Let's examine the indictment
<http://i2.cdn.turner.com/cnn/2010/images/03/29/stone.pdf> in detail
from a constitutional standpoint.
1. The "general allegations" are inflammatory rhetoric that does not
belong in an indictment. It is an attempt to make mere organization and
training seem to be a crime, but it is not, even for the
unconstitutional provisions of the U.S.C.
2. Count 1. "Seditious Conspiracy". The key statement is:
... acting as a militia group know as the HUTAREE, did knowingly
conspire, confederate, and agree with each other and other persons
known and unknown to the Grand Jury, to levy war against the United
States, to oppose by force the authority of the Government of the
United States, and to prevent, hinder, and delay by force the
execution of any United States law.
The only provision of the Constitution for the United States that might
provide authority for any part of this is the Treason Clause, Art. III
Sec. 3 Cl. 1 <http://constitution.org/constit_.htm#con3.3.1>:
Treason against the United States shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort.
In the 10th Congress, First Session, Senate, 1808 Feb 11, 24, Mar 1;
Annals 17:108-27, 135-49, 159-50
<http://constitution.org/ac/017/s10-1/treason.htm>, a proposal was
moved, debated, and rejected on constitutional grounds, to make
conspiracy to commit treason a crime:
Conspiracy is an offence no where mentioned in the Constitution. ...
This Constitution being a special grant of power, those acting under
its authority cannot claim the exercise of any power not delegated
or vested in them, except such incidental powers as may be requisite
to carry the specified powers into effect or result from the
exercise of them. The power to punish conspiracy cannot be included
with the class of incidental or resulting powers. ... This crime
called conspiracy, however odious, is in its nature so vague and
indefinite, and liable to be proved by testimony of so suspicious a
character, that I fear it would be dangerous to give it a place in
our criminal code. Conspirators, when their guilt is well
ascertained, will generally be punished with sufficient severity by
that great censor, public opinion. It does not appear to be entirely
congenial with either the genius or practice of the American
Government to punish a man for his wicked intentions, until they
have eventuated in the perpetration of some unlawful act.
So by this original understanding, the Constitution really does require
the crime of treason actually be carried out, and not just be planned or
directed. One may argue this is impractical, that it would make the
Constitution a "suicide pact", but the Constitution says what it says
and until it is amended we are bound to its limits, no matter what
apparent necessities might emerge.
Similar arguments can be made against the charges in the indictment, "to
oppose by force the authority of the Government of the United States,
and to prevent, hinder, and delay by force the execution of any United
States law." There is no constitutional authority to make those things a
crime, or any authority to make anything a crime under the Necessary and
Proper Clause. For further discussion of why sedition is not a crime
under the Constitution see the original draft
<http://constitution.org/tj/tj-ken98.htm> and adopted version
<http://constitution.org/rf/kr_1798.htm> of the Kentucky Resolution of 1798:
That the Constitution of the United States, having delegated to
Congress a power to punish treason, counterfeiting the securities
and current coin of the United States, piracies, and felonies
committed on the high seas, and offences against the law of nations,
and no other crimes whatsoever
The indictment cites a "general concept of operations" but a concept is
not a crime, even under state laws that make conspiracy a crime, but
require there be a near-term timetable and a commitment to that
timetable. A plan that is contingent on some future event that may never
happen, or for a contingency in a distant future, does not qualify under
even state precedents.
In the indictment "a. Conspirators acquired ..." a lot of things that
are not criminal to acquire or possess, with the possible exception of
"explosive devices" for which there is a provision in the U.S.C., that
provision is based on the Commerce and Necessary clauses and is
unconstitutional. It does not belong in an indictment.
In the indictment "b. Conspirators engaged in military-style training
..." is an improper attempt to portray a legal activity as something
sinister or unlawful. It does not belong in an indictment.
In the indictment "c. ... planned the killing ..." could provide a basis
for a proper charge of conspiracy in state court under a state law, if
the plan was a commitment to a timetable and not just a fantasy, but
absent a plan to do so on federal territory, there is no federal
jurisdiction, and the Grand Jury erred in finding such jurisdiction by
their indictment.
In the indictment "d. ... covert reconnaissance exercise... could be
killed" refutes the position of the government that it was a conspiracy
even under state law, because for that the word to be proved is "would"
not "could", and "could" only puts it in the realm of fantasy.
In the indictment "e. ... solicited a person he believed capable of
manufacturing destructive devices ..." makes the charge void for
vagueness. Anyone with hands and of normal intelligence is capable of
that. " ... identified law enforcement officers ... as potential targets
of attack" refutes the position of the government that it was a
conspiracy even under state law, because for that the word to be proved
is "targets" without the "potential" qualifier.
In the indictment "f. ... engaged in training devoted to preparing for
the planned covert reconnaissance exercise" refutes the position of the
government that it was a conspiracy even under state law, because for
that it would have to be a planned killing and not just a planned
"reconnaissance exercise". "Each of the conspirators in attendance
carried and used at least one firearm" is intended to provide a premise
for an enhancement to the crime, but there has to be a crime, and the
indictment itself does not establish the premise for that.
As thus explained, 18 U.S.C. 2384 is unconstitutional in every part, if
applied to actions committed on state territory. See this brief
<http://constitution.org/juris/fedjur1.htm>.
3. Count 2. 18 U.S.C. 2332a(a)(2) -- Attempt to use weapons of mass
destruction. The same arguments that refute a power to make conspiracy a
crime also apply to make "attempt" a crime. Perhaps the federal
government should have such power, but it is not provided in the
Constitution, even under the Commerce and Necessary and Proper clauses.
See this article <http://constitution.org/col/02729_fed-usurp.htm>.
4. Count 3. 18 U.S.C. 842(p)(2) -- Teaching/demonstrating use of
explosive materials. Obviously unconstitutional. If if were, then every
publicly available military manual, and many movies and TV programs,
would be in violation, as would instructions for holiday fireworks.
5. Count 4 and 5. 18 U.S.C. 924(c)(1) -- Carrying, using, and possessing
a firearm during and in relation to a crime of violence. This could be
constitutionally applied as an enhancement to the sentence for a crime
for which there is federal jurisdiction, but not as an offense by
itself, where a constitutional federal crime is not proved, and it is
unconstitutionally vague as to the definition of "violent".
Based on the indictment alone, without examining the evidence in the
case, the charges are facially without merit, and the indictment
defective. The matter should be turned over to state authorities to let
them pursue it if they think it has merit.
The DoJ is also at fault for publicizing this case as an obvious
propaganda campaign to increase its budget and get further legislation
enacted. This is an improper and probably unauthorized use of public funds.
-- Jon
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Constitution Society http://constitution.org
2900 W Anderson Ln C-200-322 Austin, TX 78757
512/299-5001 jon.rol...@constitution.org
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