(Josh Wolf is a freelance journalist and anarchist. He has been jailed for refusing to turn over videotapes of a protest being investigated by a federal grand jury. Online Journalism Review has written about his case; here is a bit more from Wikipedia. On Friday, December 1, 2006, I ran a reminder of his incarceration. I will write about his case every Friday until he is freed. Visit his site and find a way to help. Tom Abate, San Leandro, Ca; aka MiniMediaGuy).
There is aÂ saying that goes:Â when the law is on your sideÂ argue the law; when the facts are on your side argue the facts; when you have neither pound the table.
Last week IÂ published a guest blog fromÂ my brother the lawyer whoÂ argued theÂ law. Josh Wolf is in the slammer, he wrote,Â becauseÂ several judges haveÂ upheld a federal prosecutor’s demand that he turn over out takes of a street protest he hadÂ videotaped.Â Those judges hailed from theÂ liberal Ninth Circuit which,Â heÂ noted with a certain wit, “leans so far to the left it might as well lay down.”Â He taunted Wolf’s progressive supporters –Â who mayÂ wonder how aÂ street protest in San Francisco has turned intoÂ a federal case — by telling them thatÂ theÂ precedent for federalÂ intrusion intoÂ local affairs stems fromÂ someÂ case decided by liberal judgesÂ in the past.
“And thatâ€™s where we are today,”Â my brother writes as ifÂ conservatives, who’veÂ spent decadesÂ advocating judicial restraint, now feelÂ noÂ obligation to practice what they have preached.Â
As forÂ why liberal judgesÂ haveÂ condoned this federal fishing expedition, let me suggest that, having leaned so far to the left as to lay down, theyÂ have fallen asleep on the job — exercising the constitutional oversight neededÂ to preventÂ zealous prosecutors from turning into bullies.
Let’sÂ look at some facts.
I’veÂ yammered onÂ in the past about how I think Josh is being jailed because the feds wantÂ him to inform on his buddiesÂ who areÂ anarchists;Â about how what has been doneÂ to him could be done to any American; and yaddy-yaddy-ya.
ButÂ rather than take my word, let’sÂ listen toÂ Luke Macaulay, spokesperson for the U.S Attorney’s office for the Northern District of California. When his office was invited toÂ appear onÂ the Democracy Now radio show to discuss the Wolf case,Â prosecutors declined and sent the following statement, which host Amy Goodman posted on her site:
“We have an obligation to the community to investigate and gather evidence of serious crimes. The incident is under investigation so that the grand jury can determine what, if any, crimes were committed. As our court filings state, Wolf videotaped a public demonstration where there may have been an attempt to set a police car ablaze, and where a San Francisco Police Officer’s skull was fractured when he was hit from behind by a demonstrator. Six separate judges – one federal Magistrate Judge, two federal District Court Judges, and a panel of three 9th Circuit Judges – have now ruled that this office has issued a lawful subpoena for legitimate investigative purposes, and that the material and testimony in question should be provided to the grand jury.”Â Â
Let’s review a couple of points in the prosecutor’s statement. They wantÂ Wolf’s outtakes “so that the grand jury can determine what, if any, crimes were committed.” (emphasis added) That tells me federal officials aren’t sure that any crimes have occurred. But somehow it’s OK to incarcerate an American citizen, indefinitely, to find out if theyÂ can bear witness toÂ anyÂ potential misdeeds thatÂ might have occurred.
BeingÂ federal cops, they canÂ only investigate federal crimes. So the next assertion by prosecutors is even more revealing: “Wolf videotaped a public demonstration where there may have been an attempt to set a police car ablaze.” (emphasis added)
That is important because federal involvement in this case turnsÂ on that police car. It belongs to San Francisco — drat, no federal standing there — butÂ it wasÂ purchased usingÂ federal funds. SoÂ anything that may have happened to that city-owned car becomes a federal case.
FYI, Wolf has asked the trial judge to view his tapes and insists thatÂ he took no videoÂ of whatever may have happened to that car. The judge has declined to do so.
So here are the facts asÂ revealed byÂ the federal statement:Â prosecutors aren’tÂ sure theÂ police car was damaged.Â ButÂ on theÂ chanceÂ that a federally-funded assetÂ may have beenÂ damaged, and that a videotope taken by an American citizen might have a bearing on this matter, “six separate judges” have thus far heldÂ that Josh WolfÂ can be held in contempt of court, and jailed as a recalcitrant witness, until and unless he turns overÂ material that might help establish whether or not a federal crime has even occurred.
OnÂ this slender reed of prosecutorial necessity an American citizen has been jailed for 186 days.
AndÂ now I mustÂ bang the table a bitÂ becauseÂ the only wayÂ I can explain theÂ incarceration ofÂ Josh Wolf is to believe that America has forgotten the meaning of liberty. Ever since 9/11 we haveÂ become a nation ofÂ bleatingÂ sheep, so frightened byÂ potential dangers so as toÂ willingly surrenderÂ time-honored principles,Â like habeas corpus,Â upon which our nationÂ was built.
One couldÂ argue that extraordinary means must be employed to combat international terrorism. But Josh Wolf is not alleged toÂ have videotaped Osama bin Laden flipping the bird in San Francisco.Â Yet until he either proves himself useful or useless to federal prosecutors, he can be held.
It is said thatÂ Justice is blind.Â In the case of Josh WolfÂ she must be blinded by tears.Â