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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