Take the 5th

Philadelphia resident Francis Rawls has been in solitary confinement for seven months, despite the fact that he has not been accused of a crime – let alone convicted of one. He may spend the rest of his life in that condition as punishment for invoking his unconditional right, supposedly protected by the Fifth Amendment, against self-incrimination.

Apart from the seventeen years he spent as an officer with the Philadelphia Police Department, Rawls has never done anything to threaten the public. He has no criminal record. He is suspected of possessing child pornography, which would evince an unspeakably vile appetite and make him a suitable subject of social ostracism. There is no documented reason to suspect him of committing an act of violence or exploitation against a child, which are among the worst imaginable crimes.

When an estranged sister claimed to have seen child pornography on Rawls’s cellphone, police demanded that he provide them with access to the device. Rawls cooperated, and no such material was found.

Investigators subsequently seized Rawls’s Apple MacPro computer and external hard drives and sued them: The case bears the unlikely title “the United States of America v. Apple MacPro Computer, et al.” Investigators demanded that Rawls provide them with his encryption codes. Quite sensibly, Rawls refused. He is a veteran cop and knows – better than the public he supposedly served in that capacity – what happens when a targeted citizen offers the police unrestricted access to his home and personal effects.

If he had acceded to the demand for his encryption codes, Rawls would have done the equivalent of allowing the police to rummage through every room, closet, and drawer in his home, while letting them inspect all of his correspondence, medical records, and personal finances. Diligent and motivated investigators would eventually find something that an ambitious prosecutor could use to manufacture a felony charge.

A Delaware County task force, stymied by Rawls’s defiance but determined to pursue the matter, referred the case to a grand jury. Judge Chad F. Kennedy of the Delaware County Court of Common Pleas ruled that Rawls “properly invoked the Fifth Amendment privilege [sic for indefeasible right] against self-incrimination when indicating that he would neither perform the act of decrypting the electronic devices … seized by the Commonwealth, nor provide the passwords to the Grand Jury for the electronic devices.”

Rather than accepting this constitutionally unassailable ruling, the task force called in the Feds. An assistant U.S. Attorney filed a motion before US District Judge Thomas J. Rueter – whose background, as we will shortly see, suggests that he was uniquely well-suited to craft an extra-constitutional means to compel Rawls to submit.

In his motion, the federal prosecutor invoked the All Writs Act of 1789, a statute enacted two years prior to the ratification of the Bill of Rights. That Act is used when the Feds want to treat the Fourth and Fifth Amendments as the useless ornaments they have proven to be. It was recently used against Apple when the chekists at the FBI wanted the company to provide it with an encryption key that would unlock an iPhone used by one of the San Bernardino shooters – and would likewise give the Regime a backdoor to every other computer or electronic device produced by the company.

Apple was being ordered to invent something that didn’t exist and threatened with criminal sanctions if it didn’t comply. The FBI rendered the issue moot by hiring, at considerable expense, an Israeli tech firm called Cellebrite to overcome the iPhone’s encryption.

For his part, Rawls has not only refused to provide the police with the encryption key, he insists that he has it – a claim that is at once convenient and plausible. This is why the order issued by Judge Rueter commands him to “recall and divulge passcodes to two encrypted computer hard drives” (emphasis added) on which the pornographic images would supposedly be found. The existing “evidence” against Rawls at present consists of testimony by Detective Christopher Tankelewicz, a forensic examiner with the Delaware County District Attorney’s Office, that it was his “best guess” child pornography would be found on the hard drives.

Last August 27, after Rawls refused to comply with Rueter’s facially unconstitutional order, the judge found him in civil contempt and ordered him to be taken into custody by federal marshals and imprisoned until he repudiates his right against self-incrimination. A motion filed by his defense attorney received a judicial reply citing a smirking, sucks-to-be-him statement from a 1994 Supreme Court ruling that someone facing the prospect of life imprisonment, without trial, for civil contempt “carries the keys of his prison in his own pocket.”

Rawls, in other words, can unlock his own prison only if he hands over his encryption key to the State – which will inevitably find some reason to send him back to prison.

For seven months he has been isolated away from all human contact for twenty-two and a half hours of each day, his separation palliated only by a monthly fifteen-minute phone call. Solitary confinement is a form of “no-touch torture,” in this case imposed as punishment for non-cooperation and as a means of coercing him into testifying against himself.

This is precisely the kind of predicament the Fifth Amendment was supposedly intended to prevent.

The Framers of that amendment, as the Electronic Frontier Foundation points out in an amicus brief in this case, “used available encryption technologies in their day. James Madison encrypted the contents of many of his letters, including part of a May 27, 1789, letter to Thomas Jefferson describing his plan to introduce a Bill of Rights.”

For Madison, however, the most immediate priority – as he explained in a passage in Federalist essay 51 that should be notorious, rather than celebrated – was to “enable the government to control the governed.” Only when this is done is it proper to “oblige it to control itself,” as if self-control were an attribute of any political government.

The All Writs Act is one of the delightful authoritarian Easter eggs that litter the founding documents. Folded into the 1789 Judiciary Act that created the Supreme Court (and served as the basis for all Article III courts), that measure gives robe-wearing gavel-fondlers in federal courts the supposed authority to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

Note that this passage doesn’t require that writs be compatible with legislative acts, or constitutional limitations. It authorizes judges to define “usages and principles of law” to fit the prevailing circumstances. This is a plenary indulgence for federal judges who violate the Bill of Rights – which, once again, had yet to be written at the time the original All Writs Act was enacted.

Prior to being appointed to the federal bench twenty years ago, Thomas Rueter was exactly the kind of federal prosecutor who would use the All Writs Act to circumvent the Bill of Rights. His most notable case involved a Yugoslav money-laundering and technology smuggling ring that was actually created by a preening glory-hound of a Customs Agent named Richard McCloskey.

In 1988, with nothing better to do as a member of the tax-feeding class, McCloskey – posing as an underworld figure — approached a tax protester named Hubert Cole. He pitched Cole on an elaborate money-laundering scheme involving Yugoslav diplomatic contacts. The two of them then contacted a Dallas businessman named Vjekoslav Spanjol, who had defected to the U.S. in the 1970s while he was with the Yugoslav merchant marine. Spanjol owned a custodial business but retained some contacts in his home country.

Under the guidance of McCloskey and other federal play-actors, Cole and Spanjol arranged to send $2 million to a bank in Yugoslavia, which would launder it and remit the proceeds to another bank in the States. At some point, Spanjol developed misgivings about the plan and tried to extricate himself. He was told by Cole –who later admitted in court to falsifying some of the evidence used by the prosecution — that his associates would kill Spanjol and his family if he didn’t cooperate. Given that the people to whom Cole referred were Feds, he was probably telling the truth.

The patsies were arrested at the Philadelphia International Airport in December 1988. Three others were arrested on the same day, including an investment banker and a Yugoslav diplomat named Bahrudin Bijedic.

The banker and the diplomat were acquitted of all charges. Cole turned states’ evidence in the expectation of leniency and received none. Cole was given a five-year prison sentence, Spanjol a term of six years and five months, followed by three years of probation. He died shortly after being released from prison.

Most of the evidence presented by the prosecution at the trial was drawn from 250 surreptitiously recorded conversations. The defense filed a discovery request for access to that archive, which most likely would have been a bonanza of Brady material – that is, evidence that would have been favorable to the defendants. One very important element of the case was Spanjol’s claim that he acted under duress. The trial judge ruled that his testimony was unconvincing on this point. There may have been irresistible supporting evidence within the recordings.

Rueter and his comrades filed a motion to suppress discovery on “national security” grounds before the secretive “FISA Court” – a seven-judge panel created under the 1978 Foreign Intelligence Surveillance Act. As it always does, the FISA court in that instance ruled in favor of the Feds, insisting that the prosecution had made a “sufficient showing” that defense examination of the recordings would injure “national security.”

The trial judge, who reviewed the matter in a hearing from which the defense was excluded, ratified the FISA panel’s decision – thereby depriving two U.S. citizens of their right, supposedly protected by the Sixth Amendment, to examine and present evidence in their defense.

There is a certain elegant – and sinister – symmetry at work here. As a federal prosecutor twenty-seven years ago, Thomas Rueter used secret evidence to send a man to prison; today, as a federal judge, he has sent a man to prison without trial – potentially, for the rest of his life – as punishment for invoking constitutional protections of his personal privacy.

The post Take the 5th appeared first on LewRockwell.