Criminalizing Citizen Activism: The Chris Pentico Case

Who owns this joint? The Borah Building in downtown Boise provides temporary office space for Governor Butch Otter, who -- as a state employee -- doesn't actually own the building, nor does he pay the rent. So by what supposed right does the Governor, or any of his lickspittles, file a "trespassing" complaint against one of the citizens who do own that property?


Chris Pentico, a quiet, self-possessed 42-year-old resident of Mountain Home, Idaho, has a disposition as mild as tapioca. Yet the description offered by a state prosecutor at his sentencing hearing today (May 11) would lead you to believe that beneath his docile exterior, Mr. Pentico -- who looks a bit like a younger, clean-shaven, presentable version of Hank Willams, Jr. -- is a churning urn of burning rage.


Years ago, recited the prosecutor in the adolescent whine typical of a law school graduate of recent vintage, Mr. Pentico was "involved in an incident" on campus at Boise State University in which he displayed his "belligerent" personality. This is why he wound up "on law enforcement's radar" -- even though, as we would later find out, no charges were filed, and Pentico's record remained unsullied.


As a political activist with the Idaho Republican Party, Pentico frequently met with members of the state legislature and other public officials, often to complain about irregularities and examples of what he considers to be public corruption. This, according to our young prosecutor, made many public officials "uncomfortable."


She considered that to be a species of crime. I consider it a respectable downpayment on the type of treatment most public officials should expect: Nearly all of them should be unemployed, and those who remain on the public payroll should always be wearing the same facial expression that occupied the features of those invited to dine at the table of Dionysius of Syracuse -- immediately beneath the Sword of Damocles.


Who, me? Chris Pentico, renegade and terrorist, at his May 11 sentencing hearing.



Pentico was viewed as a "potential threat," a "problem subject," a "dangerous individual" prone to "harassing-type behavior," continued the prosecutor. "Due to his own conduct, he made himself something of a target" for law enforcement," she insisted. "And then he set his sights on the governor."


From this description one would be entitled to assume that Pentico was a suicide bomber in training, or perhaps had been discovered setting up a sniper's nest in a book depository somewhere overlooking Governor Otter's familiar travel route. What else could be meant by the frantic accusation that Pentico was "setting his sights" on the Gem State's imperiled Chief Executive?

Well ... would you believe, he tried to hand-deliver a letter.

Not a letter bomb, mind you, nor an envelope containing anthrax, or even a threat of some variety.


Pentico's letter contained a complaint about an attempt to ban him from contacting state legislators with complaints and civic requests of various kinds. Pentico delivered his letter to the governor's office at the Borah Building on April 2, 2008.


A week earlier, he had beentold by an Idaho State Police Officer that "my presence made a few of the legislators nervous" -- and of course, we can't have that.


Pentico was told that he was "not welcome in the Capitol Annex," a public facility intended to provide public access to state legislators who supposedly represent that same public.


While the first officer was addressing Pentico, he was joined by another policeman whom Pentico originally identified as Officer Pettis. The second officer expanded the compass of the public territory from which Pentico was to be banished.


"Officer Pettis said I was not welcome at the State Board of Education's offices [despite the fact that ] I have not been there in years.... Then he added `I was not welcome on the third and fourth floors of the Borah building; this is where the Governor's offices are located.' Officer Pettis ... also added `Do not contact legislators' and `Do not e-mail them.' He also gave me the implication problems woul d occur for me if I did. There is no written notification or anything of that nature." "I have not threatened anyone," Pentico continued.


"I believe there has been a pretty clear breach of law here. I am also under the impression that Officer Pettis willfully carried out an unlawful order. I want to know the authorization and jurisdiction for these orders. I also consider it inexcusable to use law enforcement to intimidate law-abiding citizens to not contact with their elected officials."


Pentico delivered that letter to the Governor's office on April 2, politely asked about an appointment, and left -- no doubt cleaving a huge trail of raw, visceral terror in his wake. As Pentico left the Borah Building, he was overtaken by the same ISP officer who had issued such expansive warnings the previous week -- Corporal Jens Pattis (not "Pettis," as spelled in Pentico's letter).


Out of what the Judge was told was concern for "officer safety," Pentico was handcuffed in public view for about twenty minutes and then issued a citation for "trespassing." Two matters arise for discussion here. First of all, Pentico was a threat to nobody, and handcuffing him was an entirely gratuitous assault on his person.


Interviewed by Wayne Hoffman of the Idaho Freedom Foundation, Corporal Pattis insisted that Pentico alone was to blame for this indignity, since he had "defied a law enforcement order" to avoid the Borah Building. Pattis is part of the New Model Army of law enforcement -- a corps trained to believe that citizens have an unqualified duty to obey every directive emanating from the tax-devouring gullet of someone in a state-issued costume.


Corporal Pattis had no authority to dictate the terms on which a peaceful, law-abiding citizen could petition his representatives. "I bent over backwards for this guy, trying to help him out," insists Pattis.


I'll warrant that he certainly bent over for somebody.


The second issue here is the trespassing charge itself. At no time during the prosecution of Chris Pentico was the identity of the complainant specified; indeed, great care seems to have been taken to avoid identifying the person who turned to Pattis and -- slapping a palm to his thigh and emitting a quick whistle -- yelled, "Sic 'im!"


This omission is critical for at least two reasons.


First, Mr. Pentico was not permitted to face his accuser; second, without an actual accuser, it was impossible to satisfy the legal requirement that Pattis be acting as the authorized agent of the owner of the property on which Pentico was supposedly trespassing.


The Idaho State Code, Title 18-7008(8), defines the crime of willful trespass as one committed when a person "except under landlord-tenant relationship, who, being first notified in writing, or verbally by the owner or authorized agent of the owner of real property, to immediately depart from the same and who refuses to so depart, or who, without permission or invitation, returns and enters said property within a year, after being so notified...."


In Pentico's case, the prosecution claimed that the "order" issued by Pattis on March 25 constituted a notification by the "authorized agent of the owner" of the Borah Building to avoid the premises in question, presumably for a year. Pentico waived a jury trial.




The trial judge, Ada County Magistrate Kevin Swain, insisted that because the trespassing statute did not distinguish between public and private property, it must apply to both. In reaching that conclusion, however, His Honor failed to explain how the tenant of a publicly owned property can order the eviction of an owner of the same.


As someone who believes the phrase "government-owned property" to be an oxymoron at best and an obscenity in every case, I offer the foregoing only to underscore the grotesque and obvious illogic of using the trespassing statute in this case.


Certainly, if Mr. Pentico's presence inspired a reasonable fear for the physical safety of the governor or any of his staff, he could be forcibly removed and, if appropriate, cited or otherwise made subject to punishment. He did nothing of the sort.


But unless the trespassing law is to be read in such a fashion that it would permit tenants to evict landlords, its application to this case makes no sense. This is underscored by the lack of an actual accuser and putative victim in this matter.


Who was injured by Pentico's purported act of trespass, and what form did that injury take? Idaho State Police Lt. Col. Kevin Johnson told the Idaho Statesman that Pentico had been banned from the Borah Building pursuant "at the request of the governor's office."


But the "office" -- meaning the tax-fattened claque who "works" in the physical offices in question -- does not own that building. When that administration leaves, new tenants will arrive and make similarly disastrous use of those facilities. But they are owned by the public. If the public owns the property, a member of the public cannot trespass on it.


Furthermore, far from acting as the "authorized agent" of the owner(s), Corporal Pattis was illegally attempting to expropriate one of the actual owners; it is as if he had handcuffed a landlord who strode up to the front door of a residential property he owned to slip a "past due" notice into the tenant's mail slot.

"We've got your back, Chris": Some of the scores of freedom activists who crowded room 504 in the Ada County Courthouse for Chris Pentico's sentencing hearing.


From the prosecution's perspective, the injury inflicted by Pentico when he quietly delivered a letter to the governor's staff must have been quite severe. They recommended that he be hit with a $500 fine (plus court costs), a 90-day jail sentence, and 2 years of unsupervised probation.


After painting a portrait of Pentico as an incorrigible recidivist offender deserving of stern treatment, the bright young lady representing the prosecution -- who was apparently tone-deaf to her own contradictions -- depicted the foregoing terms as the product of leniency that took into account the fact that Pentico "really hasn't been in any trouble before this."


Then just what the hell was the whole point of this?


In issuing his sentence, Judge Swain -- to his credit -- immediately dispelled the suffocating cloud of flatulent insinuations emitted by the prosecutor (whose name I'm deliberately omitting in the hope that she will grow up and do something useful with her life) regarding Pentico's supposedly criminal nature. This reflected, in part, the influence of State Rep. Pete Nielsen, a Republican who brought with him a letter signed by several other members of the state legislature.


Those paladins of the public weal were not so palsied with terror by the very thought of the fearsome Chris Pentico that they couldn't affix their signature to a letter attesting to Pentico's decency and civic-mindedness.


Judge Swain is up for reelection this year. I trust that he was alert to the presence in the courtroom of scores of well-mannered but attentive activists who would do everything they could to ensure his return to the private sector should he inflict an onerous sentence on Pentico.


Swain outlined what he called the four objectives of sentencing: punishment, deterrence, restitution, and rehabilitation. He quite sensibly said that the final three considerations didn't apply to Mr. Pentico, who had injured nobody and done nothing to merit punishment, let alone to display a need for rehabilitation.


Pentico was in "technical" violation of the trespassing statute, Swain insisted (incorrectly, as we've seen), but his offense was de minimis. Besides, his entire purpose was to exercise a function of citizenship that should be encouraged -- he was petitioning a representative for redress of grievances.


Owing to the nature of the "offense" and the obvious decency of the "offender," Swain dispensed entirely with the prospect of jail time or fines. He imposed a term of 30 days of unsupervised probation and a withheld sentence, the latter of which would be lifted and expunged from Pentico's record "when -- not if -- you finish probation successfully, as I'm sure you will," Swain explained.


A wave of relief and a ripple of applause coursed through the courtroom. Delighted as I was to hear Judge Swain summarily dismiss the prosecution's caricature, I didn't join in the applause, nor did a couple of other people who had come to support Pentico.


The problem here is that a man who did nothing wrong was convicted -- albeit in ephemeral fashion -- of a crime by a legal positivist judge. Sure, Judge Swain -- a well-spoken and personable figure -- did what he could to minimize the impact of that conviction.


But he still found a way to validate the idea that the state (in this case represented by the oddly amorphous entity called the "governor's office") has "rights" that trump those of citizens, and that the cold steel of handcuffs biting into one's wrists is a suitable reward for those who "defy" patently illegal "orders" from the state's armed enforcers.


Judge Swain's sentence was greeted with cathartic relief and left Pentico's friends with a sense that a partial victory, at least, had been won. Granted, clear-cut victories for individual liberty are are rare as pity from Stalin, or insight from Sean Hannity.



But now that it's clear Chris Pentico won't suffer further punishment for doing nothing wrong, his friends and supporters should take a long, sober look at exactly what was "won" in this case, and by whom.


I mean no insult, either overt or implied, to the wonderful people who had gathered in support of Chris Pentico when I say that the applause at the end of the trial prompted me to recall Gibbon's observation: "A nation of slaves is always prepared to applaud the clemency of their master, who, in the abuse of absolute power, does not proceed to the last extremes of injustice and oppression." I'm willing to assume that the applause was entirely for Chris Pentico's courageous resolve, not for the statist judge who found a low-key way to validate the demands of Idaho's ruling class.


Video/Podcast Extra:

Chris Pentico (along with some friends) is interviewed by former Idaho state legislator Elizabeth Allan Hodge:

***


***
Pt. II

Pt. III

Pt. IV

Pt. V

____
In my original version, written in a fog of sleep-deprivation (hey, with six kids including a newborn, sometimes I have to work well beyond the wrong side of midnight), I referred to Elizabeth Hodge as a current, rather than "former" legislator. That version also had a misfire caught and corrected by "rick" in the comments thread.



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Painting the Lily: The Lundeby Case, In Perspective

[T]o be possess'd with double pomp,
To guard a title that was rich before,
To gild refined gold, to paint the lily,
To throw perfume on the violet,
To smooth the ice, or add another hue unto the rainbow...
Is wasteful and ridiculous excess.

-- Shakespeare, King John




Purdue University in Lafayette, Indiana is not unaccustomed to bomb threats. University spokeswoman Jeanne Norberg recently told The Exponent, the campus newspaper, that such events, while not "frequent," are "not unusual in any given year." So the bomb threats that occurred the night of February 15, while obnoxious and disruptive, weren't all that uncommon.


At around 9:05 p.m. the University Police received a call claiming that there was a bomb on the second floor of the Mechanical Engineering building. With no classes in session and the campus practically vacant, it wasn't difficult to evacuate and search the building.


Police searched the area until about 1:00 the following morning before concluding that they had responded to a malicious hoax. Fortunately, as Norberg pointed out, "we didn't need to send out an alert. Police had areas secured; there was no threat to public safety at that point."


While police in Indiana were responding to the threat, according to Annette Lundeby, she and her 16-year-old son were on their way home from church in North Carolina.


She insists that her son Ashton, who is being held now in Indiana on charges related to that and other incidents involving phony bomb threats (but apparently not under the provisions of the USA PATRIOT act, as Annette initially claimed and I -- among many others -- originally reported), has a hermetically sealed alibi and did not have an opportunity to phone in a bomb threat to anyone.


Mrs. Lundeby now admits that Ashton has pulled telephone "pranks" before, and that he is the minor cyber-celebrity known by the screen name "Tyrone." As she relates the story, Ashton got involved in "pranking" people through his involvement in on-line gaming activities.


"Tyrone" was involved in a particularly disruptive and potentially tragic form of internet-facilitated mischief in which bomb threats or other emergency calls would be made to various public facilities, and the results would be observed in real time on-line. At some point "Tyrone" became a mercenary prankster, offering to phone in bomb threats against specific schools in exchange for payment from students who wanted to skip classes.


Self-portrait of a cyber-prankster: Ashton Lundeby.

Annette Lundeby admits that Ashton has been "Tyrone." However, she sticks by her story that his on-line identity was hijacked and used to carry out the prank bomb threats against Purdue. She likewise insists that it was the identity thief who made several other bomb threat calls on March 5 -- shortly before the FBI raid on the Lundeby home that resulted in Ashton's arrest and detention.


In a telephone interview with me this morning, Annette Lundeby insisted that the identity thief was Jason Bennett, the same 19-year-old resident of Australia who turned Ashton over to the authorities. She claims that Bennett was behind the bomb threats and that he co-opted Ashton's cyber-identity to make phony bomb threats and set him up for the crime.


"This kid harassed Ashton and our family," insisted Mrs. Lundeby. "We have copies of the text messages he sent to my son trying to force him to make bomb threats. And when Ashton didn't cooperate, that kid set him up and called the police."


This new explanation is in a similar vein to Annette's earlier account of her family situation, which sounds a bit like something from a Dean Koonz novel. She told me that her late husband, who worked for the federal prison system, was a victim of identity theft before he died. She said that her bank account was hacked, and that cyber-pests used her son's IP address to make phony 911 calls, including one to local police claiming that there were narcotics in the Lundeby home. She also claims that some of the calls she received were made by someone whose voice had been digitally altered to sound somewhat like Ashton.


Like the other elements of Ashton's alibi, investigators should be able to verify at least some of what Annette describes. If local law enforcement received a call about narcotics at the Lundeby home, a record should exist; it may not be accessible to the public, but the FBI could obtain it with little difficulty.


Mrs. Lundeby also claims that she has two key pieces of physical evidence that were not seized by the FBI when about a dozen agents raided the Lundeby home on the night of March 5: Her son's wireless computer router, and an answering machine recording of the individual who was actually responsible for the bomb threat. To that list can be added the text messages she claims to have received from Ashton's cyber-stalker.


As to the claim that Ashton was being held under provisions of the PATRIOT act -- a claim disavowed by the US Attorney David Capp, whose office is conducting Ashton's prosecution -- Mrs. Lundeby insists that she raised that issue repeatedly, and never received a clear answer from her court-appointed attorney or anyone else connected to the case.


By Annette's account, she concluded, not unreasonably, that a non-denial amounted to a confirmation. She also describes the ongoing detention of her son, who had no previous trouble with the police, as a violation of due process standards for juveniles as defined by the Supreme Court's Gault ruling of 1967.


Annette Lundeby, a widow with two children in the home, is understandably frantic to keep her son out of prison. Did she knowingly shade the truth about her son's case -- invoking the dread PATRIOT act in order to rally the public to his cause? My perception, at present, is that she has not engaged in deliberate misrepresentation.


In the ardor of her maternal concern, she may have been guilty of "painting the lily," just as I (among others) was eager to pick up a rhetorical paintbrush and lay it on thick. Annette remains convinced that Ashton is innocent of the charges against him, that his detention is excessive and presumptively punitive, and that the PATRIOT act is involved in this affair somehow.


My view is that Ashton -- although demonstrably involved in hijinks that are hardly innocent Tom Sawyeresque stunts updated for the cyber age -- is legally innocent; that there remain grounds for due process concerns in this case; and that we should never underestimate the troublesome creativity of federal prosecutors.


One reason I found Annette's PATRIOT act claims plausible, as I noted in previous coverage of this affair, is the fact that provisions of that federal act, and state statutes derived from and inspired by it, have been used to re-frame juvenile offenses as terrorist acts.


In my earlier essay on this case I referred to the matter of Brent Clark, a 14-year-old Arizona 8th grade student who was charged with "terrorism" for threatening a classmate with a pocketknife. Threatening another with a potentially lethal weapon is assault with a deadly weapon, a serious offense with severe penalties. But this wasn't enough for the local prosecutor, who decided to file terrorism charges under a state law derived from section 802 of the PATRIOT act.


It wouldn't be necessary to apply the so-called PATRIOT act to a phony bomb threat made across state lines. Title 18, section 844 (e) of the U.S. Code makes it a felony to issue a bomb threat, either genuine or phony, using the "mail, telephone, telegraph, or other instrument of interstate commerce...." This would apply to a threat made from North Carolina to Indiana.


Interestingly, Indiana state law -- which should have precedence in the Purdue case -- treats a a bogus bomb threat with greater lenity, categorizing it as a Class B misdemeanor. It can be upgraded to a Class A misdemeanor if the phony threat "substantially hinders any law enforcement process or if it results in harm to an innocent person." No harm of that kind ensued as a result of the February 15 prank, and holding a first-time offender for months on a Class B misdemeanor would be a bit excessive.


An enterprising Indiana prosecutor could ramp up the charge to a Class D felony under Sec. 2 (a)(3) of IC 35-44-2-2, which deals with a false report that "there has been or will be placed or introduced a weapon of mass destruction in a building or place of assembly ... knowing the report to be false." This would require, of course, that a common bomb or "infernal device" be considered a "weapon of mass destruction."


As it happens, that is exactly what the US Code specifies: Essentially any explosive or incendiary device -- even fireworks, under some conditions -- and many kinds of firearms can be treated as the equivalent of a nuclear weapon if this serves the interests of a federal prosecutor.


The relevant section of Title 18 of the US Code specifies that the term "weapon of mass destruction" applies to the following "destructive devices": "[A]ny incendiary, explosive, or poison gas -- bomb, grenade, rocket having a propellant charge of more than four ounces, missile having an explosive or incendiary charge of more than one-quarter ounce, mine, or ... any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter...."


It was under these definitions that, a year ago, a federal prosecutor in South Carolina charged 18-year-old Ryan Schallenberger with attempting to use a weapon of mass destruction in a bomb plot against his high school.


Schallenberger, who appears to be a troubled young man deeply imbrued with nihilistic ideas, was arrested after his parents signed for a shipment of ammonium nitrate to their address.


It's not illegal to possess ammonium nitrate, of course. But Ryan wasn't in the FFA and didn't have any use for that quantity of fertilizer. Unnerved by the discovery, Ryan's parents went through his journal and personal belongings and found evidence of intent to carry out a Columbine-style murder-suicide rampage at his school. They took what they found to the local Sheriff. Following his April 19 arrest, Ryan was arraigned for offenses against state law before the Feds shouldered the local authorities aside and filed terrorism-related charges that could result in a life sentence.


According to John Mueller, who holds the Woody Hayes Chair on National Security Studies at Ohio State University, has spent much of his time during the past several years striving to put the peripheral risk of terrorism in proper perspective.


As he pointed out in a letter to another national security analyst, under federal statutes dealing with WMDs "not only is a hand grenade a weapon of mass destruction ... so is a maliciously designed child's rocket even if it doesn't have a warhead. On the other hand, although a missile-propelled firecracker would be considered a weapon of mass destruction if its designers had wanted to think of it as a weapon, it would not be so considered if it had previously been designed for use as a weapon and then redesigned for pyrotechnic use or if it was surplus and had been sold, loaned, or given to you (under certain circumstances) by the Secretary of the Army."


The WMD designation would likewise apply to "all artillery, and virtually every muzzle-loading military long arm for that matter," continues Schneider. "It does make the bombardment of Ft. Sumter all the more sinister, to say nothing of the revelation that The Star Spangled Banner is in fact an account of a WMD attack on American shores."


The widespread availability of reasonably sophisticated cyber-technology has provided intelligent but devious adolescents with vastly expanded powers to commit criminal mischief, if they're so inclined (and few people that age harbor such inclinations). More dangerous still, however, are the broadly written federal statutes dealing with terrorism and WMDs, which give maliciously inventive prosecutors practically unlimited power to do much graver damage to the innocent, and inflict permanent harm on what remains of due process protections.


When it comes to "painting the lily" -- meaning, in this instance, exaggerating a threat -- the greatest offenders by far are those who created, and exploit, the legal mechanisms under which a pubescent child's desultory threat with a pocketknife becomes an act of "terrorism," and a troubled High School senior's attempt to fashion a crude bomb from distilled manure becomes a plot to unleash a "Weapon of Mass Destruction."


This is why, no matter what else we learn about the increasingly curious case of Ashton Lundeby, we must never give the Homeland Security State the benefit of the doubt.


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Free Ashton Lundeby! (VERY IMPORTANT Third Update, 5/7)

(Expanded) Special Update, May 7

Wired News's Threat Level column is reporting that Ashton Lundeby is not being held under the USA PATRIOT act. Since the case is under seal at present, the only source for the relevant details is Annette Lundeby; admittedly, she is not an objective observer, but the same would be true of the prosecution, as well.

A memo marked "Not for distribution outside law enforcement" was circulated today accusing Mrs. Lundeby of making "false claims" about the use of the PATRIOT act
and her son's present circumstances.Those claims led the office of US Attorney David Capp to issue a press release today insisting that the charges against Ashton Lundeby "is unrelated to the PATRIOT act."

"The juvenile has appeared in court on three occasions, once in North Carolina for an initial hearing and a detention hearing, and twice in Indiana for a continued initial hearing and a status hearing," the press release relates. "At each hearing, the juvenile was represented by counsel.... The juvenile is presently housed in a juvenile facility in the Northern District of Indiana where he does not have contact with adult offenders. His mother has been apprised of each court appearance and has attended the hearing in North Carolina; she did not appear at either of the hearings in Indiana."


I am informed that the facility where Ashton is currently incarcerated is the Thomas N. Frederick Juvenile Justice Center in South Bend, Indiana. Although he is subject to federal prosecution, the detention center is a county facility. Ashton -- as noted below -- faces prosecution under federal statutes for making bogus interstate bomb threats.


As the press release notes, Annette Lundeby was present during the initial hearing in North Carolina, and until today she was the only source available to describe the details of her son's arrest and the terms of his detention. In interviews I conducted with her both on May 5 and 6, Mrs. Lundeby has insisted that the PATRIOT act was invoked by the Feds in this case.


I reported her claims in good faith, buttressed by the assessment presented in the WRAL report from former U.S. Attorney Dan Boyce, as well as the fact -- noted in the original essay below -- that the PATRIOT act has been used in at least one other case involving a juvenile accused of a serious crime. Interestingly, the Feds have not denied that they're applying the PATRIOT act in this case; there's no reason not to issue such a denial if Mrs. Lundeby's claim is untrue.


As indicated in the first update below, which was filed just hours after the original post, a source close to the prosecution (not directly involved in the prosecution, but with detailed, first-hand knowledge of it) insists that the case against Ashton is strong enough that the use of such extraordinary measures would not be necessary.


Title 18, Section 844 (e) of the US Code makes it a felony punishable by a prison term of up to 10 years to make a bomb threat, either real or bogus, using "the mail, telephone, telegraph, or other instrument of interstate commerce...." That provision would explain the involvement of the FBI in a suspected bomb threat made from North Carolina against Purdue University in Indiana. Whatever the wisdom of that statute, its existence would appear to make use of the PATRIOT act gratuituous. This doesn't mean that the Feds didn't take the easy route, as Mrs. Lundeby claims, of course. But it does mean that if Ashton was involved in making bomb threats, he bought himself more trouble than he expected.

Expect a follow-up on all of this today.

(For the other updates, please go to the bottom of the essay.)

It's been said that a lie is a poor way to say "hello." It is also the standard greeting one receives from government employees, particularly those who carry guns.

Around 10:00 p.m. on March 5, a wolf-pack of armed men gathered at the front door of the Lundeby family's home in Oxford, North Carolina.

When she answered the doorbell, Annette was greeted with the sight of a State Highway Patrolman who introduced himself with a lie. Things went dramatically downhill from there.

"He told me that my son Ashton had committed a hit-and-run with somebody's car," Annette told Pro Libertate in a phone interview. "I said, `No, that's not true -- it was exactly the reverse; he was on the receiving end of a hit-and-run, and that was last January.'"

The State Trooper's lie was a pretext to rouse the home-schooled teenager from bed and bring him to the doorstep. Once the falsehood shattered against Mrs. Lundeby's polite resolve, however, the pretense was dropped and roughly a dozen armed men in body armor stormed into her home. One of them demanded that Annette go get her son; the others fanned out to search the house.

"They wouldn't tell me who they were, or where they were from," Annette recalled. "All I knew was that if I said the wrong thing I'd be dead on the floor, and there would be nobody here to protect my children." So she went upstairs and woke up her son, as instructed. When she returned with Ashton she demanded to see a search warrant. She was shown the paperwork, but the intruders were still reluctant to explain why they had invaded her home.

At some point over the next three and a half hours, Annette and Ashton learned that the men who had barged into their home were from the FBI, and that the teenage boy, who had never been in trouble with the police, was suspected of making several bomb threats via the internet. The one that brought the FBI had been made against Purdue University in Indiana at 9:05 Central Time on February 15.

Ashton had an alibi so tight it could be used as a space capsule: On the evening in question he was at a meeting held in the Union Chapel Methodist Church in Kittrell, North Carolina until after 9:00 p.m. local time, a fact that could be confirmed by interviewing any of several dozen witnesses.

After helping his mother clean the chapel, Ashton accompanied her to a local grocery store to buy food and litter box filler for the family's three cats. Once again, this element of Ashton's alibi -- for which his mother was an eyewitness -- would be relatively simple to confirm.

The Union Chapel church is about 35 minutes away from the Lundeby family's home. Annette recalls that the family got home shortly after 10:00 on February 15, which wouldn't have given her son adequate time to log on to the Internet and make a bomb threat by 10:05 Eastern Time (which would have been 9:05 p.m. in Indiana). She also insists that her son "went straight to bed" without turning on his computer.

The FBI insists that the threat was made using Ashton's IP address. Mrs. Lundeby insists that her son was the victim of identity theft, and that he was not the family's only victim. Her late husband, a former employee of the federal Bureau of Prisons, also had his personal financial information stolen, and Annettee herself recalls that her bank account was hacked a couple of years ago.

They're watching you: A PATRIOT (sic) Act notification from a Savings and Loan.

For the past several months, she explained to Pro Libertate, "our family has been receiving bizarre and threatening phone calls from people" because of the malicious activities of at least one hacker.

"We had the police call here claiming that someone had called 911 to report drugs in our home. I told them that there wasn't anything going on here, but they were free to come and search the place to see for themselves."

That's an invitation she wouldn't extend again under similar circumstances.

According to Annette, at least one of Ashton's friends can identify, by screenname, the hacker who made life miserable for the Lundebys. Once again, there is no shortage of leads for an honest, competent, reasonably resourceful investigator to follow in establishing Ashton's alibi. The unfortunate truth is that the FBI is, as far as I can tell, entirely devoid of people meeting that description.

Annette and her children were held hostage in their home until 1:30 in the morning. The 12-year-old daughter was dragged from her bed by an armed stranger -- an act that left the girl traumatized (and one for which the assailant should be thrashed to within a centimeter of his tax-devouring existence). Annette insisted that Ashton not answer any questions without an attorney present, but she wasn't permitted to call one.

The Feds confiscated Ashton's computer and gaming equipment, and made off with a great deal of family paperwork. But they couldn't find a particle of evidence anywhere to suggest that the teenager had built a bomb, or that possessed the necessary knowledge and intent. Nonetheless, they handcuffed Ashton and hauled him away to jail.

A hearing was scheduled for 10:00 a.m., which meant "that I couldn't get an attorney -- none of their offices was open," Annette recalls. Her son was given a court-appointed attorney, an ineffective nebbish who -- in the fashion of too many court-appointed "defense" lawyers everywhere -- was entirely disinclined to contest the prosecution's assertions.

At this point it's appropriate to note that too many "court-appointed" defense lawyers perform exactly the same function as "jobbers" in professional wrestling: Their role is to lose every contest. And judges in federal cases generally serve the same purpose as referees in pro wrestling "matches": They offer a pitiful pantomime of objectivity as they advance the pre-determined storyline. In this case, the script called for Ashton to be taken into federal custody under the terms of the Sovietesque PATRIOT (sic) Act.

"The standard that they used to arrest and detain my son was not `probable cause,' as the Constitution requires, but rather `good faith,' as specified in the PATRIOT [sic] Act," Annette Lundeby observes. "This meant that they didn't have to provide real evidence of a crime, because they didn't have any. All they had to do was assert their `good faith' reasons for arresting and holding Ashton, and the judge simply let it stand."

Before and after the hearing, Ashton -- a sixteen-year-old -- was kept in detention with as many as thirty adult criminal suspects. He was then transferred to a federal detention center in South Bend, Indiana, where he has been for more than 60 days.

As of today (May 5), a criminal complaint in this case does exist, but Ashton has yet to be charged with a crime. Were we living in a country in which the habeas corpus guarantee was operational, Ashton would most likely be free, and a lawsuit against his persecutors would probably be in the works.

However, the late Bush administration, with the enthusiastic support of nearly every conservative commentator and activist of any consequence, quite thoughtfully disposed of the habeas corpus guarantee. And since Ashton is being held on terrorism-related charges, his status is analogous to that of an "enemy combatant" -- which is to say, he can probably be held indefinitely, and even be subjected to the same "enhanced interrogation" methods that so enchant many of the pew-defilers in conservative "Christian" congregations.

Ashton hasn't been mistreated yet, according to his mother. However, the 16-year-old -- who is "in every sense still a child," in his mother's estimation -- is in an environment defined by cruel, arbitrary regulations designed to break his will.

"I've been able to talk with him several times since he was taken into federal custody," Annette told me, "but there was a period of about three weeks in which I didn't hear from him, and nobody would let me talk to him. I was frantic, and my mother -- she just turned 81 -- had to be hospitalized for stress."

When that long silence was finally broke, Ashton explained to his mother that "he was being punished for `moving his eyes in the lunchroom,'" Annette related in a voice heavy with incredulity. "He told me, `Mom, all I did was try to find out what we were eating. But I got written up for moving my eyes.'"

If the case goes to trial, Ashton would be prosecuted as an adult, and would face a 15-year prison sentence. The Feds, who at this point appear to have no case, are quite likely using the leverage offered by the PATRIOT (sic) Act and similar measures to terrorize Ashton and his family into a plea bargain that would preserve the State's sense of infallibility and reinforce by precedent its ability to terrorize citizens at random.

Pioneering case: Brent Clark was a troubled and potentially violent 8th grader in Tempe when he was accused of "domestic terrorism" under the provisions of the PATRIOT (sic) Act.

Something of this sort took place last time a teenager was charged with terrorism under the PATRIOT (sic) Act -- specifically, section 802, which makes practically any crime committed on "public" property an act of "terrorism."

Two years ago, Andrew Thomas, the demented and politically ambitious prosecutor for Arizona's Maricopa County, filed "terrorism" charges against Brent Clark, a 14-year-old deliquent from Mesa who pulled a pocketknife on a schoolmate. Thomas also charged the eighth grader with aggravated assault with a deadly weapon, which seems like a sufficiently serious offense. But invoking the post-PATRIOT (sic) definition of "terrorism" helped extract a pre-emptive guilty plea from the adolescent and his family.

In Brent Clark's case, there was an actual crime committed: He threatened a girl with a knife and tried, albeit not with much ardor, to take her hostage before permitting her to flee to her home. Brent's parents apparently discovered evidence suggesting that the emotionally disturbed teenager harbored ambitions -- how serious, we'll never know -- of carrying out Columbine-style violence.

None of that applies in the case of Ashton Lundeby. [At least some of it may apply; see the update above -- WNG, 5/7] Apart from the use of Ashton's ISP information -- a fact for which he and his mother have provided a persuasive and easily inspected alibi -- nothing connects the 16-year-old to a bomb threat anywhere. Under traditional Anglo-Saxon standards of evidence and due process there is no case against Ashton.

This is precisely why the Feds are apparently using the Stalinist PATRIOT (sic) Act to keep this youngster confined for as long as it takes to extort some kind of confession from him.

If they determine the situation requires such measures, the Feds can draw upon the precedent set in the case of Jose Padilla, the first U.S. citizen to be designated an "enemy combatant" and held indefinitely without criminal charges. In Padilla's case, federal authorities conducted a prolonged campaign of psychological torture designed not only to break his will, but literally -- in the words of a Bush administration official -- “to destroy Mr. Padilla's ordinary emotional and cognitive functioning in order to extract from him potentially self-incriminating information.”

Annette Lundeby once attended a police academy; her late husband, as noted previously, was an employee of the Bureau of Prisons. The family's home in North Carolina is decorated with U.S. flags. The three of them are devout Christians who spend most of their free time in church-related activities. The loss of Annette's husband was a severe blow, and the continued harassment they have suffered from hackers and identity thieves is the sort of thing one reads about in the Book of Job.

But the treatment of Ashton by the Regime is like something from modern dystopian literature; indeed, Franz Kafka might find the story nearly implausible.

"This isn't America -- not the America I knew, the one I grew up in," Annette told Pro Libertate. "This is like something out of a Third World dictatorship where the people in power just do whatever they want to anybody they choose. I want my son back, and I'll do anything I can to free him. But people need to know that if this isn't stopped now, any of us at anytime can be treated the same way. The next time it will be your house they visit in the middle of the night, and your children they take away."

***

***

Update, May 6: The Other Side of the case, a strengthened alibi


Owing to the federal gag order on the officials involved in the arrest and prospective prosecution of Ashton Lundeby, it's not possible to get the official reaction to Annette Lundeby's view of this case.


However, I received a message from a source close to the federal side of the story who insists that the case against Ashton is a "slam-dunk," owing to information obtained from various documents and other sources. Without getting specific permission from that individual I can't share the details he shared with me. I have described some of them, in broad outline, to Mrs. Lundeby in order to get her view of the matter.


Although the alleged crime here is inter-state in nature, the source in question agrees that the so-called PATRIOT Act (which this person opposes) shouldn't have been used in this case. The alleged offense here is the cyberspace equivalent of maliciously pulling a fire alarm in school. Yes, it's disruptive, obnoxious, and destructive of time, money, and whoever phoned in what the source describes as multiple bomb threats should be punished.


I'm convinced that the reliance on the enhanced powers under the PATRIOT Act wouldn't be necessary if the case against Ashton is anywhere near as solid as that source insists.


On the matter of Ashton's alibi:


An early contributor to the comment thread below points out that "if the time of the supposed threat (9:05 pm) and the place (Purdue University in West Lafayette) are correct, then the alibi is even stronger than you claim, since West Lafayette, IN, is on Eastern Time (as is the rest of Indiana with the exception of some counties in the southwest and northwest corners)."


Please allow me one final, personal note. Among the correspondence I received about this essay was a note from a reader who was deeply offended by the reference to "pew defilers" in conservative Christian churches.

That inelegantly phrased comment was perceived by this earnest and well-informed fellow as a gesture of anti-Christian hatred. It was intended as a slap at the hypocrisy of people who profess to be followers of Jesus and yet condone the torture of fellow human beings. It turns out, as the essay hyperlinked to that phrase documents, that self-described conservative Evangelical Christians are the sub-population most likely to endorse the use of torture.

In describing people who harbor such opinions, I suppose I could have used the expression "white sepulchers," which is at least as offensive as the term I used.


Second Update, May 6: Corrections and Observations


In the interest of fairness to the small but stalwart population of genuinely heroic, principled lawyers who act as court-appointed defense attorneys an approach that role with a categorical commitment to protect the rights of their clients, I've moderated my original comments about court-appointed attorneys.


My views on that subject have been shaped by an unfortunate and consistent trend among court-designated defense lawyers to approach their task as if they were working in the Cardassian judicial system. Several writers have properly taken me to task for my overbroad characterization of court-appointed attorneys, which I've tried to correct above.


What if Ashton Lundeby had been involved in phoning in crank bomb threats? Obviously, this would be more than just a cruel prank, but a serious crime -- particularly if it involved disrupting the lives of hundreds or thousands of people by leaving them convinced that their lives were in immediate danger.

It's not difficult to imagine the victims of phony bomb threats fleeing their work areas in panic, making desperate cell phone calls to loved ones, and otherwise experiencing the visceral fear that comes from the thought that they confronted anonymous, arbitrary lethal violence.

We've seen an example of how this kind of thing works quite recently -- a little more than a week ago, when the White House induced widespread panic in New York City by conducting a still-unexplained "photo op" involving a very low pass by one of its fleet of Air Force One 747s in more or less the same trajectory followed by the hijacked jetliners on 9-11.


A reader sent me the following description, provided by a relative who was on the scene, of the coronary-inducing panic that resulted from the White House's bizarre, sadistic little exercise:


Our office is in the southern-most building in Manhattan. I mean literally the tip of the island. I didn't see what was going on, but all of sudden almost the entire floor started sprinting for the stairs. That never happens.

These are people who pretend they are on the phone during fire drills, so they don't even have to get out of their seats. I didn't see the plane coming for the building, but when everyone runs for the stairs you run too. We are on the 50th floor, and let me tell you that is a long way to run. To make matters worse, there are people sobbing in the stairways, women falling down because of their high heels, ladders in the middle of the landings, and the floor is so slick that it makes it impossible to run down the steps in shoes with leather bottoms (no traction at all - guess we should amend the dress code for sneakers), which is of course what everyone is wearing.

Did I mention the pregnant women trying to run down the stairs?

The worst part was the noise. Thousands of people running down the stairs is deafening. So loud in fact, that people thought it was the plane about to crash into the building.

I thought I was going to die today. I don't mean maybe, and I don't mean for just a second. I mean the entire way from the 50th floor down. When I started down from 50, I thought to myself, please, God, just let me make it to 45. When I got to 45, I thought if I can just get to 40 before it hits I have a chance. I did this over and over again until I got to he 1st floor.

The scene outside was surreal. Thousands of people standing around with no idea what they should do. Some people were standing around crying, some were running uptown, some getting in cabs, some standing right under the building, but no one with any idea what to do.

It's impossible for me to see the moral difference between what the White House and its cohorts did on April 27, and the actions of someone who maliciously phones in a phony bomb threat that sends people scattering from their offices and classrooms. The only substantive differences have to do with the magnitude of the offense, and the costs inflicted on taxpayers and businesses as a result.

So whoever is responsible for phony bomb threats against Purdue and other institutions should be prosecuted and punished, even though the use of the PATRIOT act was entirely unjustified -- and if the guilty party ends up in prison, he should enjoy the company of Barack Obama and several dozen of his minions, who appear to be guilty of committing a much grander version of exactly the same offense.

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Dum spiro, pugno!