In one of the more memorable passages in Orwell’s 1984, Winston Smith contemplates the inevitable doom that will follow from the first entry which he is preparing to make in his diary. The act was not illegal, he reflected — there were no laws in Oceania — but its discovery would nevertheless result in ten years in a forced labor camp.
If your tastes tend more to the lowbrow, there’s that great line from National Lampoon’s “Vacation”: “It ain’t illegal. Hell, I oughta know — I’m the sheriff!”
We see an increasing number of instances in the United States and the “Free World” in which citizens can be punished without any specific legal pretext.
To take one example which has been around for a while, there is no written law against carrying large amounts of cash on one’s person, nor any specific statutory definition of the threshold at which the amount of money one carries becomes a criminal offense. Nevertheless, anyone stopped by a police officer and found to be carrying thousands of dollars in cash will be presumed a drug trafficker of some sort, and their money seized according to the usual procedure of “civil forfeiture.”
When ballot measures to decriminalize or liberalize marijuana laws clear all the hurdles and are voted into law, as often or not the cops just quietly ignore them. For example, last October Los Angeles County, California Sheriff Lee Baca baldly stated that he would continue to arrest pot users even if Proposition 19 (which would have legalized it) passed. Baca’s “argument” was that it is still criminalized by federal statute, and that federal law supersedes state law.
Even as explained by the state’s own pet jurists, of course, this was utter nonsense. The functionaries of a state are not bound to enforce federal law. The practical effect of a measure legalizing pot, had it passed, would simply have been to tell the feds to enforce their own law. It would have withdrawn California’s state and local cops from the enforcement effort and dismantled the whole apparatus of interjurisdictional drug task forces. But none of that matters. Because if a cop wants to enforce a “law” badly enough, he’ll make one up.
Just about every week, Radley Balko reports on someone being arrested for filming cops, on the pretext that they’re “hindering apprehension,” “interfering with police business,” or “violating the wiretap laws,” or some such bull-hockey. Never mind that there’s no actual law criminalizing the act of recording public functionaries performing public duties in a public place, or that there’s even a law on the books specifically exempting such activity from the wiretap statutes.
If you’re willing to fight it out before judges or police commissioners, for weeks or months, you may or may not get a decision overruling the cop’s actions. But in the meantime you’ve had your camera (and maybe your nose) smashed, spent time in a holding cell, had your name dragged through the dirt, and maybe lost your job. And meanwhile, the cops just keep on doing it anyway. I mean, seriously, they can kill innocent people and wind up on paid administrative leave pending a wrist-slap, so how worried do you think they are about breaking a camera and roughing up some dirty effing hippie?
As I write, functionaries within the US national security apparatus are busily looking for any pretext on which Julian Assange — an Australian citizen — can be extradited from the United Kingdom. All three are ostensibly countries which share the common law tradition’s procedural protections of the accused, and which pay a great deal of lip service to the “rule of law.”
Yet nobody can state, in anything resembling clear terms, a plausible explanation of just what law Assange is supposed to have violated. Treason? He’s not a U.S. citizen. Espionage? If publishing classified documents leaked by someone else is a crime, please explain the difference between Wikileaks’ publication of the leaked diplomatic cables and the New York Times’ publication of the Pentagon Papers. So far they’ve failed to torture Bradley Manning into testifying that Assange suborned the leaked documents from him.
But if one expedient doesn’t work, they’ll try something else. The law doesn’t really matter. If the spooks, cops and prosecutors want to get somebody bad enough, they’ll come up with a bespoke “law” tailored to their needs. The custom manufacture of pretexts is a cottage industry for them.
In practice, the law is whatever they say it is.