Washington Is a Sledgehammer; We Are Nails

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Congress in 1970, responding to a supposed "wave of organized crime," passed the infamous statute known simply as RICO, which was a mechanism to try alleged mafia figures in federal courts where convictions would be easier. The American Civil Liberties Union and other concerned groups and individuals warned that this new law soon would be abused, but Congress and others ignored the warnings.

Not surprisingly, RICO ultimately came to be the ultimate weapon that federal prosecutors could use against individuals and business owners who decidedly were not part of "organized crime," but the provisions of the law are so powerful that a RICO indictment almost guarantees a conviction of some sort. (And, surprise, surprise, the ACLU itself dropped its official aversion to RICO after pro-abortion groups successfully used the civil portion of RICO to win huge monetary judgments from groups protesting abortion.)

Candice E. Jackson and I detailed our opposition to the RICO statutes in a recent article in The Independent Review and called for its outright repeal, saying that the RICO laws subvert liberty and the rule of law. However, RICO is only a small (but powerful) weapon in the arsenal that federal prosecutors are able to use against people they deem to be a threat to state power or injurious to the approved "social order" as desired by the political classes.

Today, we see the Patriot Act, a law that Lew Rockwell once told me was "RICO on steroids," being used not to fight "terrorism," but rather to severely punish individuals in order to "send a message" to the rest of us. Not satisfied with using the Patriot Act against an owner of a Las Vegas strip club (federal prosecutors in Missouri even looked at the possibility of charging the creators of PayPal with Patriot Act violations), federal prosecutors now have decided to put forth the legal fiction that a New Jersey man who was shining a green laser at air traffic near an airport is a "terrorist."

According to news accounts:

Federal authorities on Tuesday used the Patriot Act to charge David Banach, 38, with interfering with the operator of a mass transportation vehicle and making false statements to the FBI. He is the first person arrested after a recent rash of reports around the nation of lasers being beamed at airplanes.

If convicted, Banach could be sentenced to 25 years in prison and fined $500,000.

The FBI acknowledged the incident had no connection to terrorism but called Banach’s actions “foolhardy and negligent.”

Banach, of suburban Parsippany, admitted to federal agents that he pointed the light beam at a jet and a helicopter over his home near Teterboro Airport last week, authorities said. Initially, he claimed his daughter aimed the device at the helicopter, they said.

This account should give all of us great pause. In the weeks following the 9/11 attacks, the Bush Administration told Congress that in order to apprehend terrorists and prevent future mayhem directed at Americans, the F.B.I. and federal prosecutors needed extraordinary powers. Furthermore, the administration pundits solemnly declared, they would not abuse this new legal authority, using the law only against bone fide terrorists.

(Of course, the entire exercise was a charade. After citing the requisite "concerns for civil liberties," Republicans made sure that law enforcement personnel and U.S. attorneys would have even fewer roadblocks in the way of arrests and prosecutions, and Democrats eagerly wrote new "money laundering" provisions into the law’s wording in order to increase the likelihood that ordinary business owners and managers would face harsh prosecution with draconian fines and prison sentences for non-crimes.)

The latest incident involved a very stupid act by a person who most likely did not understand the consequences of his behavior. As pieced together by news accounts, Banach purchased the green-light laser for $100 over the Internet, apparently to use for his job of laying fiber optic cable lines. For a few nights, Banach and his seven-year-old daughter would shine the light at aircraft landing at a nearby airport.

Now, people who have ever had a laser light pointed at their eyes — even one from a cheap pointer — can attest that it is a very unpleasant experience. Furthermore, I have no doubt that a laser could cause serious problems in a cockpit, although there never has been an incident in this country of a laser bringing down an aircraft. Being that it is extremely doubtful that Banach was trying to force a plane to crash — the feds have admitted the same thing — what we can say is that he did a very stupid and potentially dangerous thing.

But doing something stupid and committing an act of terrorism clearly are not one and the same, yet federal prosecutors are using the Patriot Act to throw Banach into prison — and they have thrown a Section 1001 violation into the mix (Banach, in a meeting with investigators, first said his daughter had been shining the laser), reminding us why Martha Stewart currently resides at a West Virginia address. At the present time, Banach’s potential prison term could be as long as 25 years, although it is my guess that prosecutors will throw in a deal in which he "only" will plead guilty to a felony or two and serve a few years in a federal prison camp.

To put it another way, the feds are using a sledgehammer in a situation that does not even call for a regular hammer. While one can call this a case of "overcriminalization," the actions by federal prosecutors are not the result of overzealousness but rather a cruel, calculated and deliberate act to let the rest of us know that we are the slaves and federal prosecutors and law enforcement are our masters.

Furthermore, while one can understand why Banach might have been less-than-full-truthful when first confronted with investigators, it would seem to me that the much bigger lie has been told by Bush Administration officials. As pointed out earlier in this article, federal officials promised Congress that they would not abuse the new and extraordinary powers that were given them. That clearly was and is a lie. Lying to Congress is a crime for the rest of us, but for federal prosecutors and their ilk, it is another day at the office.

Yes, Banach did something that was incredibly stupid, but there also was clearly no criminal intent. Once upon a time in America, intent — the doctrine of mens rea — mattered when it came to the pursuit of criminal acts. Today in Amerika, the only thing that matters is the accumulation of power by federal officials, who then wield it like a sledgehammer against the rest of us.

January 6, 2005

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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