L. Neil Smith's
Number 372, June 18, 2006

"Refuge in the Junkyard"

The Battle of Wakarusa
NLG and ACLU Fail to Defend Liberty

by Jim Davidson

Special to The Libertarian Enterprise

In early June 2006, the Wakarusa Music Festival took place around the USA Army Corps of Engineers Clinton Lake park facilities. About fifteen thousand people from around the country came for the festival, camped out, listend to live music, and brought millions of dollars in sales to area businesses.

But it wasn't all good news. With a USA feral "high intensity drug-trafficking area" grant, the State of Kansas and the Douglas County Sheriff's Department organized blockades of Kansas Highway 10, US Highway 59, and off ramps from Interstate 70, causing a three-day traffic snarl, violating individual liberties, and generally making a mess of the festival. The organizers who have brought the event to Lawrence, Kansas for three years in a row are considering not having it again, due to the oppressive police presence.

In addition to stopping vehicles, ransacking them, destroying private property, conducting warrantless searches on vehicles, persons, tents, and possessions, the police drove through the campground at all hours night and day on golf carts wearing night vision goggles at night to spy on campers in and out of their tents, like a bunch of peeping Toms.

Learning about this event while on travel to visit my aging parents in Lawrence, I attempted to make contact with the local American Civil Liberties Union groups at the University of Kansas, in Douglas County, and in "Kansas and Western Missouri." By the time I learned of the situation, it was Friday evening, the courts were closed, and the opportunity to obtain any sort of court order had been frittered away.

In my first letter to my mother's various contacts for the local ACLU groups, I wrote:

    "I am willing to carry a sign and pass out leaflets alerting drivers of their constitutional rights and informing them of the prospect of a future lawsuit naming the officers and agencies responsible for depriving them of their civil rights.

    "Then again, I would be willing to do rather more direct things if there seemed any useful prospect for ending the police state tomorrow by doing such things today. However, I am not eager to be arrested for exercising my first amendment right to free expression and to petition for redress all by myself, so I won't go out to US-59 and K-10 unless there are going to be witnesses from among you gentle folks.

    "It would appear that the time for a temporary restraining order or injunction to prevent the Kansas State Highway Patrol and Douglas County Sheriff's Department from using National Drug Enforcement policy funds to actively violate the 4th Amendment without warrants specifying the places to be searched or the things and people to be seized has now passed."

    "...You knew that the Wakarusa Music Festival was coming, you were in a position to find out about these unconstitutional searches in the planning stages weeks ago, and you did nothing. Gypsies and hippies are being searched without warrants and you have done nothing.

    "Some of you are lawyers who could 'screw your courage to the sticking point' and show up in court to file a temporary restraining order, and you did nothing. Some of you were in communication with the ACLU lawyers in Topeka and Kansas City and they did nothing.

    "Some years ago the Nazis began coming for people that they classed as 'undesirables.' Jews. Gypsies. Homosexuals. By the time they came for the priests, it was too late. There was no one left to do anything.

    "I'm not unwilling to do something, but I want witnesses and video cameras there the next time a group of cops handcuffs me and breaks eleven of my bones. You have the opportunity to contact affected drivers and give them information to sue the people responsible for violating their civil rights. I'm willing to help on Saturday and Sunday morning (though the traffic stops are scheduled for 3 days, which I make to be Thursday, Friday, and Saturday. I suspect they'll let the traffic flow on Sunday to get people away.)

    "The eyes of the nation, as contemptible as some of those people are, happen to be watching Douglas County and Kansas right now. Are they going to see the police state taking civil liberties away and all y'all doing nothing? Most of those people watching around the country are also going to do nothing, perhaps not even watch, while your county and state government uses national government money to take your liberties and the freedom of visitors to our community away.

    "But what about you? Are you going to do nothing?

    "I'm willing to stand out in the Sun in a business suit and carry a sign and pass out flyers. I'll even print up some flyers and have them reproduced. But I'm not stupid enough to go alone.

    "So. Where's your courage?

    "What are you doing on Saturday 10 June 2006 while the police state tramples on your freedom? Got a family event to attend? Backyard barbecue? Weekly shopping?

    "And when the police come for you? Who is going to lift a finger for you, then?

    "Not me. Not then. I'll be organizing the metaphorical equivalent of the Warsaw Ghetto Uprising, then. We won't have time to help you. We'll be too busy using the marksmanship skills we developed for the prospect of that busy time.

    "When the guns start firing in the coming American rebellion against the police state, some measure of the blood of rebels is going to be on your hands because today you chose to do nothing. Today you can do something peaceful. Today you can protest, you can plan for a lawsuit, you can stand up for liberty, and nobody's blood has to be shed.

    "When there is nothing left but for Americans to choose whether to die on their knees like slaves or on their feet like free men and women, fighting in the cause of liberty, where will your precious weekend shopping be, then? Do remember, at that time, as you stand knee deep in the blood of your neighbors, to hang your head in shame because you did nothing."

As you can see, I was more than a little disappointed by the lack of effective action to that point. I became more than a little disappointed with the various responses.

One of the ACLU correspondents wrote that City of Indianpolis v United States, 531 US 32 prohibits the sort of behavior which took place at the Wakarusa music festival. A lawyer for the regional ACLU group wrote that there was a need for "the big guns here." Got my attention. But he meant the big guns of the ACLU, as if he wasn't able to find a plaintiff or file for a temporary restraining order or injunction himself.

I discovered that he had known about this matter as early as Wednesday 7 June. So, I wrote to him:

    "Just out of curiosity, you write [that this goes to the heart of freedom of assembly.]

    "Have you ever heard of the right to be safe in person, papers, possessions, houses, and effects from unreasonable searches? And the part where no warrants shall issue if they don't particularly describe the place to be searched, and the persons or things to be seized.

    "I'm curious because your e-mail address suggests that you were one of the lawyers who did nothing to oppose this material violation of the civil liberties of some 15,000 Americans. I wonder just how much courage you need to go before a federal judge and get a temporary restraining order or an injunction?

    "You knew about this matter on Wednesday, and instead of doing something in front of a judge yourself, you called for 'the big guns.' Well, as Lady MacBeth said, 'Screw your courage to the sticking point' next time, man, and do what needs doing. You only get to enjoy that measure of liberty that you act to defend."

Well, the weekend passed, and nothing happened. Nobody got in touch to join forces and pass out leaflets. I did design a nice little flyer with the text of the Fourth and Ninth Amendments and the text of Genesis 1:29. In the absence of anyone to be a witness to the anticipated police brutality, I stayed home.

Well, on Sunday, while the festival was shutting down and everyone was pulling up tent stakes and leaving, and the sheriff's deputies were gathering around their television sets to enjoy the night vision video exploits of the weekend in slow motion, a local guy from the University of Kansas ACLU wrote back to indicate a lack of foreknowledge about this event.

So, I wrote to him.

    "Thank you for the courtesy of your response. I regret that 'there's nothing to be done about it.' It appears that you are outnumbered and outmaneuvered.

    "Perhaps you ought to have a better intelligence organization. Perhaps you ought to have more people willing to stand up and claim future damage. Perhaps you ought to figure out something useful to do. But you get to pursue all of those possibilities without me.

    "I won't help your organization to further resolve that they've done all they can, while the trains get loaded and the men, women, and children of this country get shipped off to concentration camps to be tortured to death by the vermin who run what you have allowed your government to become. Whatever else is true, your organization has not done enough, isn't doing enough, and isn't going to get any help from me.

    "What your government has become will send y'all to perdition soon enough without any ill wishes from me. May God have mercy on your souls."

A little later, a member of the national executive committee of the National Lawyers Guild wrote me, to explain that it is not the ACLU that does important things, but the NLG. She wanted me to know that the NLG had defended members of the ACLU who had been purged in the 1950s for communist sympathies and expelled from the ACLU. My, what an eye-opener. To think that the ACLU had ever dared to uphold its own membership requirements against communist sympathizers and other totalitarian filth.

This lawyer went on to assert that the NLG would continue to defend pro bono people whose first amendment rights whenever and where ever they are violated. To further this assertion, she offered a link to a National Catholic Register story about some subpoenae issued by the FBI's Anti-Terrorism Task Force agaisnt peace activists in Iowa. Apparently trying to make some effort to be sympathetic toward fly-over country, she made note of Iowa being a state neighboring Kansas.

So, I wrote her a quick letter.

    "Dear Dr. Williams:

    "Hello. Thank you for the courtesy of your reply.

    "Interesting comments. I'm not familiar with the guild you represent, although I am generally not comfortable with guilds, especially among groups of individuals who use the state to infringe the actions of others in their industry, as with licenses, bar cards, and other restraint of trade. The history of guilds generally has been fraught with dangers to individual liberty and oppressive practices such as coerced apprenticeships.

    "It is odd, to me, that you seem to think this matter of Kansas State Highway Patrol and Douglas County Sheriff's Department unwarranted searches has anything to do with the first amendment. I'm aware of Fourth Amendment freedoms that were compromised, and Ninth Amendment freedoms (freedom to travel, e.g.) that were compromised, but I actually have no idea what first amendment issue was involved unless you think it was freedom of religion?

    "That's an interesting line of reasoning, and consistent with the words of Genesis chapter one, verse 29, 'And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.' Clearly, hemp, coca, and poppy are herbs bearing seeds. So, that might be a fruitful angle to work in future, if you are somehow constrained to deal exclusively with first amendment issues. I've no idea why lawyers with an interest in constitutional issues would ever choose to limit themselves to only considering one part of the Bill of Rights.

    "I appreciate your apparent intention to offer reassurance and not be utterly provincial in your views on things out here in the Great Plains, so I suppose it must be an oversight that you identify Iowa as a state neighboring Kansas. Kansas has only four states that it neighbors. Iowa is not one of them. Having gone to school in New York for four years, I've met rather a lot of otherwise well-educated folks who couldn't find Kansas on a map, let alone identify states which neighbor it. Part of the charm of Kansas is that most people don't have a clue where it is, what it is like, or what it might be about.

    [She had sent this link:]

    "Clearly the Feral Brutal of Investigation antiterrorism task force was seeking to have a chilling effect on free speech in the serving of these subpoenae on peace activists. It is good that some outfit such as yours is interested in opposing the jackbooted thugs at least in such matters.

    "I am, of course, curious where y'all might have been when seven dozen Texans were butchered in their church at Mt. Carmel in 1993 while seeking to exercise their first amendment liberties of freedom of religion, right to peaceably assemble, as well as those freedoms such as the right of self-defense, the right to keep and bear arms, the right to a trial by jury, and the right to be safe from cruel and unusual punishment—which the use of chemical weapons (outlawed by treaties the USA is party to for use on foreign troops) which were used on Texans at Mt. Carmel would seem to necessarily involve—which aren't covered under the exclusively first amendment scene you seem to think is the only part of the Bill of Rights worthy of defending.

    "I've looked at your web site nlg.org and searched for anything friendly to be said there about the freedom to keep and bear arms. Other than some very negative statements from NLG-Massachusetts about Alito on machine gun registrations and some other negative comments about the "gun lobby," I can't find much that suggests that the NLG actually embraces the freedom of, say, women, to have effective tools for defending themselves from, say, rapists. Or some two million other gun owners who annually defend their lives, liberty, and property from crime.

    "If your defense of liberty stops at the first amendment, then I guess when the military quarters troops in homes, as they did in the area around Mt. Carmel during the siege there, and as they did at Ruby Ridge, you guys won't step up to the plate for the Third Amendment either?

    "It seems very unlikely that I'll be doing much to support your group in the future, either. But, if you have any thoughts on these issues, or would like to continue the discussion, that would be welcome."

Curiously, I haven't heard back from her.

I received a letter from the head of the Douglas County ACLU who wrote to "agree" that their reaction was slow and "we" were unable to respond.

So, I wrote him.

    "Thank you for the courtesy of your reply.

    "I am not sure with whom you may be agreeing on the 'we were unable to respond.' I was very directly and sincerely volunteering to respond.

    "What upsets me, Mr. Minkin, as a resident of Douglas County, is that the newspaper you mention had published an account of this road block on Wednesday in their online publication, ljworld.com, and had printed the same story on the morning of Friday, and your organization was unable to organize any sort of response.

    "I gather that there are eight members of the ACLU in Douglas County, which does seem like a small number. But, I am extremely disappointed that there was not one person among those eight, however many more are involved in the KU ACLU, and however many are involved in communities within 50 miles of here, who was not willing to show up on Saturday to watch me with flyers and signs to indicate that the government's behavior was wrong. Having been handcuffed and brutally beaten by the police in Houston, I'm very reluctant to do such things alone.

    [He had written that everyone had been surprised by the road block.]

    "The road block on Wednesday perhaps. The road block on Thursday? The road block on Friday? On Saturday?

    "I don't understand what you hope to accomplish if you cannot respond within 48 hours to an event in your community. Do you at least plan to organize a protest meeting for concerned citizens to speak out, after the fact? Have you considered having a meeting to discuss this matter with the Douglas County Sheriff's Department after the fact? Have you considered finding any trucking companies that were delivering cargo on that road and were harmed by the road blockades?

    "A large number of companies move passengers and cargo for hire using K-10, I-70, and US 59. Have you contacted any of them to establish that they were harmed? I gather that in most states, anyone harmed may bring a suit to claim damages within two years of the date of harm. I also gather it is extremely difficult to get the government to admit of its liability given their penchant for sovereign immunity, but the publicity from a lawsuit claiming actual and consequential damages, even if it were dismissed, would give you guys a platform in front of the courthouse to talk to the media on camera and point out that it is wrong to violate everyone's Fourth Amendment liberty. It might even deter the county from doing the same thing again next year. Finding someone harmed this time, if that person were likely to be harmed next time, would give you better grounds for an injunction or TRO next year.

    "If you don't do anything before the event, don't do anything after the event, don't complain to the sheriff, and don't write letters to the newspaper, then you can be sure that this same thing is going to happen again next year. Which, by itself, might be a strategy to pursue. Lull them into thinking that nobody is against what they've done, which encourages them to do the same again next year.

    "So, there you go. Don't do anything. If any of the people arrested seek help in formulating an argument that their liberty was infringed and thereby seeking to throw out the evidence against them, let those people twist in the wind. Lull the government into thinking that you don't mind if they do it again next year.

    "That way you'll have a full year to plan out what to do, formulate your arguments, call in the big guns, find a plaintiff or several. Do you think you could have planned for this event if you had a full year? Well, now you do. Now you have a full year to figure out how to respond.

    "What you don't have is any help from me. You won't get any help from me unless I have some reason to expect that your group is capable of forming an effective plan, organizing a team capable to implement that plan, and can be trusted with money. Which, right now, is an uphill battle on all three counts."

The only person to write back three times, was the lawyer from, I gather, Topeka, who was unable to formulate any sort of legal action on Thursday or Friday. His .sig made mention of his name followed by "Esquire." He told me that it was my government, as well. Called me Jimbo.

So I wrote him back. Couldn't resist.

    "Dear Esquire:

    "No it isn't. It is not my government. I didn't make it, I didn't design it, I didn't vote for it, I didn't pay for as much of it as I suffer, and I get a poor deal for the amount I am forced to pay for in various compulsory taxes.

    "How is it my government? If it were my government, I would disband it, hold its officers for treason, try them, and, as the owner of the government, find them guilty and execute them. Myself. I take care of the things I own.

    "I didn't sign the constitution that created it, I didn't take an oath to uphold that constitution, and I'm not an officer of any court, nor of the government. It is not my government, Marky.

    "You claim a title of nobility, 'esquire.' As far as I'm concerned that means you aren't a citizen of the United States, and are incapable of holding any office of trust or profit in the United States. But, I'm fairly confident that you think it makes you better than me.

    "In spite of your honorific causing me to view you as not qualified to hold office, you are an officer of the court. You vote, don't you? You chose to be a part of it, so, it is your government. You ought to take more responsibility for the crappy groups you're involved in. You ought to be ashamed that you are involved in such a despicable organization as the government of the State of Kansas whose law license you pay for, whose bar card entitles you to serve as an officer in the courts, whose constitution you swore an oath to uphold, and whose police apparatus was hauling innocent people out of their vehicles and ransacking their property last week. But you don't sound contrite.

    "(You also ought to apologize to every Kansan who has ever been charged with practicing law without a license while you and your bar association act in restraint of trade.)

    [He wrote something about those who aspire to keep the government in line.]

    "Aspire?! I don't care what your intentions are. I care what your results are. Your results suck, Marcus Aurelius. You have failed to keep it in line. It is out of line, it is out of control, and the supposed constitutional limits are no where enforced.

    "The Wakarusa Music Festival 2006 was planned over a year ago, because it was announced at last year's event. So, you had a year to know about it. (Now you have a year to know about next year's festival. Planning anything?)

    "The road blocks were announced on Thursday in the online portion of ljworld.com and on their Channel 6 news broadcast. And if there were someone being harrassed who contacted you, how is it you were unable to find a plaintiff?

    "I don't care about your intentions, any more than Henry David Thoreau gave legislators any credit for their intentions in classing them with the mischievous persons who put obstacles on railroad tracks. Anyone can pretend to have good intentions. A tree is known by its fruit. Your fruit seems corrupt, to me. So, I regard you as a corrupt tree.

    [He wrote that attacking those aspirants wasn't helping to defend the liberties I hold dear.]

    "Criticizing you isn't attacking you, however charming your inability to take any sort of criticism may be. However, failing to criticize you obviously does nothing to protect my liberties, either.

    "Indeed, criticizing ineffectiveness is one way to improve things. Thoreau said that if every man would simply say what he thought would make things better, that would be one good step on the way to a better future. You evidently would rather nobody said anything to criticize you for failing to do anything effective. Too bad.

    "If you don't want to receive what you perceive as attacks, then don't say and do things that others perceive as worthy of criticism. It continues to be a country free enough that some of us are willing and able to express ourselves, in spite of lawyers like you writing against free expression by guys like me.

    [He wrote that I would be well advised to find another channel for my frustrations.]

    "You solicit a response by e-mailing me. If you are threatening me by advising me to channel my frustrations elsewhere, counselor, you can fold your legal opinion sixteen ways until it is all outside corners and shove it where the Sun doesn't shine.

    "You don't want me to be frustrated, then do something useful.

    "You don't want to hear from me, then don't reply.

    "But don't tell me what to do, monkey in a suit. I'll say what I please and do what I think is right. And if you would like to stop me, then take your best shot.

    "Or, don't you shoot?

    "Free yourself"

And that seems to be the end of the Battle of Wakarusa. Not much to see here, folks. Some pervert sheriff deputies who like to ogle men and women in their tents using night vision gear when decent folk are asleep or enjoying each other's company. Some unconstitutional searches funded by a federal grant. A fairly decent music venue with a few interesting performances chased away, it seems likely, by the overt hostility of local and regional law enforcement.

And a gaggle of attorneys too uptight to do anything useful, too defensive to take any criticism, too blind to what their own government has done to go out on a limb, too interested in the continuation of the government to stand up for freedom. No surprises that people who take licenses from government and serve as officers of the court are statists.

It seems to me very likely that it is all going to end badly. There remain some prospects for economic solutions, taking the issue power of money away from the government by refusing to participate in the banking cartel's nefarious schemes.

But, it is likely to come to a head. We've already seen national guardsmen from Oklahoma in New Orleans going door to door to confiscate weapons. The Louisiana guardsmen were still posted to Iraq, confiscating weapons from worthy oriental gentlemen, it seems.

We're going to see more abuse of power and more direct tyranny. The concentration camps are already here—you can get sent to Guantanamo without a trial, without access to counsel, and Attorney General Gonzales says it is okay to torture you, to death. The Attorney General also claims the right to declare anything I've written a national secret and then imprison me summarily for writing it, and all the fine TLE folks for publishing it.

That's your country, now. It isn't my country. My country is where freedom lives. As James Otis was fond of saying in 1774, Ubi libertas, ibi patria.

America is not the home of freedom. Freedom has been evicted.


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