Translate

Follow by Email

Search this and affiliated sites

Constitutional education, history, commentary, reform, compliance, and interpretation.

2010/03/30

Hutaree indictment

Let's examine the indictment in detail from a constitutional standpoint.

1. The "general allegations" are inflammatory rhetoric that does not belong in an indictment. It is an attempt to make mere organization and training seem to be a crime, but it is not, even for the unconstitutional provisions of the U.S.C.

2. Count 1. "Seditious Conspiracy". The key statement is:

... acting as a militia group know as the HUTAREE, did knowingly conspire, confederate, and agree with each other and other persons known and unknown to the Grand Jury, to levy war against the United States, to oppose by force the authority of the Government of the United States, and to prevent, hinder, and delay by force the execution of any United States law.
The only provision of the Constitution for the United States that might provide authority for any part of this is the Treason Clause, Art. III Sec. 3 Cl. 1:

Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
In the 10th Congress, First Session, Senate, 1808 Feb 11, 24, Mar 1; Annals 17:108-27, 135-49, 159-50, a proposal was moved, debated, and rejected on constitutional grounds, to make conspiracy to commit treason a crime:

Conspiracy is an offence no where mentioned in the Constitution. ... This Constitution being a special grant of power, those acting under its authority cannot claim the exercise of any power not delegated or vested in them, except such incidental powers as may be requisite to carry the specified powers into effect or result from the exercise of them. The power to punish conspiracy cannot be included with the class of incidental or resulting powers. ... This crime called conspiracy, however odious, is in its nature so vague and indefinite, and liable to be proved by testimony of so suspicious a character, that I fear it would be dangerous to give it a place in our criminal code. Conspirators, when their guilt is well ascertained, will generally be punished with sufficient severity by that great censor, public opinion. It does not appear to be entirely congenial with either the genius or practice of the American Government to punish a man for his wicked intentions, until they have eventuated in the perpetration of some unlawful act.

So by this original understanding, the Constitution really does require the crime of treason actually be carried out, and not just be planned or directed. One may argue this is impractical, that it would make the Constitution a "suicide pact", but the Constitution says what it says and until it is amended we are bound to its limits, no matter what apparent necessities might emerge.

Similar arguments can be made against the charges in the indictment, "to oppose by force the authority of the Government of the United States, and to prevent, hinder, and delay by force the execution of any United States law." There is no constitutional authority to make those things a crime, or any authority to make anything a crime under the Necessary and Proper Clause. For further discussion of why sedition is not a crime under the Constitution see the original draft and adopted version of the Kentucky Resolution of 1798:

That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offences against the law of nations, and no other crimes whatsoever
The indictment cites a "general concept of operations" but a concept is not a crime, even under state laws that make conspiracy a crime, but require there be a near-term timetable and a commitment to that timetable. A plan that is contingent on some future event that may never happen, or for a contingency in a distant future, does not qualify under even state precedents.

In the indictment "a. Conspirators acquired ..." a lot of things that are not criminal to acquire or possess, with the possible exception of "explosive devices" for which there is a provision in the U.S.C., that provision is based on the Commerce and Necessary clauses and is unconstitutional. It does not belong in an indictment.

In the indictment "b. Conspirators engaged in military-style training ..." is an improper attempt to portray a legal activity as something sinister or unlawful. It does not belong in an indictment.

In the indictment "c. ... planned the killing ..." could provide a basis for a proper charge of conspiracy in state court under a state law, if the plan was a commitment to a timetable and not just a fantasy, but absent a plan to do so on federal territory, there is no federal jurisdiction, and the Grand Jury erred in finding such jurisdiction by their indictment.

In the indictment "d. ... covert reconnaissance exercise... could be killed" refutes the position of the government that it was a conspiracy even under state law, because for that the word to be proved is "would" not "could", and "could" only puts it in the realm of fantasy.

In the indictment "e. ... solicited a person he believed capable of manufacturing destructive devices ..." makes the charge void for vagueness. Anyone with hands and of normal intelligence is capable of that. " ... identified law enforcement officers ... as potential targets of attack" refutes the position of the government that it was a conspiracy even under state law, because for that the word to be proved is "targets" without the "potential" qualifier.

In the indictment "f. ... engaged in training devoted to preparing for the planned covert reconnaissance exercise" refutes the position of the government that it was a conspiracy even under state law, because for that it would have to be a planned killing and not just a planned "reconnaissance exercise". "Each of the conspirators in attendance carried and used at least one firearm" is intended to provide a premise for an enhancement to the crime, but there has to be a crime, and the indictment itself does not establish the premise for that.

As thus explained, 18 U.S.C. 2384 is unconstitutional in every part, if applied to actions committed on state territory. See this brief.

3. Count 2. 18 U.S.C. 2332a(a)(2) -- Attempt to use weapons of mass destruction. The same arguments that refute a power to make conspiracy a crime also apply to make "attempt" a crime. Perhaps the federal government should have such power, but it is not provided in the Constitution, even under the Commerce and Necessary and Proper clauses. See this article.

4. Count 3. 18 U.S.C. 842(p)(2) -- Teaching/demonstrating use of explosive materials. Obviously unconstitutional. If if were, then every publicly available military manual, and many movies and TV programs, would be in violation, as would instructions for holiday fireworks.

5. Count 4 and 5. 18 U.S.C. 924(c)(1) -- Carrying, using, and possessing a firearm during and in relation to a crime of violence. This could be constitutionally applied as an enhancement to the sentence for a crime for which there is federal jurisdiction, but not as an offense by itself, where a constitutional federal crime is not proved, and it is unconstitutionally vague as to the definition of "violent".

Based on the indictment alone, without examining the evidence in the case, the charges are facially without merit, and the indictment defective. The matter should be turned over to state authorities to let them pursue it if they think it has merit.

The DoJ is also at fault for publicizing this case as an obvious propaganda campaign to increase its budget and get further legislation enacted. This is an improper and probably unauthorized use of public funds.

The mainstream media should be criticized for referring to the Hutaree as "militia" in connection with these charges. They do not refer to themselves as militia, although they have some links to militia unites on their website. If the charges are valid, they are not militia, by definition. The original correct meaning of "militia" is defense service. It is not militia to incite violence, or even to threaten to do so.

3 comments:

Andrea Muhrrteyn said...

Jon,

I love reading your analysis.. you always make me think. Man... you know your stuff! Thanks!

Craig said...

Where would you put the ability of Congress to legislate afgainst acts of terrorism in the constitutional scheme? I've always assumed it fell under Congress' powers to define and punish piracy and "offences against the laws of nations." Do you have a different take?

Jon said...

What we are calling "terrorism" is properly classified as "piracy", understood as warlike acts of nonstate actors, either by foreigners against us, or by our nationals against foreign assets. There is a well-established legal heritage for prosecuting that: Foreign pirates would be prosecuted by military court-martial, and domestic pirates in civil courts.

However, when I have questioned DoJ appointees on the subject I found them to be strikingly ignorant of the legal history that bears on their responsibilities. They admitted they didn't know what I was talking about.

Blog Archive