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December 17, 2004

The San Mateo Massacre: Judicial Fiat by the Bay

From the "You never know who you'll run into" department, I was wandering through the San Mateo Halls of Injustice, trying to take care of a $777.21 felony parking ticket, when I noticed all of the news cameras. Turns out, it was no less than John Gilmore and John Perry Barlow, two of the founders of the Electronic Frontier Foundation, an organization dedicated to defending online privacy rights. John Gilmore is currently fighting for our right to travel anonymously on airplanes. John Perry Barlow was in court trying to defend our fourth amendment rights in the airport.

In September of 2003, as the annual Burning Man event in the parched, hostile black rock desert of Nevada drew to a close, thousands of drug saturated bohemians retreated to the regions from whence they’d come. They divided the remainder of their drugs fairly and dispersed. They carpooled, hitchhiked, or piloted their flamboyantly painted VW Microbuses across the desert roads back to middle Amerika, the left coast, and parts unknown.

Scads of these deracinated souls washed upon the bay area shores in the immediate aftermath of the show’s grand finale. Burning man was, after all, invented by Larry Harvey , a San Francisco native. The event traces its roots back to a large wooden sculpture of a man that was erected and then set ablaze here on Baker Beach. So, it’s no surprise that the bay area provides shelter to legions of the disaffected youth that frequent the annual event.

John had recently returned from burning man, and found himself at SFO attempting to board a Delta Airlines flight. When the TSA searched his checked luggage at the airport, they allegedly found some interesting items, including a “laser glove? that he wore at Burning Man, a few grams of marijuana, psilocybin mushrooms, a syringe, some vials of Ketamine.

The Covenant Security notified the TSA, the TSA contacted the SFPD’s Narcotics Task Force, the Narcs contacted the DEA, and they promptly yanked John off of the plane and hauled him away in chains to the bowels of the Redwood City gulag. No Miranda rights, do not pass go, go directly to jail. You get the idea.

This sort of thing normally passes without so much as a blip in the mainstream media, especially on the Left Coast where marijuana is officially recognized as the state bird. California, after all, was the first state in the country to legally recognize Medical Marijuana. Possession of less than an ounce of Marijuana in Kalifornia is a misdemeanor and is not an “arrestable offense? under state law.

Normally, in a case such as this, the drug-addled Burning Man bohemian would plead guilty to possession, and, if he asked the right people, he could pull around behind the San Mateo County evidence locker at 2:00 a.m. and buy back his drugs by the light of the moon for a small “processing fee?.

But our “John? is not just any guy. Our John, as it turns out, is John Perry Barlow, former lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation.

And John seems to think that somewhere in the Constitution, it guarantees people the right to be “secure in their person and their possessions? and guarantees freedom from “unreasonable searches and seizures?.

I didn’t know any of this was going on, but I’d heard of the Electronic Frontier. I knew that they were on our side. They are big privacy rights advocates, so I count them among my friends. I knew about John Gilmore’s fight to travel anonymously chronicled on PapersPlease.org. I knew John Gilmore lived the in Bay area, and I’d actually emailed him and asked him out for a cup of coffee. He seemed like he would be an interesting character. But, I never heard back from him.

So, as I was wandering through the San Mateo Courthouse, I couldn’t help but notice that all of the news crews were set up to follow a trial. Initially, all I knew was that it was related to a search at the SFO airport where drugs were allegedly found.

I’ve always felt that the constitution is very clear. My position always has been that the government has no right to search people when they board planes. No right to disarm them. No rights what-so-ever. If you are afraid to fly with a planeload of armed passengers, then don’t fly. There’s a price to living in a free society, what price are you willing to pay? If the answer is nothing, you shouldn’t be here.

If the government is allowed to search us, disarm us, and stifle our speech at the airports, then why not at train stations, bus stations, state lines, Wal-marts, and our own homes?

I began to realize that I had a front-row seat to the Electronic Frontier taking on the TSA, the DEA, and the SFPD in one grand spectacle. The trial was too good to pass up.

Unfortunately, the judges have eviscerated the Ninth Amendment. They argue that the ninth amendment is, in essence, completely meaningless. The first, second, and fourth amendments are all subject to restrictions in the interest of national security. All judges kowtow to the outrageous, flagrant violations of the Constitution that have accumulated over the last few centuries. They rule by judicial fiat, creating law instead of interpreting it. Twisting the constitution to suit their ends. Ignoring it when it can’t be twisted far enough.

The trial was straight out of a Franz Kafka book. An Orwellian nightmare projected into the Post-9/11 Bay Area meat-space. The judge, although thoroughly versed in the law, showed a rabid contempt for the constitution. Nearly every time the defense attorney asked a witness a question, the prosecuting attorney would object due to “irrelevance?, “vague?, “misleading?, “heresay?.

The judge would just mumble “sustained? in all but the rarest of cases. When the defense attempted to question the TSA employee that searched the luggage, a U.S. attorney shrew would squeak out “objection of privilege?, meaning that, in the interest of national security, the TSA could not be scrutinized. Of course, this just lead to the judge bleating “sustained? ever more, until it became quite clear that, there was no real defense possible in this absurd situation.

In the end, the judge laughed and explained that he thought his decision was going to be much harder than it turned out to be in the end. After he finished laughing, he ruled that the Supreme Court has previously asserted that the government has the right to perform “administrative searches?, and that, if they find contraband or illicit substances during these searches, then they don’t have to ignore it and this is fairly well demonstrated by the “case law?.

That which we do not challenge, we legitimize. The truth is that (a) it’s none of my business what John Perry Barlow has in his suitcase and (b) I don’t really care what is in his suitcase. I don’t care if its full of shirts and socks or Semtex and coke. It’s none of my business, and its none of yours either.

If you think it is, then you are in the majority, I’m sure. But I can guarantee you this. Searching people will not make you any safer. It only makes you less free. If you allow it at the airports, it will spread like fire ants in the Deep South. Next, they’ll be searching you when you go into a mall, a Wal-Mart, and the dry-cleaners. Although, presumably, you want that. You don’t want to be in a mall with a person that might have a gun, do you? Or a bomb? Why are we letting people go into shopping malls without being searched? You’d better call your freaking congressman right now and demand that people be searched so that you’ll feel as safe in the malls as you do on the airplanes.

John Gillman, John Perry Barlow, and their attorneys are heroes. Heroes for having the courage to challenge the government and to take a stand in a seemingly futile attempt to protect the constitutional rights of all citizens.

Franz Kafka must be laughing his ass off somewhere, and if you haven’t read “The Trial?, about a man charged with a crime that is so secret, they can’t even tell him what he is charged with. So, he’s in the absurd position of attempting to defend himself, without knowing the crime for which he is charged. Only Kafka and Orwell could adequately prepare someone for a trial in today’s courts. Any study of the constitution is just an exercise in futility. It doesn’t pertain to us any more.

On December 15th, 2004, it wasn’t John Gillman, John Perry Barlow, and their attorneys that lost. We all lost. The constitution that we hand down to our children will be a meaningless artifact.

John Perry Barlow

John Gilmore





Posted by Peenie Wallie on December 17, 2004 at 10:56 PM