A Free Country? Only Rhetorically!

"Jeebus! All I did is copy a picture of Smokey the Bear and they give me Ten YEARS!"


Too Many 'Muricans have this pie-eyed delusion they inhabit a "free country". Perhaps it's a result of getting bombarded daily by the corporate-paid pols with words like "freedom" and "liberty" or maybe it's the codswallop being fed them for the reason we're in Afghanistan, i.e. that all those troops are "fighting for our freedoms". Who can say?

But, if that's truly the case, then riddle me this: How come congress is slowly but surely retrenching all the most basic freedoms and no one, or barely anyone, is paying any attention?

Let's even forget for the moment that habeas corpus, one of the most cherished principles of jurisprudence, was basically repealed under the Military Commissions Act of 2006. But an even more (if that can be conceived) insidious threat to Americans' freedoms is the congressional attack on the other great principle known as 'Mens rea' - embodying the notion that a citizen can't be held accountable for an alleged crime unless he knows exactly what he's done and moreover that his accusers have established his malicious intent.

But according to an article appearing on the front page of yesterday's Wall Street Journal ('As Federal Crimes List Grows, Threshold for Guilt Declines') tens of millions may have real reason for worry and our troops may well be placing their lives on the line for nothing. Why, because today "there are more than 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations", most of which have been added to the penal code since 1970.

Are we freeer because of these additions? Hardly! And certainly not when 1 in every 100 Americans is locked up and 2 of every 100 is under some control by the penal process- whether on parole, probation, jailed or under bond. Indeed, more Americans are locked up per capita than in Russia and China combined.

By comparison, and for historical perspective, back in 1790 only 20 federal crimes were listed in the then federal statutes. So what happened? Is it really true that the evolved complexity of our civilization has made necessary nearly 225 times more laws? Or is it more realistically a case that because our congress critters literally believe they are "law makers" they actually have to make them each and every year, irrespective of quality or the effect on Americans' liberty?

Let's cite another historical perspective, that of mens rea under English common law, which has also been a staple of American jurisprudence since the founding of the Republic. By this venerable standard, prosecutors not only had to demonstrate a crime was committed but also had to show intent. Thus, it wasn't enough to call "Thief!" on a person with some item or property, the prosecution had to show the item belonged to another person.

But that standard now seems to have been eroded by an over-active set of legislators. But don't take my word.

As the WSJ piece notes, "one controversial new law can hold animal rights activists responsible for any protests that cause the target of their attention to be fearful, regardless of the protestors' intentions".

This 'Animal Enterprise Terrorism Act' is some serious shit! Thus, if those who oppose the fur trade happen to show up at some Gala in Hollywood or New York City, and toss pig's blood onto a mink stole to demonstrate, then they can be hauled off to spend five years in federal prison if they caused any "fear" in their targets. Hell, they can be found liable if they even hold a sign up (never mind any direct overt actions) that shows a baby seal being clubbed, or whatever. If said sign arouses fear, they have had it under the new guidelines. Of course, if their target knows the law, then they can easily game it and discover their "fear" in assorted altercations with protestors.

Advantage poor widdo corporate "Target" and game over for protestors...and "free speech".

Andy Weissman, a New York attorney, is quoted in the piece as saying that "requiring the government to prove a willful violation is a big protection for all of us". Well, no shit, Sherlock! I mean if intent or malice of forethought is dispensed with, anyone can be locked up on any pretense or fiction that may emerge in a prosecutor's mind.

And how bad is the erosion? According to the Journal's analysis (ibid.), "more than 40% of non-violent offenses created or amended during two recent Congresses, the 109th and the 111th (the latter of which ran through last year) had weak mens rea requirements at best.

Meanwhile, Supreme Court Justice Antonin Scalia, usually no friend of liberals or libertarians, recently lobbed a volley at Congress, tasking them for "passing too many fuzzy or imprecise laws" and leaving the details to be sorted out by higher courts. In most cases, the congress critters deliberately punted on the mens rea protections to make their work loads lighter, just as they have done regularly when allowing lobbyists to write their legislation for them (as was the case with the 2003 Medicare law that introduced a prescription drug "benefit"- that was laden with corporate welfare.)

Jay Apperson, a former Chief Counsel for the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, said the erosion of mens rea is partly due to the "hit or miss way American legislation is written". Apperson adds (ibid.) that most members "don't think about it. Not out of a malevolent motive, they just don't think about it".

Well, maybe they damned well should! They are toying with people's -citizens' lives here and those same citizens are the ones who pay their salaries. If they won't or can't do their jobs properly, which entails vetting legislation - especially to do with criminal law- properly, then they should vacate those offices!

It's better they do that than to undermine citizens' actual freedoms while troops are overseas allegedly "fighting for them". Maybe those troops need to keep a closer eye on our own congress critters, rather than the Taliban!