(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 a saying that goes: when the law is on your side argue the law; when the facts are on your side argue the facts; when you have neither pound the table.

Last week I published a guest blog from my brother the lawyer who argued the law. Josh Wolf is in the slammer, he wrote, because several judges have upheld a federal prosecutor’s demand that he turn over out takes of a street protest he had videotaped. Those judges hailed from the liberal Ninth Circuit which, he noted with a certain wit, “leans so far to the left it might as well lay down.” He taunted Wolf’s progressive supporters – who may wonder how a street protest in San Francisco has turned into a federal case — by telling them that the precedent for federal intrusion into local affairs stems from some case decided by liberal judges in the past.

“And that’s where we are today,” my brother writes as if conservatives, who’ve spent decades advocating judicial restraint, now feel no obligation to practice what they have preached. 

As for why liberal judges have condoned this federal fishing expedition, let me suggest that, having leaned so far to the left as to lay down, they have fallen asleep on the job — exercising the constitutional oversight needed to prevent zealous prosecutors from turning into bullies.

Let’s look at some facts.

I’ve yammered on in the past about how I think Josh is being jailed because the feds want him to inform on his buddies who are anarchists; about how what has been done to him could be done to any American; and yaddy-yaddy-ya.

But rather than take my word, let’s listen to Luke Macaulay, spokesperson for the U.S Attorney’s office for the Northern District of California. When his office was invited to appear on the Democracy Now radio show to discuss the Wolf case, 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.”  

Let’s review a couple of points in the prosecutor’s statement. They want 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 they can bear witness to any potential misdeeds that might have occurred.

Being federal cops, they can 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 turns on that police car. It belongs to San Francisco — drat, no federal standing there — but it was purchased using federal funds. So 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 that he took no video of whatever may have happened to that car. The judge has declined to do so.

So here are the facts as revealed by the federal statement: prosecutors aren’t sure the police car was damaged. But on the chance that a federally-funded asset may have been damaged, and that a videotope taken by an American citizen might have a bearing on this matter, “six separate judges” have thus far held that Josh Wolf can be held in contempt of court, and jailed as a recalcitrant witness, until and unless he turns over material that might help establish whether or not a federal crime has even occurred.

On this slender reed of prosecutorial necessity an American citizen has been jailed for 186 days.

And now I must bang the table a bit because the only way I can explain the incarceration of Josh Wolf is to believe that America has forgotten the meaning of liberty. Ever since 9/11 we have become a nation of bleating sheep, so frightened by potential dangers so as to willingly surrender time-honored principles, like habeas corpus, upon which our nation was built.

One could argue that extraordinary means must be employed to combat international terrorism. But Josh Wolf is not alleged to have videotaped Osama bin Laden flipping the bird in San Francisco. Yet until he either proves himself useful or useless to federal prosecutors, he can be held.

It is said that Justice is blind. In the case of Josh Wolf she must be blinded by tears.