The United States Department of Justice has grown fat and lazy. Way back when, G-men had to go out and make their cases, find evidence of crimes and get their criminal. It was hard work, Then, they figured out a really cool trick: use their ever-increasing clout to beat people into submission with threats of life plus cancer sentences, and turn them into snitches.
Snitches are a panacea for the government. They made everything easy, gave them access to “evidence” that served any purpose they wanted and facilitated the arrest and conviction of any target of their choosing. And they never had to leave the office.
So there they sat, munching donuts and making threats, as they scared the daylights out some poor schmuck, who then flipped to serve their new master, the Department of Justice. Ah, the good life. For federal agents and prosecutors, at least.
But when the government wanted a few American Muslim men to become their bitches snitches, something very wrong happened. They refused. Refused?!? Nobody refuses the demands of the government, so they had to be taught a lesson. From Firedog Lake:
In April, the Center for Constitutional Rights (CCR) and Creative Law Enforcement Accountability and Responsibility (CLEAR) Project filed a lawsuit on behalf of four American Muslim men, which claimed that they were “among the many innocent people who find themselves swept up in the United States government’s secretive watch list dragnet.” When they “declined to act as informants” for the FBI and to “spy on their own American Muslim communities and other innocent people,” they faced retaliation from the FBI and subsequently discovered they were on the No Fly List.
The complaint further alleged that FBI agents “exploited the significant burdens imposed by the No Fly List, its opaque nature and ill-defined standards and its lack of procedural safeguards.” This exploitation was intended to coerce them into entering “places of worship” to conduct surveillance for the FBI.
The CCR argued that their placement on the No Fly List in retaliation for their refusal to go out into their community and rat out innocent people violated their First Amendment rights, based upon religious freedom. The government’s response was astounding:
The Justice Department’s motion to dismiss [PDF] plainly argues “there is no constitutional right not to become an informant.” The department cited United States v. Paguio, a case from 1997 in which prosecutors “argued that prosecutors indicted her in order to pressure her co-defendant fiancé to cooperate.” The court ruled “there is no constitutional right not to ‘snitch.’”
No denial that the government engaged in impropriety by placing them on the No Fly List to coerce them into becoming rats. No claim that they were properly placed on the No Fly List. Nope. In an outrageously bold response, the government asserted its authority to be fat and lazy: “there is no constitutional right not to ‘snitch.'”
Therefore, the Justice Department maintains that submitting the names of these four American Muslims to the Terrorist Screening Center (TSC) for “consideration for the No Fly List,” even if based on their refusal to become informants, would not violate their constitutional rights.
The government’s fallback, of course, is that use of the No Fly List to coerce innocent people to become the government’s unwilling snitches is fair game since no one has a “right” to fly. The same argument could be made if the government revoked their driver’s license and cut off public water to their homes. After all, these are mere privileges the government allows us in its overwhelming generosity. And the least we could do to show our appreciation is to serve as their snitches.
Courts have long recognized that “cooperation,” as its called (because it sounds far better than being a rat), is a vital law enforcement tool. Its vitality comes largely from the fact that it works; rats have become ubiquitous in federal prosecutions, and it’s a very rare case where there isn’t a rat up front or, at the very least, a defendant who flips midstream in exchange for some government love in the form of a Rule 35(b) motion for their “substantial assistance.”
But the brazenness of the government’s assertion that citizens have no right to refuse to bend to the government’s will and turn on their friends and neighbors is absolutely astounding. To exacerbate this outrage, the government argues that not only do citizens have no right, but the government has the authority to use whatever means is at its disposal to coerce recalcitrant citizens to do its bidding.
Based upon the existing caselaw, the government’s argument may well have legs. This is what comes of judicial acquiescence in facilitating the government’s “job” by approving of easy shortcuts like the elevation of snitches from the gutter to the witness stand. Coupled with the routine pronouncements of how the normal accoutrements of everyday life are gifts the government gives us, and therefore gifts they can deny us at will, the authority to use this toxic combination puts utterly mind-blowing power in the hands of prosecutors.
Enough power that they feel no compulsion to hide it or even sugar-coat it. They own us, and they will use us at will or make our lives a misery. And even as we suffer the indignity of their compulsion, they still get to sit there, fat and lazy, as their other snitches report in upon command.
18 USC 201 – Bribery of a witness
* * *
(b) whoever
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(3) directly or indirectly, corruptly gives, offers, or promises anything of value to any person, or offers or promises such person to give anything of value to any other person or entity, with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence such person to absent himself therefrom;
(4) directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity in return for being influenced in testimony under oath or affirmation as a witness upon any such trial, hearing, or other proceeding, or in return for absenting himself therefrom;
shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
… My state has the equivalent as well. And while I haven’t bothered to research the federal statute, I have my state’s statute against witness bribery, and I can find no statutory exception to it for prosecutors giving deals in exchange for testimony. (I would say dropping charges or lowering sentences would count as things of great value). Of course, you mention the 35(b) motion, so perhaps that is where it lies Federally, but the state does not have an equivalent. Of course, if 35(b) is a court rule, it would probably not trump a statute to the contrary (but no need to get into that).
The crux of this is I have never understood why we, as a society, can label it a crime to give a fact witness anything of value for testimony (experts are another matter of course) but then allow prosecutors to do exactly that as a matter of course.
While your lengthy comment is somewhat off-topic, this point was made in United States v. Singleton, which was then reversed by the 10th Circuit en banc. In other words, this isn’t exactly a novel idea, and the caselaw says no.
Figures. Thanks for the case (though the links didnt work i have westlaw). So the law doesn’t apply to the sovereign. Or shorter Singleton reasoning: Do as I say not as I do. Or alrernately: It’s good to be the King.
Sorry that my old links didn’t work. I’ve changed them, so hopefully anyone else stumbling on them can read Singleton. But yeah, it’s good to be the King.
You said :”No denial that the government engaged in impropriety by placing them on the No Fly List to coerce them into becoming rats. No claim that they were properly placed on the No Fly List. Nope.”
It’s a motion to dismiss, though, so the government can’t deny any facts set out in the complaint. They have to assume the truth of those allegations, but put forward arguments that, even assuming the facts as they’re set out in the complaint are true, Plaintiff has not stated a claim to relief under the law. That’s what a motion to dismiss is. It seems really odd to blame the government for failing to deny placing someone on the no-fly list without good cause, when the government can’t deny any of those facts in a motion to dismiss.
Also, you routinely (and justifiably) criticize young lawyers for failing to read and know the rules of professional ethics, but you don’t point to any ethical rule that the government attorneys in this case are violating, either in letter or spirit. I think that’s an issue when you’re criticizing an attorney.
Your points about the problems with the legal regime around snitches are well taken.
Love your blog, though I don’t think I’ve commented here before.
Point taken about the burden on a motion to dismiss, but that doesn’t preclude the government from asserting its justification as part of the persuasiveness of its actions. Here, it makes no pretense.
I’m not at all clear why you bring in ethics to this post. I made no reference to an ethical violation, and don’t see this as such. Rather, that the court, in bending over backwards to accommodate the government’s “need” for snitches, has ignored the individual’s constitutional right to be left alone, to due process, to free exercise, to privileges and immunities, all in the name of the government’s “right” to coerce people into being snitches.
Fair enough. I guess I just misread your post as implying that the government attorneys were acting unethically in putting forward the argument you criticized.
On the contrary, I think they win on the law, which reflects the outrageous state of the law. I wish there was something unethical about it, but there isn’t.
Isn’t your outrage about “no denial” misplaced? The key point is where we’re at as a matter of civil procedure.
You’re talking about a motion to dismiss. The legal standard requires the court to accept the plaintiff’s factual allegations as true. That being the case, there’s no reason for the pleading to contest the allegations about being placed on the no-fly list, etc. The defendant could deny all it wants — but the denials would be totally without effect and just a waste of space. Factual denials should occur only in the Answer to the Complaint, which typically gets filed only if the court denies the defendant’s Rule 12(b)(6) motion to dismiss.
Technically accurate (see above), but that has no bearing on the persuasive force of a lawful justification in the motion. If you had a damn good reason, you wouldn’t toss in a line so the judge understood you weren’t just being an overbearing, coercive asshole? Nah. Persuasiveness is never a waste of space.
Seems to me that it ought to be the government’s burden to prove a Constitutional authority to even HAVE a no-fly list. Or is that one of the things they’ve flown through the gaping holes created in the Commerce Clause or the General Welfare Clause?
And there’s a Tenth Amendment argument that any contravening power not explicitly given to the government by the Constitution remains a right of the people. I see no power given to turn people into snitches. Hence, they have the right to choose whether to be snitches, and any state violation of that right is illegal. Oh, for a Bill of Rights Enforcement amendment, or at least more liberal use of 18 USC 241.
This is a reddit-level comment. Not here.
Exactly what are the limits to the government’s power to compel people to become informants? Are there any limits? Could a colleg-age student, caught with a miniscule amount of drugs, be compelled to spy on and report his family? (Or the reverse, for that matter.) Does it matter if the informant is underage?
Who knows? No one is “compelled,” but rather coerced. They can always refuse, but they may be forced by the government to suffer the consequences of refusal. That’s the point.
Apparently, the government can compel the kid’s father to be an informant (even if the kid’s father is The Rock).
See, Snitch (2013) – based on a true story!
Risking the invoking of link-including ire: http://en.wikipedia.org/wiki/Snitch_(film)
From yet another memo discovered in the usual dumpster behind the Robert F. Kennedy Building, on the subject “Great places to fish on your vacation, and how to catch the limit every time”:
Nice life you got there. Be a spy,
And help us nail some random guy.
Though we can’t compel you,
You’ll snitch when we tell you,
Or we’ll make real sure you don’t fly.
That’s one hell of a dumpster.
I know it may boggle the imagination
To be subject to such retaliation
For refusing to snitch
And be someone’s bitch
But it’s not snitching– just cooperation.
On the DOJ and Us:
True, their idea of justice is hazy
And they’ve grown ever more crazy
But if our rights they attack
And we never fight back
It is we who’re complacent and lazy
Excellent.
It should be pretty easy to deal with. Just be a snitch, albeit a very very bad one. For example, one could stand up at the end of a meeting at a mosque, and announce to the entire crowd, “Hey gang! These guys from the FBI wanted me to be an informant for them, so if you see anyone doing anything suspicious, please tell me or my handler! That’s my handler over there.”
Better yet, if you can pull it off, collect all kinds of evidence against the handler, then turn it all over to the local police, and be a snitch for them too. Set the Feds against the locals and tie them both up investigating each other.
This might be funny, except someone may read this who is stupid enough to think this isn’t a monumentally bad joke. You were joking, right?
Well, it was said tongue in cheek. What do you think would happen if someone actually did that though?
Whew. You scared me. It would be a disaster. Next.
I was asked one time to be a snitch for a Person In Government (PIG), and here is how I handled it. Some bureaucrat from the Postal Inspector’s Office called me up on the phone, and demanded to know the whereabouts of one of my taxis (I own a taxi company in Phoenix) at a particular date and time. I guess they were trying to track a shipment of drugs or something & the “criminal” had taken a taxi to the post office. I responded by saying that I would not answer any questions without my lawyer being present, and a subpoena or a warrant in front of me. The man got furious with me, and demanded that I cooperate, or he would tell the Tempe and Phoenix police departments about my company, and they would harass all my cabs. I told him to fuck off, and hung up.
When I got home, I found he had also called my home phone number, and harassed my wife. So I immediately got on the internet and found the phone number to this guy’s postal inspector office. I then called, and demanded to speak to this pig’s supervisor.
When I got the supervisor on the line, I read him the riot act, told him how I was not going to ever give up one of my men to the feds like that, and that his underling was totally disrespecting all of my rights. I blistered that supervisor’s ear for a good ten minutes or so. I never heard back from the stupid postal inspector, but I doubt the supervisor did anything to reprimand him.
This kind of bullshit is apparently common practice in law enforcement, and we need to stop cooperating with the People In Government Service.
As an aside, I got the pig’s office phone number, and his email addresses and had hatched several plots to get even with him had even one of my cabs been pulled over.
Under any other circumstances, you know I never would have let this slide. But this was good, so just this once.
yeah, well..it’s a good way to end up..”renditioned”/ dead
Let’s not get too crazy, please.
What? Is the reality of it too harsh for ya? [Ed. Note: Balance of psychotic rant deleted, and another nutjob banned.]
This is a criminal defense blog. We know stuff you can’t even begin to imagine. You want to spew stupid, hang out with the other nutjobs. You’re done here.
My plan is get a custom T-shirt and wear it when meeting your handler.
The front is a Feeb shield. The back is a sign:
“I’m making BIG MONEY as as FBI snitch.
Ask me how you can, too….”
al-la Amway/Herbalife. Snitches are only useful when they are closeted.
I bet if you made a shirt like that available at Café Press, you could make some money.
Sell..
OR buy a bunch of them and pass them out for free at the mosque. Remember the scene in the Thomas Crown Affair with ALL the bowler hats and briefcases??
For best results, add the handler’s name and phone # as the last line.
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