Let me be blunt: the prevailing stance of Americans towards the provisions of the USA PATRIOT Act is one of willful ignorance.
I'm not talking just about the media, which exceeds its customary level of legal illiteracy when writing about the Patriot Act, and as a result indulges in woefully poorly researched flights of scaremongering fancy. Nor do I refer to the professionally ignorant, the pack of blow-dried sociopaths in Congress who passed the thing without reading it or even assuring that their aides had an opportunity to read it. I'm talking about nearly everybody who talks about the damned thing.
Possible case in point: the case of Ashton Lundeby, which as we speak is generating massive internet hand-wringing and arm-waving. As far as I can tell, it's hand-wringing and arm-waving that's not grounded in reality or research.
I first heard of the case from the formidable Radley Balko at the indispensable Agitator blog. Radley simply linked a video clip from a local news story on the Lundeby case and commented that, if true, it sounded outrageous. That's a rather gigantic "if", but given Radley's history of meticulous research, I think we can give him a pass on this one. However, everyone else doesn't get a pass — with the exception of the admirably skeptical and questioning Kevin Poulsen at the Wired Threat Level blog.
The bullet: in early March federal authorities, assisted by local authorities, apparently arrested 16-year-old Ashton Lundeby at his home in Oxford, North Carolina and executed a search warrant at his house, all based upon accusations that he made a bomb threat to Purdue University in Indiana. From there it becomes murky. That murkiness is promoted by wild speculation on all sides of the political spectrum — and frankly astoundingly credulous acceptance of Ashton Lundeby's mother's assertions — that Lundeby is being held without charges "under the Patriot Act", denied any due process, and preventing from complaining by a "gag order." A representative sample: (1) the not-afraid-of-the-full-wingnut WorldNet Daily, one of many quoting Annette Lundeby for the proposition that the Patriot Act has somehow superseded due process under the U.S. Constitution; (2) William Grigg, who also posts at LewRockwell.com, who accepts Annette Lundeby's story hook, line, and sinker without apparent reflection or inquiry and in the process condemns federal defense attorneys as government stooges out to screw their clients (until he retracts it, then says it again); or (3) our old friend Ron Paul's cloying fansite DailyPaul, which tells much the same story.
The buzz was the same throughout: Ashton was thuggishly seized by rough and rude federal agents who tore his house up, he's innocent because he was with his mother at church tutoring blind puppies or something at the time of the bomb threat, he's being held without charges under the Patriot Act, the Patriot Act means he can be held without due process, he's been in jail two months without charges or hearings, the judge has issued a gag order preventing anyone from talking about it, etc.
Problem is, it's very likely bullshit, as some critical thinking would have revealed.
Ashton Lundeby is 16. Therefore any federal proceedings against him are governed by Title 18, United States Code, section 5032 and related statutes, which result in substantially different procedure and treatment than an adult defendant would experience. How is it different? Well, for one thing, it's non-public — whether or not a judge issues a "gag order", federal juvenile proceedings are sealed. They're sealed, by the way, for the protection of the juvenile, not for the benefit of the government, and that's been the rule for about three decades before anyone heard of the Patriot Act. Juveniles subjected to delinquency proceedings in federal court — like juveniles in state court — get bench trials, not jury trials, and in somewhat truncated form. That's the way federal prosecutors proceed against them. The statute also creates very different substantive limitations, by the way — juveniles can only be adjudicated delinquent in federal court under specified circumstances, including when they are accused of a federal crime of violence (like making interstate bomb threats, for example).
Therefore, the fact that there have not been any public proceedings against Ashton Lundeby is not surprising. Nor is it surprising that PACER, the online federal court records resource, does not reflect a case under Lundeby's name in the Northern District of Indiana, nor in the Eastern District of North Carolina where the search warrant would have been filed and the initial appearance taken — 18 U.S.C. section 5038 prohibits a public record of the delinquency proceeding. (I'll eat my metaphorical hat if any of the people writing screeds about this case checked PACER.)
Moreover, no one has yet explained precisely what provision of the Patriot Act is allegedly being used to hold a juvenile without charge, incommunicado, and indefinitely.
Using the most irritated tone I've ever seen in a DoJ press release, the U.S. Attorney's Office for the Northern District of Indiana has now confirmed that a juvenile that it properly refuses to identify was arrested in North Carolina for making a false interstate bomb threat, has had three court hearings (an initial appearance, detention, and transfer of venue hearing in North Carolina and two hearings in Indiana) at which he was represented by counsel, and is now facing federal juvenile delinquency proceedings. All of this is something that anyone reasonably well acquainted with the federal justice system — or willing to spend twenty minutes on Google — could have figured out was an entirely plausible scenario, even if not the only possible scenario.
(This is not to say that experience with the federal justice system is proof positive against jumping to such conclusions. A former Assistant United States Attorney named Dan Boyce speculated to the media about the Patriot Act angle, perhaps letting the opportunity for publicity overcome his capacity for critical thinking.)
Is it still possible that this is all a dark government conspiracy, and poor Ashton is being held at Gitmo without charges, and the U.S. Attorney's office is lying about it? Sure. It's possible. But is it likely? Is it a credible explanation for the disposition of a juvenile, given well-known and easily-researched federal juvenile justice procedures? Have the feds been disappearing a lot of other 16-year-olds for making bomb threats?
No. It appears that what happened here is that the media, and segments of the blogosphere, got played like a cheap kazoo by Annette Lundeby, failed to exercise any journalistic initiative or skepticism, and descended into full-blown Patriot Panic. Now, I suspect that Annette Lundeby, having been present for Ashton's North Carolina court proceedings, willingly misrepresented or exaggerated what happened to make the government prosecuting her son seem more evil and ominous. Moms are like that, and I'm not going to hold it against her. It's also entirely possible that Annette Lundeby didn't quite grasp what the hell was going on in legal-babble-prone federal court, Ashton's temporary North Carolina counsel didn't go through it with her thoroughly, or she was so upset that she didn't retain the information, resulting in her scaremongering about the Patriot Act superseding the due process clause. Moms are like that too, and we should forgive her.
What we shouldn't forgive are TV and print journalists who broadcast her paranoia without adequate inquiry. Nor should we give serious bloggers a pass if they buy into it without the sort of if-this-is-true qualifications that Radley offered. We should expect better.
Suspicion of government power, and the exercise thereof, is entirely healthy and admirable in a free people. But for the most part, hysteria about the Patriot Act is neither healthy nor productive. Most people shouting about it haven't the faintest clue of what it says, mistaking prosecutions under long-standing and well-worn federal statutes for new post-9/11 provisions. Moreover, crying wolf about the Patriot Act erodes the effectiveness of genuine, informed critiques of its terms.
Let's all do better.
Edited to add: More good reporting from Kevin Poulsen: apparently Ashton is something of a prank-call celebrity online. His mother knew that he was prank-calling people. That's some quality parenting, there.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016