RICO, the Racketeer Influenced and Corrupt Organizations Act
was developed in the early 1970's and was used to take down large sections of
the Mafia and other criminal organisations.
It was a new way of prosecuting crime and its advocates spent
the better part of the 1970's trying to teach prosecutors and district attorneys
how to use it. Now well known figures such as Rudy Giuliani and Michael
Chertoff more or less rode the RICO wave into celebrity and politics. From the
mafia to Wall Street, RICO was used to take down syndicates whether real or
perceived.
It was counterintuitive to previous understandings of
Constitutional law. It had a new way of approaching evidence, warrants,
searches and seizures and due process. Investigations and indictments could be
rooted in circumstantial evidence and hearsay. Warrants could be conducted on
an exploratory basis and as a result presumption of innocence began to grow
rather murky. Habeas corpus issues were clouded. Additionally the plea bargain
system muddied the waters of due process, a right to trial by jury of one's
peers. The plea bargain system has been criticised by many advocates of due
process but when coupled with RICO, some have described the new way of
approaching criminal prosecution as akin to blackmail.
Basically organised crime operates as a vast criminal
conspiracy. The people atop the pyramid don't actually commit the crimes and
due to omerta and other codes of
silence the enforcers and trigger men would never give up the bosses. Law
enforcement knew there was an organisation and could more or less figure out
what was happening but without testifying witnesses they had no legal means to
pursue the men at the top. RICO changed that because it established a principle
and precedent of guilt by association. If you could be demonstrated to be part
of a criminal organisation you could be prosecuted for its crimes.
A lot of civil rights advocates cried foul but in this post
9/11 era only a small minority continue to do so. At the time they argued that
RICO violated the Constitution and represented a power-grab on the part of law
enforcement. But its advocates won the day because they started arresting the
mob bosses and it created good press. At the end of the day the public likes to
see big criminals taken down... never mind that the process for doing so
establishes a dangerous precedent and destroys the system of checks and
balances, not to mention the foundational concepts which undergird the Bill of
Rights.
At the time there was a fear that RICO would be used to break
organised labour as indeed it is a type of conspiracy. While the fears were not
entirely unfounded, the labour movement was eventually broken through other
means... ironically though conspiracies hatched by the corporate sector in
which labour leaders were corrupted and brought into the corporate structure
and thus ultimately became not representatives of the workers or even
middle-men but paid negotiators invested in the corporate structure itself.
Donald Trump used RICO back in the day to force through his
gentrification plans in New York. When tenants tried to band together and
organise to oppose his attempts to force them out, he used RICO to file
lawsuits against them.
RICO as feared, has continued to creep. People are caught in
the RICO drag net and then after being exonerated from guilt in a RICO style
conspiracy are nevertheless prosecuted for crimes and evidence discovered on an
exploratory basis. So much for specific warrant practices and the idea that law
enforcement is held accountable to and in check by the judiciary.
It now is used in prosecuting terrorists although that debate
has been sidetracked by the 'enemy combatant' approach used by the Bush
administration which left suspects in the hands of the extra-Constitutional
(UCMJ governed) military legal system and thus beyond the purview of domestic
courts. Nevertheless the terrorist angle has opened additional doors concerning
the use of RICO outside US domestic territory. If RICO violations can be
established via less than legal means outside the US, can that 'evidence' be
used in US domestic courts? What was once a heated debate is now becoming
established law. RICO was revolutionary and yet it was given a serious shot in
the arm by the Patriot Act and the various legislative changes which took place
in the aftermath of 9/11. This is but another aspect of the radical social and
legislative revolution that took place in light of that unfortunate day...
changes the public missed as everyone was captivated by terror threats, a new
cycle of wars and the host of tech gadgets which were unveiled right around the
same period.
RICO can also be used to flood or overwhelm a target. Through
'associations' a person can face not just a few indictments but dozens. Under
such a deluge the person is left with few options. The legal costs are
potentially beyond the pale and facing dozens of charges and centuries in
prison the 'plea deal' presented by the state leaves the indicted with little
hope or little choice. Once they cut a deal, even if it results in a minimal or
token sentence, 'guilt' is established and the DA and law enforcement get a
feather in their cap. Justice, truth, public service and regard for the law
have nothing to do with it.
Again, Rudy Giuliani comes to mind. He is but a public face
of a new ethos that took over law enforcement and governance in the 1970's.
These people care nothing about the law or justice. What they care about is
power and defending a system, an order. The late Supreme Court Justice Robert
Jackson's quote comes to mind:
“Any prosecutor who risks his
day-to-day professional name for fair dealing to build up statistics of success
has a perverted sense of practical values as well as defects of character.”
And yet I think it's naive to think that men like Giuliani
are merely pursuing their own success. They would not have been able to
transform law enforcement on their own. They would not have been able to launch
the RICO revolution without significant political backing. And so that tells us
that it's not just zealous careerists and bureaucrats seeking to climb the
ladder. Rather there are mandarins and praetorians who stand behind them and
believe in the power and functionality of RICO. These people are in all
actuality deeply opposed to the US Constitution and the value system it
purports to represent. They pay it lip service to be sure but they don't
actually believe in its values and they certainly reject its universal claims. There
is something very subversive and anti-democratic about this approach to law and
justice and once again I assert its true colours were properly revealed after
the great coup which accompanied (and perhaps was) 9/11.*
And now RICO is being turned against the Catholic Church. As
the National Catholic Register article points out, this isn't new but then
again we're in a new era. We have entered a period of Neo-McCarthyism in which
the opponents of sodomy, feminism and the established political order are
accused of treason, collusion with America's enemies, sexual criminality,
immorality and hate leading to terrorism.
And yet when it comes to using RICO to take down the Catholic
hierarchy who would be against it? Criticism is tantamount to defending
paedophilia. Using RICO they're going to take down the 'bosses', the bishops
and high ranking clerics who protected the system and allowed the child
molesters to escape punishment. The Catholic Church will be treated in the same
fashion as the mafia and al Qaeda.
In reality and despite the hype, many of the prosecutions
will fall under civil as opposed to criminal classification. There will be vast
payouts for the lawyers and while civil convictions are not as glamorous for the
prosecutors, the vast 'take down' allows them their press. The Pennsylvania
Grand Jury Report made Pennsylvania Attorney General Josh Shapiro famous but
will actually result in very few indictments. There will be lawsuits but no one
going to jail. The New York Child Victims Act which generated a lot of desired
press for governor Cuomo in actuality will result in very few criminal
prosecutions. It gives teeth to civil lawsuits which are cash cows for the
lawyers but aside from bleeding institutions dry (and driving them into
bankruptcy) it does nothing to establish justice in society or truly hold
people accountable for their crimes. Undoubtedly many of these lawsuits will
rely on the RICO framework and I suppose it's possible some advocates of RICO
would (or could) argue this represents an abuse of the statute.
But these things never remain static, do they?
There's an irony to this and I hardly find the equation of
the Roman Catholic organisation with La Cosa Nostra or al Qaeda to be offensive
and yet there's little to cause celebrate either. We would be foolish to think
this won't later be expanded and applied to internet chat rooms associated with
'criminality', whatever that happens to mean at the given moment. In 2015 under Obama, RICO was expanded to the
realm of cybercrime but as this area of jurisprudence is still developing, its
exact course isn't entirely clear. But the groundwork has already been laid.
Obama tried to create a separate government agency to regulate cyberspace
security (which includes the incorporation of RICO statutes) but under Trump
the responsibility has been handed over to the office of the National Security
Advisor. How RICO would work under the auspices of the National Security
Council has yet to be seen.**
You might belong to an online group and one of your members
shoots up a store... and the police are suddenly knocking at your door, not to
investigate but to detain you and threaten you with an indictment unless you
start talking. The possibilities are almost endless. Right now the focus is on
fraud and data theft and yet if RICO is being invoked in those categories it's
no great leap to imagine a DA finding 'guilt by association' when it comes to a
wide array of crimes.
It certainly makes you want to stay away from certain
websites and online discussions. Isn't this also part of how this clampdown works?
Fear can squelch a lot of speech and even a lot of curiosity. Self-Censorship
can become a powerful tool as anyone living in an authoritarian state will tell
you.
In the 1990's there was a detective-thriller movie called
Seven (or Se7en) in which the detectives are pursuing a serial killer. I cannot
recommend it but I remembered a scene and dug it up online. Frustrated by their
inability to locate the killer they use an FBI database tool to investigate who
has checked out certain library materials connected to clues they possess. They
came up with names, one of which happens to be the killer, though of course
they don't know that. While knocking at the door the killer happens to be
returning home. Seeing the detectives at his door he opens fire but
subsequently escapes. The subordinate detective wants to enter the now vacated
apartment. They know they have their man. The lead detective insists they
cannot because they have no warrant and no grounds for one. The only reason
they knocked at the door was because they used an illegal fishing tool and
happened to get lucky. The case would be thrown out due to a violation of due
process. The subordinate detective kicks the door in and then subsequently pays
off a street person to provide some false testimony that gave the detectives a
cover of probable cause for entering
the apartment. To me it wasn't controversial. That's how the police do things.
Frustrated by Constitutional limitations (the law) they (law enforcement) frequently
find work-arounds and loopholes.
But in 2019, the whole discussion is outdated. Now, with
mobile stingrays, facial recognition, data mining, the Patriot Act, and the
still grey areas surrounding law enforcement use of the Internet, the officers
would have little to fear. The police pursue such exploratory and investigative
warrantless searches on a regular basis. Because of the Patriot Act, the new
technology and RICO... the 4th Amendment (among others) is
effectively dead.
Another tool utilised by law enforcement in conjunction with
RICO was the witness protection program or WITSEC. This combined with an
expansion of the plea bargain system allowed prosecutors to put the pressure
(which again some consider to be blackmail) on lower level members of a
conspiracy or racket. If they informed on their bosses they could receive a
lighter sentence or even immunity. If the prize was big enough and the stakes
high enough the state could (as a reward) give them a new identity and a
lifetime income with law enforcement protection.
The RICO debate has fascinated me for a long time and yet
I've always shared in the concern that it would migrate into other areas of
law. My concerns are not rooted in the integrity of the farcical US Constitutional
system but in practical concerns surrounding Christian life and the life of the
Church.
For example what if a group of believers decide not to
register their congregation with the state? Such activities already might call
the attention of the IRS and yet if someone in the congregation is linked to
something as simple as a controversial website, RICO could be used (Beijing
style) to go after the entire congregation. What if Christians were running an
underground press and didn't pursue the various licenses required to run a
business? What if a disgruntled congregant brings up charges of abuse against
members of a congregation? It wouldn't be hard to imagine how the leaders and
fellow members of the congregation could be tied into an indictment, especially
if that congregation is 'off the radar'. I know many would at this point push
for registration, non-profit status, background clearances and the whole nine
yards and yet those that advocate this position are misguided. Not only have
they greatly erred in allowing the world to dictate policy and polity to the
Church, they are also deluded in thinking such safeguards will protect them.
It's one thing to meet legal requirements in our business and financial lives
but the state has no jurisdiction when it comes to the Church. The only power
the state has over the Church is what the Church is willing to give it...
usually as a trade-off for some kind of benefit. In the case of the American
Church it's pretty basic and hardly surprising... it's mammon.
And in the end it is that very love of money that will
corrupt and take down the American Church. Unless Christians learn to reject
its enticements, they will never be able to live as nonconformists.
In the meantime we need to watch these legal developments.
We're not going to change them. Even those trying to are running into brick
walls. The course of this society has effectively been set as has its doom. But
it would behoove us to understand it and have some discernment. For indeed
there are literally a legion of false and compromised teachers within the
Church whose very inclinations and instincts, let alone their principles are
certain to lead the Church astray. From lawsuits, to the endorsement of violence,
to flagrant criminality, the responses of the Church to wrongs and abuses span
the full spectrum. And yet at some level these ecclesiastical entities endorse
the state and have allies within it, and thus a degree of protection.
But dissident institutions will be marked out by the state. I
suppose the one hope the Dominionist movement has is to capture the state
apparatus. At that point they will happily wield its sword and use RICO and
other legal tools to pursue and destroy their enemies. We're already surrounded
by false teachers who lavish praise on law enforcement and the military. They
pretend to hate statism even while they promote it in the most gross and idolatrous
fashion.
The liberal order is dead and while I do not weep its passing
it does mean trouble. The Biblically faithful are going to receive it from
either side. Don't think for a moment that the Dominionists and would-be
theocrats are going to allow dissident voices, worship, education or economies
to function if they ever achieve their dream of political control. An
inquisition would be established and in the end the persecution at the hands of
the dominionists is likely to equal if not exceed what we (Biblical
non-conformist Christians) will face from the secular materialists.
RICO was and is a pernicious project and legislative
framework. The ends do not justify the means. It is a case of let us do evil that good may come... and
do we even really get any 'good' out of such endeavours?
It goes without saying that Christians should have nothing to
do with this system. Its development can be traced and in some respects its
manifestation shouldn't surprise us but we shouldn't utilise it, support it, exploit
it or champion it. It's best to keep your distance from law enforcement and the
judicial system. Don't call them. Don't use their services. Don't look to them
for justice. Don't use the courts. Don't call on the state to use the sword to
get you what's yours, to protect what's yours or to punish others who have
harmed you. Live by faith and live as a dissident subject or second class
citizen. We can operate within the framework of the law. It's their system,
their coin. We don't have to live in the hills or the forest. But at the same
time living as second class citizens means we forego rights, privileges,
benefits and power. We must necessarily lead stripped down and very simple lives.
But that's not a problem as we're a pilgrim people in the service of an eternal
Kingdom. Let the dead bury their dead. They have nothing for us anyway. They
have nothing we want. They cannot entice us.
Can we really say that? Only then can we live with courage. We
needn't fear RICO and the forces which would use such pernicious and
manipulative laws. But we're fools if we bury our heads in the sand. The
culture is changing. The Church is changing. We need to be vigilant.
------------------------
*It's a discussion beyond the scope of this
piece but there's a deep history regarding this issue, one that extends back to
at least the early 20th century and the polarity brought about by
the rise of Communism. The Palmer Raids, the rise of Fascism and the events
preceding and subsequent to World War II all play a part.
**It seems hard to imagine that JSOC will start kicking in
doors in American neighbourhoods, but after the extra-Constitutional 'Kill
List' of the Obama era, who can say? Many commented on the 'manhunt' and
effective martial law episode in response to the Boston Marathon Bombing in
2013. This was followed by Pentagon directives (built on the foundations of the
War on Drugs and 9/11 legislation)
which effectively end Posse Comitatus. Of
course there have been many violations since 9/11 and the public for the most
part celebrates it.
I recall watching 1991's Year
of the Gun in which an American arrives in Italy during the Years of Lead and
is disturbed by the military presence and the heavy armament of the Carabinieri
(National Police). I chuckled because it was much the same when I arrived there
in 1995. Americans didn't like seeing that kind of militarisation on display in
the streets. But of course after 9/11 everything changed and now such displays
are welcomed, even lauded.