Sasha Borissenko: How the law is catching up with America’s domestic terrorists


I vowed not to fall into the US politics vortex while New Zealand lawmakers were holidaying over January, but then Bernie Sanders became a “meme” overnight thanks to making a comical appearance at President Joe Biden’s inauguration. I am not sure whether it was the puffer jacket, the mask, or his cross-legged slumped-over stature, but amid a sea of fabulously dressed who’s who in the political zoo, he nevertheless stuck out like a sore thumb. So, without further ado, another legal update in US politics is in order:

Domestic terrorists going down

Thirty-three year-old Jacob Chansley – the face-painted, shirtless man who was wearing a furry hat with horns and sat in Mike Pence’s seat and left a threatening note inside the US Capitol Building on January 6 – has been charged with entering a restricted building without lawful authority, violent entry, and disorderly conduct on Capitol grounds.

The violence, which left five people dead, led to the impeachment of President Donald Trump by the House of Representatives on a charge of inciting an insurrection.

Protesters such as Chansley could face prison time thanks to a little-known 2003 piece of legislation that was brought to light by Trump, if you can believe it.

Passed in 2003 the Veterans’ Memorial Preservation Act states that a person who “willfully injures or destroys, or attempts to injure or destroy, any structure, plaque, statue, or other monument on public property commemorating the service of any person or persons in the armed forces of the United States shall be fined under this title, imprisoned not more than 10 years, or both”.

Ironically, in June last year, Trump cited the law decrying an attempt by demonstrators to remove a statue of Andrew Jackson following the brutal death of George Floyd. In a separate tweet, Trump warned such protesters: “Beware!”

Chansley is one of almost 200 people who have been charged by federal prosecutors in connection with the January 6 insurrection at the Capitol. The more serious charges range from theft of government property, conspiracy, assault on law enforcement, to interstate threats.

Absent among the charges are sedition or insurrection, which would have to be signed off from the new Biden administration officials.

What is sedition and insurrection?

Officials have also begun investigations into extremist groups that participated in what has been described as domestic terrorism. Under the Insurrection Act of 1807 presidents have the ability to deploy federal troops or the federalised National Guard in the US in special circumstances.

Like the Veterans’ Memorial Preservation Act, the Insurrection Act gained attention last year when Trump threatened to use it against Black Lives Matter protests in Washington.

The legislation was amended in 2006 to include other major domestic emergencies without a prior request from affected state or local governments.

Sedition, meanwhile, is a serious felony punishable by fines and up to 20 years in prison and it refers to the act of inciting revolt or violence against a lawful authority with the goal of destroying or overthrowing it. The Civil War-era law can be found in Title 18 of the US Code.

In order to get a conviction for seditious conspiracy, the government must prove that the defendant conspired to use force. Simply advocating for the use of force would be qualified as free speech, which is protected under the First Amendment of the US Constitution.

Sedition differs from treason insofar as sedition is the act of inciting rebellion whereas treason is the act of actively levying war against a state. In 1937 for example, Puerto Rican nationalist Pedro Albizu Campos along with nine others were convicted and jailed for 10 years after conspiring to overthrow the US in order to assert their independence.

End of an era for private prisons

On a brighter note, last week President Joe Biden ordered the Department of Justice to end its reliance on private prisons, while acknowledging the central role the government has played in implementing discriminatory housing policies.

The order to end privately run prisons directs the attorney general not to renew Justice Department contracts with privately operated detention facilities. The move effectively reverts the Justice Department to the same position it held during the Obama administration.

Closer to home, last week also saw charges being laid against seventeen men following an uprising at Waikeria prison from December 29 to January 3. They have been accused of deliberately starting a fire, which carries a maximum 14-year jail term.

The riot shone a light on the poor conditions in New Zealand prisons and the maltreatment of prisoners.

A 2020 report by Chief Ombudsman Peter Boshier found conditions to be poor, and units had little natural light, poor ventilation, and were too small. Levels of violence were high and accounted for 22 per cent of all incidents over a 12-month period.

Access to justice report findings

Tangentially, the Law Society has released a report into access to justice issues in Aotearoa. The report aimed to build a picture of the range of access to justice initiatives across the country and respondents included a specialist groups of lawyers, community-based organisations, government officials and interested individuals.

Sixty-three per cent of respondents experienced a legal problem in the last two years, 37 per cent concerned community and natural resources issues and 28 per cent related to housing. In terms of legal capability 72 per cent knew where to get advice and information and 32 per cent of respondents were able to access help of some kind.

Of those who experienced hardship (46 per cent), health was the major factor where 36 per cent of the 46 per cent experienced physical or stress-related illness, and 24 per cent experienced loss of income, employment, or the need to relocate.

For those who experienced a legal issue in the last two years 55 per cent found the process was fair, regardless of the outcome; 11 per cent said it was difficult or nearly impossible to find money required to solve the problem; and on average, it took respondents 7.8 months to solve the problem.

Where to from here? Time, cost, and stress are still the major issues in a legal context and it’s a matter of wait-and-see to see if new Justice Minister Kris Faafoi can deliver.

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