...The Gibson assaults are further evidence that America’s criminal-justice system has strayed far from its central purpose: stopping the bad guys from harming us. SWAT-team raids were designed to arrest notoriously violent gangsters, and stop them from destroying evidence. Now, the police powers of the state are being used to attack businesses. (Were the feds afraid that the Gibson workers would flush the guitars down the toilet?)
It is time to get the criminal law back to basics. Fighting terrorism, drug cartels, rapists, and murderers is enough to keep law enforcement busy. To expand that fight to include such esoteric social causes as protecting Indian workers dilutes the resources needed to fight real crime. Why do we care who finishes the wood on guitars? And why are we applying the power of the state in its rawest form to enforce Indian labor laws?
Prosecutors who are looking for an easy “win” know that businesses roll over. A public raid on its offices, or an indictment of its officers, can destroy a business’s reputation and viability. That makes the owners easy to intimidate into a plea bargain.
If they choose to fight, they face the full wrath and fury of the feds. In the Gibson raids, the SWAT teams were deployed even though Gibson had offered its full cooperation to investigators. Such raids are increasingly used to intimidate citizens under suspicion. The orchid importer, a 65-year-old with Parkinson’s, was shoved against a wall by armed officers in flak jackets, frisked, and forced into a chair without explanation while his home was searched.
The government also attempts to get low-level employees to “finger” their bosses. For example, the feds threatened Gibson employees with long prison sentences. This is not a search for truth, but an immoral attempt at extortion to win convictions. Investigators examine the lives of “little fish” and use minor, unrelated violations (smoking a joint, or exaggerating income on a loan application) to pressure them to back the government’s case against their employers. Mobsters have experience with threats like this, but a secretary or an accountant is scared to death by the threat of prosecution.
A favorite ploy of prosecutors in these cases is to charge defendants with false statements based on their answers to the investigators. The sentence for this can be five years in prison. No recording is made of the interviews — in fact, the feds prohibit taping the interviews — and the agents are not stenographers. They cannot possibly recall the exact wording of the questions and the answers. Yet after the interview, they will produce a “transcript” replete with quotes throughout. And if a witness says he did not actually say what the agent put in quotes, it is the witness’s word against a fine, upstanding federal agent’s. Staring at a five-year sentence will get most people to say whatever the government wants them to.
The feds also pile up charges. According to Juszkiewicz, the Justice Department warned Gibson that each instance of shipping a guitar from its facility would bring an added charge of obstruction of justice. Prosecutors routinely add extra counts to stack potential prison sentences higher. For instance, faxing invoices for the wood would be charged as wire fraud. Depositing the check for the sale of the guitars would be money laundering. The CEO’s telling the press he is innocent would bring charges of fraud or stock manipulation. The intent is to threaten such long sentences that the targets plead guilty rather than risk decades in prison.
Prosecutors further tighten the screws by seizing the assets of the company, a tactic once used against pirates and drug lords but now routinely used to prosecute white-collar crimes. The federal agents seized six guitars and several pallets of ebony during their initial 2009 raid against Gibson. Federal law allows assets to be seized not just from convicted criminals, but also from those never charged. Owners must prove that the forfeited property was obtained legally; otherwise, the government can keep it. That gives the government incredible leverage, because without the seized inventory and bank accounts, the business will most likely go under. How can Gibson make guitars if the wood is being held by the government? How can it service customers when the government took its computers as evidence? How can it pay lawyers when its bank accounts were seized? Asset forfeitures bring to mind a similar twist on the law uttered by the Queen of Hearts in Alice in Wonderland: “Sentence first, verdict afterwards.”
Read the whole thing here.
We are only believe we still live in a free country because these abuses still only affect a small number of people or businesses. But as Mark Steyn has pointed out, if you lived under one of the great tyrant kings of old, it had very little effect on the lives of most, unless you crossed someone in power. That's the situation we are in now. As long as you keep your head down, pay your protection money, you will be left alone. But cross someone, write something too critical of the wrong politician or bureaucrat and there's always something that can be found to hound you into submission or prison. Don't confuse this with rule of law, which implies commonly agreed to and understandable rules. The German's love rules, even under Hitler they made sure all the proper laws were passed and the proper forms were filled out before shipping Jews off to death camps. And don't invoke Godwin's Rule, I'm not comparing the present situation in the US with Germany in the 1930's except to make the point that being charged with breaking actual laws on the books is not a big advantage over being arrested without charge, if the number of laws on the books is unknowable and incomprehensible to any citizen (or legislator or regulator).
We have a Constitution that is designed to create a small and limited government and through years of 'creative' interpretations from pro-big-government courts and aggressive legislators and executive politicians, those built-in protections against government control have been eroded to the point of being non-existent. When a court, which should read the 'public use' requirement of the 5th amendment very narrowly, instead expands its view to include any vague public benefit, the idea of private property protection is gone. Likewise stretching the commerce clause powers to include anything that might conceivably affect, sometime, any aspect of interstate commerce, has given Congress control of things that must be causing the founders to spin in their graves fast enough to affect the rotation of the planet. As I've written previously, except for the 3rd amendment, of which I'm aware of no breech, but which may just be a lack of knowledge on my part, the Federal government has violated a clear reading of every amendment, with the full approval of the SCOTUS many times in the history of the nation (including the 9th and 10th which are almost completely ignored).
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