Thought Crimes

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Katie Aguilera

Recently, an article entitled “Conspiracy theorist given important role in reviewing child deaths,” written by Molly Young, was published on the Oregonian’s OregonLive website.  The article discusses the social media activity and public advocacy actions of Jennifer Wynhausen, an employee of Oregon Department of Human Services.  The point of the article seems to be that Wynhausen’s behaviors make her suitability for her job questionable.

This article is a follow-up piece to another OregonLive article, also written by Young, that discussed how the Oregon Department of Human Services lacks transparency and fails to issue reports in cases of children who die as the result of abuse and neglect.  That article was certainly excellent reporting about a very important and troubling issue.  However, Young’s second article reads like a personal attack that essentially accuses Wynhausen of committing thought crimes.

In case you don’t know, thought crime is a reference from George Orwell’s book Nineteen Eighty-Four.  In that book, they are the “criminal act of holding unspoken beliefs or doubts that oppose or question Ingsoc, the ruling party.”

So what thought crimes has this “conspiracy theorist,” Jennifer Wynhausen, that Young writes about committed?  “Wynhausen expressed support for activists who questioned the [9/11] attacks and opposed the military response to them.”  She shared a video in which Jesse Ventura “criticized the federal government for spending so little on investigating the attacks.”  And, “she often questioned the political motives of both Republicans and Democrats…”

The article does describe other thought crimes Wynhausen is guilty of that most people would consider pretty far out there. For example, she liked a video that suggests a government research project caused the earthquake in Haiti in 2010, among other things.

The article offers no evidence that any beliefs Wynhausen holds about any subject matter, whacky or not, have had any effect on her job performance.   However, the article seems to imply Wynhausen’s behavior makes her unsuitable for her position with the Department of Human Services.

The Oregonian spent some time pouring through Wynhausen’s social media history.  Young concludes her article by describing a shirt Wynhausen expressed an interest in.  The shirt says, “I have a beautiful daughter.  I also have a gun, a shovel, and an alibi.”  According to Young, Wynhausen wrote, “I need one of these,” in reference to the shirt.  Young writes, “within weeks, she [Wynhausen] was managing the state’s child fatality reviews.”

When an ordinary public employee likes what is just a variation of an old joke, that’s a problem and she should lose her job.  When the president of the United States makes what is essentially the same joke, it’s hysterically funny.  (“I’ve got two words for you, Predator drones.”  Hahaha.)

The article is disturbing for all these reasons.  To think every single action taken on one’s social media accounts could be considered cause to question one’s job qualifications, mental competence, or character is alarming.  It is also concerning that expressing dissent to empirical war and questioning the 9/11 Commission’s narrative about the attacks are considered cause for public shaming by anyone in journalism.  Perhaps that is the line of reasoning that is to blame for the lack of extensive reporting on the many, many facts that have emerged about the attacks and related history since September 11, 2001.  (No, I’m not talking about holograms and controlled demolition here, see below for more resources.)

This isn’t to suggest that social media posts are never an indication of a person’s mental state or their potential to commit violent behavior.  They certainly can be, as has been seen in countless cases.  But questioning the actions of one’s government, or liking or sharing weird or unconventional theories, is far from hate speech.  It shouldn’t be considered proof of unstable mental health without more corroborating, real-world indications.

In addition to writing about Wynhausen, Young also writes about another activist, Jon Gold, in what can only be read as a disparaging way.  Young wrote, “Wynhausen met with outspoken 9/11 doubter Jon Gold…Gold runs several social media pages dedicated to Sept. 11 ‘truth’ and ‘justice’ and believes the U.S. government has withheld evidence about its role in the attacks.”  Gold posted a response in the comment section of Young’s article, but it was removed.

Gold posted his comment publicly, and also sent it to Young.  He also sent a letter to the editor.  Gold’s entire comment can be read here.  He wrote, “I’ve done my absolute best to try and be supportive of the 9/11 Families seeking truth, accountability and justice, in a court of law.  Many of the families have KSA [Kingdom of Saudi Arabia] in the courts as we speak.”  He goes on to discuss his anti-war advocacy and his advocacy for 9/11 first responders.  Gold concludes with, “these are all good things in my mind.  And yet, you tried to use me in an effort to try and paint Jennifer in a bad light.  I just wanted you to know.”

Gold also attempted to post the contents of his letter to the editor on the OregonLive article comment section in which he wrote, “as for Jennifer, I don’t agree with everything she says but who does agree with everything someone has to say?  People are entitled to their beliefs.  If a person’s beliefs are skewed, use information to help someone with their beliefs, don’t try to take away someone’s job because of them.”  His second comment never posted to the site.

In response to an emailed question as to why Gold’s comments were not posted to the comment section, the Oregonian stated, “we in the newsroom are not in charge of monitoring comments on our news stories and deciding which go public. Our company hires a third-party firm that specializes in moderating comments to ensure they comply with web site terms of use.”  It is unclear what terms of use Gold’s comments may have violated.

The Oregonian also published a significantly edited version of Gold’s letter to the editor in a Sunday edition of their print newspaper.  It can be found online here.   A comment from Gold does appear in the comment section of another letter to the editor posted on OregonLive on December 1, 2018, that expresses disapproval for Young’s article.  To date, Gold says he has received no response from Young or the Oregonian and his original comment doesn’t appear on the site.

So, move along.  Don’t question anything your government does.  Or some newspaper will write a scathing report about you, calling into question your character and your suitability for your unrelated job.  You will be publicly shamed for daring to oppose the actions of those in power.  And the ease of internet censorship will ensure any defense of yourself goes unnoticed by the masses.

That’s always worked out so well throughout history.

******

Update: 12/11/2018 8:59 a.m.  This has been updated to note that Gold’s edited letter to the editor has been published on OregonLive.

In the interest of full disclosure, I am acquainted with Jon Gold, I consider him a friend, and I have previously written about his book, We Were Lied to About 9/11.

 

*If you want to know more about why I question the official narrative of the September 11, 2001 attacks and related history, I recommend the following books and websites, for a start.

The Watchdogs Didn’t Bark by John Duffy and Ray Nowosielsksi

Who Is Rich Blee?, Duffy and Nowosielski’s interview with former counter-terrorism czar, Richard Clarke.

9/11 Press For Truth, documentary film by Nowosielski and Duffy

Disconnecting the Dots:  How 9/11 Was Allowed to Happen by Kevin Fenton

Triple Cross:  How Bin Laden’s Master Spy Penetrated the CIA, The Green Berets, and the FBI and Cover Up:  What the Government is Still Hiding About the War on Terror by Peter Lance.

The Commission:  the Uncensored History of the 9/11 Investigation by Philip Shenon

We Were Lied to About 9/11:  the Interviews by Jon Gold.  The interviews are also available to listen to on YouTube.  The first one can be found here.

28pages.org

historycommons.org

floridabulldog.org

 

Image courtesy of Pixabay

 

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Supreme Court to weigh overturning separate-sovereigns doctrine in Gamble v. United States

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Katie Aguilera

Tomorrow, December 6, 2018, the Supreme Court of the United States will hear arguments in a case that has the potential to overturn the long-standing legal doctrine of separate-sovereigns, or dual sovereignty.  This doctrine holds that the States’ governments and the Federal government are separate sovereign entities and can therefore prosecute a defendant for the same offense without violating the fifth amendment’s double jeopardy clause.  The case the court will hear tomorrow is Gamble v. United States.

Terance Martez Gamble, according to court documents, was convicted of second-degree robbery on September 4, 2008, in Alabama state court.  Seven years later, he was stopped while driving by a Mobile Police Department officer because one of his head lights was out.  The officer smelled marijuana and searched Gamble’s vehicle, finding marijuana, a digital scale, and a handgun.

On April 28, 2016, Gamble was indicted by a federal grand jury for possessing a firearm by a felon.  On May 27, 2016, Gamble was convicted in Alabama state court of being a prohibited person in possession of a firearm.  Both the federal indictment and the Alabama state conviction were for the same incident.

Gamble “moved to dismiss his federal indictment on double jeopardy grounds. The district court denied the motion, concluding that petitioner’s argument was foreclosed by binding precedent in this Court and the Eleventh Circuit holding that the federal government is a separate sovereign from an individual state and that the Double Jeopardy Clause does not prohibit separate prosecutions by separate sovereigns.”

Gamble pleaded guilty to the federal charge as part of a plea agreement, but he reserved the right to appeal the denial of his motion to dismiss on the grounds of double jeopardy.  He was sentenced for the federal charge to 46 months in prison that would run concurrently with the sentence he received from Alabama state.

This is not the first time the Supreme Court has heard arguments in favor of overturning the separate-sovereigns doctrine.  In fact, according to the government’s brief in opposition, the Supreme Court has upheld the doctrine 20 times in the years between 1852 and 1959.

Many organizations have filed briefs in support of Gamble or in support of the United States in this case.   These range from the ACLU, military legal divisions, criminal defense lawyers, and Utah Senator Orrin Hatch in support of Gamble, to the National Indigenous Women’s Resource Center, National Congress of American Indians, National Association of Counties, National League of Cities, National District Attorneys Association, National Sheriff’s Association and more in support of the government.  All the documents can be found here.

The National Indigenous Women’s Resource Center and National Congress of American Indians argue in their brief that “overturning the Court’s long-standing precedent regarding the dual sovereign doctrine, which has allowed both tribal and the federal governments to prosecute for violations of their respective criminal laws, would have significant ramifications in Indian country. Not only would it undermine core principles of local control for criminal justice, it would preclude the effective prosecution of those who commit serious violent crimes against Native women and children.”

According to their brief, the Indian Civil Rights Act prohibits Tribal Courts from imposing sentences longer than a year for any criminal offense, with some exceptions where certain requirements are met and the sentence can be lengthened to three years.  This means there is often a reliance on the federal government to prosecute defendants in order for longer sentences to be imposed on them, providing greater protection for their victims.

If the Supreme Court rules in favor of Gamble and the separate-sovereigns doctrine is overturned, Tribal Nations will be required to “choose whether to prosecute a case before conclusion of the investigation that determines whether the U.S. Attorney will prosecute.”  If the Tribal courts decide to prosecute, the federal government will then be unable to charge the defendant for the same crime.  If they opt not to prosecute in hopes the federal government will, it’s possible the defendant will never face charges if the federal investigation doesn’t result in an indictment.

The brief argues “this Court should preserve the ‘separate sovereigns’ doctrine as applied to prosecution by both tribal governments and the federal government, either by rejecting Petitioner’s [Gamble] arguments in their entirety, or by making it clear that this Court’s decision in this case should not be read as addressing the unique considerations presented in the context of dual federal and tribal prosecution.”

According to this November 29, 2018 Argument Preview by Amy L. Howe, a ruling in favor of Gamble “could have widespread impact that could extend to prosecutions by Robert Mueller, the special counsel appointed to investigate Russian efforts to influence the 2016 election.”

The article goes on to state that the government warns of a variety of problems that would arise if the Supreme Court overturns the separate-sovereigns doctrine.  Howe writes, “under Gamble’s interpretation, the U.S. or a state government would not be able to prosecute a foreign terrorist if a foreign government had also tried him.”  Additionally, if the doctrine is overturned, it could “lead to a flood of challenges by inmates convicted by two different sovereigns who want to overturn the second conviction, even if it became final long ago.”

Senator Orrin Hatch (R-UT) argues in support of overturning the separate-sovereigns doctrine in a lengthy brief. In this brief it states “when this Court last reaffirmed the ‘dual sovereignty’ exception to the Fifth Amendment’s guarantee against successive prosecutions for the same crime, it did so to preserve the balance of power in our federalist system.  As a matter of both constitutional theory and historical practice, the states bore primary responsibility for defining and prosecuting general crime, with federal criminal law focused on relatively narrow and specific areas of federal interest.

But the balance between state and federal power to define and punish crime has shifted massively since the vitality of the dual sovereignty doctrine was last before this Court.  The federalization of criminal law over the intervening decades has given federal prosecutors the ability to bring coordinate federal charges for a wide array of conduct…In this hyperfederalized context, the federalist underpinnings of this Court’s prior dual-sovereignty decisions no longer reflect the reality of federal-state relations, and may well undermine, rather than support, an appropriate division of power.”

The ACLU makes a similar argument, noting that according to The Court and Overcriminalization by Michael Pierce, the United States criminal code contains 27,000 pages of federal criminal laws.  This was not the case when the Supreme Court upheld the separate-sovereigns doctrine in the past.  The increase in federal criminal laws greatly increases the risk of what was previously considered a rare occurrence–when  charges are brought against a defendant by a state and the federal government for the same offense.  This, the ACLU argues, is one of numerous important reason to do away with the separate-sovereigns doctrine.

The U.S. Navy-Marine Corps Appellate Defense Division, U.S. Coast Guard Office of Member Advocacy and Legal Assistance—Appellate Defense, U.S. Air Force Appellate Defense Division, and the U.S. Army Defense Appellate Division filed a brief of Amici curiae in support of overturning the separate-sovereigns doctrine.  In it, they state:

“Amici ask this Court to overrule the separate-sovereigns exception so those who serve our country receive the proper Double Jeopardy protections of the Constitution, our basic charter of rights which they took an oath to defend with their lives.”

They go on to argue “…the separate-sovereigns exception allows the military to overrule the verdict of a state jury, with its jurors selected from a representative cross-section of the community, by meeting a lesser standard:  currently a two-thirds majority vote for conviction by a panel of military members, each senior to the defendant and picked by the defendant’s commander.”

The timing of this case is notable considering the potential effects to Robert Mueller’s investigation.  It has been speculated that people convicted of federal crimes as a result of Mueller’s investigation could receive pardons from President Trump and without the separate-sovereign doctrine, the States wouldn’t be able to bring charges against those people.  It has even been suggested that the push to get Judge Brett Kavanaugh confirmed and seated on the Supreme Court was to ensure a majority vote in favor of overturning the separate-sovereigns doctrine for that very reason.

However, this October 4, 2018 Slate article by Teri Kanefield and Jed Shugarman explains how Gamble v. United States is unlikely to have much, if any, effect on Mueller’s investigation.  They write, “in theory, a Trump associate could plead guilty to a federal crime, receive a pardon, and Gamble could protect him from a state prosecution.  In reality, special counsel Robert Mueller seems to have already strategized around this problem.

All such hypotheticals aside, though, double jeopardy is a real problem affecting the rights of ordinary citizens.”

Ordinary citizens such as Terance Gamble, Benjamin Cunha, and countless others, who have faced charges from both state and federal prosecutors for the same offense.  These convictions result in longer prison sentences and contribute to the mass incarceration crisis this nation faces.