The members of the Hutaree militia who were arrested recently had “dark hearts and evil intent,” according to a government prosecutor. They are accused of conspiring to kill police officers and wage war against the U.S. government. They were collecting guns and explosives, but they hadn’t done anything, just talked about it. They were arrested on conspiracy charges.

According to U.S. law, conspiracy charges can be prosecuted without the suspect actually making efforts toward that goal. Some states make taking action toward the crime a prerequisite. Indiana’s laws states: “A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.”

The government has to be careful when it begins alleging conspiracy because that can be an umbrella term for anything the government wants it to mean.

U.S. law says this: “It is important to note that an actual crime is not necessary to prosecute a conspiracy case — only the stated intent to break the law.” In effect, this is prosecuting speech.

This is similar to the many terrorist arrests made since Sept. 11, 2001. In 2005, a group of men was arrested in Florida because, the government said, the men had designs on the destruction of the Sears Tower in Chicago. It didn’t matter that they didn’t have the funds to pull off such an intense act, but all they had to do was talk about it. Last year the ringleader got 13 years although the government wanted 70.

What the Hutaree members and the Florida conspirators had in common was a federal mole who infiltrated their groups. These are paid informants who lavish cash on the groups they enter, egg them on their destructive paths and keep giving them moral support when their spirits lag. The informants have a financial stake in making sure the feds can make a case. It’s insidious that a law-enforcement agency would pay people to ensure a crime is committed. Oftentimes, these infiltrators were actual FBI agents, which should mean that the FBI is complicit in the crime.

But none of that ever plays out in court where the focus is on the groups and their leaders and what they wanted to do.

Since Sept. 11, 2001, FBI radar has been fine-tuned to any supposed terrorist activity. In 2009, the Justice Department sent out fliers to local law enforcement agencies warning of a rise in militia and white supremacy groups of the kind that gave us Timothy McVeigh, who reduced the federal building in Oklahoma City to rubble in 1995. The Southern Poverty Law Center recently reported a 300 percent rise in what it calls hate groups since President Obama was elected. So it’s understandable that the government is edgy in these matters.

But there’s a loss of liberty in such sweeping law-enforcement efforts. The public never knows how much of these cases are actually based on evidence or prosecutor hyperbole, and convictions often rely on the latter. These cases — which punish thought and speech and association, all guaranteed by the Constitution — are a miscarriage of justice. There must be a better way.

There’s a loss of liberty in sweeping law enforcement efforts based on what is said and not what is done.

— The Herald Bulletin, Anderson, Ind.

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