I’ve been writing about abuse of power by police and prosecutors for the last several months with no small amount of frustration. By and large I often get the idea that people view these as abstract concepts that are irrelevant to them and moreover that I am taking the side of criminals. After all, many conservatives reason to themselves, if you just obey the law, you’ll never catch the attention of police or prosecutors and if you don’t, you deserve what’s coming to you, even if prosecutors and police have to bend the rules to bring you to justice. It’s definitely not the sort of thing that will ever happen to me.
Via Popehat, however, comes a harrowing tale of government intimidation and abuse of power in which Federal prosecutors attempted to bully Reason into disclosing the identities of Internet commenters, presumably so that these same prosecutors could turn the lives of these commenters upside down with Federal criminal charges.
By way of background, Reason has long been covering the trial, conviction, and sentencing of Silk Road website creator Ross Ulbricht. For those who are unfamiliar with this particular saga, Silk Road was a website which made it easier, inter alia, to purchase illegal drugs from other people on the Internet. Ulbricht was ultimately caught by the authorities, and convicted in a controversial trial overseen by Federal judge Katherine Forrest. The Reason post that started this insane episode covered the fact that, in spite of his admission of guilt and pleas for leniency in sentencing, Ulbricht was ultimately sentenced by Forrest to an astonishing life sentence in prison for the crime of creating a website.
As you might have guessed, the commenters at Reason were not amused.
Now, look, I’m not here to defend the contents of the comments themselves but it’s clear that they were mere bluster and hyperbole. Reason has a more freewheeling comment section than RedState has, which is fine, and is definitely not the most obnoxious place on the Internet, where comments like “this judge needs to be taken out back and shot” would be considered pretty mild. Under no circumstances could it be interpreted by a reasonable person as an actual threat on the life of Forrest.
Cue the governmental abuse of power machine, as the U.S. Attorney’s office for the SDNY hit Reason with a grand jury subpoena, attempting to force them to reveal the identity of several commenters (including some whose comments were without question not threatening even under the most “generous” interpretation). Worse, they also hit Reason with a gag order preventing them from discussing the fact that they had been hit with a grand jury subpoena under such patently ridiculous circumstances.
I encourage you all to read Ken White’s very thorough catalogue of the ways the criminal justice system abused its power in this case – which is so well done that to do it justice, I would have to quote the whole thing. Instead, I beg of you to read it yourself and give Ken the traffic he so richly deserves.
Here is the bottom line: probably, a lot of stuff that is said in the Reason comments section would get you banned here at RedState. It isn’t really the sort of stuff we want to be associated with. However, it’s preposterous that government decided to respond to some hyperbole in the comments section of an Internet blog by bringing the massive and intimidating weight of federal prosecution down upon the editors of Reason.
And it isn’t so farfetched to imagine that if prosecutors were sufficiently motivated, they could begin trolling the comments section of RedState, HotAir, DailyCaller, etc. etc. to find similarly hyperbolic statements about public officials in the Obama administration who have provoked the ire of the conservative commentariat. And then all of us would have to be in the position of deciding whether to face down an AUSA in order to protect the anonymity of a commenter we probably didn’t agree with anyway. Kudos to the editors of Reason for standing up for their principles here, which can’t have been an easy decision.
How did this happen? I’ll tell you how it happened: too much slavish devotion and subservience to authority. Too much unjustified belief in the good faith of the criminal justice system as a whole which has led the entire system to a belief that they are entitled to whatever they ask for, and that anyone who balks at their display of authority must be crushed underfoot. As Ken notes when discussing the AUSA’s clearly unethical decision to contact Reason’s editors directly (instead of through their counsel, as required by the Rules of Professional Conduct):
But consider this incident. What legitimate, ethical need did AUSA Velamoor have to contact Alissi directly instead of responding to Reason’s lawyer? How was it necessary for effective law enforcement? How would restricting his communications to Reason’s lawyer be burdensome? It wouldn’t. But the courts reflect America, and America has embarked upon a course of almost canine deference to police and prosecutors.
It is, too often, enough for police and prosecutors to say they want to do something. Who are judges to say otherwise?
It’s time to wake up, America. everyone in positions of authority is deserving of skepticism and suspicion, if our constitutional liberties are to survive. As conservatives, we pay good lip service to this when the people in authority are elected politicians – but when they are unelected (and often wholly unaccountable) cogs in the criminal justice system, we abandon our reason in favor of deference and borderline hero worship. Unless this impulse is checked, you very well might be next if you commit the crime of criticizing Obama a little too harshly in the comments somewhere.