesses to provide a foundation for that characterization. Gardunia sustained each of those objections, and eventually accepted Stellmon’s argument that any stated intention to engage in even peaceful reprisals meets the statutory definition of “witness intimidation.”

Under Idaho case law, Townsend’s actions do not qualify as witness intimidation. In its 2007 ruling in State vs. Anderson, the Idaho Supreme Court overturned the conviction of a man who left a hostile phone message with the police officer who had arrested him on a domestic violence charge. In his complaint, Officer Timothy Neal of the Coeur d’Alene Police Department reported that John Anderson had promised that if the charge wasn’t dropped he would “get me on the stand and let people know I’m gay.”

The Idaho Supreme Court ruled that Anderson’s statement may been made “for the purpose of venting his anger or simply to irritate or annoy Officer Neal,” but that the state never demonstrated that it demonstrated the intent to prevent the officer “from testifying freely, fully, and truthfully….”

In a 2011 case, the Idaho Court of Appeals overturned a witness intimidation conviction involving a home invasion by relatives of a man facing a narcotics charge. One of the intruders held a .45 caliber handgun to the face of Sarah Phelps, a police informant who was prepared to testify against a defendant named Mike O’Neill.
Flying the tribal colors at a recent parade..

Michael told us,” the assailant allegedly told Phelps. “You’re f****d. You’re going down.”
The Appeals Court observed that while the break-in was an act of “retaliation,” it wasn’t proven that it was carried out for the purpose of “affecting future testimony” – and thus didn’t meet the statutory standard for “witness intimidation.”

Townsend never demanded that Brockbank refrain from testifying “freely, fully, and truthfully.” Nor did he demand that the hearing not go forward, and as Brockbank admitted, the officer didn’t have the ability to prevent the hearing from taking place even if that had been Townsend's intent. Furthermore, Townsend’s comments clearly indicated that he planned to be present for the hearing, and expected that the “resisting and obstructing” charge would be dismissed on its merits, or lack thereof.

Corporal Richard Brockbank and the Ada County Prosecutor's Office claim that a single Facebook post “threatening” a legal, non-violent “shame” campaign was an act of intimidation comparable to – in fact, graver than – a home invasion in which a gun was held to the face of an unarmed, terrified woman. Hyperbole of this kind has become routine on behalf of Blue Supremacists who claim that public criticism of law enforcement is a form of terrorism.

Dum spiro, pugno! 

Thursday, September 10, 2015

Six Decades of the "Condor": Washington's "Counter-insurgency" Strategy Goes Domestic

Under William Bradford's legal scheme, posting this photo would make me a "fifth columnist."
"Our morality has no precedent, and our humanity is absolute, because it rests on a new ideal. Our aim is to destroy all forms of oppression and violence. To us, everything is permitted, for we are the first to raise the sword not to oppress races and reduce them to slavery, but to liberate humanity from its shackles .... Blood? Let blood flow like water . .. for only through the death of the old world can we liberate ourselves forever."

From a 1920 editorial in Krasni Mech (The Red Sword), a publication of the Soviet Checka secret police; quoted in The Black Book of Communism by Stephane Courtois, et al, pg. 102.

Under the legal regime proposed by attorney and law professor William C. Bradford, who until recently was an instructor at West Point, lawyers and legal scholars who criticize or impede the Regime's endless “war on terror” could be designated “fifth columnists” and “enemy combatants” subject to indefinite detention or summary execution.

Fighting total war demands a mental reconfiguration” on the part of the public by resolving “arguments over how to balance security and liberty in favor of security,” insists Bradford in a 185-page diatribe entitled “Trahsion des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column,” which was published in the Spring/Summer issue of the National Security Law Journal. This will mean “acculturating the necessary fighting spirit” in the population through mass propaganda and, where possible, conspicuous punishment of dissidents. 
“Spartanization of the West will require the deepening of the concept of citizenship to include duties as well as rights," Bradford pontificates. "Rights are attended by corresponding duties, and the state may obligate citizens – even academics – to contribute to to the struggle in those ways they are able.” Refusal “to acknowledge the Islamist threat as an existential challenge to Western Civilization, and to … unite to defeat that threat, would be the greatest dereliction of duty in history.

In confronting an existential crisis, Bradford asserts, “survival is its own justification.” There is no room for “legal fetishists” who are skeptical of decisions by the executive or military leadership: “Americans are entitled not only to political leaders who employ and and all necessary measures but to the strong presumption such measures are legal, and to the salutary effects of this presumption upon their belief in the virtue of their cause and their will to fight for it.”

That virtue, according to Bradford, is sufficient to justify the eradication not only of “Islamists,” but all Muslims who are suspected of sympathizing with them – and, if deemed necessary, Americans who are delinquent in their “duty” to support that objective.

The West must shatter Islamists' political will and eradicate those who do not renounce Islamism,” he declares “All instruments of national power – including convention and nuclear force and PSYOPs [psychological warfare operations] – must be harnessed … to capture the hearts and minds of Islamic peoples, break their will to fight for Islamism, and leave them prepared to coexist with the West or be utterly eradicated....”

To wage “total war” against a tenacious and all-but-omnipresent enemy, all restrictions on government power must be supplanted by what he calls the Law Of Armed Conflict (LOAC), in which the executive is emancipated from checks and balances and the constitutional subordination of the military to civilian control is reversed: “[I]t is the military upon whom the constitutional duty to defend Americans is incumbent, and in whom Americans repose trust.”

Bradford refers to scholarly critics of Washington's open-ended war against Islamism as the Critical Law of Armed Conflict Academy, an awkward and contrived expression created to justify the pungently dismissive acronym CLOACA (which is a relatively high-brown surrogate for themore familiar adolescent vulgarity referring to the emunctory aperture). While admitting that “no membership roll exists” of that intellectual cohort, and declining to name specific examples (most likely out of a desire to avoid civil liability), Bradford insists that scholars who fit within that amorphous category constitute an “Islamist Fifth Column,” even when no evidence of conscious collaboration exists.

Scholarship that challenges the “autonomy” of the Pentagon, or “dismiss[es] military wisdom” by questioning the legality, constitutionality, or morality of foreign wars, indefinite detention of terrorism suspects, or the use of torture as an interrogation technique are not mere academic exercises. Instead, they are a form of advocacy that “attenuates U.S. arms and undermines American will, [and] are PSYOPs. Which are combatant acts,” Bradford insists.

As “propaganda inciting others to war crimes, such acts are prosecutable..... CLOACA members are thus combatants who, like all other combatants, can be targeted at any time and place and captured and detained until termination of hostilities” – without judicial recourse. Assuming that “CLOACA members” would be treated in the same fashion as their supposed Islamist comrades, they would be subject to “judicial execution post-interrogation” if this were considered justifiable as a matter of military necessity.

The threshold for such treatment is astonishingly low. Academic dissenters who publicly describe the U.S. government as “an `aggressor' or employer of illegal methods and means, or [cast] aspersions on U.S. motives” for carrying out military operations display “an intent to betray the United States” or to give aid and comfort to the enemy, Bradford contends. Those thus identified would be subject to what Bradford calls a “counterattack” involving a range of options drawn from a continuum of “increasing coercion” – including mandatory loyalty oaths, termination from employment, formal criminal charges for “material support of terrorism” or even “treason” – a capital offense.

Ominously, in the wake of the summary execution, via drone strikes, of U.S. citizen Anwar al-Awlaki and his American-born, 16-year-old son Abdulrahman, Bradford insists that scholarly critics of Washington's terror war who “commit treason, or otherwise engage in unlawful combatancy … must answer for their delicts just as any others do. The perversity inherent in countenancing intellectual elitism as a basis for a defense against prosecution and a grant of immunity from targeting in war is astonishing.” (Emphasis added.)

Earlier in the essay, Bradford observes that “enemy combatants may be targeted and killed wherever and whenever they can be found” and that “UAVs [that is, missile-bearing drones], as with other weapons systems, do not require that targets of targeting killing be afforded a warning or judicial process before use.”

The coercive “counterattack” against so-called “CLOACA members” would not be limited to lawyers or scholars who express critical views.

[The] infrastructure used to create and disseminate CLOACA propaganda – law school facilities, scholars' home offices, and media outlets where they give interviews – are also lawful targets given the causal connection between the content disseminated and the Islamist crimes incited. Shocking and extreme as this option might seem, CLOACA scholars, and the law schools that employ them, are – at least in theory – targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism.”

In assessing the legitimacy of an envisioned punitive strike against a “Fifth Columnist,” the last consideration – supposed military necessity – trumps all of the others. Bradford's blithe recommendation that the military target the institutional “infrastructure” – including media outlets – used to disseminate “CLOACA propaganda” offers a portentous counterpoint to the recently publicized Pentagon “Law of War” manual outlining circumstances under which journalists could be treated as “unprivileged belligerents.”

 In previous armed conflicts, the U.S. government has authorized lethal strikes against media facilities used to broadcast critical coverage of American military actions: During the 1999 Kosovo conflict, the office of Radio Television Serbia suffered a U.S. missile strike that killed sixteen people.

"Targeted killing" of Serbian journalists (above and below, right).
In April 2003, Al-Jazeera correspondent Tarek Ayoob was killed when a U.S. warplane bombed the network's Baghdad office. An employee of the Reuters news agency was killed, and several of his colleagues were wounded, in the notorious July 12, 2007 “collateral murder” airstrike in Baghdad. Chelsea Manning, then known as Private Bradley Manning, was criminally charged, subjected to abusive detention for 112 days, and eventually sentenced to prison for providing the video record of that atrocity to the Wikileaks organization. Those who preside over the empire's "Disposition Matrix" are prepared not only to arrest and detain but also to kill people accused of using Twitter to express solidarity with Islamists.

"Shoot off your mouth all you want," an unnamed "senior counter-terrorism official" told ABC News regarding social media comments seen as sympathetic to radical Muslims. "Eventually we are going to kill you." Under Bradford's definitions, this approach would be taken not only with social media pests and provocateurs, but with lawyers and law professors as well.

Invoking war suras from the Koran, and imputing treasonous motives to all outspoken critics of the unending war on terror, Bradford insists that Western civilization has been seized, encompassed, and ambushed “by a Fifth Column, and will be vanquished, subsumed within the Caliphate, and ruled by Shari'a if a trahison des professeurs [treason of the professors] goes unchecked.” Just as he scruples at no means to “wipe Islamism and if need be its adherents … from the earth,” Bradford rules nothing out in his proposed campaign to bring so-called CLOACA adherents “to heel via criminal law or force of arms.”

Anticipating critics, Bradford acknowledges that some might complain that his overwrought essay “incites authoritarianism insofar as it counsels militarization, withdraws debates over the enemy from the political arena, vilifies those who fail to acknowledge a grave threat, punishes disloyalty, and takes up law as sword and shield to defend and destroy political will.” Rather than explaining how that critique is inaccurate, Bradford parries such objections by insisting that “mobilization on all fronts is as necessary as a response to the current threat condition as it was during World War II.”

Bradford's disdain for dissent, due process, and the rule of law do summon comparisons with a World War II-era legal revolution. In his study Hitler's Justice: The Courts of the Third Reich, Ingo Mueller describes how the Nazified German legal system was founded on the assumption that “the `national aim'” was the central organizing principle of society, and all guarantees of rights and limitations of state power yielded before the doctrine of “national emergency.”

Citing the rulings of the German Supreme Court and the writings of influential Party-aligned jurists, Mueller writes that the Nazi-era equivalent of Bradford's Law Of Armed Conflict dictated that “objectivity finds its limits … when the national security is placed in doubt.” Every judge and lawyer was required to be “a son of his country” who would “place the vital interests of the nation unconditionally above what is formally the law.”

Bradford spent several years teaching law to West Point cadets before being forced to resign in early August. Significantly, he wasn't terminated for his advocacy of a genocidal foreign policy or a totalitarian campaign to suppress domestic dissent, but rather for inflating his military resume by falsely claiming to have received a Silver Star for combat duty in Desert Storm.

Not surprisingly, Bradford blames his forced resignation on critics of his essay who hadn't read it, but had only seen a handful of inflammatory statements orphaned of their context. Reasonably well-informed readers who manage to plow through the entire paper should recognize that it is a commendably candid effort to provide a legal argument for domesticating practices that have been employed abroad by the United States Government for at least six decades.

Beginning in the late 1950s or early 1960s, U.S.-aligned militarist regimes in Latin America, with the help of the Pentagon and the CIA, “shared intelligence and seized, tortured, and executed political opponents in one another's territory,” recounts historian and author J. Patrick McSherry in his book Predatory States: Operation Condor and Covert War in Latin America. “Counterinsurgency militaries organized massive new state and parastatal apparatuses for intelligence, surveillance, and social control, including secret torture-disappearance-killing systems and new technologies of violence to terrorize who populations.”

This coordinated venture in international state terrorism was eventually known as “Operation Condor,” a name derived from the national symbol of Uruguay --whose national police agency was among the bloodiest participants.

Owing to the existence of “an implacable enemy whose avowed objective is world domination,” insisted the CIA's 1954 Doolittle Report, “hitherto acceptable norms of conduct do not apply.” By that time, Communist regimes had slaughtered tens of millions of people, and the architects of Washington's Cold War strategy assumed that the best way to defeat the Communists was to echo their claim of plenary moral immunity (see the statement from the Krasni Mech editorial above) and emulate some of their most reprehensible behavior, including the state-ordered disposal of what the Soviets called “socially dangerous persons.”

Increasingly, a person's ideas – not illegal acts – were the criteria used in decisions to detain or disappear him,” McSherry points out. “Counterinsurgency specialists also re-engineered police forces and changed their mission from a law enforcement to a militarized model.”

In the name of counter-insurgency warfare, these “Spartanized” states – to use Bradford's entirely appropriate term – slaughtered millions of people throughout Latin America, and conducted extra-territorial kidnappings and murders in Europe and the United States. Nor were they content to focus on armed guerrillas and people who provably offered them material support.

First we will kill all the subversives; then we will kill their collaborators; then their sympathizers; then those who remain indifferent,” explained Argentine General Iberico St. Jean, speaking on behalf of a U.S.-supported junta that “disappeared” countless thousands of people in that fashion. General St. Jean's formula was originally presented in Spanish, but he and professor Bradford speak the same language.

Dum spiro, pugno!