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Further Sunday Thoughts On "The Innocence of Muslims" and the Arrest of Nakoula

Sep 16, 2012
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Politics & Current Events

A few more thoughts, following up my earlier ones, on the arrest of Sam Bacile aka Nakoula Basseley Nakoula:

1. I do not know what spurred the arrest and questioning of Nakoula. But I do know, as a few news outlets have realized, that federal convicts on supervised release are supervised by probation officers, who are part of U.S. Probation, which is an arm of the United States Courts, not the United States Department of Justice:

Karen Redmond, a spokeswoman for the Administrative Office of the U.S. Courts, said Friday that Nakoula's federal probation was under review.

It is possible that someone in the Obama Administration made a call or leaned on someone in probation, either nationally or in the Central District of California? Yes, it's possible. Evidence, please. If it happened, I'd like to see a Congressional inquiry into it. But probation offices acting on their own upon a high-profile event involving a probationer is common. I suspect some offices have Google alerts set up; I've seen DUI arrests reported in the paper result in almost immediate action by federal probation officers.

2. I disagree completely with the sentiment expressed by Jack Marshall and elsewhere that the Probation Office should have refrained from action to avoid the appearance that the government is retaliating against speech. What separates us from the mob is the rule of law. We shouldn't ignore the rule of law by violating First Amendment principles in what Eugene Volokh correctly points out would be an utterly vain attempt to appease a mob. On the other hand, we shouldn't hinder the rule of law to avoid the appearance of appeasement, either. That's still letting the mob dictate our actions and our adherence to our own laws. "We would normally do X, but we musn't because it might enrage the mob" is just the flip side of "We would normally do X, but we musn't because it might embolden the mob." Both are a sucker's game. The mob's actions are going to be driven by its own culture and by the people manipulating the mob for their own political gain. Jack, and others, seem to be saying that the mob will misunderstand the orderly administration of the law in this instance: but is there really any chance that the mob will ever make an honest attempt to understand, or will care, or that the forces manipulating them will react honestly? Respect the rule of law and fuck 'em if they don't like it.

Also, it's not clear to me what people taking this point of view are suggesting. Should local probation officers make decisions about enforcement of terms of release based on foreign policy considerations? (Surely we'd be upset if the probation officer took foreign policy into account in the other direction, by saying "I have to make sure to start revocation proceedings because this defendant's words are offending mobs and causing violence.") If not, are people really suggesting that the administration should pick up the phone and intervene in the administration of probation in individual federal criminal cases to achieve foreign policy aims?

3. I see a lot of outrage about the optics of a crowd of armed law enforcement officers arresting Nakoula at his home late at night. The word "brownshirts" is being thrown around. If you live in this country and this is the first time you are being moved to say "brownshirts" over law enforcement behavior, you're blind or a partisan hack. In this country we tolerate a vast amount of rank law enforcement thuggery against citizens. We endure it, tolerate it, wink at it in the name of the War on Drugs, in the name of post-9/11 "security," in the name of thinking of our children, in the name of "law and order" and of police being the "thin blue line" between us and anarchy.

If the administration did, in fact, intervene in the supervision of an individual convict's supervised release, that should be the subject of widespread interest and condemnation. But where the hell was this outrage about law enforcement excess before?

4. This subject involves very important questions of free speech and foreign policy. Right now, thanks to the election season, it's being driven by sheer partisan rancor and opportunism by both sides. For the record, I'm voting against Obama and Romney.

Last 5 posts by Ken White

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  1. Jack Marshall  •  Sep 16, 2012 @11:05 am

    I am almost persuaded by this argument, Ken, but not quite. I found the initial description in an Administration release describing Nakoula Basseley Nakoula as someone on parole for financial fraud as odd—what does that have to do with the movie? When a colleague suggested that this meant there would be an effort to find a parole violation to justify arresting him to "appease the mob," I pooh-poohed the idea: surely supporting the principal of Free Speech is more important than finding a legitimate way to send an illegitimate message to the Middle East and MSNBC. Then they got Nakoula out of bed in the dead of night.

    Do you really think the timing and manner of this would have been the same if an official just happened across the vile trailer and linked it to Nakoula, and the Egyptians weren't clamoring to have him punished? I don't, but even if my cynicism has overwhelmed my judgment, and I concede that your judgment is often better than mine—yes, I believe the rule of law is vital, but that standing up for the core values at the foundation of that law is more so.

    I'm all for that Congressional investigation, if it could be a fair and bi-partisan one. Fat chance of that.

  2. Adrian Ratnapala  •  Sep 16, 2012 @11:14 am

    …yes, I believe the rule of law is vital, but that standing up for the core values at the foundation of that law is more so.

    But the rule of law is *itself* one of those principles.

  3. Doug Mataconis  •  Sep 16, 2012 @11:16 am

    Ken,

    One minor quibble, but I think an important one.

    I don't think it is correct to say that Nakoula was "arrested." Every article I've read about this matter indicates that Mr. Nakoula appeared voluntarily for questioning. The law enforcement officers that were there were as much for his own safety as anything else since they guy apparently thinks, not without some cause, that he could be targeted because of this movie of his. The questioning itself lasted about 90 minutes and, as I understand it but this hasn't been confirmed by more than one media source, he had counsel present during that time.

    Also, as you said, the entire discussion about this incident has being clouded by partisan rancor and election year politics, leading some people to make wildly over the top statements, such as essentially comparing the LA Sheriff's Office to Nazis because their uniforms are brown. It is enough to make one weep.

  4. Jonathan Kamens  •  Sep 16, 2012 @11:21 am

    Hi Ken,

    Leaving aside for the moment the fact that I'm not sure there is anything Obama could do in this situation that would not be called opportunistic by half the country, I think your comment at the end about not voting for either Obama or Romney doesn't add anything to the blog posting and seems gratuitous.

    Aside from that, knowing you as I do through your writing I am surprised to see you say that, because I would expect you of all people to know that a vote for neither of them is a wasted vote, at least in our system as it stands now, and therefore voting for the one you dislike less, assuming that you don't like either of them, is better than voting for neither.

    And I would find it very hard to believe that you're one of those people who thinks they're both "just as bad."

  5. Ken  •  Sep 16, 2012 @11:26 am

    Do you really think the timing and manner of this would have been the same if an official just happened across the vile trailer and linked it to Nakoula, and the Egyptians weren't clamoring to have him punished?

    Yes. Perhaps it might not happen quite as quickly. But if, for instance, probation learned that some other video that went hugely viral — like, say, that "Gangnam Style" thing — had been produced by a federal probationer under an alias, and that there were indications that the probationer was paying people, soliciting donations, and otherwise engaging in financial transactions under an alias, and the probationer was being supervised for a financial crime involving aliases and had been prohibited from using aliases and ordered to disclose all financial accounts to probation, I would expect a swift and decisive investigation.

    Probationers and supervised releasees using aliases and undisclosed accounts to do business is a HUGE issue for U.S. Probation — not just because of the risk of new fraudulent conduct, but because the Probation Office is tasked to make sure the defendant pays as much of the court-ordered fines and restitution as they can. Here Nakoula was ordered to pay more than $700k in restitution. If he's engaging in hidden large-scale financial transactions under an alias, you better believe probation is going to investigate it. And should.

  6. Ken  •  Sep 16, 2012 @11:29 am

    @Jonathan: since we're swimming in partisanship, I thought I'd make my potential bias clear.

    As for the rest: yes, yes, I should vote for Kang or Kodos. But I won't. First, any vote in California is likely a wasted vote anyway. Second, the attitude about "wasted votes" is exactly how we marginalize third-party candidates and remain stuck with two parties who are increasingly alike in the worst ways.

  7. Jonathan Kamens  •  Sep 16, 2012 @11:58 am

    If you think both are alike in some ways then you base you're vote on the ways in which they are not alike, and surely you don't believe there are none of those.

    And while I agree that the wasted vote attitude is a factor in the marginalization of third party candidates, I think it is a minute factor, hardly anything at all, when compared to the many other much larger ways our system is currently rigged to exclude them.

  8. Ken  •  Sep 16, 2012 @12:07 pm

    @Jonathan: I care very much right now about the rise of the security state and the abandonment of Fourth, Fifth, and Sixth Amendment concepts. I thought Obama did as well based on his campaign promises; he broke those promises. I'm going with someone who seems to give a shit. I refuse to be locked into the two-party system which pushes the relatively few issues which are supposed to guide my decision.

  9. James Pollock  •  Sep 16, 2012 @12:22 pm

    If the question is truly "I have to make sure to start revocation proceedings because this defendant's words are offending mobs and causing violence." then yes, I would find that objectionable. If instead it's "this guy violated terms of his probation, and I need to process his violation paperwork before the other guys who violated terms of their probation, because this defendant's words are offending mobs and causing violence." then I do not.

  10. Thad  •  Sep 16, 2012 @12:35 pm

    @Jonathan: My state's electoral votes are going to Romney, period. You want to try and convince me that a vote for a third-party candidate is any more wasteful than a vote for a major-party candidate in a state where the outcome is a foregone conclusion, you've got a tough road ahead of you.

    Trouble is I don't know a third-party candidate I'd want to vote for either. I like aspects of what Johnson has to say but the Libertarian Party has become synonymous with a total lack of empathy. There's the Green Party, but I don't really consider them to be a serious political organization.

    At this point I'm seriously tempted just to go whole hog and REALLY pull a pointless protest vote by writing in Carter. Hell, then I'll be able to tell people I voted for Carter, even though I was born in 1982.

  11. Jonathan Kamens  •  Sep 16, 2012 @12:45 pm

    I agree that if it's a foregone conclusion where your vote is going, there is value in casting a vote for a third-party candidate. That may certainly be true where you live, and Ken is probably right that it's true in California as well — certainly Nate Silver thinks so.

  12. Ken  •  Sep 16, 2012 @12:53 pm

    @jonathan:

    But to be clear: if I think that Obama and Romney are both awful on issues ABC and DEF, and that those issues are key to the future of the nation, I should still hold my nose and vote Obama if I think he is better on issues XYZ?

    I disagree. I wouldn't be voting for either of them even if I were in a swing state.

  13. Xenocles  •  Sep 16, 2012 @1:01 pm

    When you vote for a candidate you own everything he does if he wins. If he's the incumbent you are approving of his performance so far. I refuse to consent to either Obama or Romney.

    I do think some of the language has been over the top. I doubt the local PD is taking orders from the President, and though I think the time and method of his detention are excessive that's hardly unique these days.

  14. James Pollock  •  Sep 16, 2012 @1:13 pm

    I'm also in a state whose electoral votes are not in play.
    I also wish we had a viable third party because I'm a person who more often votes against a party than for the other one.

  15. Jonathan Kamens  •  Sep 16, 2012 @1:14 pm

    …I should still hold my nose and vote Obama if I think he is better on issues XYZ?

    I disagree.

    Then we have a fundamental disagreement.

    As I see it, if you're not going to get what you want on ABC or DEF from either candidate, but you might get what you want from one of the candidates on XYZ, then it seems like simple math to me that you cancel out ABC and DEF from both sides of the equation, leaving XYZ as the deciding factor.

    When you vote for a candidate you own everything he does if he wins. If he's the incumbent you are approving of his performance so far.

    This strikes me as an entirely impractical attitude. It is also hardly one that is universally shared. I hardly consider my vote for any particular candidate to be an indication that I approve of every single thing s/he has done, and I doubt most people feel that way.

    If you are only willing to vote for someone when you agree with everything they've done, then you might as well not vote at all.

    "Never let the perfect be the enemy of the good" applies here quite starkly. So does "throwing out the baby with the bathwater."

  16. Xenocles  •  Sep 16, 2012 @1:23 pm

    That is a saying that is no longer functional in our presidential politics. Neither major party has offered a good candidate since I've been able to vote.

  17. Xenocles  •  Sep 16, 2012 @2:10 pm

    Or, to put it another way:

    "Never let the perfect be the enemy of the good" is exactly why I'm voting for Gary Johnson.

  18. Chris  •  Sep 16, 2012 @2:55 pm

    Jonathan, attitudes like yours are what keep the horrible two party system in place. If people stopped having that attitude perhaps we would start to see things change in this country.

  19. EH  •  Sep 16, 2012 @3:22 pm

    If you are only willing to vote for someone when you agree with everything they've done, then you might as well not vote at all.

    Nobody said anything about "everything." You're indulging in extremism.

  20. Xenocles  •  Sep 16, 2012 @3:27 pm

    To be fair, I said "everything" – but only in the sense that your vote buys everything about that politician, good and bad. You don't get to vote for half of Obama and half of Romney (or any mix of all the candidates). Your vote will be interpreted as a mandate for everything, so you had better be able to live with the bad parts of your candidate.

  21. D. L. Monson  •  Sep 16, 2012 @5:33 pm

    I fully agree with point 2 in the post. It hearkens back to the days of Ward Churchill. He basically said that because he offended people with his essay about the 9/11 victims, causing them to look into his past writings and discovering that he was guilty of academic misconduct, any attempt to fire him was a First Amendment violation.

    He recently lost his appeal in front of the Colorado Supreme Court, but only because the trial judge ruled that the university was entitled to quasi-judicial immunity. The original question of whether the fact that he had offended people with his writing gave him immunity from the consequences of anything that was discovered in his past writings because people were scrutinizing him. If that were the case, then all any government employee or parolee would have to do is say something controversial and then no one is allowed to find them guilty of any other (unrelated) screwup. Any attempt to do so would be because of the additional scrutiny for availing themselves of their First Amendment rights to say something insanely stupid.

  22. Ae Viescas  •  Sep 16, 2012 @5:42 pm

    "For the record, I'm voting against Obama and Romney."

    While I may not agree with everything you say, I respect you for admitting this in the current political climate.

  23. delurking  •  Sep 16, 2012 @6:41 pm

    Jonathan, those votes for minor-party candidates send a message to the major parties. It is a message of support for the platform of the minor party. That influences the major parties. Each election does not stand in total isolation from all of the other elections.

  24. John David Galt  •  Sep 16, 2012 @7:30 pm

    I strongly agree with you that the US government should never act (or refrain) in order to appease a violent mob, whether that mob is outside one of our embassies overseas, or in the streets of New York — on either side of the police line.

    That said, parole conditions that silence political speech are a human rights violation and should be struck down across all people on parole or probation, no matter what their crimes.

    And when the system is willing to commit that kind of atrocity and there is no effective remedy, then just maybe it's that time in the course of human events….

  25. Grifter  •  Sep 16, 2012 @8:46 pm

    @John David Galt:

    What is your opinion of the rules on felons and guns?

  26. Ukko  •  Sep 16, 2012 @9:10 pm

    Ken, in your experience, how many other federal parolees have been taken for questioning by a full complement of uniformed officers, at midnight, with spotlights shining and the press present?

    If your answer is zero, then given that we know the administration tried to intimidate Google and we know that the chairman of the JCS tried to intimidate Pastor Terry Jones, what do you think the chances are that this was just a local decision? One in a billion, or less?

  27. Ken  •  Sep 16, 2012 @9:35 pm

    @Ukko: I'm not at the scene of many probation arrests, Ukko, so I wouldn't know based on first-hand knowledge. But one of the things we talk about on this blog is the excessive use of force in arrests and searches. In fact, that force is ludicrously excessive all the time. Multi-agency multi-agent armed raid on a guitar factory for improper wood, anyone? And you seem to be assuming, without evidence, that the media circus was sent by the government for purposes of the raid, when by all reports the media circus had been there already. Arresting a person in the middle of a media circus — a person who might, at this point, face risks from religious extremists — is exactly the sort of situation I would expect law enforcement to send "a full complement of uniformed officers."

    Of course, that's not the narrative that fits your political requirements, is it?

    Plus, apparently they took the guy downtown, had probation interview him, and then released him to an undisclosed location. That's your theory of intimidation? They've got more than enough cause to start revocation proceedings right now — but your theory is that the Obama cabal said "Ok, brownshirts, this is what we're going to do — we're going to arrest him, talk to him for almost 90 minutes, and then let him go at a secret location so he won't get swarmed by the press. That will put the fear of Barack into him!" That's your theory?

  28. Waldo  •  Sep 16, 2012 @10:01 pm

    "That said, parole conditions that silence political speech are a human rights violation and should be struck down across all people on parole or probation, no matter what their crimes."]

    What are you talking about? Are you suggesting prohibitions on using aliases and financial disclosure requirements are "parole conditions that silence speech?"

  29. Waldo  •  Sep 16, 2012 @10:04 pm

    "If you live in this country and this is the first time you are being moved to say "brownshirts" over law enforcement behavior, you're blind or a partisan hack."

    I'm pretty sure Glenn Reynolds ain't blind.

  30. Ukko  •  Sep 16, 2012 @10:47 pm

    Wow, Ken, talk about unfounded assumptions! I deliberately avoided using the term brownshirts, the question was not intended to fit a political narrative, and I've been reading your blog for at least three years, in part because I agree with your views on free speech and excessive government force. I just can't figure out why you're ignoring the obvious: higher-ups are attempting to suppress legitimate speech. The motives are beside the point. It's happening, and it's disgraceful.

  31. Malc  •  Sep 17, 2012 @12:32 am

    For what its worth, until we get third parties represented in the House and then in the Senate, the idea that voting against either of the two legacy parties' candidates will have any effect is, umm, optimistic.

    When a true third party (and fourth, etc) appears, it will appear in the Congress as well as the Electoral College. Until that happens, I think people are just fooling themselves if they believe their voting has any impact at all.

  32. James Pollock  •  Sep 17, 2012 @12:57 am

    Ukko said:
    "given that we know the administration tried to intimidate Google"
    We don't know that, or at least, *I* don't know that.

    Malc says:
    "until we get third parties represented in the House and then in the Senate, the idea that voting against either of the two legacy parties' candidates will have any effect is, umm, optimistic."
    Probably for a while after that, too, since, well, there ARE third parties represented in the House and Senate. If I recall correctly, there's one Independent from one of the Northeast states in the House, and Senator Liebermann ran as an Independent after losing the Democratic primary.

  33. Xenocles  •  Sep 17, 2012 @4:04 am

    "For what its worth, until we get third parties represented in the House and then in the Senate, the idea that voting against either of the two legacy parties' candidates will have any effect is, umm, optimistic."

    And until people start abandoning the lesser of two evils mentality that dominates our national politics this will never happen. You and millions of people are basically saying "I won't vote for him because he won't win," but he can't win unless you bite the bullet and vote for him. It's a chicken and egg problem.

  34. Grifter  •  Sep 17, 2012 @6:30 am

    @James Pollock:

    It's Senator Bernie Sanders of my former state of Vt., if you care.

  35. marco73  •  Sep 17, 2012 @6:46 am

    I'm not an attorney, so I am no expert in how a parolee should be conducted downtown for an interview. I do watch local more news than I care to admit, and the pick up of Nakoula looked just like a perp walk. A significant segment of the country will also view the pick up as some sort of proof of Nakoula's guilt.

    The whole insult Mohammed movie meme is just a red herring for a military operation. RPGs, mortars, disciplined personnel, transportation, solid intelligence, multiple targets in multiple locations, all of that points to an operation that had to have taken months to plan. If it wasn't this movie trailer, there would have been some other red herring to cover up the plan.

    If they wanted a bigger fish, the rioters could have just demanded the death of Kathryn Bigelow when the Osama raid movie comes out. Surely 20 or so LA cops, with press in tow, would have shown up in the middle of the night at her mansion, just wanting to "talk."

    As to voting, I'm a middle-aged Catholic from the Midwest, living in the red-hot I4 corridor in swing state Florida. Besides my locale, there are few places in the country that will have more influence on who will be the next president. I've been a regular primary and general election voter here for decades, so I get plenty of mail, and phone calls all day asking for my vote. Every Saturday leading up to the primaries, multiple volunteers, and even candidates, knock on my door asking for my vote. We had the Repub convention (what a major league hassle that was), and a candidate or spouse in our area almost daily.

    I feel that my vote isn't wasted; I have several relatives pushing up daisies in Arlington, France, and the Phillipines, who died to preserve this great nation. I'm going to go ahead and vote.

  36. Malc  •  Sep 17, 2012 @7:21 am

    I wondered, as I wrote that last, if anyone would mention the "independents" in Congress.

    The fact is they are not a "third party" because they "caucus" with one of the other two. Those who want a third party need to break that mould.

    As to the petulant response to the reality that voting for someone who can't win is wasted vote, well I'm sorry, but until you can get state houses any governor's mansion and Congress, you won't get the Presidency. you can't: the deck is stacked against you.

    For more on the reality of changing a two party system, check out the trials and tribulations of the Lib-dem party in the UK.

  37. Malc  •  Sep 17, 2012 @7:27 am

    p.s. back to SF and riots: I wonder what the PR value of one/some of the actors filling a civil lawsuit against the twat for some eye-watering amount, for the harm done to their careers by being conned into appearing in the film?

    Granted, recovering anything may be unlikely, but a good civil suit is the American way… and the cause of action seems reasonable (unlike those of Charles Carreon, for instance)…

  38. different Jess  •  Sep 17, 2012 @9:34 am

    With respect to Ken's third point, I agree that outrage is long overdue, but I do think we have to start somewhere. Most of us at some time in the past respected the police and gave them the benefit of the doubt. It seems likely there was some event or sequence of events that led us to question and eventually reject those assumptions. If Nakoula^2 is the impetus for other people to make this sort of progress, I won't complain.

    With respect to the fourth point, me too! In fact, I'll go farther and say that any vote for a Democrat or Republican for national office is wasted. One who thinks that Romney would rule differently than Obama probably thinks Obama has ruled differently than W did. One clearly would be a fool. The ship of state has moved in one direction since Coolidge left office. I can't tell the difference between Coke and Pepsi.

  39. Waldo  •  Sep 17, 2012 @2:48 pm

    Malc, I also thought about the possibility of an actor or actress filing a civil suit. I suspect it's pretty unlikely, however, for various reasons. As you note, what's the odds of getting a judgment paid from a convicted felon who it seems owes hundreds of thousands already in restitution. Two, it's definitely douchy to lie about the purpose of the movie, dub in offensive lines, and publish a video that could put you on a hit list. But, I was under the impression that actors sign pretty broad contracts giving up any rights regarding their performances and I'm not sure there's a viable cause of action. Last but not least, I suspect most would rather give their own connection to this video as little attention as possible.

  40. AlphaCentauri  •  Sep 17, 2012 @4:14 pm

    Are the contracts the actors signed binding if Sam Bacile doesn't exist?

    As far as the two party system, a lot of the deck-stacking goes on at the state and local level. You would accomplish much more by getting enough third party candidates into the state legislature to change laws covering voting eligibility, primary elections, and distribution of electoral college votes.

    BTW, I used to live in a city ward with an independent for our alderman. We had the best city services of anyone in the city. He needed us to stay happy because he couldn't count on straight-ticket voters, and the other aldermen wanted him as a swing vote and had a strong incentive to keep him happy. People should be much more willing to elect third party candidates to legislative seats.

  41. Xenocles  •  Sep 17, 2012 @4:21 pm

    A civil suit by the actors seems like a long shot legally – does Bruno Ganz have a case against the creator of a Downfall parody he doesn't agree with?

  42. James Pollock  •  Sep 17, 2012 @8:37 pm

    Waldo says:
    " I'm not sure there's a viable cause of action."

    The cause of action is "fraud in the inducement", which makes a contract voidable by the defrauded party.

  43. Stubbs  •  Sep 18, 2012 @1:52 pm

    From what I have read, the questioning was justified by his probation conditions. I think CNN wrote that he does not have unsupervised access to the internet. Ken's point about the funding of the film under an alias would also be a concern.

    OTOH, there is no doubt in my mind that the level of publicity regarding the questioning is directly related to the events in the middle east and the governments need to understand what is going on.

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