Time Reporter Held in Contempt in CIA Leak Case

It's an interesting constitutional case, and the First Amendment will undoubtedly be raised, because there are so many precedents involving it, but not on its merits. The First Amendment only protects the right to express and to communicate, not to withhold information. There is a right to privacy in the Ninth Amendment, but it is qualified by the public's right to know, on a question by question basis. It is like discovery in a civil case. The witness, whether before a grand jury or in a deposition, has the right to object to particular questions, and the matter may then be referred to the judge for a decision on whether the public's right to know prevails over the witnesses' right to privacy. That decision may, of course, be appealed to a higher court.

The only right to withhold information is in the Fifth Amendment, but, contrary to established precedents, that originally protected against not only being required to answer a question in a criminal case, or in the situation in which the witness might be incriminated thereby, but also questions that if answered truthfully, might tend to impair the witnesses' reputation or property interests. And, contrary to established precedents, the right originally applied on a question-by-question basis, not to testimony generally. In other words, a witness does not waive his right to withhold answers to some questions just because he agrees to testify on others.

See Shelton v. American Motors Corp., 805 F.2d 1323,1327 (8th Cir. 1986), which held that a party should not be allowed to depose opposing counsel without demonstrating that (1) no other means exists to obtain the information; (2) the information sought is relevant and not privileged; and (3) the information is crucial to the party’s case.

In Hart v. Frost, 73 Okl. 148, 175 P. 257 (1918) the judge held:

The court finds that in the case at bar the court prevented defense counsel from objecting to each question as it was asked . . . by overruling the defense's request to do so, even though the transcript does not specifically show what objections were overruled, interposed by the defendant. The court specifically recalls the nature of the statements made in chambers off the record . . . and it is the court's finding that all parties understood that the defendant's objection that was overruled was his request to interpose objections question by question . . . .

Also see United States v. Allee, 888 F.2d 208, 212 (1st Cir. 1989).

It is important to understand that the privilege of confidentiality is just that, a privilege. It has no basis in the Constitution. It is a matter of customary prudential deference, and offers the argument made above that it should be respected if there are other ways to obtain the same information, and only breached after it has been demonstrated that no other alternative is available.

This applies to any confidentiality custom, whether it be for a journalist, a religious counselor, a physician, or whatever. It is a matter of judicial discretion, and is based only on custom, the resistance that some kinds of witnesses can be expected to offer, and the support of it by powerful political groups.

Of more interest to me, as a constitutional historian, is the way the grand jury often is abused by being used as an inquisitorial tool by prosecutors. If a witness finds that the prosecutor is present in sessions of the grand jury, he should demand his right to be questioned by an independent grand jury which is not unduly influenced by a prosecutor or the judge, and to demand they not be present. Only the members of the grand jury and the witness should be in the room during questioning.

A weaker but potentially useful line of attack, as a political weapon if nothing else, is to challenge the statute which the grand jury is apparently attempting to enforce, namely, the statutory basis for charging someone with a crime for disclosing the identity of a federal agent. There is no constitutional authority for such a statute to be enforced against civilians, only against government personnel who have agreed to be subject to it, such as military personnel and militia in actual federal service.

The Treason Clause might be invoked for authority, but the answer to that is that there is no enemy declared by resolution of Congress, as required by the Constitution. No declared enemy, no applicability of providing "aid and comfort" to an enemy.

One may object that this doctrine of interpretation would leave us defenseless to real enemies. The answer is that the Constitution arguably needs to be amended to provide that power, but unless or until it is amended, no such authority exists.

Usual disclaimer: This is not legal advice. Using these arguments is unlikely to result in favorable outcomes. However, as a matter of original understanding and true law, they are correct. Just don't expect appeals to the Constitution as originally understood to be respected by today's courts.

Stovepiping: The failure of bureaucratic responses to public threats


The term "stovepiping" is used to refer to the way that information from the lower levels of an organization is filtered, distorted, and compressed beyond usefulness for decisionmaking, in passing up the chain of command. the term has been coming into prominence since the public exposure of the way intelligence is reduced to about a two-page report for the president, the PDB, or "President's Daily Briefing" report. People have asked how all the
actionable intelligence gathered could enable the president to make informed decisions when it is thus filtered and compressed. The simple answer is, it can't.

However, the problem is not confined to the U.S. government. It is pervasive in all large hierarchical organizations, leading to calls to break them up and have the components proceed as a cooperating network, similar to the operation of small business entities in a healthy, competitive marketplace.

Some large organizations make periodic attempts to overcome this stovepiping effect by resorting to such devices as setting up "red teams", tasked to take contrarian positions in internal debates, much the way the judicial system conducts trials with an adversary system of opposing litigants and their counsels. Red teams are intended to dispel "groupthink", or the tendency to prematurely adopt a consensus position on some question and discourage dissent from it. The classic example of groupthink in action was the Bay of Pigs invasion, the result of no one challenging the plans as they were made. Others argue that the Vietnam war was another classic example of groupthink, even though there was dissent, especially among the public, the organizations making the decisions effectively excluded and ignored the dissent and failed to consider the sound arguments for it. (See "competitive diffusion processes" and why nationalism has a higher coefficient of diffusion than Jeffersonian republicanism and constitutionalism.)

Following are some links to further discussion of this topic:

Stovepiping:
http://www.newyorker.com/fact/content/?031027fa_fact
http://www.dodccrp.org/events/2004/CCRTS_San_Diego/CD/papers/171.pdf
http://www.thepoorman.net/archives/002133.html
http://www.leavenworth.army.mil/milrev/download/English/JulAug04/grau.pdf
http://www.narsil.org/politics/stovepipe1.html
http://www.hpti.com/objects/homeland.pdf
http://www.afsa.org/fsj/mar04/thielmann.pdf
http://www.fas.org/irp/congress/2004_cr/harman040104.html
http://www.cia.gov/csi/studies/vol47no1/article03.html
http://www.heritage.org/Research/HomelandDefense/EM828.cfm
http://reviews.infoworld.com/article/04/04/23/17OPcurve_1.html
http://www.usamnesia.com/2004/02/do-you-all-know-sy-hersh-americas-most.html
http://www.fas.org/irp/eprint/coia.htm

Red teaming:
http://www.fas.org/irp/agency/dod/dsb/redteam.pdf
http://www.hicksandassociates.com/whatwedo/red-teaming.html
http://www.sandia.gov/programs/homeland-security/red_teaming/redteam.html
http://www.janes.com/company/consultancy/red_team.shtml
http://www.cs.nmt.edu/~cs491_02/RedTeaming-4hr.pdf
http://www.ieaust.org.au/SafeAustralia/Presentations/Roberts/Redteaming1.ppt
http://www.au.af.mil/au/awc/awcgate/awc-sims.htm
http://www.redteamjournal.com/

Groupthink:
http://www.abacon.com/commstudies/groups/groupthink.html
http://en.wikipedia.org/wiki/Groupthink
http://www.afirstlook.com/archive/groupthink.cfm?source=archther
http://choo.fis.utoronto.ca/FIS/Courses/LIS2149/Groupthink.html
http://www.disinfopedia.org/wiki.phtml?title=Groupthink
http://www.groupthink.ca/

Innovation Diffusion Processes:
http://www.constitution.org/col/03317_diffusion.htm
http://www.ciadvertising.org/studies/student/98_fall/theory/hornor/paper1.html
http://mstm.gmu.edu/mstm720/Articles/DifussionOfInnovationsGlossary.html
http://www.context.org/ICLIB/IC28/AtKisson.htm
http://www.hq.nasa.gov/office/hqlibrary/ppm/ppm39.htm
http://www.convenor.com/madison/diffus.htm
http://www.personal.psu.edu/faculty/s/j/sjm256/portfolio/kbase/Systems&Change/ChangeProcess.html
http://outreach.missouri.edu/swregion/news/Publications/Diffusion%20theory.pdf
http://www.ou.edu/deptcomm/dodjcc/groups/99A2/theories.htm
http://web.cbs.dk/staff/damsgaard/abstract/doitheory.html

Critique of the 9/11 Commission Report


The Final Report of the 9/11 Commission criticizes intelligence and law enforcement agencies under both the Clinton and Bush administrations for a lack of imagination, but it also exhibits a lack of imagination, and neglects to candidly examine what security might be attainable with the best efforts we could make.

There is a management problem with the conveyance of information from the lowest levels to the top. An intelligence organization can have good data and excellent analysis, but lose the benefit of that in the ways information is reported up the chain of command.

I like to explain the problem by citing an anecdote from my experience as a computer programmer. I once worked for a client in Sacramento, California, called The Money Store, which dealt in mortgage loans. It had only four echelons from the workers to the CEO, but rather than upper management taking the time to visit the workers, they tasked them with filing written reports each week, on the work they had done that week. A few weeks after asking for those reports, the word came down that instead of reporting on what we had done the previous week, we were to report on what we were going to do the next week, as though we had already done it. It was explained that the reason for this was that as the reports were passed up the chain of command, it took a week for each level to summarize what had been done by the level below it, so that each level was actually reporting on what had been done two weeks previously at the next lower level. The result was that the information the top echelon below the CEO had about the activities of the organization was six weeks old, too old to make intelligent decisions. By assuming most workers could predict what they would get done the following week, it was hoped that upper management would then be able to make decisions on the basis of information that was only three weeks out of date.

Needless to say, reports of future work were garbage. In most organizations, work consists largely in dealing with unanticipated and unpredictable developments. Presuming that the predictions could take the place of reports on what had actually gotten done was worse than the delay in getting more accurate information.

The interesting thing is that this policy continued for many weeks, and was still the policy when my contract ended. I don't know why it took so long to figure out the policy was disastrous, something I reported myself in a memo, but suffice it to say that the company went out of business within a year thereafter.

Bureaucracies in general, and intelligence agencies in particular, have a fundamental problem with passing actionable information up the chain of command. It tends to get summarized, filtered and distorted in ways that defeat the mission of the organization.

Consider the path of information leading up to the PDB, the "President's Daily Brief", which are generally only about two pages. How is a president supposed to be able to make intelligent decisions on "intelligence" reduced in that way? Perhaps if he only had to make one decision a day, but if the daily situations require hundreds or thousands of decisions at his level, we have a throughput problem.

One of the kinds of computer program I used to write were what are sometimes called "executive information systems" (EIS). The program gathers and summarily reports data from the operations of the company, and presents it to upper management in easily understood ways, accommodating to their intellectual limitations, as any management tool must. But it was not just a summary, because it permitted the executive to click on details, down to the level of raw data. The EIS is not a substitute for detail, but a gateway to it, and a good executive will drill down to information at lower levels of operation to find out what decisions need to be made at upper levels.

If there is any executive that is in desperate need of a good EIS, it is the President of the United States. He also needs to be a speedreader and to devote a lot more time each day to acquiring information than he can get by reading a PDB.

Of course, there is also a problem with reporting only consensus instead of "red teaming" -- reporting dissident or opposing positions and arguments. All bureaucracies are susceptible to groupthink, and it takes a special effort, and an initiative from the top, to overcome it.

There is also a tendency to reject information that is not internally generated. I remember an occasion when I had an analysis I thought the CIA should have, so I offered to send it to them. The person I spoke to demanded that I not send it to them, no matter what the merits of it might be. Unless it was obtained at their initiative, they weren't interested. It didn't matter that several academic colleagues thought it was brilliant and important, and were prepared to recommend it. However, someone who was interested, and spent some time trying to understand it, was someone I suspected of being a Soviet agent. I concluded that the best way to get an original analysis through to the CIA was by passing it through the KGB or GRU. (I am told by a former Soviet intelligence agent that they had a similar problem, and that the best way to get original analysis to Soviet agencies was through the U.S. intelligence agencies.)

Now I have known some analysts in intelligence agencies, and they are a mixed bag. Some are fairly imaginative, but most are not, and the imaginative ones tend to be ignored more often than the unimaginative ones are. The fundamental problem is that for imaginative ideas to be assimilated by higher echelons, those higher echelons need some imagination themselves, and one doesn't rise in such organizations by being imaginative.

It has been suggested that the agencies make more use of outside consultants, such as assembling teams of science fiction writers, to come up with "high concept" threats that might require a defensive response, but there is little sign that any ideas such teams might come up with would survive the bureaucratic ladder.

There is also the issue of time. There is a credible threat that al Qaeda already has nukes in place in American cities, but the Commission Report did not address reforms that could be implemented in much less than a decade. By the time Congress could act on their recommendations, the Capitol is likely to have become a mushroom cloud.

Also missing from the Report is a candid assessment of how much security might be attainable with the maximum effort that might be made. therefore, I will attempt to do that in this article.

Let us consider only threats of actions that might kill 1000 or more persons on the territory of the United States, conducted by enemies of at least the level of preparation of al Qaeda. What are the odds of success of defensive measures in place before 9/11, today, and attainable in the future, given our actual and potential for infiltrating the actual enemy operations?

This is just a guess, but I would estimate that before 9/11 we had at most a 5% chance of stopping such attacks through action of government agents, that today we have at most a 10% chance, and in the future we might have, at most, a 20% chance. There is no way we will ever be able to achieve a 90% chance of stopping them, or anything close to it. That means that if al Qaeda has six or seven nukes in place in American cities already, as has been reported, then even with maximum potential future levels of protection, we might only be able to stop one or two of them from being detonated, and at present levels, we probably won't be able to stop any of them from going off.

Is there any alternative to defensive actions by government agents? Yes. On 9/11 there was something that worked -- the passengers aboard Flight 93 -- who constituted themselves a militia for the occasion and responded to end the threat, albeit it at the cost of their lives. It wasn't government agents that succeeded in protecting the U.S. Capitol, the apparent target, but citizens functioning as militia. The success score: Militia 25%, government zero.

The Commission failed utterly to recommend the one thing that might prevent the loss of seven cities and as many as 15 million people and the survival of our economy and that of the world. That one thing is to mobilize the traditional, constitutional, militia. The President needs to issue a nationwide call-up to the entire citizenry of the United States to muster, organize, train, and equip themselves to meet the threat, and to engage in a search of every inch of the surface of the United States, and every cave, basement, hole, or other hiding place. They need to know how to identify a threat, and how to disarm it themselves, because there may not be time to call in a team from the DOE or DOD.

The FBI has lately been making some half-hearted efforts to recruit citizens for defensive roles, but the only thing their limited imaginations seem to contemplate is an extension of their informant network. This situation does not need a flood of tips inundating federal agencies where they will just be ignored anyway. All that would do is threaten civil liberties, and it would be doing to ourselves what we would go to war about if it were done to us by a foreign actor. We need competent militia in the field capable of dealing with most situations locally, that bring in more capable personnel only if they encounter a situation they absolutely can't handle.

This solution runs up against the aversion of the Establishment to revival of the militia, because ordinary citizens, unlike government agents, when asked to take an oath to "preserve, protect, and defend the Constitution against all enemies, foreign or domestic", are afraid the citizens might actually read and understand the Constitution, and begin to perceive that those "domestic enemies" look a lot like them. There is a reason why the Establishment has been working so hard to suppress the revival of militia, since the Dick Act of 1903 that was intended to end the tradition. The Establishment has good reason to fear the militia, but today it has more to fear from threats like al Qaeda armed with weapons of mass destruction, and it had better make a choice quickly, because those nukes may go off this year.

But we also have to be realistic about what even a revived militia can do, especially in less than a year. If there are seven nukes in place, it might find six, and prevent five from going off. Since five are thought to be 100 kiloton devices, each capable of killing several million people, that could make an enormous difference, especially for those people and their families, and would be well worth the time, trouble, and expense of reviving the militia as an institution. It would be a little late to call up the militia after the mushroom clouds go up, although that would have to be done, and the result would be chaos.

But it is not just the lives of those people in the affected cities that are at risk. Few people have thought through what would happen after such an attack, one perpetrated by a stateless organization, but operating from countries that have arguably harbored them, and perhaps only through negligence, allowed them to come into possession of the weapons. If several cities are lost to nuclear attacks, the President will have little choice but to annihilate every country, and every people, that might possibly have contributed to the attack, even unknowingly. It would not be retaliation in the classic result of a failure to deter, but an attempt to eliminate the threat in the only way we have the means to do, and that is to wipe out the entire populations of whole countries, not only those listed as being among the "Axis of Evil". It is not apparent that those and other countries got the message that all of them will be attacked if the U.S. is hit, and that any weapons they think they have will be no deterrent against such retaliation. The attack may very well include Russia, China, Pakistan, India, and other countries that, while they don't want the U.S. attacked, are complicit merely by having nuclear technology that is susceptible to being diverted into weapons that have been used against us. Even Britain and France might be ordered to end all nuclear activities and turn over all nuclear materials to the United States, or face annihilation. Once nukes are used against the United States, the world as we know it will end, not just for the United States, but for people everywhere. The result could be the death of billions.

Al Qaeda envisions an ideal world in which the only inhabitants are poor farmers and herdsmen, devout because there is no possibility of the kind of wealth that has corrupted humanity during the last 200 years, and no relief from their suffering but hope for an afterlife. That vision may indeed be fulfilled.

Books on this topic:
(Click on the green A to order.)

A Nuclear Terrorism : The Ultimate Preventable Catastrophe, by Graham Allison, Times Books, 2004.

A Osamas Revenge: THE NEXT 9/11 : What the Media and the Government Haven't Told You, by Paul L. Williams, Prometheus Books, 2004.

Complaint to BBC News on their misuse of the term "militia"

The following is a comment I posted last night to the Feedback page of BBC World News at http://news.bbc.co.uk/2/hi/help/3281777.stm . readers are encouraged to make similar comments to them about hijacking words nd playing into the hands of those who seek to reframe public debate to their own sinister purposes.

------

You are misusing a legal term in some of your news reports. the term is "militia", and you are misusing it to refer to armed groups that are not militia as that term is established in English and American constitutional law, where its primary meaning is "defense activity" (res publica defendenda), and secondary meaning is those engaged in such activity. Groups like the Janjaweed in the Sudan are clearly not militia in the way they are operating. A better term would be "guerrillas" or "armed partisans".

You may reply that you are free to change the meanings of English words any way you might like, but "militia" is a critical legal term of art, especially important for a country like Britain whose "constitution" consists of a large collection of documents going back to 600 A.D. See http://www.constitution.org/sech/sech_.htm . Consider what happens to the protections of our traditional liberties if journalists change the meanings of terms like "due process", "jury", or "person". For more on how to use the term correctly see the documents beginning at http://www.constitution.org/cs_defen.htm

This misuse of the term "militia" is aligned with a political agenda of weakening constitutional protections and civic responsibility, essentially a fascist or corporatist agenda. You are not well-serving your public by supporting that agenda.

It's political campaign season again

It's political campaign season again and time to focus on making constitutional compliance an issue in the election. We are also focused on organizing Constitution Day events for September 17. While it is easy to get people to express reverence for the Constitution, it is much more difficult to get them to see the ways present practices and political platforms are inconsistent with it, and to get people to treat that inconsistency as important.

That is the problem. Most people are aware that the Constitution is being violated, but their priorities put other issues higher, especially during an election campaign. Only the candidates of the Libertarian and Constitution
Parties are trying to make it an issue, and their support among the electorate is still very low. We hope to get people to understand that the solution to almost every other problem we face depends on constitutional compliance, without which we will never be able to mobilize the consensus, commitment and deliberation that solutions to other problems require.

We are doing our part, within the limits of our resources. Already political organizations and journalists are reading the materials on our site to get constitutional information. Teachers and their students, ranging from the
level of elementary school to graduate and law school, are using our site as a primary resource, since the find their textbooks to be inadequate. Scholars are citing our documents in their journal articles. I am being asked to write articles, such as the one that recently appeared in the 4-volume Encyclopedia of Leadership on the "U.S. Constitution".

And the Constitution has been receiving more attention as people research online for such topics as "declaration of war" and "war powers". Our site is one of the most highly ranked by the major search engines, and is visited
often. We are approaching 50 million visits since we opened the site in 1995.

But all this takes money. Labor is not enough. If your financial circumstances don't permit you to help, we understand. Most of our donors from the past are worse off than they used to be. Some need help themselves. But you may still know of others who can that you can forward this message to with your suggestion that they donate.

I've just set up a Donation Plans page to allow donors to make recurrent donations through PayPal. A donor may select one or more monthly payment plans and cancel whenever he wishes to do so. He or she may pay through their PayPal or eBay accounts, by MasterCard or Visa credit or debit cards, by e-Check, or by any of several other methods. If you have a PayPal account, you can set up a similar system by clicking on "Merchant Tools", then on "Subscriptions and Recurrent Payments", and following directions. I have made a few cosmetic
changes to the forms they generate that you might like to imitate for other sites you support. Just copy the page and replace my email address for the address used for the PayPal account for that site.

You can also donate $10 per month to us using this link that can be put in email (although your email client may break it up):

https://www.paypal.com/subscriptions/business=jon.roland%40constitution.org&item_name=Level+0+Recurrent&item_number=0000&return=http%3A//www.constitution.org/donate/thanks.htm&cancel_return=http%3A//www.constitution.org/donate/goodbye.htm&no_note=1¤cy_code=USD&a3=10.00&p3=1&t3=M&src=1&sra=1

Our page is at http://www.constitution.org/donate/donate.htm . Take a look and perhaps try it out and see what you think.

Need translations of Robert's Rules into Arabic, other languages

Anyone concerned about the current world security issues involving Middle Eastern and Islamic countries should be aware of the many cultural differences that divide those peoples from the West, but may not be aware of the importance of seemingly minor tools and practices that Westerners take for granted that are unknown to other cultures, and could make a critical difference if they are made available to them.

One of those is parliamentary procedure. To put it simply, most of the peoples of the world don't know and practice adequate rules for the conduct of meetings, such as those of Robert's Rules of Order, Revised (RROR). The result is they tend not to work together well to solve their problems and to avoid conflict, including conflict with us.

One might think that something as important as RROR would have long since been translated into all the world's major languages, and at least be available to peoples everywhere who care to use it. But one would be wrong. Those translations have yet to be done, even after more than a century of use in English-speaking countries, where they have played a critical role. I remember being introduced to parliamentary procedure in the first grade of elementary school. It is such a deep part of our culture that we sometimes overlook its importance.

There is a translation into Arabic of the summary table from RROR, but not of the complete manual. We need translations of the complete manual, into Arabic and other languages.

I have spoken to various government agencies, NGOs, and others about this deficiency and the importance of filling the gap, and soon. But so far my efforts have fallen on deaf ears. For the State Department and the USIA it is a case of "not invented here".

So we need volunteers to do it. We can put the results online on our web site, as we have done with the original English version, at http://www.constitution.org/rror/rror--00.htm , but we need translators to do the work. Target formats are HTML and PDF. Sorry, there is no money in it, only the feeling that it might save lives, perhaps a lot of lives. Translators would, of course, be credited with their work, and that might have some benefits to them academically.

If a nuke goes off in an American city, and you didn't do something like this that might have prevented it, how would you feel about not having done so?

God, Man, and Tyrants

John of Salisbury and the Bestselling Book of the Twelfth Century
By Dave Kopel

[Liberty magazine, May 2004, pp. 37-38, 52.]


Who said “Rebellion to tyrants is obedience to God”? Pat yourself on the back if you answered “Thomas Jefferson and Benjamin Franklin.” They proposed placing the motto on the Great Seal of the United States. Pat yourself even harder if you knew that the phrase was created by John Bradshaw (1602–1659), the lawyer who served as President of the Parliamentary Commission which sentenced British King Charles I to death. But who thought up the idea?

The idea is implicit in much of the Old Testament, which is full of righteous Hebrews overthrowing tyrants. And certainly the history of Republican Rome and classical Greece has many similar stories. But in the first millennium of Western Christianity, Christians fell under the sway of the law of the Roman Empire, which emphasized absolute obedience to government, and claimed that the government was above the law. Cicero, who lived in the last days of the Republic, was the last great writer to articulate the right of revolution.

The man who restored the right to Western political thought was an English bishop named John of Salisbury. In 1159, he wrote Policraticus (“Statesman’s Book”), which became the best-seller of the century. Although Policraticus is mostly forgotten today, it is one of the few books which truly changed the world.

For the rest of this article and the text of Policraticus go to http://www.constitution.org/salisbury/policrat.htm . Some formatting is still needed on the book, and how soon that will get done depends on funding, so if you would like to see the work completed follow the instructions below to send a donation.

Article by Jon Roland published in Encyclopedia of Leadership

I was commissioned to write the following entry for the Encyclopedia of Leadership, Vol. 4, Ed. George R. Goethals, Georgia J. Sorenson, & James MacGregor Burns, Sage Publications, 2004. It is now shipping, so you might ask your local library about it. This article can also be found at http://www.constitution.org/col/jdr/usconstitution_el.htm

United States Constitution

A written constitution of government such as the U.S. Constitution presents a characteristic set of problems for leadership: meeting the demands of the people for the functions government can provide, while protecting the rights of every person, not only from private, natural or external threats, but from government itself and from tyrannical majorities.

A written constitution, unlike an unwritten parliamentary system of government, is a supreme law that supersedes later laws that conflict with it, unless they are adopted as amendments according to the procedures prescribed in the original constitution. It derives its primary legitimacy not from current assent but from an original historical constituent act of ratification, and no official act, no matter how popular, can be considered legitimate unless it is logically derived from an authorization contained in the written constitution as amended, and as originally understood.

The political theory on which the U.S. Constitution is based is that a society is created by a social contract, or compact. The main proponent of this theory was John Locke, who developed it in his Second Treatise on Government, published in 1690. Although it is possible for a new society to be created by adults coming together and explicitly agreeing to form a new society, people are initially inducted into an existing society by their parents or guardians, beginning with a filial contract between parent and child, which is gradually transformed into a social contract between the child and the other members of the society, through a process of socialization, through which the child makes the transition from being a good child to being a good citizen. The essential terms of the social contract are that its members will mutually defend the exercise of one another's rights, from whatever might impair such exercise.

Every constitutional right is a claim against an affirmative action of government, and complementary to the exercise of a delegation of power to that government. A constitutional provision that protects a right restricts powers, and a delegation of a power restricts rights. A challenge for leadership is to define the line separating the two spheres of action, and to separate and confine the actions of civilians and officials within their proper spheres.

The written constitution ratified in 1789, and the subsequent Bill of Rights, the first ten amendments, declared various rights, with the Ninth Amendment providing for unenumerated rights that complement delegated powers, but the Founders did not have confidence in the effectiveness of such declaratory provisions, which might be easily subverted by interpretation. They rather relied on structural and procedural provisions, which divided the powers of government, allowed the divisions to check the actions of one another, and defined procedures by which departures from constitutional compliance might be corrected. Some procedures were permissive, allowing for the exercise of discretion, and others were mandatory, constrained by defined duties.

In the U.S. model, there are actually two separate constitutions: an unwritten constitution of the society, and a written constitution of the government. The terms of the social constitution are that decisions be made by conventions, or deliberative assemblies, called by proper notice, and conducted by established rules of procedure that comprise due process. A convention may consist of such things as a general election or referendum, in which the voting members of the society function as a convention of the whole, a constitutional convention which may draft or ratify a written constitution of government, a legislature called under the terms of a written constitution, a town hall meeting, a judicial court, a grand jury to conduct an investigation and make a report of its findings, a trial jury to render a verdict, or a militia called to conduct defensive operations.

The U.S. model was a reaction to the British parliamentary model, which had no written constitution of government except statutes adopted by majority vote of the House of Commons, royal decrees, or key court decisions -- precedents that might be sustained by tradition, but which can be overturned at any time by the House of Commons, sitting as a kind of ongoing constitutional convention -- one that can make its own rules for who may be elected to it and how. The result is the consolidation of power within a single legislative body and a bureaucratic civil service that can easily impair public rights and leave abused persons without the means to seek adequate redress.

Distributed Powers

The problem for leadership is further complicated by the fact that the powers of government are not delegated to a single unitary hierarchy, but are distributed, or separated. A key design objective of constitutional government is to avoid excessive or unbalanced concentrations of power, mainly by dividing it among many branches and individuals, so that abuses by any can be blocked or corrected by the combined action of others. The main separation of powers was between the central government and the several states, a system called federalism. Within the central government, powers were divided between the executive, judicial, and legislative branches, and the Congress -- the legislative branch -- was divided into two houses, the Senate and House of Representatives. By legislation, the executive branch was further divided and subdivided into departments, the judicial branch into a system of general and specialized trial and appellate courts with various geographic and subject jurisdictions, and the houses of Congress into committees and subcommittees, each with their own staff agencies. The constitutions of each of the states followed a similar design, with the exception of Nebraska, which has a unicameral, or one-house, legislature. Similar separations of powers were done in the territorial governments set up for incorporated territories destined to become states.

In a constitutional republic such as the United States, the people, acting collectively through election, referendum or convention, rather than a monarch or dictator, is the sovereign, or supreme authority, and as such all officials must be accountable to the people by a chain of command that leads back either to officials elected by the people or to bodies, like juries, selected by lot, a process called sortition, from among the people. The appointment, supervision, promotion, discipline, and removal of every official is supposed to be based on how well he or she performs his or her duties under the authority of the Constitution, more than on how well such performance might please the policy preferences of transient majorities.

Although a constitutional republic is democratic in being accountable to the people, it is not usually a majoritarian democracy, in that decisionmaking is moderated by procedures and structures designed to require deliberation, and sometimes by rules requiring approval not just by simple majorities, but by supermajorities, or by majorities in a majority or supermajority of levels or branches to which power is distributed. Thus, amendments to the Constitution require either proposal by a two-thirds vote in each house of Congress, or application by majorities of two-thirds of the state legislatures for a convention to draft amendments, followed by ratification by the majorities of the legislatures of, or of conventions in, three-fourths of the states.

Such procedures and structures confer on certain officials or groups the power to veto, or block, action of various kinds, so that to get action, it is necessary to convince all of the elements whose approval is required. Thus, the President can veto any act of Congress, although that veto can be overridden by a two-thirds vote of both houses. However, he can also refuse to enforce an act of Congress, or sequester the funds for its implementation, a controversial move that can be overcome only by impeachment and removal of the President from office, or by withholding other legislation he might want passed, or appointments he might want approved.

Any federal court can declare or find a statute or other official act unconstitutional, and refuse to give it effect by not sustaining it. If the decision is made by an appellate court, the practice is to treat that decision as a precedent which effectively nullifies that act not only in that particular case but for similar cases in that court's jurisdiction. If the declaration or finding is sustained on appeal to the highest court, the Supreme Court, the act is effectively nullified for similar cases nationwide. Although such a decision does not remove a statute from the records, by the doctrine of stare decisis judges feel bound to follow the precedent, making further enforcement of that act infeasible.

Veto groups can also operate in the Legislative branch. The Senate can block appointments by the President by such procedures as refusing to hold committee hearings on nominations. Committees can refuse to pass nominees to the full Senate, and in the full Senate, members may block action by use of a filibuster, or extended debate intended to prevent business from proceeding, which requires a 60 percent supermajority to terminate.

A winner-take-all system of electing legislators by majority votes from states or single-member districts, together with a nationwide presidential election in which each presidential candidates seeks to also win the election of members of his party to Congress, tends to result in a two-party system, as each main party adjusts its messages to win enough swing voters to exceed 50 percent. One effect of this, however, is that dedicated single-issue constituency groups can become "veto blocks" that may not be able to gather enough support to get their legislation passed, but can block legislation they don't like and defeat candidates who don't at least keep their causes alive. They can also often negotiate the appointment of their partisans to key positions.

The proliferation of single-issue groups means that assembling governing coalitions and placing people in key positions to achieve needed action can be difficult, but this was intended by the Framers of the Constitution. It was expected that most of the situations requiring rapid response could be handled through general legislation and appointees with a certain amount of legislated discretion, and that most new situations that such general legislation did not anticipate would allow enough time to build the kind of consensus needed to adopt new legislation. This has led to some tension between advocates of immediate response to "emergencies" and advocates of deliberation within constitutional structures and procedures, and some of that tension has resulted in departures from constitutional compliance.

Some of those departures have become entrenched, and supported by politically powerful constituencies, who often attempt to conceal the noncompliance with assertions that the established practices amount to "informal amendments" to the "living" Constitution, even though they are not formal amendments to the text. The problem with this elevation of practices to constitutional status, of course, is that once begun there is no end to it, and if allowed to continue would render the written Constitution a dead letter and reduce all law to politics or force.

This displacement of the written Constitution with practice is sometimes discussed as the doctrine of "legal realism", which defines "law" as "what judges do" or can be expected to do, even if what they do is inconsistent with the written Constitution as originally understood. Although it is accepted that everyone has the duty to resolve conflicts of law, including conflicts with the Constitution, in any enforcement of law, and that everyone has the duty to help enforce the law and not just to obey it, the fact that judges get cases last puts them in a position that is sometimes attacked as judicial supremacy by those who think that judicial practice is inconsistent with or unauthorized by the written Constitution. This has been an ongoing tension since the country was founded.

Persuasion

In any political or legal system, leadership ultimately comes to either educating and persuading decisionmakers to adopt one's proposals, or replacing them with other decisionmakers who will. In a constitutional system like the United States, with powers and duties distributed among multiple officials, that means persuading or replacing multiple officials, which may require persuading or replacing the constituencies of those decisionmakers, the networks of lower-level decisionmakers whose own decisions persuade or replace higher-level decisionmakers. Ultimately, that may come down to the level of the individual voter.

Although persuading a few higher-level decisionmakers may be done through personal communications, one may not have access except through chains of lower-level decisionmakers, many of whom may have agendas of their own that conflict with the program of the reformer. Persuading many individual voters, however, may not be feasible through direct communications, and may require marketing methods with high costs and limited effectiveness, competing as they must with demands from work and family, and tastes for entertainment.

When the country was founded, a person could get elected to office without having to raise or spend much money to market his candidacy. There was sufficient demand for political information that it was profitable for newspapers to publish entire speeches of candidates, with the expectation this would sell more copies. However, the political culture has changed so that too many people now resist political information, compelling candidates to resort to expensive marketing campaigns that can break through the barriers and at least achieve name recognition and a positive image.

The Framers designed the Constitution with the expectation that officials would be essentially independent of one another, unduly influenced, if at all, mainly by things like salaries and prospects for reappointment or re-election. They perhaps failed to fully anticipate that, to achieve any result in a divided governmental system, people had to put together prevailing coalitions which would tend to persist from one issue to another and emerge into parties or, as the Founders feared, factions, that would come to exert continuing control over offices and officials in ways that would defeat the separation of powers. The Founders feared too much power being gathered into the same hands, but the same hands can be a faction as well as an individual, and a single faction can dominate all of the levels and branches of government to the exclusion of the others.

The problem the Framers confronted, and perhaps inadequately solved, was what came to be studied by the 20^th century as the public choice problem, beginning with the work of James M. Buchanan and Gordon Tullock, set out in The Calculus of Consent: Logical Foundations of Constitutional Democracy. They approached politics through game theory, and showed how people in a society would tend, over time, to involve themselves in the public decisionmaking process in such ways, and to such degrees, as seemed likely to them to pay off, less in the satisfaction that comes from exercising civic duty, than in the material benefits of the public decisions that they could expect to gain for themselves or their friends. Persons would tend not to invest their time and money in the political process unless they expected to profit from that investment. Decisions that had large benefits or costs for some persons would cause those persons to become involved in influencing those decisions, while those for whom the benefits or costs were small would not have a sufficient incentive to invest their influence in ways that would affect such decisions. Therefore, a small faction could gain a large benefit by contriving decisions that did so by imposing only small costs on the general population, at a level below the threshold that would trigger their involvement. This made the political process as a channel for what is called rent-seeking behavior, which is the diversion of wealth from producers to persons who invest not in production but in the processes of politics and government.

In seeking to avoid excessive or unbalanced concentrations of power in the public sector, the Founders neglected to provide for the emergence in the private sector of giant corporate entities that could accrue power that could challenge that of governments, and come to exercise undue influence over government. This has emerged to take many forms: Banks and financial institutions, especially those that loan money to government to support its operations. Contractors, especially in the defense industry. Labor unions. Trade associations. Eleemosynary institutions. Political party organizations. Lobbying groups. Large media organizations. These tend to seek to exercise control by either getting their people appointed or elected to key positions at all levels of key departments, or having handlers for every key position who may assume a position of influence in which their official can't or won't make a decision contrary to the handler's wishes, so that the handler comes to function as the real decisionmaker, in a kind of shadow government that is parallel to the legal government.

This pattern can be more clearly seen in a parliamentary system like that of Britain, where the majority party appoints the official ministers of government, but where the party out of power designates shadow ministers for every department, who may exercise more real influence than the official minister over the lower level civil servants of the ministry, who may have been appointed by that party out of power, and might expect to be promoted if it regains power. Thus a party that has appointed most of the bureaucrats might expect to continue in real power even if it loses an election. The same applies to special interests that function as parties unto themselves.

Since the adoption of a civil service system, the United States has had a similar problem with shadow governance, for while the reform was intended to replace political appointees lacking merit with nonpartisan professionals, what has actually happened is only to make it more difficult for a party that wins elections after a period of dominance by another party to actually govern and implement its policies. The civil service protections have also allowed bureaucracies to become power centers themselves, a constituency often uniquely situated to protect its own interests. The internal politics of organizations is just as contentious as the external politics we see in elections and referenda, and much more difficult to expose and hold accountable.

The problem for leadership in a constitutional republic is to assemble and sustain a winning coalition on an issue, while avoiding opposition from veto blocks.

— Jon Roland

Further reading:

Ernest Barker, ed., Social Contract, London: Oxford U. Press, 1960. Contains essays: John Locke, An Essay Concerning the True Original, Extent, and End of Civil Government; David Hume, Of the Original Contract; Jean-Jacques Rousseau, The Social Contract.

Locke retrieved August 18, 2003 from http://www.constitution.org/jl/2ndtreat.htm .

Hume retrieved August 18, 2003 from http://www.constitution.org/dh/origcont.htm .

Rousseau retrieved August 18, 2003 from http://www.constitution.org/jjr/socon.htm .

James Madison, Notes of Debates in the Federal Convention, 1840. New York: W.W. Norton & Co., 1987. Retrieved August 18, 2003 from http://www.constitution.org/dfc/dfc_0000.htm . Vol. 5 of Jonathan Elliot, The Debates in the Several Conventions on the Adoption of the Federal Constitution, retrieved August 18, 2003 from http://www.constitution.org/elliot.htm .

James Madison, Alexander Hamilton, John Jay, The Federalist, 1787-88. New York: Bantam, 1989. Retrieved August 18, 2003 from http://www.constitution.org/fed/federa00.htm .

Bernard Schwartz, The Roots of the Bill of Rights, New York: Chelsea House, 1980. See also the Documentary History of the Bill of Rights at http://www.constitution.org/dhbr.htm .

Leonard W. Levy, Original Intent and the Framers' Constitution, New York: Macmillan, 1988.

Herman Belz, A living constitution or fundamental law?, New York: Roman & Littlefield, 1998, retrieved August 18, 2003 from http://www.constitution.org/cmt/belz/lcfl.htm .

James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy, Library of Economics and Liberty. Retrieved August 18, 2003 from http://www.econlib.org/library/Buchanan/buchCv3Contents.html .

J. Patrick Gunning, Understanding Democracy: An Introduction to Public Choice, Constitution Society. Retrieved August 18, 2003 from http://www.constitution.org/pd/gunning/votehtm/cont.htm .

Everett Rogers, Diffusion of Innovations, New York: Free Press, 2003.

M. J. C. Vile, Constitutionalism and the Separation of Powers, Indianapolis: Liberty Fund, 1998.

Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism, New York: Belknap, 1998.

J. Roland Pennock, ed., Due Process, New York U. Pr., 1977.

Godfrey Lehman, We the Jury: The Impact of Jurors on Our Basic Freedoms: Great Jury Trials of History, New York: Prometheus, 1997.

Kevin W. Hula, Lobbying Together: Interest Group Coalitions in Legislative Politics, Washington, DC: Georgetown University Press. 1999.

Harvey Yorke, The Candidate's Handbook For Winning State and Local Elections. Revised by Carl Yorke, 2002. Available from http://www.candidateshandbook.com .

Harry Helms, Inside the Shadow Government: National Emergencies and the Cult of Secrecy, Los Angeles: Feral House, 2003.

Diffusion of innovations


Those who support a cause that they are having difficulty selling to the public would benefit from the study of work in a field called "diffusion of innovations". There is a book with that title by Everett Rogers. See this link Also do a search on that phrase in google.

The initial work was done in the early 1950s at the University of Chicago. It was funded by corporate sponsors who were considering the large sums they would have to spend on national television advertising, and wanted to know how effective such spending might be, and what kinds of advertising would be most effective.

The researchers found that populations tended to divide into distinct groups of adopters: The primary adopters were quick to try and adopt new things. The secondary adopters tended to defer adopting until after enough of the primary adopters had done so and used the innovations for a while. The tertiary adopters tended to defer adoption until a sufficient number of the secondary adopters had tried and used the innovations for a while. Sometimes there was also a group of quaternary adopters, and sometimes a group of holdouts that would never adopt, or even actively oppose the innovation.

It was found that messages like broadcast advertising could accelerate adoption by the primary adopters, but were not sufficient by themselves to get the secondary and lower level groups to adopt. The primary influence, it was found, was among peers within each group, and downward from one group to the next lower group. Examples of satisfactory use are far more effective in winning converts than the kinds of reasoned argument that might be conveyed in broadcast messages. It was also found that emotional messages are far more effective than reasoned ones.

This research also showed the importance of repetition. Except for the early adopters, people generally do not adopt something new based only on a single message or example, no matter how compelling. They exhibit characteristic herd behavior, in which a member only moves in response to its repeated perceptions of the movements of multiple other members of the herd. The timing of the repetitions is also important. Too frequent repetition, or messages that are too intense, can turn the person against the innovation, but too much delay between repetitions can lose much of the effect of previous repetitions.

What works best is a carefully timed series of repetitive messages or examples, neither too mild or too intense, that incrementally move each person along a path from where he is to where the promoter wants him to go, avoiding sidetracks. To the extent possible, it is best to conserve resources by focusing not on those who have already adopted, or who are not ready to move forward, but on those who have been prepared by previous efforts and are ready to take the next step.

Promoters of political causes should also be cognizant of competitive diffusion processes. There are likely to be multiple innovations in the field that will tend to compete with one another, and indeed, the introduction of an innovation may stimulate the appearance of a competing or opposing innovation. The receptiveness of the population to the competing innovations may differ greatly, so that we can speak of a characteristic "coefficient of diffusion" for an innovation for that population.

Thus, we can describe what happened in Southeast Asia during the Vietnam war as a competitive diffusion process between the innovations, or memes, of Western liberal republicanism, promoted by the United States, and traditional nationalism, promoted by the North Vietnamese. While the former idea won many converts, the latter had a higher coefficient of diffusion at that stage in the local population's cultural development, with most of the population not understanding the idea and identifying it with foreign intruders. The result was that, despite all the efforts of the U.S. forces to "win the hearts and minds" (WHAM) of the people, nationalism prevailed.

It is useful to examine chains of influence leading to decisionmakers. One who seeks some reform must first describe in detail how it would work, and what resources it would require, then identify who makes the decisions to move forward on implementing it. In most cases the promoter will not have direct access to the decisionmaker, but must work his way up one or more chains of influence, beginning with those with whom he is in direct contact and over whom he has the most influence, and working toward the decisionmaker through those who most influence the next, converting each along the way, or perhaps contriving to replace them with others, including the decisionmaker himself. The key to advancing along the chain is to be able to discern what each wants and will respond to, consistent with what the reformer seeks to do. Such an effort will often be far more cost-effective than attempts to influence the general population in an unfocused way, especially that part of the general population that exerts or is likely to exert little if any influence on the chain of influence to the decisionmakers.

Promoters of a cause must also understand that some causes, however meritorious, will not be adopted by the majority of the population until the conditions for adoption are ripe. The ideas of constitutional republican government adopted by the Thirteen English Colonies in the 18th century were not entirely new. Indeed, they had been developing over the previous 2000 years, adopted by a few leading thinkers, but not adopted by a sufficient number of the general population until the right conditions of a frontier allowed them to flourish. Propagating those ideas beyond that initial frontier environment, even with the compelling example of the United States, is by no means assured within the short to mid term future, and may not even survive in the United States now that the frontier conditions that permitted their emergence have faded. If such ideas succeed, it will take a strong effort by many dedicated people to overcome unfavorable conditions.

It must also be understood that more complex causes are more difficult for the mass of people to understand well enough to adopt, and that a complex cause is likely to have a low coefficient of diffusion, no matter its intrinsic merits. A complex cause or proposal is likely to have to be sold not directly, but by appealing to concern about the problem it seeks to solve, and by promoting the proponents of that solution to decisionmaking positions, where they can carry out the details that the mass of people would never adopt no matter how well it might be explained to them. Most people can be persuaded to have confidence in personalities long before they adopt their proposed solutions.

Sometimes all that the proponents of a complex cause can hope to do is keep it alive, perhaps for hundreds or thousands of years, until the conditions for it to prevail occur. This may require extraordinary conviction and patience.

Roland interview on BBC World Service March 4, 2003

Jon Roland, President of the Constitution Society and webmaster of http://www.constitution.org was interviewed by reporter Monica Whitlock for a program analysing dictatorship for the 50th anniversary of the death of Josef Stalin March 5, 2003, which aired beginning at 16:30 GMT on BBC World Service March 4, 2003. The 15-minute program may be heard by going to http://www.bbc.co.uk/worldservice/programmes/analysis.shtml and clicking http://www.bbc.co.uk/worldservice/ram/analysis_tue.ram or entering pnm://rmv8.bbc.net.uk/worldservice/analysis_tue.ra. You may need something like RealPlayer to listen to it, which may be downloaded by going to http://www.real.com and clicking on the "Free RealOne Player" link.

Monica Whitlock is noted for her reports on events in the former Soviet Union. She was led to interview Roland by discovering his article, "Principles of Tyranny" at http://www.constitution.org/tyr/prin_tyr.htm.

Remarks on the annversary of the death of Josef Stalin

Josef Stalin has the unique honor of being perhaps the only 20th century figure for whom the anniversary of his death, rather than his birth, is celebrated. March 5, 2003, marks the 50th anniversary of his death, and on that day in 1953 the entire world breathed a sigh of relief when the word came out of Moscow.

Yet Stalin did not die on that day, or at least his legacy didn't. The old Spanish joke was to say every day, "Franco is still dead". The Russian version was, "Is Stalin dead yet?", and the joke was still being told when the Soviet Union collapsed in 1991.

During WWII Stalin discovered, if he didn't already know, that the best way to maintain political control over a country like the Soviet Union was to have an external enemy. Germany provided that enemy, but after it was defeated, Stalin needed to replace it, so he made an enemy of the West.

And it wasn't just for his domestic purposes. He knew that the only way to make the West a credible enemy was to be a real enemy for them, and he set out to become that enemy. He succeeded brilliantly, and the result was the Cold War, the wars in Korea and Viet Nam, and the death and suffering of millions of people.

When Stalin died, he left the Soviet Union in the hands of people with blood on their hands, because he only allowed such people to rise in his system of governance. The result was they were too guilty to immediately reform their corrupt tyranny, and knew no other way to maintain control. It wasn't until Mikhail Gorbachev rose to power, with the sponsorship of Yuri Andropov, someone who had not been personally blooded, that reform could come. Gorbachev first replaced the old Stalinists with his own breed of technocrats, then called for "perestroika" and "glasnost". Today, the Soviet Union is just something on old maps. It fell in a nearly bloodless revolution the likes of which no one could have imagined in the days that Stalin ruled supreme and Orwell wrote his classic novel, Nineteen Eighty-Four.

But we still have to ask, "Is Stalin dead yet?" The answer remains to be seen.

Waco still a burning issue

Friday, February 28, 2003, is the tenth anniversary of the assault by agents of the federal Bureau of Alcohol, Tobacco, and Firearms (BATF) on the Davidian residence near Waco, Texas. After a shootout and several
deaths on both sides, the Federal Bureau of Investigation (FBI) took over and there was a 51-day standoff until the final assault on April 19, 1993, which resulted in a fire and the deaths of more of the residents, for a total of 87, including many children. Some of the few surviving Davidians were tried in federal court in San Antonio on several charges in the spring of 1994, but none of the federal agents involved were ever charged with crimes. The result of this incident led to the emergence of the militia movement in the United States.

It is worth reviewing the highlights of some of the issues involved in this case. See http://www.constitution.org/waco/mtcarmel.htm for more details.

First, the assault was for the ostensible purpose of serving a search and arrest warrant for weapons violations. This was done by first imposing a $200 transfer tax (a kind of excise) on certain kinds of firearms, specifically those converted to full-automatic fire, then refusing to accept payment of the tax, and issuing a regulation, under the alleged authority of the Commerce Clause, making it a crime to possess or transfer a firearm that had not been taxed. The unlawfulness of this method was set forth in the opinion in the federal appeals case United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill. 1991), http://www.constitution.org/2ll/court/fed/fed_case.htm .

Second, the BATF agents did not present a warrant to the residents. Apparently, they didn't bring it with them. After the Davidians resisted the initial assault, however, the agents discovered the original warrant was defective, and got a federal magistrate to sign and backdate a better version, which is the one that was presented for the first time at the 1994 trial.

Third, as it was later revealed, the purpose of the BATF was to stage an "event" in which they could collect a trophy they could use to argue for an increased appropriation. Their budget was then up for review, and there were efforts to reduce the appropriation, due to dissatisfaction with the agency's performance. The BATF agents came ill-prepared for anything but a media event. This was revealed by a film, Waco: The Rules of Engagement, http://www.waco93.com/ .

Fourth, in the final assault April 19, 1993, a tank was used to inject flammable and toxic CS vapors into the buildings, and another tank was used at the rear of the complex, out of sight of news cameras, to push over buildings, run over people, and support automatic weapons fire evidently used to prevent the occupants from escaping. This action also apparently started the fire that burned down the buildings with most of the occupants inside. In private, off-the-record conversations, FBI agents would later reveal that the burnout of the Davidians was intentional, and was primarily motivated by the high cost of the standoff. Apparently, the tank crew and assault personnel used were with the Army Delta Force, and incendiary grenades used by that organization were found in the debris. Such use of military personnel is a violation of the Posse Comitatus Act. This was clearly shown in a film, Waco: A New Revelation, http://www.waco-anewrevelation.com/ .

Fifth, in the 1994 trial the lawyers for the Davidians were not allowed to try to impeach the testimony of the government witnesses and their allegations that some of the weapons found in the debris had been converted to full automatic. The judge made a deal with the defense lawyers that if they would not challenge his ruling on not questioning prosecution evidence, he would allow instructions to the jury that they could consider self-defense as a justification for their resistance. Despite blatant judicial and prosecutorial misconduct, the jury found all defendants not guilty of all the criminal charges, and only guilty of some of the enhancement points to the criminal charges. This was the result of confusing instructions to the jury that did not make it clear that they could not find someone guilty of an enhancement if they did not find him guilty of the crime itself. Initially following the law,
the judge ruled that the defendants could not be held guilty of an enhancement if not guilty of the crime, but then he reversed his own ruling, and sentenced them to maximum penalties for the crimes for which they were found not guilty, except for the enhancement.

Sixth, during this entire process, there was egregious fabrication of evidence and destruction or concealment of evidence that would support the innocence of the accused. A good example was the "missing front door" that if produced would have shown all the initial weapons fire came from the agents and not from the Davidians. More than the assault itself, it was the trial that drove the emergence of the militia movement. That trial will be studied in centuries to come as a monument to judicial and prosecutorial misconduct.

This case will continue to burn in the hearts of minds of patriotic Americans until the Davidians are not only freed but compensated, and the agents involved prosecuted and imprisoned. However, this would need to be done in a Texas state court, because federal courts do not have jurisdiction for such a criminal prosecution of federal agents, and almost all attempts to criminally prosecute federal agents in state courts are blocked by federal courts seizing jurisdiction and then dismissing the cases, claiming immunity for the agents if they were on duty during the offense.

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Law Must be Argued Before Jury

The judicial system unjustly convicts innocent people of crimes. Judges, prosecutors, and government witnesses cannot be trusted to be honest or competent. Indigent defendants are being represented by public defenders who are inadequate, and who sometimes betray their clients. Evidence of innocence is being withheld from juries. Juries are being stacked to favor the prosecution. Most meritorious appeals are rejected. Our prisons are being filled with nonviolent offenders while rapists and child molesters are being paroled.

Among the many demands for legal reform have been those for informing jurors of their right and duty to decide the law as well as the facts in criminal cases. It is well-established that they have such a right and duty, since a verdict of "guilty" or "not guilty" is a general verdict requiring decision of both the issues of law and the issues of fact. The problem has been the judicial practice of not allowing defense attorneys to inform them of that right and duty, or to include it in jury instructions. This judicial practice is based on the U.S. Supreme Court decision in Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895), which held that it is not a reversible error to fail to so inform them, and which has been taken by courts as a license to prevent anyone from informing them, or even to exclude jurors from serving on a jury who have been so informed.

However, it is time to emphasize that it is not enough to inform jurors of their rights and duties. There is a larger problem: the judicial practice of preventing legal argument from being made in the presence of the jury. The jury cannot decide the issues of law if they are not allowed to hear the arguments on them, not only the arguments of the parties and their attorneys, but the arguments of interpleaders and filers of amicus curiae briefs. If the law were argued in the presence of the jury, then such argument would cover the rights and powers of jurors, and they would be informed. If it is not, then they cannot be expected to make a competent decision, and they cannot justly be criticized for failing to do so.

It is important to know that the modern practice of preventing legal argument from being made in the presence of the jury is not the practice that prevailed during the early years of the United States. When the Founders used the term "due process" and "jury", as they did in the Bill of Rights, they meant all of the elements that were practice at the time to protect the rights of defendants, and that includes argument on the issues of law in the presence of the jury. If one reads trial transcripts from that era, such as the Trial of Aaron Burr, one finds that legal argument in the presence of the jury was taken for granted. We may safely conclude from that that the Founders would consider the practice of preventing juries from hearing the argument on legal issues to be a violation of the constitutional due process rights of defendants.

It is time to return to the standards of the Constitution, and require that in criminal cases, that is, in any case in which there is a petition from a government agent to disable the rights of life, liberty, or property of any person, that such defendant have the full protections of a jury trial, including the right to have all issues of law argued in the presence of the jury. To do that, the following things must be done:

1. The defense must raise formal objection to the issues of law not being argued in the presence of the jury.

1.1. If the defense loses, it should appeal on the basis of that objection.

2. If a person becomes a juror, he or she should introduce the other jurors to the above principles.

2.1. He or she should argue that the defendant must be acquitted on the grounds that his due process rights have been violated.

2.2. If the other jurors balk at that, ask them to agree to submit to the court, as the jury, the following questions:

2.2.1. Is it not true that when this country was founded, argument on the issues of law was made in the presence of the jury in criminal cases, and this was understood as due process?

2.2.2. What amendment to the Constitution changed this standard of due process?

2.2.3. How can we be expected to decide guilt if we are not allowed to hear the legal issues argued?

2.2.4. May we now hear the legal issues argued before we proceed with our deliberations, and receive copies of all legal pleadings in this case?

2.3. If the other jurors go along with your argument, then acquit the defendant, and after the trial, hold a press conference and announce that the jury acquitted because the issues of law were not argued in their presence.

3. Organize local citizen reform groups to promote this cause, or get existing groups to adopt it.

3.1. Publish materials and distribute them to prospective jurors.

3.2. Conduct street demonstrations in front of court houses with signs that say such things as "Law Must be Argued Before Jury!"

3.3. Call in to talk radio programs, or get on as a guest, and promote the cause of legal argument before juries.

3.4. Send copies of this message to everyone on the Internet.

Reform Grand Juries

Grand juries are usually thought to be for authorizing criminal prosecutions and to investigate public administration for evidence of misconduct. However, there is no limit to what a grand jury may consider, or on which it may report. This can be seen in the way legislative committees hold hearings to investigate problems with a view to developing or amending legislation. Essentially, a congressional hearing is a committee of Congress sitting as a grand jury. Various public commissions are also essentially grand juries by other names. We can list a few ways grand juries, perhaps by other names, might be used:

• A grand jury could investigate, in response to specific citizen complaints, much as a legislative committee does, how well legislation is working, what else is needed, or whether it needs to be repealed. Enough reports tending to agree could move the legislative body to act on issues they might prefer to ignore.
• A state grand jury could review state legislation and other actions for compliance with state and federal constitutions, and advance compliance in ways beyond the means of the citizen to pursue in the courts.
• A federal grand jury could review the constitutionality of federal legislation or actions, and a finding of such to be unconstitutional might influence Congress and the courts without the complaining citizen having to pursue an expensive case all the way to the Supreme Court.
• A state grand jury could review the constitutionality of federal legislation or actions, and if it found such to be unconstitutional, urge noncooperation with it by state officials and citizens, which could range from jury nullification to statewide civil disobedience that would, directly or indirectly, nullify the usurpation.
• A grand jury could investigate complaints of judicial, prosecutorial, or other misconduct, and decide whether the officials were acting within their jurisdiction, for which they would have official immunity, or outside of it, for which they would not, thus authorizing civil or criminal prosecutions of the abusive officials.
• A grand jury could examine whether an official of a public or private institution was acting within his authority, or had authority to hold his office, and if it finds there not to be sufficient evidence of such authority, authorize a jury trial on a writ of quo warranto or other such writ. This might be used where the judges are expected to be biased.
• Grand juries might supervise the selection of trial juries and of other or succeeding grand juries, to insure they are not stacked.
• If a grand jury, or even a trial jury, needed to be composed of persons with special skills, a grand jury could supervise a multistage selection process in which large numbers of citizens would first be selected at random, who would then select persons known to them to have special skills, from which a random selection might be made, and perhaps the alternating steps repeated until they get a panel of skilled but not biased or stacked members.
• By a similar process of alternating random selection and evaluation of skills, a grand jury might select judges, prosecutors, or other public officials in a way that would avoid undue influence in their selection. They could even be set up within departments and organizations to select personnel for hiring, promotion, assignment, and termination.

Morris Dees spoke to a crowd ...

Exchange between Morris Dees and Jon Roland, 1999 Nov. 9

Morris Dees spoke to a crowd of several hundred persons in the Sacramento Ballroom of California State University at Sacramento (CSUS) beginning at 19:30, Nov. 9, 1999. After his talk, he took questions, and one of them was from Jon Roland.

ROLAND: There is one area of hatred and divisiveness which you haven't really addressed today, and which I think deserves more attention, and that is the growing polarization between law enforcement organizations and their personnel, and the American people. We are seeing an increasing militarization of law enforcement, increasing use of dynamic entries for serving search and arrest warrants, too many mistakes that are not corrected.... In other words, it's not enough to address hate crimes from random individuals or small groups. The more dangerous forms it can take are when they are perpetrated under color of law.

DEES: You have a question? I'll be glad to respond to your comment.

ROLAND: Well, I'd like to suggest that you devote more attention to these kind of hate crimes, [and] the kind of hatred that infests our government and our law enforcement organizations. [applause]

DEES: You make a good point. You make a good point. We have devoted quite a bit of attention.... I've filed personally lawsuits against law enforcement officers who are just over the line and who have admitted to what I would consider a hate crime. I think the beating of Rodney King to be a hate crime. I think the arresting of a person based on the fact that the color of their skin is some[?] profile would be tantamount to a hate crime. But one thing that it is important to note [is] that the great bulk of law enforcement officers that I've been[?] in contact with around America are not involved[?] in prejudice, in hate crimes. In fact, in the Deep South we have a kind of a prejudice against southerners. The church burnings that took place in the South, and around the country.... But if you look at those church burnings where they caught the perpetrators, it wasn't the FBI or any national law enforcement officers that broke[?] the case. I've had ... in South Carolina, it was the Sheriff of Clarendon County, South Carolina, that had the two young white klansmen in jail within 48 hours after the church burning. There's no question that, that there are law enforcement officers in this nation who are guilty of biases and prejudices and what I would consider hate crimes. If I'm under[?] ... that we don't pay attention to those.... We put on seminars all over the nation. I spoke to the California Chief of Police [?!1] ... We're invited by the U.S. attorneys, and prosecutors, and law enforcement officers all over the nation. We put on seminars on hate crimes, and on ... and we intend on our web site we're creating, called tolerance.org[?2], to have a special division[?], so that police agencies can find the best practices of other police agencies that have confronted the great issues that you're dealing with. You raised a good point. Thank you.

Notes:

[1] Needless to say, there is no "California Chief of Police". Presumably he was thinking of the Chief of Police of some city in California.

[2] It sounded like he said "tolerance.org", but this domain name is taken by someone else. No reference to anything like it appears on the Southern Poverty Law Center web site http://www.splcenter.org

Transcription by Jon Roland, who is responsible for any errors. Doubtful words are followed by [?] above.

You are summoned for jury duty

Relax. Jury summons aren't being issued by email yet. But it is likely that some day you will receive a summons to serve on a jury. The first reaction of many people is to seek a way to avoid jury duty. Don't. Our way of life depends on good people doing that duty.

But during the questioning of jurors, don't admit that you received this message. It contains information that the legal establishment doesn't want you to know, information that you need to do your duty as a citizen to uphold the Constitution.

When this nation was founded, the jury system was made a part of our system of government. This was done for one main reason: because the Founders did not trust judges, prosecutors, investigators, and other officials to administer justice. The jury is the ultimate safeguard of our constitutional rights, and never before in our history have those rights been in greater danger.

There are two kinds of juries: trial and grand. In a jury trial, the jury is the real judge. The "judge" who presides over the trial is really the president of the court. His proper job is only to control procedure.

There are two kinds of trial: criminal and civil. In a civil trial, the jury decides based on a preponderance of evidence, and a unanimous vote is not required. In a criminal trial, the jury has the duty to acquit the accused unless the prosecution proves guilt beyond a reasonable doubt, and it takes the vote of all twelve jurors to convict. Once acquitted, the accused may not be retried for the same offense.

A grand jury does not decide guilt. It investigates the facts in a case and recommends a course of action. The most common issue put to a grand jury is to decide if there is sufficient evidence in a case to prosecute the accused. The finding that there is sufficient evidence is called an indictment, and there is a constitutional requirement that persons accused of serious crimes must be indicted by a grand jury before they may be prosecuted in a trial. This is to protect innocent persons from being prosecuted by corrupt, abusive, incompetent, or overzealous prosecutors. However, a grand jury can investigate any issue. They have the power to decide what issues to investigate, the power to subpoena witnesses to testify before them, and to make any finding or recommendation that they think their investigation merits. Such a finding and recommendation is called a presentment.

But most grand juries today don't do their duty the way the Founders intended they should. They too often serve as rubber stamps for prosecutors, who often joke that they can "indict a ham sandwich". Judges and prosecutors prevent private citizens from bringing cases before the grand jury directly, which is the way the system is supposed to work, and used to work when this country was founded. Prosecutors will remain with the grand jury throughout their proceedings, although the grand jury is supposed to work without anyone else present, unless they request it. Grand jurors are sworn to secrecy to prevent public knowledge of their proceedings, but this duty is to the other members of the grand jury, not to the court. The original system was for grand juries to decide what to disclose, how, and when. If the grand jury tries to investigate the judge, the prosecutor, or law enforcement officials themselves, they will often be dismissed, even though the grand jury, once convened, is supposed to be able to remain in session regardless of what the judge may do, until it completes its work.

The constitutional duty of the grand jury is not just to decide on the cases brought to it by the prosecutors. It is also to investigate cases that the prosecutors don't want them to consider, cases of official and high-level corruption, abuse, incompetence, and misconduct. Later in this message some advice will be given on how you as a member of a grand jury can get your fellow grand jurors to break out of this improper control and do your real duty.

But let us turn back to jury trials, particular criminal trials, and especially trials in federal courts.

In a typical criminal trial, the judge will demand that you promise to "follow the instructions" he gives you, and he will tell you to consider "only the facts" in the case, and leave consideration of the "law" to him. The problem is, in our system of law, the "law" in a case is also a kind of fact. Judges don't make the law by their decisions. They only "find" what the law is, based on the original understanding of the lawgivers. One of those laws, the Constitution for the United States, and, in a state trial, the constitution of the state, is the supreme law, which is superior to any statute or other official act that may conflict with it. Deciding whether a statute or other official act is consistent with either or both constitutions is not a question only for a judge to decide. It is also a question for anyone who is involved in the legal system, especially the jury. If the case against the accused is based on a statute or other official act that is not authorized by the applicable constitution, then it is unconstitutional, and you as the jury have the duty to acquit, no matter how heinous the offense or how evil the accused might be. Being a bad person is not a crime. The accused must have violated a specific statute that was in effect at the time and place the offense was committed, and that statute must be based on powers to make that act a crime delegated to the constitution.

But the judicial system today doesn't want jurors to consult the constitution to determine the constitutionality of the case. Try to bring a copy of the applicable constitution with you, and the judge is likely to take it away from you, and threaten you with contempt of court if you try to do it again. You have to ask yourself why he would do that. If he is complying with the constitution, then why should he care whether you consider it as well? It is meant to be understood and enforced by ordinary people. It doesn't require a priesthood of lawyers and judges to tell you what it does and doesn't mean.

Varieties of Unconstitutionality

There are several ways in which statutes or other official acts may be unconstitutional:

(1) It may be contrary to a right guaranteed under the Constitution.

(2) It may not be based on one of the powers delegated to the government under the Constitution.

(3) It may violate the provisions for the structures and procedures of government, such as the delegation of legislative or judicial powers to an executive agency in violation of the separation of powers principle of the Constitution.

(4) It may neglect to perform some duty imposed under the Constitution.

(5) It may involve the operation of government outside its constitutional jurisdiction.

(6) It may not be applied in the way it was intended by those who wrote and adopted the original act.

(7) It may be vague or incomprehensible to the people who must obey or enforce it.

(8) It may have been intended to be applied selectively, or have come to be applied selectively, in violation of the equal protection provision of the Constitution that all laws must be applied uniformly.

(9) Proper notice of the law or act may not have been given in a way that would allow people subject to it to become aware of it.

(10) The aggregate of laws or regulations may become so burdensome that it becomes unreasonable for everyone subject to it to be sufficiently familiar with it to comply with all of it.

(11) It may have never been properly adopted, or due process may not have been practiced.

(12) Information needed to make a proper determination may have been withheld or distorted in a way that is intended to mislead or which has that effect through negligence.

The judge typically also won't let you have copies of the statutes the accused is charged with violating. Or books on the case law concerning those statutes. He also won't let you have the legal pleadings of the lawyers, the ones that may argue that the court does not have jurisdiction in the case, or that the statute is unconstitutional, or that the constitutional rights of the accused have been violated by the way the case was investigated or prosecuted, or argument in which the defense attempts to present evidence of government wrongdoing or that other persons may have committed the offense.

You have to ask yourself why the judge would not permit the jury to have this information, and whether you can really judge the guilt of the accused without it.

This is not the way things have always been. When this nation was founded, juries got all this information. They could even ask their own questions of the witnesses, or call other witnesses. The present system is unconstitutional.

Judges have a lot of power over lawyers, and not just in the courtroom. They now forbid defense lawyers to inform juries that they have the right and the duty to decide the law as well as the facts in a case, and threaten them with jail for contempt or with disbarment if they try, so that they could no longer practice law. They can also prevent court-appointed lawyers from being assigned cases, which can be important to their income. Never forget who pays for court-appointed lawyers, and then ask whose interests they are really serving when they represent a client.

You have to ask yourself what kind of judicial system is it that forbids lawyers from informing juries of their rights and duties, even while admitting that they have those rights and duties. Does it make sense that juries will do their duty better if they don't know what it is?

Judges and prosecutors have been trying to control juries ever since the jury system was established, and they have gotten pretty good at it. The schools today don't teach people how to counter this kind of manipulation, although they once did, in the early days of this nation. Now we have to teach one another the best way we can.

This kind of manipulation arose out of an 1895 U.S. Supreme Court case, Sparf v. U.S. The accused appealed on the grounds that his lawyer failed to inform the jury of their duty to decide the law as well as the facts in the case. The ruling was that it was not a reversible error to fail to so inform them. It was considered common knowledge. But ever since then, by the "logic" judges are fond of, they have taken that decision as a license to forbid lawyers from informing juries of their duties. You don't have to be an expert in real logic to figure out that doesn't follow.

The most serious violations of the U.S. Constitution today are being committed by federal judges and prosecutors. Most people are not aware of how bad it has become. They see an accused being prosecuted in a federal court and think everything is okay. After all, if the guy did it, what difference does it make whether he is tried in federal court or in state court? Let the federal government spend the money. Well, it makes a lot of difference.

The key to understanding this problem is the question of jurisdiction. Jurisdiction is territorial. The U.S. Constitution is fairly clear on this. It delegates to the U.S. Congress fairly broad powers, including powers to adopt criminal laws and prosecute people for violating them, over what we can call "federal territory": parcels of land which are ceded to the jurisdiction of the U.S. Congress by an act of the state legislature. This includes the District of Columbia, certain enclaves for things like military facilities and federal buildings, coastal waters, U.S.-flag vessels at sea, and the grounds of U.S. embassies abroad. It used to include all the territory that hadn't been admitted as states yet, but there isn't much of that left.

However, except for those ceded parcels, very few powers were delegated to the national Congress to adopt or prosecute criminal statutes for offenses committed on state territory. Originally, the national government had criminal jurisdiction on state territory for only four classes of offense: counterfeiting, treason, piracy and felonies on the high seas, and offenses against the laws of nations. Offenses against the laws of nations meant things like war crimes, attacks on embassies and ambassadors, plundering of shipwrecks, and attacks against foreign nations without the authority of a declaration of war or other authorizations called "letters of marque and reprisal".

After the Fourteenth Amendment was adopted, authority was delegated to the national Congress to adopt criminal statutes for a fifth subject: against deprivations of civil rights by government agents.

Except for pirates, the only authority the national Congress has to adopt criminal statutes for offenses committed outside the territory of the United States is for offenses committed by military personnel and militia personnel when in federal service. It has no such authority over U.S. private citizens.

It is also an ancient principle of law, which we inherited and made part of the Constitution, that an offense occurs where the offender was when he did it, not where the effects of his action take place. If a Canadian fires a gun from Canadian soil and kills an American standing on U.S. soil, it is Canada or one of its provinces, not the United States, or the state where the victim died, which has jurisdiction over the offender. It shouldn't be difficult to see why this principle has to be followed, and what a legal mess would result if it were not.

So, you might ask, how could the federal government be prosecuting all these crimes it does in federal court, on federal charges? Surely if that were unconstitutional, their lawyers would raise the issue that the statutes were unconstitutional and the cases would be dismissed, right? Well, once in a while a judge will comply with the Constitution and do that, but most of the time, even if the lawyer challenges the constitutionality of the statute, the judge rules against him. In a few rare cases, the case might be overturned on appeal, but not very often.

What has happened in this country is that a political faction, which dominates both of the two main parties, has gained control over all three branches of government, the legislative, executive, and judicial, and is adopting and enforcing whatever statutes they want, without regard for whether they are constitutional. Once in a while they will try to pretend there is constitutional authority for such statutes. The most common way they do that is to cite the "commerce clause" granting authority to Congress to "regulate" "commerce among the states", and arguing that everything that "affects" commerce is included in "commerce" and that criminal penalties are "necessary and proper" powers under that clause. This is contrary to the expressed intent of the Founders, for whom the power to "regulate" did not include the power to "prohibit" and it did not include the power to prosecute criminally, only civilly, that is, to impose fines and loss of privileges.

In most cases, this Establishment will just win a case against a weak defendant, then cite that bad precedent as authority for doing more of the same against other people. Law schools don't even teach the original intent of the Founders of the Constitution anymore. They just teach the precedents, many of which are bad, and built on other bad precedents.

That is the way governments accumulate power. And a lot of that is popular with people who don't know any better. They want the government to "do something" and don't always think about how if they let the government exercise powers that haven't been delegated to them, sooner or later we will lose our rights and freedoms.

You may have heard about "jury nullification". You may have heard it discussed in the context of blacks refusing to convict blacks and whites refusing to convict whites, but that is not jury nullification, and it is wrong. Jury nullification is voting to acquit because the court lacks jurisdiction, or the statute is unconstitutional, or is misapplied in that case, or because of misconduct by the judge, prosecutor, or police, or the rights of the accused have been violated. In other words, it is doing what a judge is supposed to do, but which too few of them do. Remember, in a jury trial, it is the jury who is the real judge, both of the law and the facts.

After all, if we have juries because judges can't be trusted, then why should we be able to trust them to be the only ones who rule on the law? We can't, and you shouldn't. They will impress you with their learning and bearing, but don't be fooled. The government employs the best actors money can buy, and many of them are quite good at it. Persecutors and police even have a name for what they often present: "testilying". Many state trials and most federal criminal trials today are unconstitutional, and you can't trust what any of them say or do.

You need to take special care in political cases. Watch out for prosecutions of whistleblowers, investigators, political reformers and dissidents, or cases in which the law enforcement agency involved may be under heavy pressure to get a conviction. Political activists do get set up and framed, and ambitious prosecutors are not above convicting persons they know to be innocent for their own reasons. That is not to say that political activists don't sometimes commit crimes, and when they do they should pay the price, but sometimes it is a way to silence them. Learn to watch for clues to the real agenda of the prosecution.

If you find yourself on a grand jury, your first job is to break free from the control of the prosecutor. Invite the other members to meet with you at a good all-night restaurant in the area that has private meeting rooms. Then start informing them of their duty to investigate wrongdoing that the prosecutors might not want investigated, and take cases directly from the public. In most communities there are activists who are aware of what is going on, and who have a lead on cases that need to be considered. Track them down and ask them to present their cases or to testify. When you get the support of the majority of the grand jury, start demanding that the prosecutors leave the room, and to ask your own questions. If he refuses, threaten to indict him for prosecutorial misconduct, tampering with the grand jury, and obstruction of justice. If the judge gives you trouble, you may have to threaten him the same way, but in his case it would be for judicial rather than prosecutorial misconduct. Go to a law library and read everything they have on grand juries. If you are asked to bring an indictment against someone, ask questions about the strength of the evidence, and if you have any suspicions, subpoena the accused to get his side of the story.

If you find yourself on a trial jury in a criminal case, especially in a federal court, you need to research the Constitution and the laws applicable to the case. You will be instructed not to do that, but do it anyway. Your duty to the Constitution overrides any promise you make to the judge. If the judge and the prosecutors are lying to you, that may make it necessary to deceive them and to violate the instructions of the court in the cause of justice and constitutional compliance. It is sad that it has come to that, but it has. If the jury is not sequestered, that is, if it is allowed to go home in the evening, then visit a law library or legal resources on the Internet. Don't go to the local law libraries where someone might see and recognize you. You may need to go some distance away to avoid detection. Study the Constitution for the United States. You should even try to memorize it. That may be the only way you can get it into the jury room. Compare the charges against the statutes. Sometimes they don't match. The accused may be charged with "crimes" that aren't. You won't get to read the legal briefs filed in the case, but you may be able to find legal briefs filed in similar cases that can give you some idea of the legal issues in the case.

There are ways you can introduce questions that need to be asked, and may not be asked by either side in a case. You will need to pass them to the judge, and he may not ask them, but how he handles them can provide a clue to what is going on. For example, in a federal criminal case, you might ask for evidence that the accused was standing on federal territory when he committed the offense. If not in the District of Columbia, they need to come up with the record of an act of the state legislature ceding jurisdiction. A general cession of anything the federal government might purchase won't do. It has to be a specific parcel. There should also be a deed. If the prosecution can't prove where the offender was when he committed the act, then they don't have proof beyond a reasonable doubt.

And don't worry that acquitting an offender in federal court will let him get off. If it is state court that should be trying the case, the state can still do that, and they are the ones that should.