Blood and Politics (28 page)

But in fact the group known as The Order had stopped operating after the arrest and imprisonment of its original members. Only its mythos lived on in movement minds.

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Go back to 1982 and 1983, when Robert Miles and Louis Beam first articulated a strategy for creating a secretive underground. They argued for two complementary organizational forms: leaderless resistance and a weblike structure of clandestine cells. Beam had signed his name to the leaderless resistance manifesto in 1983. Clandestine groups should be small, he wrote, without any direct organizational contact with any other cells. These unconnected cells would follow common leadership with a common ideology, rather than a specific group of individual commanders. In a slightly different mode, Miles had argued that clandestine warriors should be completely separated from public activities, which he labeled “theater.” As discussed earlier, Miles prescribed an underground without a single leadership but “horizontally” constructed through a series of interconnected cells operating like a web.

FBI documents, by contrast, conceptualized the Aryan underground as a pyramid, a more traditional vertical organizational model for clandestine structures. In this construct, a person or persons at the top commanded the troops at the bottom through a series of vertically connected links. The FBI theory was understandable, given that Robert Mathews tended to operate The Order like a pyramid in which he gave all the instructions.
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But the violent underground as a whole functioned more like the web prescribed by Miles and Beam. Because of this difference between the FBI’s concept and the way events actually transpired, the prosecution failed to understand the essential roles played by each of its central defendants—Richard Butler, Louis Beam, and Robert Miles—and thus could not satisfactorily explain them to a jury.

Several problems also existed with the legal case itself. Many of the overt acts cited were the same crimes for which twenty-two of The Order’s warriors had already been convicted in 1985. At that trial in Seattle, the Justice Department had contended that these robberies, etc., were part of a racketeering enterprise—that is, a business that engaged in organized crime. Now at Fort Smith the same crimes were considered instead part of a plan to overthrow the government. And five of those charged with seditious conspiracy were already serving long sentences for racketeering. Several of the defendants believed the government charged them twice for the same set of crimes. Technically, no double jeopardy existed, since the charges in Fort Smith were different from those prosecuted in Seattle. But to potential jury members, it might look as if government prosecutors were overreaching. The most vulnerable spot in the prosecutorial edifice, however, was the charge of seditious conspiracy itself.

.   .   .

According to the United States criminal code, a seditious conspiracy occurs when two or more people plan or “conspire” to overthrow or destroy the government by force. Other clauses prohibit levying war against the government or hindering the execution of its laws.
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A key element is “force.” To violate this anticonspiracy law, however, no overt acts, such as killing a judge and robbing a bank, need actually be taken. It is necessary only to make an agreement or cook up a plot specific enough from which an overt act can ensue. Although the statute claims to distinguish between seditious conspiracy violations on one side and activities protected by the First Amendment on the other, the thin line has tended to disappear during the course of American history.

During World War One about two thousand cases were filed under a complex of laws designed to limit wartime dissent.
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A Sedition Act passed in 1918 criminalized virtually any criticism of the government, according to the respected legal encyclopedia
American Jurisprudence
.
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These laws were aimed specifically at those who opposed the war and were enforced against labor radicals and socialists of various stripes. Today it would seem natural that these same activities would be protected by the First Amendment, even if the Sedition Law had not been repealed in 1921.
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And the attorney general acknowledged the unjust character of these prosecutions in 1924.
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World War Two engendered questionable prosecutions based on the antiseditious conspiracy law passed in 1940 and known as the Smith Act.
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As originally written and enforced, the Smith Act was as broadly constructed as its 1918 antecedent. It criminalized “teaching” or “advocating” the overthrow of the U.S. government and didn’t require even the intimation of an overt act for a conviction. In 1942 its first victims were leaders of a communist splinter group opposed to the official Communist Party.
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That same year the Justice Department charged a group of Nazi sympathizers and isolationists.

The latter indictment generated intense opposition from isolationists, racists, and anti-Semites in Congress and was dismissed by the court. John Rankin, a segregationist congressman from Mississippi who later opposed the GI Bill of Rights because it would assist black veterans returning from World War Two,
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was a typical opponent. Rankin read the indictment into the
Congressional Record
and concluded:

Mr. Speaker, I hesitate to use the word Jew in any speech in this House for whenever I do a little group of Communistic Jews howl to high heaven. They seem to think it is all right for them to abuse gentiles and
to stir up race trouble but when you refer to one of them they cry “anti-Semitism,” or accuse you of being pro-Nazi.

Read this indictment and then read it again and ask yourself if the white gentiles of this country have any rights left that the Department of Justice is bound to respect.
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This indictment was dropped, and a second set of charges was thrown out by the courts in 1943. Finally, in January 1944, thirty people were charged under the Smith Act; twenty-eight went to trial in
United States v. McWilliams
. Those indicted included most (but not all) of the leadership of the prewar far right. Among them were the leader of a uniformed group known as the Silver Shirts, William Dudley Pelley; a fundamentalist minister from Kansas, Reverend Gerald Winrod; a Harvard-educated former Diplomatic Service employee, Lawrence Dennis; and a German American Bund miniführer, August Klapprott (a somewhat dignified bunch, none apparently attracted to the far right because of economic distress).

The trial itself was a drawn-out ferocious affair, beginning with a monthlong fight over jury selection. The prosecution introduced volumes of evidence confirming the defendants’ Naziesque sympathies and beliefs, but little evidence of direct collaboration with Germany or Italy once the war started. The defendants challenged the prosecution at every turn, sometimes transforming the courtroom into a circus of contempt and calumny. But the evidence was never fully adjudicated. The trial ended abruptly after eight months, in November 1944, when the judge suddenly died.
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The Roosevelt and then the Truman administrations let the case drop, and there were no other sedition-related charges brought against the far right until Fort Smith. Nevertheless, the aborted trial effectively sprayed the Silver Shirts and Bund with the smell of treason. It also blunted the effective menace of America first–style isolationism for almost forty-five years.

After World War Two, the Cold War and McCarthyite fevers sent federal prosecutors after the far left. Twelve leaders of the Communist Party were indicted under the Smith Act in 1948. Remember that the Smith Act outlawed teaching and advocacy but did not require even the beginnings of a plot to overthrow the government. Little evidence was needed of any overt acts. Most of the prosecutor’s case rested on a recitation of communist doctrine. Eleven were convicted.

In 1951 a majority of the Supreme Court declared these convictions constitutional, although Justice William O. Douglas’s dissent remains instructive: “The vice of treating speech as the equivalent of overt acts
of a treasonable or seditious character is emphasized by a concurring opinion . . . The doctrine of conspiracy has served divers and oppressive purposes and in its broad reaches can be made to do great evil. But never until today has anyone seriously thought that the ancient law of conspiracy could constitutionally be used to turn speech into seditious conduct. Yet that is precisely what is suggested.”
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Despite Douglas’s warning, 160 communists were indicted under the Smith Act, and most were convicted. The Supreme Court voided several of these convictions on technical grounds after McCarthyite temperatures cooled. Eventually the Smith Act went into judicial mothballs.
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Instead of the Smith Act, federal prosecutors began using a statute against seditious conspiracy descended from the Civil War era, Title 18 Section 2384. After Puerto Rican nationalist and
independista
Lolita Lebrón and three of her comrades fired pistols into a 1954 session of Congress, Lebrón and seventeen other Puerto Ricans were indicted under Section 2384.
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They were quickly convicted. That case,
United States v. Lebrón
, became the legal model used by Reagan administration officials in several cases during the 1980s.

Two of those cases were against Puerto Rican independistas deemed soldiers in the Fuerzas Armadas de Liberación National (FALN). They were charged with 120 bombings between 1973 and 1983 and seditious conspiracy, and sixteen of the seventeen defendants were found guilty.
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A third case was prosecuted against a mostly white group of anti-imperialists calling themselves the United Freedom Front. They were charged with ten bank robberies and fifteen bombings of targets they believed supported the apartheid regime in South Africa. One black member of the group pleaded guilty. One white woman was convicted in a separate trial. The remaining six whites were either acquitted or had their sedition charges dismissed, although most all were sentenced to long terms on racketeering and other more distinctly criminal charges.
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At Fort Smith the requisite memorandum filed by prosecutors prior to trial cited the statutes used against Lolita Lebrón in 1955 as the legal basis for their current case. “In this instance we anticipate that the government’s case will precisely parallel these prior prosecutions,” the U.S. attorney wrote. They argued that they would need to introduce evidence of the defendants’ beliefs because “these cases recognize that there is a strong ideological element to any seditious conspiracy. Typically, the defendants in a sedition prosecution are driven to desperate, violent acts by violently held political convictions.”
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At the broadest nonideological level, Robert Miles, Richard Butler, and Louis Beam had expressed no more loyalty to the U.S. government
than had Lolita Lebrón. By the Aryans’ account, the government administered a multiracial state and that multiracial state was anathema to their white nation. Miles and the others had long called it a Zionist Occupied Government. Butler’s most overused phrase was that his “race was his nation.” Beam had many times declared his intention to spill blood in a new war against the state. But Lebrón’s loyalty had been to the independent island nation of Puerto Rico, which had been seized by the United States military in its war with Spain in 1898. The white nation of Aryan imagination, on the other hand, was dredged out of a past filled with slavery and genocide.
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Distinctions such as these did not have the power of law in federal court, however. When the U.S. attorney began his case in Fort Smith, American courts had a history of convicting dozens of Puerto Ricans and communists for seditious conspiracy, but not one white supremacist or Nazi.

February 16, 1988.
On Saturday, two days before the seditious conspiracy trial began, two hundred men and a few women paraded through downtown Fort Smith. They carried homemade signs.
FREE AMERICA, FREE SPEECH, FREE MILES BUTLER & BEAM
, typified the placards.
CITIZENS AGAINST SEDITION LAWS
and
SEDITION LAWS ARE UNCONSTITUTIONAL
made the same point. The usual Klan robes, swastika armbands and Hitler paraphernalia had been left at home. A half dozen Klansmen wore white power T-shirts under their jackets, however, and a skinhead crew from Dallas didn’t completely conform to the Middle American dress code. At the front, five men marched with a twenty-five-foot banner reading
REPEAL THE ANTI–FREE SPEECH SEDITION LAW
. A hammer and sickle logo was pictured on one side of the slogan, and a Star of David on the other side, a set of symbols designed to show that Jews and communists were behind the charges against the Aryans. Thom Robb in suit and tie dominated the speakers’ platform. After taking over the leadership of the Knights of the Ku Klux Klan, Robb had adopted Aryan Nations’ call for creating a Northwest Aryan Republic. However, while one of his lieutenants, Kim Badynski, moved from Illinois to Washington State, Robb and the rest of his klaverns stayed safely tucked away in the South and Midwest. As the trial neared, Robb had made it appear as if he would be Richard Butler’s successor. Robb focused his remarks that day on the First Amendment rights of the three principal defendants. Betty Butler and Dorothy Miles, the defendants’ wives, stood stoically nearby while six stern men with plywood shields guarded them. Only Badynski didn’t understand the theater being staged. He made his speech while wearing a white construction hard hat with a clear plastic drop-down visor.
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Curious local residents watched silently from the sidelines, but none stood up to denounce the white supremacist display. That had not been the case during fifteen rallies Robb’s Knights of the Ku Klux Klan held in the squares of towns within the orbit of Fort Smith’s potential jury pool during January 1988, the month before the trial began.
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