September 19, 2012

Which is scarier — America or Amerika?

By James S. Burling Vice President for Litigation

Senator Rand Paul has a new book out Government Bullies – How Everyday Americans are Being Harassed, Abused, and Imprisoned by the Feds. It’s a darn good read and I highly recommend it. Even for those of us who have read numerous books in the Big Bad Government genre, this one is still well worth it – and probably one of the best of the lot out there. In fact, the only books of this genre that I’ve liked better were the ones written long ago in another land by Franz Kafka. But Paul’s stories are scarier because they’re real and they’re here.

Senator Paul, with the able assistance of his chief of staff Doug Stafford, catalogs a long train of abuses by the federal government against an assortment of ordinary citizens – from Mike and Chantell Sackett who, as of this writing, still face over $100 million in fines for preparing a dry lot for their three-bedroom family home, to the kid who faced a $3.9 million fine, not to mention of five-year ban on owning any pets, for the crime of selling more than $500 worth of rabbits in twelve months. (To be fair, he was a huge capitalist, having raked in about $200 in profit in a single year!)

For purposes of full disclosure, I have to say that Senator Paul is fairly effusive about the work of Pacific Legal Foundation in his book:

One of the few bright spots is that some of these folks above, and others like them, were helped by good men and women who haved devoted their life to helping fight these tyrannical government abuses. The Pacific Legal Foundation, which is currently before the Supreme Court representing the Sacketts on their case, and has dozens of similar cases around the country, helps lead this effort.

In addition to the Sackett saga, Government Bullies talks about two other PLF cases – Rapanos and the story of Ocie and Carey Mills. Rapanos involved a man who moved some dirt around on his fields some twenty miles from the nearest navigable waterway. He didn’t think it contained wetlands and neither did we. PLF represented John Rapanos before the Supreme Court and won – while the Supreme Court rebuffed the feds wetlands definition du jour, it failed to come up with a particularly workable definition.

And for those who might not have been following the story in the 1990s, Ocie and Carey Mills spent 21 months in federal prison for putting clean sand on a 1/4 acre lot that allegedly contained wetlands. Only after they were released did a federal judge actually visit the property and declare that the property never was a wetland in the first place. As Judge Vinson put it:

In a reversal of terms that is worthy of Alice in Wonderland, the regulatory hydra which emerged from the Clean Water Act mandates in this case that a landowner who places clean fill dirt on a plot of subdivided dry land may be imprisoned for the statutory felony offense of “discharging pollutants into the navigable waters of the United States.”

Although Paul doesn’t mention it, PLF tried to get Ocie and Carey’s convictions overturned but, alas, the damage in the original trial had already been done.

But the PLF cases that Senator Paul describes are only three out of many. He describes raids by swarms of heavily armed Fish and Wildlife agents seizing lumber and files from Gibson Guitars – who are then left in the dark for months about their alleged transgressions. Paul describes the plight of the Amish farmers who committed the heinous crime of selling raw milk across state lines. Perhaps the scariest tale is David McNab who is presently rotting in jail because he imported lobster tails in plastic bags instead of cardboard boxes. This violated no American law, but an obscure – and repealed – Honduran law. In America today, a violation of a foreign law or regulation dealing with fish and wildlife can put you in prison under the Lacey Act.

In case after case described by Paul, the victims rarely understand what they have done wrong. The federal government sets out a moving target of criminality. If a victim shows that he is innocent of the first alleged crime, the Feds come up with another one, and another one, ad infinitum, leaving the victim with only one option, plead guilty and beg for mercy.

We are an overcriminalized society – where it is impossible for ordinary citizens to know when they are violating American law. Who knows what a wetland is? No one but the federal government – and different branches of our government often disagree! And if it is impossible know American law, how in the name of Gaia are we supposed to know the arcane actual and repealed wildlife laws of every tinpot dictatorship across the globe? When everyone becomes a potential unwitting criminal, the meaning of the rule of law becomes perverted.

Read this book. Then read Kafka’s The Trial – the story of “K” who is arrested for a crime, the nature of which he never learns. Like many victims in Paul’s book, “K” spends the rest of his life trying to learn what he has done wrong; from lawyer to lawyer, government office to government office. In the end, we see that “K” may be guilty only of existing in a tyranny. Kafka’s book will sadden you; Senator Paul’s book will outrage you. It may be the best $13.11 you can spend on Amazon today.

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