The Making of a Prison Society

"That's why you shouldn't bring kids to protests."

This taunt, which issued from the sneering lips of anarmored riot policeman, struck Don Joughin with the force of a billyclub as hetried to comfort his children – a three-year-old and a newborn – after they hadbeen showered with a chemical agent by a riot policeman.

That assault did not take place during any of the recent “Occupy”-inspiredprotests. It occurred in August 2002, during a fundraising visit by then-PresidentGeorge W. Bush to Portland, Oregon. 

In keeping with then-recently established “security”protocols, local police were deployed in riot gear to keepdemonstrators confined inside "free speech zones" located severalblocks away from the motorcade route. Joughin, who was accompanied by his wifeand three children, was present when police unleashed a pepper-spray fusilladeagainst a small group of protesters who had taken a few steps outside thedesignated protest zone.

After the police attack began, Joughin and his family attempted toleave, but found themselves penned in. Acting on the tragically innocentassumption that the police were present in order to keep the peace, Joughinpolitely asked the officer obstructing an exit how he and his family couldleave the turbulent intersection. "He pointed and said to exit to the[northeast], into the spraying police opposite him," Joughin recalled.

Don Joughin comforts his son after the infant suffered a pepper spray assault by a Portland cop.

 

With his family in danger of being trampled by protesters fleeing the chemical barrage, Joughin asked the officer to let him and hisfamily through. "He looked at me, and drew out his can from his hip andsprayed directly at me," Joughin recalled. He didn't bear the bruntof that criminal assault, but his three-year-old caught some of the blast. Theassailant then turned on Joughin's wife and the infant "and doused both oftheir heads entirely from a distance of less than three feet," Joughin testified.

As his children were screaming in agony, Joughin pleaded with the cops to allowhim and his family to leave and seek help. They responded by closing ranks andblocking the Joughin family's escape. They didn't relent until someone in"authority" gave them permission to set them free. The last thingJoughin and his traumatized family heard as they left the scene was thesadistic taunt hurled by one of the tax-devouring thugs who had assaulted the children with a chemical weapon. 

While millions of Americans have been horrified by recent incidents of armored police officers beating and pepper-spraying unarmed,unresisting protesters, those nauseating spectacles are neither novel norparticularly rare. In “SecuritizingAmerica: Strategic Incapacitation and the Policing of Protest Since the 11September 2001 Terrorist Attacks,” a heavily sourced paper recentlypublished in the journal SociologyCompass,  Patrick F. Gillham of theUniversity of Idaho observes that current police doctrine dictates that publicprotests are to be treated as “security threats,” and dealt with using methodsinspired by “a new penology philosophy.”

From that perspective, every public demonstration -- however peaceful and orderly it might be --  is to be treatedas the equivalent of a prison riot. This means that police are free to employevery available means – pre-event surveillance, pre-emptive arrest,hostage-taking, and the use of incapacitating “less-lethal” weaponry – in orderto “neutralize” people suspected of being “disruptive” elements.

Illegal mass arrest in St. Paul, Minnesota.

 

Under the “strategic incapacitation” model, Gillham notes, “policeoften refuse to communicate at all with possible or actual transgressiveprotesters except to issue commands onceprotest events have already begun.” (Emphasis added.) It’s not enough toconfine protest to “free-speech zones”; the right to assemble itself is subject tomodification or revocation without prior notice – even in the absence of disorderlybehavior on the part of the protesters. 

Typically, phalanxes of riot police will appear and slowlyherd protesters into a confined area. An announcement will be made that thedemonstration has been designated an “unlawful assembly,” and shortlythereafter the attack will begin, typically culminating with either massarrests, needless injuries, or some combination thereof. 

A September 2001 anti-war protest in Washington, D.C.offered the first opportunity to field-test this approach. A small group ofanarchists were driven into an improvised holding area by riot police, wherethey were literally held as hostages: “After 2 hours of detention, policeconveyed the terms under which protesters would be released to a neutral thirdparty of legal observers and not to the detained protesters.”

Two years later, during the Free Trade Area of the Americassummit in Miami, “police not only pre-emptively arrested perceivedtransgressive protesters, they also arrested scores of union members andstudent activists walking to permitted events, as well as credentialed reportersand curious bystanders,” recalls Gillham. Most of those arrested had not beenordered to disperse, and had violated no law – including a draconiananti-assembly law that had been enacted by the city government just days priorto the summit. In addition, Gillham observes, “Bails were set high as a furtherway to keep those arrested off the streets.”

The same approach was used at both the Republican andDemocratic national conventions in 2008. In one particularly memorableapplication, 284 people were arrested at a public park in St. Paul, Minnesota onLabor Day 2008 during the Republican Convention. A huge contingent of riotpolice – supplemented by the NationalGuard’s JTF-RNC, and equipped with chemical munitions and gas masks -- cutoff access to the park, which was bordered on one side by train tracks and theother by a river. This turned the park, however temporarily, into ahuge open-air detention center.

An amplified version of the same tactics was employed bypolice in Pittsburgh when the 2009 G-20 summit brought the crème de la scum ofthe world’s criminal class to that city.

As helicopters plied the night air and serried rows ofarmored riot police assembled, a robotic voice announced:“By order of the chief of police, this has been declared an unlawful assembly.I order all those assembled to immediately disperse. You must leave theimmediate vicinity. If you do not disperse, you may be subject to arrest,and/or other police action” – the latter being a euphemism for summarypunishment through “the use of riot control agents and/or less lethalmunitions.” 

Once again, protesters were ordered to leave, and threatenedwith severe reprisals if they didn’t – only to find that the police already hadthem surrounded and were determined to arrest and assault at least some ofthem. 

Those crackdowns, in keeping with the “strategic incapacitation”doctrine, were not employed in response to criminal violence, or to deal withany impending threat of the same. Gillham points out that under the newapproach “arrests are selectively applied to neutralize known or suspectedtransgressive actors often times before any crimes are committed.” 

The same is true of aggressive violence employed by riotpolice, notes Gillham: “Less-lethal weapons such as tear gas, pepper spray,Tasers, rubber bullets, wooden missiles and bean bag rounds are now the weaponsof choice…. Evidence suggests that police use these weapons as a means totemporarily incapacitate potentially disruptive protesters and repel othersaway from areas police are trying to defend such as entrances and exits tosecured zones.” 

Of course, once the riot police appear and the decree goesforth that a given protest is an “unlawful assembly,” the protest area itselfis designated a “secure zone,” and those within it can only leave with thepermission of their captors. 

Thugswarm: Riot police assault female student in Pittsburgh.

All of this is manifestly the product of a military mind-set– one better suited to a military prison camp than a battlefield. The behaviorof domestic police in dealing with political demonstrations is nearly identicalto that of specialized “Immediate Reaction” forces (IRFs) deployed  in militaryprisons such as those at Guantanamo Bay and Bagram Air Force Base inAfghanistan.

In his memoir, FiveYears of My Life: An Innocent Man in Guantanamo, Turkish national MuratKurnaz – who was kidnapped by Pakistani bounty hunters and sold into U.S.custody for $3,000 – describes his captivity in Gitmo (as well as Bagram) as a supposed “unlawful combatant." Any violation of the arbitrary -- and ever-changing-- rules of prisoner conduct provoked an attack by the IRF, a unit consistingof "five to eight soldiers with plastic shields, breastplates,hard-plastic knee-, elbow-, and shoulder-protectors, helmets with plasticvisors, gloves with hard-plastic knuckles, heavy boots, and billyclubs."In other words, they were accoutered exactly like the domestic riot police whohave become such a familiar presence in recent weeks.

Breaking a rule wasn’t a prerequisite for a visit from the IRF. The team wouldbe summoned to inflict punishment for any act of defiance -- such as an insult hurled at an abusive guard, or even an attemptto exercise. Typically the IRF would soften up the target by infusing the cell witha liberal dose of Megyn Kelly’s much-discussed “food product” – weaponized capsaicin.Once the prisoner had been left entirely incapacitated, the IRT would swarm himto deliver a beating.

Former military interrogator Erik Saar provides a parallel accountin his remorseful memoir, Inside the Wire.

“The five IRF-team MPs lined up outside the cell door,”writes Saar. “Starting in the back, they each shouted `Ready!’ and one by oneslapped the shoulder of the next soldier up. The first soldier opened the doorand directed a good dose of pepper spray at the detainee, then started to backhim into a corner with his shield. But the captive managed to swipe the shieldaway and tried to kick the second soldier in line. He landed a good blow to theshoulder, but before he could put his foot down the third soldier, thinkingfast, grabbed it and jerked. The detainee’s body rose in the air and camecrashing to the metal floor.”

“All five MPs swarmed over him,” continues Saar’s account. “Onewas responsible for securing his head, and the other four were supposed to takeone limb each. The detainee was kicking and squirming, fueled by his hostility.Mo [an Army translator] was shouting to him in Arabic to stop resisting. One ofthe stronger soldiers who had a solid grip on one arm was punching him in theribs….” 

 Nearly identical tactics were used at “CampGreyhound” in New Orleans, an improvised jail modeled after Gitmo and operatedby FEMA in the wake of Hurricane Katrina. Among those imprisoned there wasSyrian-American businessman Abdulrahman Zeitoun, who was seized in his own homeby National Guardsmen, imprisoned on unspecified charges, and escaped with hislife only because of the providential intervention of a Christian clergyman whohappened to visit his cell after Zeitoun had been transferred to the Elayn Hunt CorrectionalCenter. 

For Zeitoun and the other prisoners, the Camp Greyhoundexperience was one of tedium punctuated by sheer terror. The guards exploitedany excuse to inflict exemplary "discipline" on the detainees, mostof whom had been arrested for violating curfew or similar petty matters.

"Always the procedure was the same," recalled DavidEggers in his book Zeitoun;"a prisoner would be removed from his cage and dragged to the groundnearby, in full view of the rest of the prisoners. His hands and feet would betied, and then, sometimes with a guard's knee on his back, he would be sprayeddirectly in the face" with pepper spray. "If the prisoner protested,"continued Eggers, "the knee would dig deeper into his back. The sprayingwould continue until his spirit was broken. Then he would be doused with [a]bucket and returned to his cage."

The victims of this pointless and whimsical cruelty included one disturbed manwith the intellectual and emotional capacity of a child who was"punished" because he displayed the irrepressible symptoms of mentalillness.

FEMA camp survivor: Abdulrahman Zeitoun with his family.

These ritual acts of sadism, Eggers observes, were "born of a combinationof opportunity, cruelty, ambivalence, and sport." They were intended totorment the other prisoners, most of whom -- like Zeitoun – were possessed ofmore decency than their captors and thus left sick with rage by the spectacleof helpless men being tortured.

"Under any normal circumstances [Zeitoun] would have leapt to the defenseof a man victimized as that man had been," observes Eggers. "But thathe had to watch, helpless, knowing how depraved it was -- this was punishmentfor the others, too. It diminished the humanity of them all."

The same treatment continued once Zeitoun was transferred from the makeshiftFEMA detention camp to a “regular” prison. For more than two weeks he and hiscellmate were abused, insulted, humiliated, and treated to a visit from aGitmo-style "Extreme Repression Force" (ERP). Swaddled in riotgear, wielding ballistic shields, batons, and other weapons, the ERP"burst in as if [Zeitoun] were in the process of committing murder,"writes Eggers. "Cursing at him, three men used their shields to push himto the wall. As they pressed his face against the cinderblock, they cuffed hisarms and shackled his legs."

After heroically subduing an unresisting man -- who by this time was dealingwith an infected foot and a mysterious kidney ailment -- the ERP tore apart thecell before forcing the victim to strip and submit to another body cavitysearch. By some oversight, the ERP neglected to use pepper spray on theinnocent and helpless man. All of the prisoner-control tactics used in Gitmo and "Camp Greyhound" have been employed against peaceful protesters in New York, Oakland, and elsewhere

 

Civil libertarians are understandably concerned about sections 1031 and 1032 of the proposedNational Defense Authorization Act, which would authorizethe indefinite military detention of Americans – including those seizedhere in the United States – who are suspected of terrorism. That abhorrentmeasure represents an enhancement of current policies and procedures, ratherthan an abrupt departure from them. Whether or not the Senate approves theNDAA, the people in charge of Regime Security already consider this country tobe one vast military prison, and are willing to act on that assumption wheneverthe opportunity presents itself. 

Obiter Dicta 

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Support Your Local Police State

Heroic local police at work.

"Whichis better—to be ruled by one tyrant three thousand miles away, or by threethousand tyrants not a mile away?" –

Attributed to Bostonphysician Mather Byles, 1770.

“Do you see this soldier in thischeckpoint?” Iraqi Wael al-Khafaji asked a Reutersreporter, pointing to a spot just a few feet from his Baghdad barbershop. “He can do whatever he wants to me right now and I can't say a word. Isthis democracy?”

Before the U.S. invasion, thisbusinessman – like millions of other Iraqis – was ruled by a distant dictatorwho had little direct influence on his life. Today, everything he does takesplace under the shadow cast by armed men who have given themselves permissionto brutalize or kill anybody who refuses to obey them.

For Mr. al-Khafaji, it makes nomaterial difference whether the checkpoint is manned by U.S. soldiers, StateDepartment-employed mercenaries, members of Saddam’s Republican Guard, orelements of a local sectarian militia. The problem is the presence of peoplewho claim the right to use aggressive violence to force him to submit to theirwill. The problem is not one of geography or affiliation; it is a matter ofinstitutionalized immorality. 

Americans who supported the Iraqwar would be scandalized by Mr. al-Khajafi’s ingratitude. They would be wise toponder his insight while examining the extent to which our own country isbecoming a garrison state. They would also do well to emulate his habit oflooking with acute suspicion – and no small measure of resentment – on theoddly dressed armed men who presume to exercise authority over us. 

 Democracy is the art of inducingvictims of government power to focus on the question of who controls the government, rather than what it does. The same can be said of the perspective encapsulatedin the slogan “Support Your Local Police” (SYLP). 

As sociologist David Bayleypointed out, “The police are to the government as the edge is to the knife.”  The police are an implement of coercion wielded by the political class, whether they are operationally under the controlof Washington, D.C. or City Hall. 

From the SYLP perspective, the police and the “criminaljustice” system they serve exist to protect life and property against criminalviolence and fraud. If this were true, it would follow that most of thosearrested and punished would be found guilty of crimes against person andproperty.

According to the most recent available statistics regardingincarceration, however, people convicted of actual crimes compose a very smallminority of America’svast and growing federal prison population. As of 2009, crimes ofviolence accounted for roughly eight percent of that total, and property crimescontributed a bit less than six percent. More than half of all inmates wereconvicted of non-violent drug offenses, and thirty-five percent were caged forwhat are called “public order” offenses.

 Libertarian activist Michael Suede points out that eighty-sixpercent of all federal inmates were punished for what are called “victimlesscrimes” – that is to say, offenses not properly described as crimesat all. It is reasonable to assume that similar trends exist at the state andlocal level as well. 

There are instances in which police act in defense ofpersons and property. Those are genuinely exceptional, because rendering thatservice is not part of their formal job description: The Supreme Court hasrepeatedly ruled thatpolice have no enforceable duty to protect individual rights. This helpsexplain why, aseconomist Robert Higgs pointed out roughly a decade ago,“there are three times as many private policemen as there are public ones.”

In choosing to pay for private security assistance,Americans freely spend more than twice the amount stolen from us each year topay for the government’s armed enforcement caste. This is because thegovernment that takes our money fails to provide the promised social good –protection of life and property.

Writing nearly a century ago, when our contemporary policestate was in its infancy, theimmortal H.L. Mencken protested that the government supposedly protectinghim was actually the most rapacious and tenacious enemy of liberty and personalsecurity. While it is possible for the typical American to repel the aggressionof private criminals, “he can no more escape the tax-gatherer and thepolicemen, in all their protean and multitudinous guises, than he can escapethe ultimate mortician. They beset him constantly, day in and day out…. Theyinvade his liberty, affront his dignity, and greatly incommode his search forhappiness, and every year they demand and wrest from him a larger and largershare of his worldly goods.”

 The one refinement we can make to this otherwise flawlesspolemical gem is to note that the terms “tax-gatherer” and “policeman” arefunctional synonyms. Both offices exist to extract wealth from the productiveat gunpoint on behalf of the political class. The only substantive differencebetween them is that the latter are granted slightly wider latitude ininflicting aggressive violence, and equipped to do so. 

As Carl Watner pointed out in “Call the COPS – But Notthe Police,” a seminal 2004 essay published by The Voluntaryist, gathering taxes has been acore police function since the institution was first imposed on theAnglo-Saxons following the Norman Conquest. The feudal order implemented byWilliam the Conqueror was built upon the “frankpledge,”which was the institutional foundation for a a police system designed tocollect revenue for the monarch. 

The Anglo-Saxon tribes had provided security throughkinship-based groups called “tithes” and “hundreds,” who defended cattle herdsand other property and acted as posses to apprehend thieves. Anglo-Saxon courtsemphasized restitution, with any punitive damages being used to compensatevolunteers who had tracked down the offenders. Under the frankpledge, however,the “justice” system diverted all revenues into the king’s treasury. 

Royal courts worked tirelessly to expand the king’sjurisdiction, which was enforced by royal appointees called shire-reeves (fromwhich the term “sheriff” is derived). Eventually, royal enactments criminalizedefforts by victims to seek private restitution; since such arrangementsdeprived the treasury of revenue, they were seen as a form of theft. Thisconcept of the “King’s Peace” could be considered the distant but recognizableancestor of the modern notion that the disembodied abstraction called “society”is a victim of criminal offenses – even those in which no individual has beeninjured. 

A heavy residue of Anglo-Saxon tradition endured into the 18^thCentury. A French visitor to London in the mid-1700s was astounded when none ofthe local residents could direct him to the police – or even recognize theterm. “Good Lord! How can one expect order among these people, who have no sucha word as police in their language?” he exclaimed.

In fact, the term was familiar to educated 18^thCentury Britons, who – as historian Leon Radzinowicz points out – considered itto be “suggestive of terror and oppression.” A 1785 Police Bill proposed byWilliam Pitt the Younger shattered against an iron wall of opposition to whatwas regarded as a “dangerous innovation.” Until the second decade of the 19^thcentury, the British government’s ambition to create a standing police forcewas confined to its Irish colony, where its heavily armed Royal Constabularyfield-tested methods that would later be imported to the homeland. 

The First Modern Police Chief: Fouche.

During the same period, Napoleon Bonaparte, the armedevangelist of the Jacobin revolution, created the first modern police force.Bonaparte’s ascent to power began with a brutal police action: The massacre of13 Vendemiaire (October 5, 1795), during which the young Corsican general used artilleryto slaughter Royalist protesters on the streets of Paris. 

By 1812, writes David A. Bell in his book The First Total War, large areas ofEurope under Bonaparte’s rule were afflicted with “pervasive bureaucracy,particularly new agencies for tax collection and conscription…. To implementthe new order, there came new police forces, often staffed largely byFrenchmen.” 

Presiding over this apparatus of regimentation, extraction, andcoercion was secret police Chief Joseph Fouche, the Jacobin fanatic whoprefigured Felix Dzherzhinsky.

Bonaparte’s star was in eclipse by 1814.  However, as British historian Paul Johnsonobserved in his book TheBirth of the Modern, “the golden age of the political police” had justbegun. The Congress of Vienna gave birth to what one contemporary critic called“All sorts of wild schemes of establishing a general police all over Europe.”

At the same time, Robert Peel, the military governor ofIreland, introduced the so-called Peace Preservation Police, a centrallycontrolled paramilitary auxiliary to the 20,000-man military force garrisonedon the island. Peel explained that the force “was not meant to meet anytemporary emergency” but rather intended to become a permanent institution. In1829, Peel was England’s Home Secretary. With Parliament’s resistance at lowebb, Peel proposed the creation of the Metropolitan Police.

“The new police institution had many supporters ingovernment, but opposition was to be found in the wider society,” wrote Watnerin The Voluntaryist. “The fundamentalprinciples behind the force were seen as … anathema to Whig politicalprinciples, which emphasized `liberty over authority, the rights of the peopleagainst the prerogatives of the Crown, local accountability in place ofcentralization, and governance by the  “natural”rulers of society instead of salaried, government-appointed bureaucrats.’”

Populistparliamentarian William Cobbett, an outspoken foe of “tax-eaters,” wasamong the fiercest critics of the Metropolitan Police, which he saw as thevanguard of a country-wide army of occupation.

“Tyranny always comes by slow degrees,” Cobbett declared inan 1833 speech in Parliament, “and nothing could tend to illustrate that fact[better] than the history of police in this country.” Less than a generationago, Cobbett pointed out, the very term “police” was “completely new among us.”Now, owing to Peel’s innovations, London was now overrun with “Blue Locusts” –“a police with numbered collars and embroidered cuffs, a body of men as regularas the King’s service, as fit for domestic war as the redcoats were for foreignwar.”

In 1783, the last of King George’s occupation troops wereevicted from New York. In 1844, New York City’s municipal government became thefirst in America to embrace Robert Peel’s system of paramilitary police. Thisamounted to exchanging Redcoats for “Blue Locusts.” Other major cities – New Orleansand Cincinnati in 1852, Boston, Philadelphia, and Chicago in 1855 -- soonfollowed. State police agencies began to appear in the last decade of the 19^thcentury, and first decades of the 20^th. 

While those police agencies were locally controlled, theywere not servants of the public; they were instruments of the political classthat created them. On the western frontier, where political power was eitherradically decentralized or entirely theoretical, security for person andproperty was “protected by private policemen who were paid by – and, so,responsible to – the community where they served,” notes libertarian writer Wendy McElroy. 

Unlike the European gendarmes and royal British “shire-reeves,” McElroy pointsout, “Western sheriffs did protectpeople and property; they did rescueschoolmarms and punish cattle rustlers. Their mission was to keep the peace bypreventing violence.”

Most importantly, in the Old West, sheriffs and marshalsdidn’t claim a monopoly on the legitimate use of force. Thus when corruptsheriffs like Montana’s Henry Plummer or Idaho’s David Updike used their officeas cover to operate as “road agents” (horse thieves and highwaymen), theywere arrested, tried, and punished by private “committees of vigilance.”

The only legitimate role for apeace officer is to interpose himself on behalf of individuals threatened byaggressive violence. That is a role that can (and should) be carried out by anylaw-abiding individual – including instanceswhen the purveyor of aggressive violence is a police officer or other stateofficial. 

In therecent nationally coordinated police crack-downs on “Occupy” protesters wehave seen the following scenario play out numeroustimes: Peaceful demonstrators confront riot police; individual riotpoliceman commits physical aggression against protester, then immediatelyescalates the conflict by using potentially lethal force; when the crowdreacts, the other police officers – rather than coming to the aid of the victim– form a protective barricade (I call it a “thugscrum”) around the assailant. 

 

It is all but impossible to findan example of a police officer who interposed himself on behalf of the victimof criminal violence inflicted by a fellow officer. This isn’t surprising: Apoliceman can refuse to render aid to a crime victim without legal liability,and abuse innocent people without alienating his professional peers – but “going rogue” by interveningto prevent a criminal assault by another member of the punitive priesthoodis a career-killer. Former AustinPolice Officer Ramon Perez can supplythe details.

Anytime a police officer commits an act of aggressive violence he is engaged in a criminal assault. If his fellow officers won't intervene to stop him, law-abiding citizens have the moral authority to do so. But this simply won't do, tut-tuts the program manual for the national Support Your Local Police campaign:

"The local police are not your enemy. Your committee is not here to attack them, blame them for violating the Constitution or your civil liberties because they are enforcing a measure of the Patriot Act or conducting a joint Federal and State anti-terror drill. Those are federal issues, which the local police in some cases may have already have little to no say if they are to continue receiving their additional Homeland Security funds, new equipment and weaponry.... We urge all responsible citizens in this community to work with us to ...[s]upport our local police in the performance of their duties [and] oppose all harassment or interference with law enforcement personnel as they carry out their assigned tasks.... [We must accept] our responsibilities to our local police, to defend them against unjust attacks, make them proud and secure in their vital profession, and to offer them our support in word and deed wherever possible." (Emphasis added.)

Their "assigned task": Local Police grab guns in New Orleans.

It apparently didn't occur to the author of that passage that claiming citizens have "responsibilities to our local police" is to assume that the people exist to serve the government, rather than the reverse.  Furthermore, it's pretty clear that from this perspective, the police have no reciprocal "responsibilities" to the citizenry.

Does that "responsibility" to defend the police and "make them proud" extend to supporting local police when they carry out lethal paramilitary raids, like the one that resulted in the murder of Jose Guerena? Would it include support for firearms confiscation of the sort carried out by local police (as well as National Guard personnel) in post-Katrina New Orleans? 

At the very least it would mean refusing to interfere when an armored bully carries out his "assigned task" of brutally assaulting a helpless, unarmed citizen, rather than carrying out the moral duty to do whatever is feasible to prevent the crime or end the attack.

"When law and morality are in contradiction to each other," observed Frederic Bastiat, "the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing respect for the law -- two evils of equal magnitude...." The "Support Your Local Police" perspective undermines morality by enshrining unconditional support for the police -- who are, as SYLP admits, simply local affiliates of a nationalized Homeland Security system -- as a supposed civic duty. 

No individual or institution has the moral right to use aggressive force. That principle applies not only to the Federal Leviathan, but to the loathsome little replicas of that vile beast found in every city, county, and state. Rather than helping to consolidate the existing police state, supporters of the rule of law should work to end their local government's monopoly on the police power -- with the ultimate objective of abolishing it outright. 

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Where Justice Goes to Die

Federal Court is in session.

Ten years ago, a 21-year-old woman named Tonya Hart was shotto death in a Moscow, Idaho trailer court. Two years later, a local man named David J. Meisner, whoconfessed to the crime during a recorded police interrogation, was convicted ofmurder and sentenced to life in prison. Last month, the Idaho State SupremeCourt ruled that trial judge John Stegner committed a reversible error when herefused to allow the defense to present evidence that someone else might havepulled the trigger on the gun used to kill Miss Hart. 

Anew trial for Meisner is currently underway in Moscow. The prosecution hasfinished presenting evidence, and the defense is expected to take at least twoweeks presenting its case. The first witness summoned to testify on Meisner’sbehalf is Dr. Richard Ofshe, an emeritus professor at the University ofCalifornia-Berkley, a nationally respected expert in the field of falseconfessions. 

The taped confession is the central piece ofevidence against Meisner in what the prosecutioncharacterizes as a case of “murder for hire.” 

Hart’s ex-boyfriend, Jesse Linderman,supposedly offered to pay Meisner $1,000 to murder the young woman, with a $100bonus if the killing took place before Christmas. Thecharges against Linderman were dropped for a lack of evidence. As the statesupreme court noted, the only evidence tying Linderman to the crime wasMeisner’s disputed confession.

During the trial, Judge Stegner refused to permit thedefense to present evidence that a man named Lane Thomas, who had repeatedlyconfessed to the murder, was the individual who had shot Miss Hart. Stegner didn’texplain why Meisner’s confession was uniquely credible. The Idaho Supreme Courtruled that by granting the prosecution’s motion to exclude Thomas’sconfessions, Judge Stegner had violated Meisner’s right to present a defense,as protected by the Sixth Amendment. 

In this “murder for hire” case, the supposed triggerman wasconvicted on the basis of a confession that was considered inadequate toestablish the guilt of the alleged instigator of the plot. However, in the newtrial the defense will have be permitted adequate time to present its case;this includes testimony from expert witnesses like Dr. Ofshe.

The Tonya Hart murder case is practically a photographicnegative of another high-profile murder for hire case from northern Idaho: The supposedplot by attorney Edgar Steele to hire a handyman named Larry Fairfax to murderhis wife Cyndi by planting a pipe bomb on her SUV. 

In the latter case, however, the confessed bomber, who actedas a “cooperating informant” with the FBI, was sentenced to a mere 27 months inwhat amounts to a halfway house for possession of an unregistered firearm. Mr.Steele, a 66-year-old man who has survived prostate cancer and a nearly fatalcoronary aneurysm, was sentenced on November 9 to 50 years in federal prison. While Meisner wasn't permitted to mount a defense in his original trial, the re-trial offers him a chance to exercise that right. Steele will most likely die in prison before he is afforded a similar opportunity. 

Edgar Steele, who describes himself as the "attorney to the damned," has made a career out of defending reviled clients, such as the Aryan Nation. His political views and professional associations have made him a widely reviled figure -- but they do nothing to establish his guilt. The same is true of the supposition-rich and substance-poor case presented against him in court.

The prosecution’s case against Steele depended entirely ontwo mutually dependent pieces of defective evidence. The first was theaccusation of the confessed bomber, Fairfax, who was accused by Steele and hisfamily of stealing a large quantity of silver and then framing thecontroversial lawyer in order to conceal his crime. The second piece ofevidence was a third-generation copy of a digital recording made by the FBI ofa conversation in which Steele and Fairfax supposedly discussed the plan tokill Cyndi. 

Fairfax’s guilt is demonstrated by a huge volume of physicalevidence, including the defective pipe bomb whose existence he concealed fromthe FBI until it was discovered on the undercarriage of Cyndi’s vehicle duringan oil change. Absent the recorded conversation between Fairfax and Steele onJune 9, 2010, the murder for hire case against Steele would disintegrate. 

Prior to the trial, the FBI recording was examined by Dr. George Papcun, a forensic scientist who has advisednumerous law enforcement and intelligence agencies. Dr. Papcun discernedhundreds of “transients” and other anomalies in the pre-trial version of theFBI recording. He concluded that there was “a reasonable degree of scientificprobability that [the recordings] do not represent a true and validrepresentation of reality and they are unreliable.” 

Winmill (l.), seen here, appropriately, with a Soviet-era Russian Judge.

 This expertassessment would have been devastating to the prosecution. This is probably whyJudge Winmill, during Steele’sSovietesque trial in federal court last May, exerted himself to prevent it from being shared with thejury. 

At the time of the trial, Dr. Papcun was vacationing in Bora Bora. On May2, Winmill ruled that Papcun would be permitted to offer testimony by way of avideo teleconference at a U.S. Consulate the following day. 

That ruling causedTraci Whelan, the federal commissarina presiding over the prosecution, to stompoff into a corner, stick out her lower lip, and began to sniffle. Winmill – whoeither believes in mysticalbilocation, or (more likely) subscribes to a totalitarian view of the law-- reversed himself, ruling that Papcun had to be present in the Boise courtroomno later than 8:30 a.m. on May 4.

 This wasn’t the end of Winmill’s corruptsolicitude for the prosecution. The Judge also permitted Whelan and her comrades topresent the videotaped and translated testimony of a Ukrainian woman namedTatyana Loginova, who claimed that Steele was conducting an online affairwith her. Steele maintained that his online conversations with Loginova – who advertisedherself as a mail-order bride -- were research for a book about internationalsex trafficking. Implausible though that account might seem to some people, itwas validated by Steele’s friends and family – including his wife Cyndi, whohas loudly and consistently protested that her husband is innocent. 

Lying by headline: The "victim" is alive, and supports her husband.

 Cyndi’s role – indeed, her very presence – underscores the mostcritical contrast with the Tonya Hart murder. In the Edgar Steele case, the “victim”is alive and well. Indeed, there is no victim, at least as that term was usedby the prosecution. 

“We have a great marriage,” Cyndi Steele told Winmill duringthe sentencing hearing. “I am not a victim of my husband because my husband didnothing wrong. I am a victim of the government.”

When it was announced that Edgar Steele’s murder-for-hiretrial in Boise would be heard by Judge Winmill, informedcourt-watchers in Idaho knew that the proceedings would be a show trial – a spectaclescripted by Franz Kafka and directed by Andrei Vyshinsky.  Lynn Winmill’s courtroom is where justicegoes to die. The family of the late Verl Jones, who owned a family ranch nearthe Montana border, can testify that his description is untainted by hyperbole.

For many years, Judge Winmill has been a stalwart ally ofthe Western Watersheds Project (WWP), a foundation-funded radical environmentalgroup that has played a key role in the eco-Jihad against property rights inIdaho. WWP has filed several lawsuits intended to shut down human use of landsthat – in defiance of the Constitution – are owned and controlled by thefederal government. 

Writing in the Spring 2008 issue of Range magazine, StateRepresentative Judy Boyle described Winmill as the “WWP’s sugar daddy who veryseldom rules against them, often incorporating pieces of WWP’s briefs tojustify his decisions.” In fact, when the WWP files a claim under theEndangered Species Act, Winmill generally won’t even require the group topresent evidence before ruling in its favor.

This was what happened in the case of Mr. Jones, who wassued by WWP in 2001 over an irrigation ditch he had dug forty years earlier.Exercising his federally recognized right to use water from Otter Creek, Jonesdug the ditch on his own property to grow hay. The WWP claimed that the diversion of water harmed the endangered bulltrout, despite the fact that none existed in Otter Creek. Without requiring theWWP to show evidence to support its claims, Winmill ordered Jones to stopirrigating his hay fields, and to pay the WWP’s legal fees. 

"I'm a victim of the government": Cyndi Steele.

The requirements imposed by Winmill on the 85-year-old Joneswere akin to Pharaoh’s spiteful order that the Hebrew slaves be required tomake bricks without straw. 

The loss of Jones’s hay crop threw the ranch into afatal economic tailspin. Unmoved by the rancher’s plight, Winmill ordered himto provide the WWP with a list of all his assets, which the eco-radical groupsold in order to pay its court costs. The stress and frustration literallykilled the elderly rancher.

Seattle-based litigator Russell Brooks of the Pacific LegalFoundation took the case before the 9^th Circuit Court of Appeals,which overturned Winmill’s decision. 

“The 9^th Circuit judges ruled thatactual evidence of a species being harmed must be presented, not just alleged,before a judge can legally order an injunction,” recalls Rep. Boyle – aprinciple that Winmill is intelligent enough to understand, but sufficientlycorrupt and arrogant to ignore. 

Winmill’s behavior in the Edgar Steele case was of a piecewith his treatment of Verl Jones, and any honest federal appellate court -- a species last seen keeping company with the unicorn -- would overturnthe conviction and order a new trial. It’s quite reasonable to suspect thatWinmill, a recidivist persecutor of sick, powerless, elderly defendants, hascynically calculated that Steele, like Jones, will expire before being granted an actual trial.  

Obiter Dicta

The next issue of Republic magazine -- for which I serve as managing editor -- will have a detailed cover story examining the Edgar Steele case. 

Grateful as I am for the Republic gig, I'm compelled to point out that it doesn't offer an extravagant paycheck -- so your help in supporting Pro Libertate is still desperately needed and emphatically appreciated! 

Dum spiro, pugno!