The Road to Ruin

by James Rickards

  In the early centuries AD, the Praetorian Guard’s role evolved from guarding emperors to selecting them. They assassinated emperors on their own initiative or at the behest of elites including cabals of senators. Praetorians installed new emperors, sometimes of their choosing, sometimes based on bribes from ambitious office seekers. Praetorian symbolism survives today as red festooned Roman helmets on the badges of Air Force honor guards of U.S. presidents.

  Yet the Praetorian Guard legacy is more than symbolic. The United States has evolved rapidly from a republic to a country in which the military and militarized police acting on orders from the Department of Justice under White House political direction, aided by high-tech surveillance and big data relationship awareness programs, target citizens based on political or social beliefs. The ideal American Republic is no more than a comfortable myth today; new praetorians are here now, inside city walls, in the service of elites. Most citizens are unaware of this because they willingly toe the line. Other innocent citizens are aware of the new praetorians because they are on the receiving end of a nightstick, strip search, Taser shock, no-knock raid, warrantless search, or selective prosecution.

  The depth of new praetorian penetration of the republic is not widely perceived because its effects are highly selective. There is no widespread social unrest, and so no widespread repression. Actions are local, such as SWAT teams blowing off children’s faces with flash-bang grenades, and targeted political prosecutions of figures such as Dinesh D’Souza and David Petraeus. It will take a social breakdown to bring the new praetorians out in force. It will take financial collapse, ice-nine freezes, hyperinflation, and confiscation. It will take money riots.

  This dystopian preview rests on four pillars—criminalization of everyday behavior, politicization of justice, militarization of police, and digitization of surveillance. The elite quest for power is not new, it is part of human nature. What is new is that means now exist to achieve the ends.

  Criminalization of the quotidian is captured by Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent:

  An average, busy professional gets up in the morning, gets the kids to school, goes to work, uses the telephone or e-mail, has meetings, works on a prospectus or bank loan, goes home, puts the kids to bed, has dinner, reads the newspaper, goes to sleep, and has no idea that, in the course of that day, he or she has very likely committed three felonies. Three felonies that some ambitious, creative prosecutor can pick out from that day’s activities and put into an indictment.

  This is not speculation by Silverglate, but rather the consequence of a vast expansion of federal criminal law in recent decades. Citizens seem relaxed about criminalization due to either ignorance or a naïve view that they are not criminals. From the 1776 Declaration of Independence until recently, the scope of federal criminal law was constrained, consistent with limited powers of Congress specified by the Constitution. Until the 1920s, federal criminal law concerned itself mainly with treason, counterfeiting, insurrection, and military justice, all well within the proper scope of federal government.

  Beginning in the 1920s, federal criminal law expanded in reaction to interstate flight from bank robberies and kidnappings, tax law codification after the Sixteenth Amendment, tax evasion, and prohibition of alcohol. A predecessor of the FBI was formed in 1908 as the Bureau of Investigation, and assumed a more aggressive role in 1924 upon the appointment of a new director, J. Edgar Hoover. Director Hoover launched the age of the “Public Enemy,” targeting the colorful criminals John Dillinger, “Machine Gun” Kelly, and Al Capone. Hoover gave his agents the shoot-to-kill order that resulted in bank robber Dillinger’s death in 1934. It was under Hoover that the FBI began aggressive wiretapping use.

  The late 1930s and 1940s saw further enlargement of federal criminal law under the Supreme Court’s expansive Commerce Clause construction. This judicial strain emerged in West Coast Hotel v. Parrish (1937), a 5–4 decision, and United States v. Darby Lumber Co. (1941), which respectively allowed state regulation of private contract, and federal regulation of commerce based on a minimal state interest. Once state regulation of commerce was allowed, criminal enforcement tools followed quickly. Hoover’s FBI, now more powerful than ever, compiled names of targets to be taken into custody in American concentration camps in 1942, euphemistically called “relocation” at the time.

  By the 1970s, federal intrusion into land use, employment practices, health care, banking, investment, education, transportation, mining, manufacturing, energy, and other spheres was ubiquitous. Every civil regulatory scheme had a complementary criminal enforcement club behind it. Once core criminal laws were amplified with conspiracy, reporting, and false statements statutes, the web was complete. Silverglate’s estimate of three felonies a day is no exaggeration.

  Why would prosecutors target everyday citizens? The answer is the politicization of justice. The Nixon-Reagan-Clinton war on drugs, the George W. Bush war on terror, and the Obama war on his ideological enemy the Tea Party illustrate how the application of law was no longer confined to the administration of justice and maintenance of public order. The criminal code is now a bludgeon in the hands of political commissars.

  The Nixon, Reagan, and Clinton administrations all devoted substantial police, military, and prosecutorial resources to eradication of marijuana crops and attacks on medical marijuana use based on political calculations about being tough on crime. In fact, the marijuana business operated like a traditional black market to supply consumer wants banned by the government. There was no threat to national security or civil order from marijuana. Today the drug’s use is widely accepted and legal in some jurisdictions. Marijuana use is a legitimate topic of policy debate. Nixon, Reagan, and Clinton were not interested in debate; they were interested in votes.

  Wars require militarization. The war on drugs is no exception. Use of the U.S. military for domestic law enforcement must be authorized by the military chain of command, including the president. Local authorities are prohibited from directing the U.S. military to do police duty pursuant to the 1878 Posse Comitatus Act.

  If mayors could not deputize the military, they would militarize police. From the creation of SWAT teams in Los Angeles in the 1960s through the 1977 passage of the National Defense Authorization Security Act and its infamous 1033 Program, until today the U.S. military has supplied local police with body armor, night-vision goggles, automatic weapons, grenade launchers, armored vehicles, flash-bang grenades, and other equipment designed for warfare. SWAT teams train on military bases. Veterans returned from wars in Vietnam, Kuwait, Afghanistan, and Iraq swelled the ranks of local police. Between 1980 and 2001, the number of paramilitary-style police raids annually in the United States increased from approximately 3,000 to 45,000.

  Author Radley Balko in his book Rise of the Warrior Cop vividly describes innocent Americans’ sheer terror in the face of military-style police raids. One account by Balko involved Herbert Giglotto and his wife, Evelyn, an innocent couple living in the small town of Collinsville, Illinois:

  At a little after 9:30 PM . . . the Giglottos woke to a crash. . . .

  “I got out of bed; I took about three steps, looked down the hall and [saw] armed men running up the hall dressed like hippies with pistols, yelling and screeching.” Giglotto turned to his wife, who was still in bed, and said, “God, honey, we’re dead.”

  “That’s right, you motherfucker!” one of the men screamed. The men—fifteen of them—then stormed the bedroom. One of them threw Giglotto to the bed, bound his hands behind his back, and put a gun to his head.

  “Move and you’re dead,” the man said. He then motioned in the direction of Evelyn Giglotto. “Who is that bitch lying there?”

  “That’s my wife.”

  . . .

  “You’re going to die if you don’t tell us where the drugs are.”

  Giglotto pled with the man, “Please,
please before you shoot us, check my wallet for my identification. Because I know you’re at the wrong place.”

  Seconds later, someone shouted from the stairs, “We’ve made a mistake!”

  The men unbound the Giglottos and began to filter out.

  Herbert struggled to put on his pants to chase after them for more information. He shouted, “Why did you do that?”

  The man who’d just held a gun to his head answered, “Boy, you shut your mouth.”

  Evelyn Giglotto was most upset that the police had also thrown the couple’s animals—three dogs and a cat—outside. . . . When she asked the police if her pets had been harmed, one of them replied, “Fuck your animals.”

  The Giglottos were lucky their pets survived. In fact, thousands of dogs owned by victims of no-knock raids, including many wrong-address raids, are killed for no reason. Balko relates one example from a 2008 wrong-address raid on the home of Kevin and Lisa Henderson in Howard County, Maryland:

  The police first met the family dog, a twelve-year old lab/rottweiler mix named Grunt. . . . [O]ne officer distracted the dog while another shot it point-blank in the head. When one of the couple’s sons asked why they had shot the dog, one officer pointed his gun at the boy’s head and said, “I’ll blow your fucking head off if you keep talking.”

  Individual raids have now expanded into roundup-style mass raids. Balko gives the account of one eyewitness to numerous SWAT team round-ups:

  “They come on helicopters, military-style, SWAT style,” . . . “In the apartments I was living in, in the projects, there were a lot of children outside playing. They don’t care. They throw kids on the ground, put guns to their heads. They’re kicking in doors. They just don’t care.”

  Expansion of police power in America is not limited to SWAT teams and commando-style raids. Abuse is visible every day on city streets where so-called stop-and-frisk tactics have evolved into a revenue model for taxation of the poor through state violence.

  In the poverty-plagued neighborhood of Bedford-Stuyvesant in New York City, police routinely rough up citizens on vague suspicions and then search for weapons. Occasionally some are found. Often nothing is found. To justify a baseless assault, police handcuff the victim, throw her into a police van, conduct a strip search, and issue summonses for one of a host of offenses that amount to nothing more than standing on a sidewalk in an unsanctioned way.

  From the victim’s perspective, stop-and-frisk is really smash-and-strip given the brutal assaults and strip searches used. Stop-and-frisk embodies the SWAT team us-against-them mentality, on a less dramatic yet more pervasive scale.

  Author Matt Taibbi, in his book The Divide: American Injustice in the Age of the Wealth Gap, recounts a typical case, that of Andrew Brown of Bedford-Stuyvesant:

  One day he was on his way home from his commercial driver’s license class, walking less than fifty yards from his apartment entrance, when someone just grabbed him from behind. “What is it? I didn’t do anything!” he shouted, and before he knew it, two plainclothes detectives, one on each side of him, were pushing him up against some scaffolding. . . .

  “What’d I do?” Andrew asked.

  “You fit the description,” one of the police answered.

  Andrew knew it was pointless to ask what description. “Everybody in my neighborhood fits the description,” Andrew explains. . . .

  So they took him to the station, processed him, strip-searched him, then gave him a summons for disorderly conduct. New York Penal Law 240.20, subsection 5: “Obstructing pedestrian traffic.”

  In other words, he was arrested for standing on the sidewalk.

  In cases like Andrew Brown’s, the summons might be for $500 and the arrest blatantly unconstitutional. Still, victims are poor. They cannot afford a $500 fine; even less can they afford $1,000 for a lawyer, lost days from work, and transportation costs to attend hearings and seek justice. Many victims are marginally attached to the workforce to begin with. Disruption caused by police targeting is all it takes to cause them to lose jobs, drop out of training classes, or be cast back into the poverty traps they were trying to escape. So they pay the fine and get a criminal record in the process. This sets them back financially and diminishes future job prospects because of the police record.

  In these situations, the state may never have to prove its case. Taibbi explains the economics based on a courtroom visit in Brooklyn. He begins with the fact that many defendants charged with trumped-up crimes can’t make bail:

  If you get arrested for a B misdemeanor in New York City . . . you might face a punishment of fifteen to ninety days. But if you don’t make bail, you’ll almost automatically spend at least that long in jail waiting for trial.

  The state knows this, so essentially, charging a person who can’t make bail with a B misdemeanor is the same as convicting the person. You file the charge, the judge sets high bail, you go back inside [the jail] and then you eventually plead to time served, because, well, why not? You’ve already done the time.

  The only difference is you’ve got a conviction now. . . .

  Given bail costs, and time awaiting trial, victims plead guilty rather than fight false charges. Taibbi continues:

  You’re paying the fine not for what you did, mind you, but simply out of recognition that you’d be paying a lot more if the state decided to be difficult and proceed with its messed-up case.

  This is the essence of Justice by Attrition. It’s like a poker game where after arrest, the accused sits down at the table with one chip. But the other player, the state, has a stack of chips fifty feet high. Will you play, or will you fold?

  Most everybody folds.

  These economics might not evoke sympathy if the defendants were part of a tidal wave of violent crime, but they’re not. Allegations in many cases are not only nonviolent, they are not even serious. A man smoking a cigarette outside his building at night is charged with “obstruction of a sidewalk” even if no one else is around. A woman wearing a tight dress is charged with “loitering for the purpose of engaging in a prostitution offense.” There is no obstruction or prostitution in many cases, just poor people minding their own business in their own neighborhoods when police come trolling for victims to meet city arrest quotas and revenue targets.

  These police methods are effectively a tax on being poor to help city budgets. This was revealed in late December 2014 when New York City police temporarily stopped these tactics to protest the murder of officers Rafael Ramos and Wenjian Liu, shot while sitting in their police car by a lone gunman from Baltimore, Ismaaiyl Brinsley. New York City revenues from routine summonses plunged in the following weeks. Still, the NYPD remained vigilant against violent crime. Reporter Dara Lind explains the disparity:

  The data suggests that while enforcement is down across the board, the slowdown is mostly showing up in enforcement of minor crimes and offenses. Transit police, who police the subways, are making very few arrests. . . . It appears the division responsible for policing public housing projects has also cut its arrests dramatically. Over a third of the drop in arrests comes from decreases in those two categories alone. Major felony arrests, however, are down only 17 percent from last year. . . . One reason that the slowdown has cut down on traffic tickets and low-level summons so much more than arrests is because tickets are a major source of city revenue . . . the city’s lost millions of dollars already due to the slowdown.

  The NYPD shootings were tragic, and the job action understandable. Still, the revenue drop unintentionally revealed the motive for police tactics in poor neighborhoods. Stop-and-frisk victims are not violent cop killers. They’re poor people trying to get some fresh air or walk down the street. The poor encounter police who are de facto armed tax collectors for the state. The poor pay the price.

  A more egregious example of how policing today is armed tax collection is asset forfeiture. Police seize property such as c
ash, cars, boats, and homes from citizens before conviction. The burden of proof is on the property owner to prove her innocence to regain possession of the seized property. This shift in the burden of proof reverses the innocent-until-proven-guilty tradition of U.S. law.

  Purportedly the practice of asset forfeiture is intended to deprive drug dealers of money or means of transportation that they can use to continue their crimes while awaiting trial. Asset forfeiture morphed into a revenue source that police use to finance SWAT teams and purchase armored vehicles to conduct still more lethal raids. Highway patrols are now state-sanctioned highway robbers.

  Asset forfeiture began with the Comprehensive Drug Abuse Prevention and Control Act of 1970, part of President Nixon’s original war on drugs. Forfeitures swelled after 1984 when Congress passed the Comprehensive Crime Control Act. This law created an assets forfeiture fund administered by the U.S. Department of Justice. Seized cash and proceeds from seized property sales go into this fund. The fund is disbursed according to an equitable sharing program; all participants in a related investigation, federal, state, and local, are entitled to a share. This has been a boon for localities with limited resources. A share of seizures motivates police to stop innocent citizens for the sole purpose of confiscating assets.

  Cheryl K. Chumley, author of Police State U.S.A., describes a typical case, the 2007 arrest of Dale Agostini of Maryland:

  Agostini . . . was driving with his fiancee, their sixteen-month-old son, Amir; and an employee of Agostini’s restaurant through East Texas . . . on their way to buy some new equipment for their business. Agostini carried $50,291 in the car—a large sum, but one which he said spoke volumes among restaurant equipment sellers, who would slash prices if the buyer paid in cash. . . .

  [A] police officer pulled them over. . . . He found the cash, accused them of money laundering, arrested the adults, and sent the infant child to protection services. Police also confiscated six cell phones, an iPod, and the car Agostini was driving. . . .