__PCU //\_Free Assembly Project____
St.Louis MO – www.Free-Assembly.org
_//\_________________________an Association of Volunteers__/
April 2013
ON GATHERINGS, GUVMINT VIBES & CAFE VOODOO
~ a strategic essay on the jawbone rights of Rainbows
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– I –
Following this discourse over recent weeks, it’s striking that so much is too familiar, “deja vu all over again”, iike Yogi Berra said: We are still arguing about permits & harassles and pleading for rights, facing the same clash of paradigms on the nature of assembly and the surmised “Rainbow Family, Inc.” with de facto leaders & agents, the same ignorance cloaked in policy.
This Spring it will be 25 years since the big Showdown in Texas, when the Feds sued the alleged ‘Rainbow Family’ to stop the 1988 Gathering, and the venerable Judge Justice found their actions unlawful and their permit rules unconstitutional. It will be 20 years since Thomas of Peace Park sent out word on the new proposed FS Regs, and hundreds of hippies converged in DC to commence this permit fight with demonstrations, petitions, NGO outreach and a Congressional lobby. And about 15 years ago we had live cases in Oregon, Vermont, Arizona, Florida, Wisconsin, and 2 in Missouri, fighting permits & roadblocks with legal theories in crossfires, trying to get lawyers to think.
We are still squawking and pontificatiing on these issues because we have not prevailed on them decisively in court. We’re not wrong, just not strong — so the Feds are still riding the full authorities of the Noncommercial Group Use regulation, and profiling ‘Rainbows’ in targeted enforcement schemes with presumed impunity. Any concessions they make are purely discretionary, and can be withdrawn at any time, but these days it serves their interests to avoid confrontations. There may be some healthy motives in this, but ultimately it’s to keep these authorities in-place. I think it’s because they know we’re right, and if it comes to a real legal fight on fair turf, they know they would lose.
And once again ‘Rainbow’ goodwill comes forth, you nice folks showing laudible commitment to peaceful and humane solutions, seeking accommodation. Yes, it is a virtue to cooperate with public officials in the shared mission of protecting people & land — but understand the crux of this exchange, and the cross-purposes: However smiley & personal it seems, officials are there in an official capacity, so any casual parley becomes ‘official’ as well… and their disputed powers are still in play, so you are negotiating from weakness with Federal Honchos vested in maintaining them.
You may earnestly hope to soften USFS policies, and believe you’re in a real conversation on equal footing… in truth they may disclaim some tactical extremes but concede nothing of strategic importance, and you are getting schmoozed out of your shoes.
– II –
It’s interesting that the prime Fed player in these early rounds of ‘Rainbow’ powwows is Jonathan Herrick, “Special Agent in Charge” – Northern Region, U.S.F.S.” This a bit of a misnomer, because he’s really head of “L.E.I.” (Law Enforcement & Investigations), the federal police agency attached (like a tumor) to the civilian Forest Service — not the same thing. Herrick is the latest ambitious young honkie hero to rise in the ranks of LEI and cross the path of the Gatherings. He seeks favor and touts his Master’s thesis on bringing ‘community-oriented policing’ (“COP”) to the National Forests; there is merit to this idea, and maybe some professional integrity behind it.
Just understand this as a theory of police methods, all about ingratiating with citizens in the purposes of enforcement. As applied to First Amendment exercise, it means insinuating into ciitizens’ expressive purposes to the same ends. The intent of LEI toward the Gatherings is still control & compliance, per recent FOIA disclosures… Herrick might be just like a nice guy, but that’s his real job.
And as the Regional top cop he’s still the main link in the Incident Command chain, under the new “Dual-IC” scheme adopted in NM-2009 and perfected in PA-2010:
Previously the “Delegation of Authority” went from the Forest Supervisor to the Incident Commander, a U.S. Special Agent sent from the Washington Office. Now two Delegations come down from the Regional Office — from the Regional Forester to a local USFS ‘Line Officer’ (District Ranger, etc.) -AND- from the Regional S.A.I.C. to an LEI Special Agent from Washington. For years we condemned the takeover of civilian powers by a singular police IC; now ostensibly the 2 co-IC’s represent the parallel jurisdictions of Foresters and Cops in the woods — not the way Congress wrote it, but the way Homeland Security wants it. The Regional offices were bypassed before… now they are yoked into the ‘Incident’ business, as it is institutionalized at that level with 2 distinct chains of command.
This creates an appearance of balance to placate FS ‘Resource’ personnel and their public fans, but it doesn’t really work that way: Rainbow Gatherings are deemed “Law Enforcement Incidents”, by hidden fiat; the Feds have never disclosed the factual or legal grounds for this designation, or where the decision is made, but it changes everything::: As a standing poiicy, this 1st Amendment exercise is treated as an ‘Emergency’ situation, triggering a delegation of powers to an IC in a “unified command” scheme, with LEI as the lead agency in this type of “Incident” on National Forest lands.
So despite appearances, the Foresters are still working for the Cops, on their mandate: LEO’s comprise the main body of the “Incident Team”, and the authorities of the Forest Service and other participating agencies are ‘piggybacked’ by proxy under the IC — making them all enforceable in the guise of interagency cooperation and efficient response to the (manufactured) crisis.
You may try to engage with ‘Resource’ staff on site issues, and it’s the right thing to do — but it’s not their game: They are also being subjected to the Incident regime, and being used by it.
-III-
Two Big Problems, right away: (1) Speech is not supposed to be an Emergency in America, nor a circular pretext to alter powers or abridge rights. (2) Cops are not supposed to run public policy at all, nor are they fit for the task, but they are doing it anyway.
Understand the full impact of the Incident Command scheme in this light. By defining a public gathering as an ‘Emergency’ in official channels, it is put under Emergency Law, by definition. They don’t say this is happening… the scope and extent of the changes are not disclosed, and may vary with circumstances and discretions, on the gradient of special powers short of full martial law. They maintain the pretense of routine operations, but Enforcement is no longer a ‘means’ of last resort in public purposes, it is elevated to a prime policy mission. These facts are known and documented:
Administrative authorities Are delegated, the police Are given policy powers, enforcement thresholds and procedures Are altered, gatherers Are targeted and intimidated en masse, and constitutional protections Are curtailed.
Basic Civics: The Forest Service is the sole lawful trustee of the National Forests. In their autonomous civilian authorities, USFS staff are mandated and trained to balance broad public interests in policy decisions, and to make them with transparency. Their decisions may be flawed, but the process is open and facts are disclosed… they are made accountable, and there’s a chance to fix problems and do things better in the broadest interests, including Speech. At least that’s the premise of any public agency work in a democracy (and the Freedom of Information Act). These principles are most crucial on NFS lands where public resources, stewardship and assembly are at stake.
When an ‘Incident’ is declared, Foresters are supplanted and co-opted in their policy authorities by a police agency… it operates on the singular mandate of enforcement, preempting broader concerns, and contrary premises of investigative secrecy, where grounds for official actions are always concealed. Its personnel are unqualified to make policy decisions on forest management and public use — yet when expressive assembly occurs, they assume primary control over applied USFS policy, by decree and in the woods. In this way the Fedcops’ systematic infringements on Basic Rights are being normalized in the bureaucracy and public experience, with incremental effects over time.
Through the devices of Incident Command, LEI has been the false face of USFS policy, with increasing powers over the past 15 years: In 1998 Bill Fox escalated the IC role to full funding and policy control over the gatherings… Malcolm Jowers abused these powers vindictively with ‘mass citation’ tactics 10-12 years ago, as did Tim Lynn after that, cranking up mass prosecutions and stepping on Due Process in quasi-judicial ‘Rainbow’ tribunals… Scott McCormick presided over the provocations and ‘Kid Village’ violence in Wyoming 2008, which led to the early “retirement” of LEI Director John Twiss, caught in his lies… then Gene Smithson took over, more diplomatic in the dual-IC scheme, yet persisting with road hassles and invasive tactics on-site.
Now the new guy, Tim Walther… who is he really, what next, and why?
-IV-
On the backside, gatherers & allies need to address 2 quirky questions:
• Is the waltz with the wonks working? … • Are we watching where our feet went?
1) Best hunch: We are having these hand-wringing meetings with honchos again because they did not work before. We keep facing unpredictable animus and perils in the desire to gather, appealing for real policy changes not forthcoming, and then pleading for mercy. In part it’s a problem of talking to the wrong people… it’s pointless to talk policy with cops. The other part is not talking to the right people — among friends first of all, and in political & legal channels that might afford remedies once more.
It’s a different conversation with officials when OMB or a Congressional committee is breathing down their necks, or you stick a court injunction in their noses.
2) Admonition: Where the dogs of power defecate, watch what you step in and stipulate to… you are in their yard, and it gets on your boots before you speak. The Feds present the Incident Command matrix and propose a transaction — by vesting in it, you validate the parties and the powers they presume, and are bound to terms implied and imposed just being there. It’s one thing to state concerns and gain ground, another to sacrifice your core positions for marginal concessions.
A smiley seat at the table belies the harms of having to implore false authorities to preserve your rights, and sitting there subverts your truer adversarial standing for relief.
Note that Herrick’s March meeting agenda had lots of baggage (3/4/13) — first of all, walking in with the Regional Forester and Deputy R.F., and setting up “points of contact (at this time) both Resource and LE”. This puts LEI upfront at the policy table from the start. Then with the usual euphemisms, he talks about “mutually beneficial goals” and an early “timeframe for providing …information” —
In effect gatherers are now expected to disclose their deliberations far in advance of the 72-hour notice required by the Group Use regulation. Moreover the Feds are entering and altering the personal cooperations that go into making a free gathering of citizens — in fact creating a sanctioned official “process” for Group compliance, no less entangling and far more demanding than a permit signature.
Most glaringly, the Feds are drawing in willing collaborators eager to please, who become ‘de facto agents’ for the Group and can be made responsible in accord, same as it ever was. It’s like nothing has really changed since the first Katuah permit busts in 1996.
And this year they have a Rainbow Founder prominently on the hook (again), “speaking for the Rainbow Family“ on their agenda, no matter what he says or disclaims.
At the same time, they are “…not wanting to agree to have this taped or video-taped” — meaning that the Feds want to have it both ways, to conduct official business but allow no record of proceedings, and not be held accountable for their words and deeds. Then to preach about “… mutual trust and respect” and fret about their “comfort level” is disingenuous, and absurd.
Some folks are sincerely moved to pursue these official dialogues, in hopes that coffee, truth, and magic might prevail, and goodwill is always good. But there are serious questions on what is achieved, and where this ‘waltz’ really goes. It may feel righteous to hum the tunes and dance with the honchos, but not at the cost of walking our talk, and protecting this path for the future:
To gather as individuals is to act on the `personal` right of assembly under the First Amendment. The choice of expression, prayer, healing or help is one’s own… the privacy of these citizen motives and deliberations is protected in accord. The voluntary nature of this exercise, and our ability to associate, confer and consense in confidence as equals, are essential to the Gatherings.
On these principles there is a countervailing logic for Not talking to officials — keeping to our private counsels & cooperations, holding to our personal intentions to speak and standing to sue.
-V-
Bottom line — know who you’re talking to, what you’re going for, and how you’re getting used. In the prospect of the 2013 Gathering in Montana, there are ways to speak openly, and times to be discreet… don’t shoot yourself in the foot or your friends in the back.
In the purposes of speech, the relationship with officials is both cooperative and adversarial, by necessity. In an ideal world our varied efforts to protect the Gatherings would work in concert, with diplomacy complementing the fight. In reality we are divisive and beset by cross-purposes —
hippie humanoids gush for conciliation and rush to parley, faithful in the unifying power of discourse and agreements to be made in mutual interests, disdainful of babylonian conflict and legal strife…
yippie legaloids rail and rally for the dirty wars, defending the fallen in each civil rights assault, wary of the ploys of official power, watchful for the right facts & winds to go to court and fight back.
Lately it’s out of balance, the legal work marginalized, and the collateral damage is out of control. It’s a fair gripe that some gratify their self-importance in polite meetings with nice buzzwords, while the war of attrition rages on — all the folks taking the heat, fines, jail, and warrants year after year, and many more who never arrive, deterred by fear. This is what the First Amendment was written to prevent…
…Use It or Lose It: As the Gatherings face recurrent rights issues, making deals to gloss or defuse them stops making sense. It only numbs the crisis, distracts focus and energy from the need, and disables the constitutional fights we have to carry for all citizens.
Heading to Montana the big negotiation (again) is about whether a signed permit will be required, or an Operation Plan will be used instead. Proponents espouse this as a suitable “alternative manner” of compiance, in lieu of permit conditions… historically the Feds have embraced it as an addendum to those conditions, and now as a way to enforce them, with the weight and terms of the Noncommercial Group Use rules still fully in effect.
The ‘Permit’, per se, is only a legal compact binding the ‘Group’ to those terms, and making ‘members’ vicariously liable in turn… when the OpPlan names the “Rainbow Family” or any other made-up club, it does the same thing. And proponents are “walking like a duck” — conducting ongoing business with officials ‘off the land’, acting like a legal association on the street. This compliance ‘Process’ is legitimized and made legally binding by their participation, and they become directly liable in those shoes.
So you get all the problems of the NGU permit, no signature required. The Feds will concede your symbolic victory to entrench the regulation uncontested, to establish this more demanding enforcement process as a precedent, and eventually force the Rainbow Family to incorporate or die. That’s what happened to Burning Man — a non-profit corporation now gets the permit on BLM lands.
Game Over… end of free assembly.
-VI-
Recognize the situation, and the public stakes on what we do. The problem here is not just a bogus permit rule and some rude rogue cops… it is much bigger than that:::
“Incident Command” is now the First Amendment policy of federal agencies, contrived to displace civilian authorities and systematically impede speech. The Feds piloted this scheme on the Rainbow Gatherings, built up the program and engaged local police agencies over time… the ‘Emergency’ model has since been applied to peace, trade, & political protests across the country, and was probably behind the coordinated shutdowns of the Occupy Wall Street movement in Autumn 2011.
The position of ‘PCU•FAP’ has been consistent since 1996: As applied to peaceful assembly in a traditional public forum, the Delegation of public agency powers is unlawful… we do not recognize the authority of the Incident Commander. All matters of National Forest policy are properly directed to the Forest Service personnel who are responsible and qualified for this work.
Real Foresters have concurred since 1997, when the Resource staff in Oregon called the hard question in their final Report — i.e., Who is in charge of National Forest policy, and why was Law Enforcement trying to run the show on the Rainbow Gathering? This is important, a view and deep rift that persists in USFS ranks, fair game to be used shrewdly and brought into play.
Best advice right away: It’s a waste of time to politely request liaisons with FS Resource staff; you will get hand-picked conscripts aligned with the IC Team. Identify able foresters in the area and talk to them directly, learn from them personally and leave the IC out of the conversation.
In due time when the gathering site is chosen, deal with the Forest Supervisor and District Ranger as the principal FS ‘Line Officers’ on the ground… respect them as such, engage them in these capacities, support their exclusive authorities, and help them do their rightful fair job.
Isolate the IC from FS policy, leave him to his copshow, to be sued early and often.
Then find good constitutional lawyers in Montana, ASAP… they will be needed.
* * * * * * *
In service & cahoots…
_scottie addison__
Coordinator
St. Louis, MO