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March 30, 2012

Hutaree Militia Verdict Shows Sedition Charges Risky

In a rebuke to federal prosecutors, U.S. District Judge Victoria Roberts on March 27 threw out seditious conspiracy charges against seven Michigan militia members whom the government had accused in 2010 of plotting to start a war with the U.S. government.

Only weapons charges remained against two defendants–David Stone, Sr., the leader of the so-called Hutaree Militia, and his son, Joshua Stone—and they pleaded guilty the following day to possessing a machine gun. According to Roberts, though there was evidence to conclude that “something fishy” was going on, the government did not present enough evidence to prove that defendants had “reached a concrete agreement to forcibly oppose the United States government.”

The Hutaree case illustrated vividly how problematic the very issue of sedition—currently defined in U.S. law as a conspiracy to overthrow or destroy the U.S. government, to oppose by force its authority, or to delay by force the execution of U.S. laws—is in the United States. From the very first sedition law, the Sedition Act of 1798, such acts have been highly controversial. One of the major problems has always been distinguishing between speech and conduct—it is for this very reason that current sedition law specifies “by force,” though it has not made attempts to implement the law much easier.

In recent decades, another reason why sedition trials are often problematic is that increasingly jurors find it difficult to believe that defendants could have possibly thought they could successfully wage war against the government. After the Hutaree trial, one of the jurors told a reporter that “I was shocked by their effort to bring the defendants to trial…Do you think a group that small can go up against the mighty U.S. government?”

The modern track record of sedition cases in the United States has been relatively poor. In 1941, the federal government indicted 28 union activists and left-wing extremists for violations of the Sedition Act and a related act, the Smith act, but the jury acquitted all of the defendants of the sedition charge. In 1944, 30 right-wing extremists and Nazi sympathizers were accused of violating the same acts, but their lengthy trial ended in a mistrial. In one of the few successful sedition cases, a number of radical Puerto Rican liberation activists were convicted of seditious conspiracy in the mid-1980s for an extensive terrorist campaign.

However, in 1987, 14 prominent white supremacists charged with seditious conspiracy were acquitted in what came to be called the “Fort Smith Sedition Trial.” In 1995, Omar Abdel-Rahman, the so-called “Blind Sheikh,” and nine other Muslim extremists were convicted of seditious conspiracy for plans to commit a variety of terrorist acts in the greater New York area, as well as other violent acts actually committed.

The history of sedition cases in the United States suggests that other types of conspiracy or other criminal charges might well be a better prosecution strategy when dealing with extremist-related plots and conspiracies.

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