OMG It's The Patriot Act! Quick, Panic!

Effluvia

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WorldNet Daily, one of many quoting Annette Lundeby for the proposition that the Patriot Act has somehow superseded due process under the U.S. Constitution; (2) William Grigg, who also posts at LewRockwell.com, who accepts Annette Lundeby's story hook, line, and sinker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

18 Comments

18 Comments

  1. Jess Austin  •  May 7, 2009 @4:57 pm

    Here's an easy solution to the unforgivable, uninformed wingnuttery and moonbattery surrounding the Patriot Act: repeal the idiotic thing already! Since you have so much sympathy for federal prosecutors and their travails, think of how much easier their jobs will be when they don't have to sift through the mountains of irrelevant surveillance of citizens that it produces.

  2. Ken  •  May 7, 2009 @4:58 pm

    Yeah, but here's the thing, Jess: the Patriot Act has very little impact on the day-to-day operations of most federal prosecutors.

  3. Jess Austin  •  May 7, 2009 @5:33 pm

    I guess it's a good indicator of their competence that they realize patriot-style surveillance is useless for their mission. Yet the surveillance continues…

  4. Mike Munger  •  May 8, 2009 @5:44 am

    Interesting. THanks for the good info!

  5. Professor Coldheart  •  May 8, 2009 @7:50 am

    Thank you for posting this. Somebody else in my weblogroll posted a link yesterday. While I didn't see the "PATRIOT Act smoking gun," if you will, my bias was naturally against the prosecution (as it has been for the last eight years).

    This is a bracing antidote, and much needed.

  6. Madrocketscientist  •  May 8, 2009 @10:46 am

    I learn something new on your blog every day, thanks. Never knew what PACER was.

  7. Ken  •  May 8, 2009 @11:09 am

    PACER is awesome. Everyone interested in fact-checking media stories about federal criminal justice should sign up for it. It costs pennies per page to get actual, primary documents. Even if you are not a lawyer, careful review of those documents will frequently make you better informed than the journalists and bloggers covering the story.

  8. MadRocketScientist  •  May 8, 2009 @11:34 am

    I'll have to ask my wife if the Library has a subscription (she's a librarian).

  9. John  •  May 8, 2009 @2:24 pm

    This is an interesting site, my first time here. My comment is not related to the case you cite, but just the Patriot Act in general. Just the title of your blog post "OMG It’s The Patriot Act! Quick, Panic!" seems to be patronizing those who are against it. Aren't there 5 or 6 federal judges who have ruled that the Patriot Act is unconstitutional? How about Judge Andrew Napolitano with what he says quite often about it? For example: http://www.youtube.com/watch?v=kNRSs6LsGeI

  10. Ken  •  May 8, 2009 @2:30 pm

    With all respect, John, I don't know how you can come to that conclusion if you read the post carefully. I'm not making fun of people who have informed concerns of actual provisions of the Patriot Act. I'm making fun of credulous people who can be reduced to gibbering fear by the mere invocation of the words "Patriot Act." I'm making fun of people who are prepared to take Annette Lundeby's claims that her son is being denied due process under the Patriot Act at face value without any apparent skepticism or inquiry.

    And, no, no judge has ruled that "the Patriot Act" is unconstitutional. It's a ginormous piece of legislation with a lot of unrelated parts. Some judges have questioned, or ruled unconstitutional, some specific provisions. No judge has "ruled the Patriot Act is unconstitutional."

  11. cboldt  •  May 9, 2009 @6:05 am

    I checked PACER and the statutes early on. The story has too many gaps to make any sense at this point. That he was charged with a non-PATRIOT Act violation does not answer WHEN the juvenile information was filed. PAdilla was held for a few years, then charged with a variety of offenses, some of which are non-PATRIOT Act offenses. Anaylysis of the government action here needs to comprehend the fed certification (cutting out the state); conformity with the juvenile speedy trial statute (18 USC 5036), and the chances of obtaining a transfer into adult court (18 USC 5032).

  12. cboldt  •  May 9, 2009 @6:35 am

    accused of a federal crime of violence (like making interstate bomb threats, for example)
    The call need not be interstate. There is at least one juvenile FED conviction of 18 USC 844(e), upheld on appeal, where the call was initiated and answered in the same school building. Use of the telephone system or the mail in an intrastate fashion is sufficient to find jurisdiction, because the mail and phone can be used for interstate purposes.
    US v Corum ___ F.3d ___, ___, 2004 WL 718930 (8th Cir.2004); cited in US v. R.J.S., Jr (8th Cir. 2004).
    In the instant case, the FEDs may have trouble with the evidence relating to the bomb hoax threat to Purdue. But the evidence that pertains to other particular threats seems quite solid, to me. But I'm not sure the ND of Indiana has any say-so in the the other cases. My intuition tells me that this case is a disaster/mess for the Feds; but not on account of Lundeby being innocent of the general charge of perpetrating bomb threat hoaxes.

  13. cboldt  •  May 9, 2009 @6:46 am

    federal juvenile proceedings are sealed
    That stamenet merits more precise definition. Regarding the Lundeby case, see government press releases of March 6 and May 7, 2009. And see the above-linked appellate court decision, which relates to a juvenile.

  14. Ken  •  May 9, 2009 @7:02 am

    That stamenet merits more precise definition. Fair enough. On reflection, it would be a bit more accurate to say that records of juvenile proceedings must be sealed or otherwise kept confidential pursuant to a specific statutory command linked above, and that proceedings may be, and usually are, sealed, as discussed in the case I linked above. The government is probably thinking that the press releases do not constitute records of the proceeding because they do not name the juvenile, and thus do not breach the statute. THey may nor may not be right.

    There is at least one juvenile FED conviction of 18 USC 844(e), upheld on appeal, where the call was initiated and answered in the same school building. Is it in that circuit? Yes, the courts are all over the map on different crimes as to whether purely intrastate use of mails or wires satisfies various federal statutes. Interstate use here is clear, though, making it a non-issue.

    Anaylysis of the government action here needs to comprehend the fed certification (cutting out the state); conformity with the juvenile speedy trial statute (18 USC 5036), and the chances of obtaining a transfer into adult court (18 USC 5032).

    Sure. We don't have that information. But the timeline is entirely consistent with a certification based on a specified crime (here a crime of violence, which generally includes a crime of threatened violence) and a defense request for additional time to prepare a defense (the defense attorney may well have waived speedy trial, balancing the kid being in custody vs. the need to build a decent case).

  15. cboldt  •  May 9, 2009 @7:18 am

    the press releases do not constitute records of the proceeding because they do not name the juvenile
    That's correct. "Records are sealed" is insufficient justification for providing general information about the progress of investigation, arrest, charging and prosecution. The press releases in no way offend the statute.
    Is [intrastate use of phone -> fed jurisdiction] in that circuit?
    The linked cites are not. But the general proposition is applied across the US. Agreed the issue is moot in this case, I raise it in order to point out that each and every of the thousands of bomb-hoax threats made over the phone is a federal offense. Even calling to "your school down the street."
    the timeline is entirely consistent with a certification based on a specified crime
    "Certification" is justification for the feds to take the case over the state. Many bomb-hoax threats are prosecuted by the state, even when made aboard an aircraft in flight. A Kentucky man who claimed to have a bomb aboard a Los Angeles-bound airliner … 120 days in a county jail.
    There is an assumption that the juvenile information was filed in March, close to the time of arrest. When was the juvenile information charging a 18 USC 844(e) violation filed?
    The Fed juvenile statutes also direct that the detention is, if possible, to be close to the juvenile's home. We have no explanation for deviation from that, beyond "he called Indiana." Well, the kid who accessed Palin's e-mail is being prosecuted in Fed Court, and all the legal action took place in Tennessee.
    The Feds have filed a motion for transfer. That means "trial as an adult", not "physical relocation." By my read of the transfer statute, the offender must have a prior felony conviction in order to trigger the transfer.
    I think the kid is a skunk, but the story has too many gaps in evidence to justify a conclusion that the government is following normal procedure against a juvenile.

  16. Ken  •  May 9, 2009 @7:38 am

    “Certification” is justification for the feds to take the case over the state.

    Yes, that's what I'm talking about. One basis for certification is that the juvenile is accused of one of the specific crimes or categories of crimes set forth in the statute, combined with an AG statement that there is a substantial federal interest in the case. Here the bomb threat charge is a crime of violence (as that definition is generally used in federal statutes to encompass crimes with threatened violence).

    The Feds have filed a motion for transfer. That means “trial as an adult”, not “physical relocation.” By my read of the transfer statute, the offender must have a prior felony conviction in order to trigger the transfer.

    One thing I haven't researched yet is whether Rule 40 is the vehicle to move a juvenile from one district to another after a certification is filed, or whether it is called something else.

    Anyway, I don't read the motion to transfer language of 18 USC 5032 as narrowly as you. THat language, too, seems to permit the feds to make the motion based on the juvenile being charged with a crime of violence:

    A juvenile who is alleged to have committed an act of juvenile delinquency and who is not surrendered to State authorities shall be proceeded against under this chapter unless he has requested in writing upon advice of counsel to be proceeded against as an adult, except that, with respect to a juvenile fifteen years and older alleged to have committed an act after his fifteenth birthday which if committed by an adult would be a felony that is a crime of violence or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), or section 1002(a), 1005, or 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952 (a), 955, 959), or section 922 (x) of this title, or in section 924 (b), (g), or (h) of this title, criminal prosecution on the basis of the alleged act may be begun by motion to transfer of the Attorney General in the appropriate district court of the United States, if such court finds, after hearing, such transfer would be in the interest of justice.

    That section gave the court discretion, upon a motion from the government, to transfer to an adult proceeding. I think you are referring to the following section, which as I read it, makes it mandatory for the court to transfer the case to an adult proceeding if the juvenile has a specified felony prior, but does not make that a prerequisite for a discretionary transfer:

    However, a juvenile who is alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a felony offense that has as an element thereof the use, attempted use, or threatened use of physical force against the person of another, or that, by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense, or would be an offense described in section 32, 81, 844 (d), (e), (f), (h), (i) or 2275 of this title, subsection (b)(1)(A), (B), or (C), (d), or (e) of section 401 of the Controlled Substances Act, or section 1002(a), 1003, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and Export Act (21 U.S.C. 952 (a), 953, 959, 960 (b)(1), (2), (3)), and who has previously been found guilty of an act which if committed by an adult would have been one of the offenses set forth in this paragraph or an offense in violation of a State felony statute that would have been such an offense if a circumstance giving rise to Federal jurisdiction had existed, shall be transferred to the appropriate district court of the United States for criminal prosecution.

  17. cboldt  •  May 9, 2009 @12:01 pm

    I think you are correct (and I was quite wrong) on the distinction between a transfer to adult trial on the discretion of the Court, vs. the non-discretionary section. By 18 USC 16(a), an offense of 18 USC 844(e) is indeed "a felony that is a crime of violence" (having an element that is threatened use of physical force against the person or property of another) and section 1446 of the Criminal resource Manual further notes that the offense may be designated a "Federal crime of terrorism."
    That still leaves open the question of timing of filing of the juvenile information; and justification for the physical relocation from NC to IN.

  18. cboldt  •  May 9, 2009 @12:35 pm

    And this in 5032, tending to augur for transfer: "consider the extent to which the juvenile played a leadership role in an organization, or otherwise influenced other persons to take part in criminal activities." Lundeby seems to have made many bomb threat hoax calls, and solicited money from others to conspire in making bomb threat hoaxes. And too, if Mom was aware of his "crossing the line," and had been unable to prevent his delinquency, then it makes sense to not release him back to home.