by Kurt Nimmo

In an article published in the February, 2010, issue of Guns & Weapons for Law Enforcement (a print magazine not available online), Donald J. Mihalek argues that suspected criminals in the United States should be treated the same way “insurgents” are in Iraq.

	A scan of the article. Click the above image to download the article in PDF format.

“With violent crime increasing in many American cities,” writes Mihalek, “it is easy to think of criminals as an ‘insurgency’…. This growing insurgent behavior includes shootings of civilians, a growing trend of gang violence and an increase in narcotics related kidnapping. The trends point to a need for a renewed strategy to fight violent crime.”

Mihalek suggests cops borrow from General David Petraeus, who formulated an eight point counterinsurgency plan to deal with elements in Iraq opposed to the occupation of their country. Petraeus’ FM 3-24 is a final draft on counterinsurgency and spans nearly 250 pages.

Petraeus’ COIN (the popular acronym for counterinsurgency) doctrine is an extension on the Pentagon’s “full spectrum dominance” as devised by the neocons prior to and during George W. Bush’s tenure in the White House. Full-spectrum dominance is a military concept whereby a joint military structure achieves control over all elements of the “battlespace” using land, air, maritime and space based assets.

“It’s important to recognize the most important overarching doctrinal concept that our Army, in particular, has adopted — the concept of ‘full spectrum operations.’ This concept holds that all military operations are some mix of offensive, defensive, and stability and support operations. In other words, you’ve always got to be thinking not just about the conventional forms of combat — offensive and defensive operations — but also about the stability and support component,” Petraeus told Foreign Policy, a a bimonthly magazine founded by the Carnegie Endowment for International Peace and subsequently purchased by The Washington Post Company.

In FM 3-24’s overview, Petraeus and his coauthor write that the Iraq COIN doctrine contains both new and old elements. Traditional COIN tactics used in the Philippines, Vietnam, Malaya, Northern Ireland, Algeria, and much of the third world include population control (relocation of the population), “oil spot” (concentration of counter-insurgent forces into an expanding, secured zone), population monitoring (checkpoints and national identity cards), and cordon and search.

The U.S. COIN doctrine includes psychological warfare (planned use of propaganda and other psychological actions) and information warfare (spreading of propaganda or disinformation to demoralize the enemy and the public). Psychological and information warfare are currently used against the American public (for instance, the US Army 4th Psychological Operations Group was active at both NPR and CNN, while the CIA’s Operation Mockingbird compromised a large segment of the corporate media beginning in the early 1950s).

For COIN to work domestically, the United States will need to be turned into a police state under military occupation. Think Fallujah and the so-called “Strategic Hamlets” of Vietnam. Think Gestapo, Stasi and secret police.

In Instruments of Statecraft: U.S. Guerilla Warfare, Counterinsurgency, and Counterterrorism, 1940-1990,Michael McClintock writes about the change in COIN after World War II, particularly during the Kennedy administration. “As terror was seen as integral to guerrilla tactics, the counterguerrilla would apply counterterror; guerilla organization (e.g., recruitment surveillance) would be mimicked by counterorganization. Counterorganization, taken to its entail, could (and often did) entail placing hundreds of thousands of people under virtual totalitarian control. Which combined with the psychological warfare technique of ideological indoctrination, totalitarian potential could become reality.”

For COIN to work as Mihalek suggests the United States will necessarily become a totalitarian military dictatorship (a process already well underway, as evidenced by the the passage of the Patriot Act — now used against suspected criminals in lieu of actual terrorists — violations of Posse Comitatus, the increasing presence of military troops on the streets in collaboration with law enforcement, and the ever-encroaching high-tech surveillance grid intruding on many aspects of public and private life).

It should be noted that terrorism is part of the COIN doctrine and it was advocated by so-called terrorism experts and the defense establishment in the 1980s. Pentagon legal consultant William V. O’Brien, for instance, writing on special operations, has justified wholesale terrorism as a way to win “low-intensity” conflicts. O’Brien has advocated “exceptions to the normal moral and legal constraints” on military action. Murder and terrorism “may be presumed to be justified by a high and urgent necessity that may require sacrifice of other values such as some of the normal moral — legal constraints.”

“The suggestion that war crimes are acceptable in small doses, the selective ideal of special warfare, recalls the 1967 army manual’s warning that only selective counterterror is legitimate (’i.e. genocide is not an alternative’),” writes McClintock. “O’Brien’s warning not to go too far bears the same double message — that war crimes are to be expected but should not be excessive in number.”

Donald J. Mihalek argues that these horrendous and illegal techniques (although he does not mention them specifically) should be brought to the United States and practiced by police against “civilians” who may or may not be guilty of a crime.

That this disturbing article was published in a trade journal tailored for law enforcement is another indication that police around the country — increasingly federalized and militarized — are being indoctrinated to believe police work is related to the activities of the military.

by William Grigg
“Why did he run?” This question thrusts itself upon us every time an unarmed or otherwise harmless person is gunned down while fleeing from police.

Often that inquiry takes the form that assumes the guilt of the victim: “If he did nothing wrong, why did he run?” It’s also common for that second version to contort itself into a nicely circular argument: “Well, he ran, and resisting arrest is a crime, so obviously he got what was coming to him.”

For reasons unclear to a mind not enthralled by statist assumptions, most people simply assume that both reason and morality dictate an unqualified duty to surrender without cavil or complaintwhenever armed, violence-prone strangers in peculiar government-issued garb seek to restrain one of us.

This is why police are trained to interpret any hesitation, reluctance to cooperate, inhospitable body language, or verbal expression of resentment as “resisting arrest” and thus a justification for the use of “pain compliance” — or even lethal force. Police and their apologists likewise insist –contrary to both law and judicial precedent – that there is no right to resist even a clearly unwarranted or abusive arrest, or even for a citizen to take steps to protect himself when he’s on the receiving end of unjustified physical violence from police.

Police are constantly catechized about the dangers they encounter when they conduct traffic stops or detain people on the street. Why, the random “civilian” they encounter might be armed, trained in the use of weapons, and prepared to use violence without warning! This is to say that this hypothetical “civilian” would be …. just like the typical police officer.


“Can we assault and brutalize innocent people with impunity? Yes We Can!”

“Officer safety” must be paramount in such encounters, we are told. If a policeman is just a bit too quick to fire up the Taser or pull the trigger, it’s because he has a dangerous and stressful job.

Are we therefore to assume that encounters between police and mere “mundanes” aren’t particularly dangerous and stressful to the latter?

Given that police claim the supposed authority to pre-empt potential violence in the name of “officer safety,” we’re entitled to ask: Why isn’t “citizen safety” a legally effective defense for preemptive violence by law-abiding people to protect themselves against unjustified violence by police?

At present, the only form of “preemption” considered legally and morally acceptable is unqualified submission. People wrongfully on the receiving end of police violence are given the same advice that used to be given to potential rape victims: Don’t resist, don’t fight back — it will only turn out much worse, and you may be killed.

Anyone who doesn’t immediately submit to arrest, irrespective of the circumstances, is “going to lose and possibly hurt yourself and others in the process,” insists retired Milwaukee Police Officer Mark Zupnik. “You do not have the right to resist.”

“There are several more beneficial ways of pleading your case and challenging your arrest,” Zupnikcontinues. “Get a lawyer, file a motion in court, go to pre-trial and plead your case. Make a formal complaint challenging your arrest to the proper authority, but don’t resist or fight! It will add to your problems even if the arrest was a mistake. You don’t have the right to resist a legal arrest and it’s that simple. In most states, resisting arrest is an additional charge up to a felony, even for minor physical resistance.”

No recourse: San Jose resident Scott Wright was beaten and Tased by police, suffering a broken arm. He was then charged with “resisting arrest.” His “offense” was to reach into his vehicle to wash his dirty hands. (San Jose Mercury News photo.)

Zupnik, like others of an authoritarian cast of mind, embrace a tautological view of what constitutes a “legal” arrest: It’s any arrest carried out by a police officer, who supposedly embodies the law. This is why he warns that resistance in any situation will result in a criminal charge which will be filed before “a usually unsympathetic judge” who will perceive you as someone who “fought the law” — which is always on the side of the state’s armed enforcers, from this perspective.

Except the rarest of cases, seeking redress for an unlawful arrest from the “proper authority” is a singularly useless exercise. In some jurisdictions — such as San Jose, California, a city in which, on average, three people are arrested for “resisting arrest” every single day — it is entirely pointless to file a complaint over unwarranted arrests, since they are never upheld.

An investigation by the San Jose Mercury News found that in of the 117 cases in which a complaint was filed with the police department’s internal review board, not a single one was “sustained.” That includes incidents such as the arrest of Scott Wright, who was beaten, tased, and had his arm broken by police before being charged with resisting arrest.

At the time his valiant protectors arrived at his home, Wright was working on an old Cadillac; he provoked the gang assault by reaching into his van to wash off his greasy hands, a gesture that caused the Heroes in Blue (tm) — a timid, skittish lot, as easily frightened as a young doe — to think that he was reaching for a weapon.

As is almost always the case in such episodes, Wright was charged with resisting arrest even though no weapon was found, and no other criminal act was alleged.

Sure, that spurious charge was dismissed — after the victim had spent a great deal of money seeking treatment for the injuries inflicted on him, and another sum to pay the legal expenses incurred because the cops, in an effort to cover their tax-fattened asses, filed a “cover charge” against the innocent man. And of course, the police department cleared the assailants of any wrongdoing, because their criminal assault on Wright was in harmony with “department policy.”

He was “protected and served”: San Jose resident Joseph Ballard bleeds into the sidewalk outside a nightclub after beingtased by the police, who say that his injury was the result of a “fall.” (San Jose Mercury News photo)

“What happened to Wright is no isolated event,” the Mercury News relates. “Hundreds of times a year interactions between San Jose police and residents where no serious crime has occurred escalate into violence.”

“Many times the reason for the encounter is as innocuous as jaywalking, missing bike headlamps, or failing to signal a turn,” continues the report. “But often, as incidents develop, police determine the suspect is uncooperative and potentially violent and strike the first blow.”

Joseph Ballard was a victim of preemptive violence: Officer Justin Holliday shot him with a Taseroutside a nightclub while Ballard was running to catch a ride home. As he bled into the sidewalk,Holliday confected a story about Ballard threatening to shoot a bouncer and running to the parking lot to get his gun.

As it happens, the victim had neither a gun nor a car, and the bouncer said that Ballard had done nothing wrong — yet he was still charged with interfering with police and thrown in jail after he was released from the hospital.

After two police arrived at her home in August 2008, San Jose resident Ruth Mendiola earned an assault and a charge of “resisting arrest” when she asked to see a warrant the cops were supposedly there to deliver. She was on the phone with the police department trying to verify the identity of the officers when she was seized by one of them, who kneed her in the ribs and then threw her on a bed to handcuff her.

David Haflich – a Caucasian with light brown hair — was severely beaten by San Jose police when he was mistaken for a suspect in a child abduction — a Latino with black hair. Ordered to hit the ground,Haflich froze in his tracks, an act of insubordination serious enough, supposedly, to justify a gang-tackle and beating by police, who charged him with “resisting arrest” even though he wasn’t a criminal suspect.

In 206 court cases in which the most serious charge against the defendant was “resisting arrest,” the paper documented that “145 — 70 percent of the cases — involved the use of force by officers,” observes the Mercury News. It’s as if a street gang were routinely committing acts of criminal violence against inoffensive pedestrians, motorists, and bicyclists … which, come to think of it, isexactly what is going on.

This kind of officially sanctioned lawlessness is a general affliction.

In Ohio, police who showed up at a house fire to gawk and collect overtime tased and arrested a 19-year-old who had been helping friends and family escape the blaze. This happened after one of the torpid donut-devourers hurled profane invective at one of the residents of the burning house, a young woman, who had asked them why they were standing around in subsidized stupefaction while people were in danger.

Last May, Minneapolis resident Rolando Ruiz was stopped by a police officer, who instructed Ruiz to place his hands on the hood of the officer’s car. Ruiz cooperated — and was shot in the neck with a Taser anyway.

The Minneapolis PD’s “use of force” policy permits such gratuitous use of potentially lethal violence, and neither the policy nor any particular case is subject to civilian review or oversight.

Last June, in Everett, Washington, a 51-year-old man was gunned down in his Corvette by a police officer who had grown weary of trying to talk the intoxicated driver out of his car. At the time, the drunken driver was boxed in — parked cars on either side, a police cruiser blocking him from behind, a chain link fence in front.

The officer spent perhaps five minutes trying to reason with the driver before pulling out his Taser; the drunk reacted — understandably, if tragically — by trying, unsuccessfully, to pull out of the parking space. That provoked the officer to pull his firearm and murder the driver, firing eight shots into the car while exclaiming “Enough is enough — time to end this!”

Every death of a police officer “in the line of duty” is solemnly memorialized and carefully tabulated. However, there is no official record kept of civilians who are unjustly killed or otherwise brutalized by police.

Each encounter between the police and innocent civilians is a potentially deadly experience for the latter. Thus the real question is not “Why do innocent people flee from the police?” but rather, “What rational person would submit to the police if he had any reasonable hope of eluding or resisting them?”

Police overkill at the G20 summit in Pittsburgh
by Randy Balko, Reason.com

Having lived in the Washington, D.C. area for the better part of the last 10 years, I’ve attended my share of protests, though, again as a resident of the Beltway, I’ve spent far more time trying to avoid them and the traffic nightmares they spawn. Among the various classes of protesters—pro-lifers, environmentalists, anti-war activists, and now Tea Partiers—the most destructive are easily the anti-globalization/anarchist protesters. So when police clashed with anti-globalization protesters last weekend in Pittsburgh, one could assume that most altercations represented justified police responses to overzealous protesters.

But a number of disturbing images, videos, and witness accounts have come out of Pittsburgh, as well as from similar high-stakes political events in recent years, that reveal the disquieting ease with which authorities are willing to crush dissent—and at the very sorts of events where the right to dissent is the entire purpose of protecting free speech. That is, events where influential policymakers meet to make high-level decisions with far-reaching consequences.

On the Friday afternoon before the G20 kicked into high gear, a student at the University of Pittsburgh sent me this photo, which he says he snapped on his way back from class.

It depicts a University of Pittsburgh police officer directing traffic at a roadblock. What’s troubling is what he’s wearing: camouflage military fatigues. It’s difficult to understand why a police officer working for an urban police department would need to wear camouflage, especially while patrolling an economic summit. He’s a civilian police officer, dressed like a soldier. The symbolism is clear, and it affects the attitudes of the both the cops wearing the clothes and the people they’re policing.

He wasn’t alone. A number of police departments from across the country came to Pittsburgh to help police the summit, and nearly all were dressed in paramilitary garb. In one widely-circulated video from the summit, several police officers dressed entirely in camouflage emerge from an unmarked car, apprehend a young backpack-toting protester, stuff him into the car, and then drive off. It evoked the sort of “disappearance” one might envision in a Latin American junta or Soviet Block country. Matt Drudge linked to the video, describing the officers in it as members of the military. They weren’t, though it’s certainly easy to understand how someone might make that mistake.

Another video shows a police unit with what seems to be a handcuffed protester. Officers surround the protester and prop him up, at which point another officer snaps what appears to be a trophy photo. (YouTube has since removed the video, citing a terms of use violation.) Other Twitter feeds and uploaded photos and videos claim police fired tear gas canisters into dorm rooms, used sound cannons, and fired bean bags and rubber bullets. One man was arrested for posting the locations of riot police on Twitter.

Emily Tanner, a grad student at the University of Pittsburgh who describes herself as a “capitalist” and who doesn’t agree with the general philosophy of the anti-globalization protesters, has beencovering the fallout on her blog. The most egregious police actions seemed to take place on Friday September 25, when police began ordering students who were in public spaces to disperse, despite the fact that they had broken no laws. Those who moved too slowly, even from public spaces on their own campus or in front of their dorms, were arrested.

Lucy Steigerwald, a libertarian student at Chatham University (and daughter of Reason contributor Bill Steigerwald), describes the scene via email: “I’m truly disappointed in my city’s reaction to Friday night….hundreds of riot cops attack[ed] Pittsburgh’s biggest, most jockish, mainstream college. And people still have no sympathy for peaceful protesters or curious college students on their campus. They just feel comfortable and confident that people who have the right to use force on other people are always in the right when they do so. It’s pretty scary and disappointing that they’re so trusting with people’s right to assembly being at the whim of the government.

A University of Pittsburgh spokesman said the tactic was to break up crowds that “had the potential of disrupting normal activities, traffic flow, egress and the like…Much of the arrests last night had to do with failure to disperse when ordered.” Note that a group of people needn’t have actually broken any laws, only possessed the “potential” to do so, at which point not moving quickly enough for the liking of the police on the scene could result in an arrest. That standard is essentially a license for the police to arrest anyone, anywhere in the city at any time, regardless of whether those under arrest have actually done anything wrong.

Pennsylvania ACLU Legal Director Vic Walczak said the problem is that police didn’t attempt to manage the protests, they simply suppressed them. In the process, they rounded up not only innocent protesters, but innocent students who had nothing to do with the protests. “The reason it’s bizarre is it seemed to focus almost exclusively on peaceful demonstrators,” Walczak said on September 26. “Police can’t indiscriminately arrest people. On [Friday] night they didn’t even have the excuse of property damage going on or any illegal activity. It’s really inexplicable.”

It certainly can’t be easy to both keep order and protect civil liberties at these sorts of events. But that doesn’t mean police and city officials shouldn’t be expected to try. A few unruly protesters (and there was very little property damage at the G20 summit) doesn’t give the police license to crack down on every young person in the general vicinity, nor should it give the city free rein to suppress all dissent.

The leaders of the world’s 20 largest economies and the press covering them came to Pittsburgh last weekend. It’s unfortunate that the images that emerged were not of a society that values free expression and constitutional rights, but one that at big events gives its police the sort of power to impose order normally seen in authoritarian states. In all, 190 people were arrested, including at least two journalists. One, a reporter from the left-leaning IndyMedia, says her camera was returned broken, with her footage of the protests and police reaction deleted.

Unfortunately, the projection of overwhelming force at such events is becoming more common. At last year’s Republican National Convention in Minneapolis, police conducted peremptory raids on the homes of protesters before the convention. Journalists who inquired about the legitimacy of the raids and arrests made during the convention were also arrested. In all, 672 people were arrested, including at least 39 journalists. The arrest of Amy Goodman of Democracy Now was captured on a widely-viewed video. She was charged with “conspiracy to riot.” Those charges were dropped. The Minneapolis Star-Tribune reported in February that 442 of the 672 who were arrested had their charges either dropped or dismissed.

These are precisely the kinds of events where free speech and the freedom to protest is in most need of protection. Instead, the more high-profile the event, the more influential the players, and the more high-stakes the decision being made, the more determined police and political officials seem to be in making sure dissent is kept as far away from the decision makers as possible. Or silenced entirely.

by Greg Robinson

Mr. Robinson, a native of New York City, is associate professor of history at l’Université du Québec à Montréal and author of By Order of the President: FDR and the Internment of Japanese Americans. His latest book is: A Tragedy of Democracy: Japanese Confinement in North America (Columbia University Press, July 2009).

Barack Obama was swept into office on a promise to close down the prison that the Bush administration created at Guantanamo in order to evade the constitutional protections offered prisoners in the United States. The new president nevertheless has approved the continuing use of military tribunals to try at least certain detainees. Faced with the difficult problem of defending the nation against terrorist attack, Obama and his advisers presumably hope that they can modify the structure of these courts so as to protect the innocent without making it impossible to hold the guilty. However, the clearest historical precedent is not reassuring in this regard. Rather, the military tribunals that operated in Hawaii during World War II created a shameful record of arbitrary justice, one which the U.S. Supreme Court subsequently rejected.

Army courts were part of the military government that took power in the then Territory of Hawaii following the Japanese attack on Pearl Harbor in December 1941. Commanding General Walter Short (who browbeat the civilian governor into approving unlimited martial law) declared himself military governor, dissolved the elected legislature and suspended the U.S. Constitution. The military regime proceeded over the following weeks to issue decrees regulating all aspects of civilian life. Meanwhile, the army closed down all civilian courts. When the courts reopened one week after Pearl Harbor, they were restricted to considering civil cases, a network of military commissions and provost courts was established to try all criminal cases.

These military tribunals, presided over by armed officers without legal training, were classic examples of drumhead justice, unfettered by rules of evidence, presumption of innocence, or other constitutional safeguards. Juries were forbidden and lawyers discouraged or even barred. The courts were effectively rigged against defendants. Of the 22,480 trials conducted in provost court in Honolulu in 1942-1943, 99 percent ended in convictions—one officer who heard 819 cases issued convictions in all 819! Judges frequently issued severe sentences, including imprisonment and hard labor, for trivial offenses, and no machinery existed for appeals.

In March 1943, nine months after the American victory at Midway ended any real threat of a Japanese invasion of Hawaii, the Army restored certain governmental functions to civilian control. Yet habeas corpus remained suspended and military tribunals continued to judge criminal cases. When in July 1943 federal judge Delbert Metzger ordered General Robert Richardson, the new military governor, to produce two prisoners who had filed habeas corpus petitions, Richardson refused and issued orders threatening Judge Metzger with imprisonment at hard labor unless he abandoned all such proceedings. Ultimately the parties agreed to moot the case.

In February 1944, though, Lloyd Duncan, a civilian laborer, was arrested for assault on two Marine sentries. Summarily found guilty and sentenced to six months imprisonment by a military tribunal, Duncan challenged his conviction. Defying army authorities, Judge Metzger granted him a writ of habeas corpus and scheduled the case for trial. During the ensuing hearing, Richardson and Admiral Chester Nimitz insisted that military tribunals were essential because of the continuing danger of invasion from Japan. However, Duncan’s lawyers introduced evidence that Japan’s fleet had been destroyed, and under cross-examination Richardson and Nimitz admitted that any invasion was very improbable. Richardson and Justice Department lawyers arguing the case then changed strategy. Turning to racism to buttress their case for military tribunals, they alleged that Hawaii’s racial diversity, notably the presence of 150,000 Japanese Americans whose loyalty could never be trusted, made martial law imperative. In April 1944, Judge Metzger ruled in favor of Duncan and ordered him released. Since the ruling raised doubts about the validity of all military court sentences, the army appealed in federal court. In October 1944 President Franklin Roosevelt officially rescinded martial law in Hawaii, thereby dissolving all military tribunals, but the appeals continued.

In December 1945 the case, now called Duncan v. Kahanamoku, was argued before the U.S. Supreme Court. Two months later, the Court definitively overturned the military tribunals. Justice Hugo Black, writing for the majority, expressed outrage over the army’s treating Hawaii like conquered territory: “Our system of government clearly is the antithesis of total military rule and the founders of this country…. were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws.”

The Duncan ruling, like the larger history of military rule in Hawaii, has been largely obscured in current discussions of constitutional law. President Obama would do well, however, to consider the injustice meted out by past military tribunals in his native state.

by Brian W. Walsh

Needed: A ‘clean line’ to determine lawfulness

“You don’t need to know. You can’t know.” That’s what Kathy Norris, a 60-year-old grandmother of eight, was told when she tried to ask court officials why, the day before, federal agents had subjected her home to a furious search.

The agents who spent half a day ransacking Mrs. Norris’ longtime home in Spring, Texas, answered no questions while they emptied file cabinets, pulled books off shelves, rifled through drawers and closets, and threw the contents on the floor.

The six agents, wearing SWAT gear and carrying weapons, were with – get this - the U.S. Fish and Wildlife Service.

Kathy and George Norris lived under the specter of a covert government investigation for almost six months before the government unsealed a secret indictment and revealed why the Fish and Wildlife Service had treated their family home as if it were a training base for suspected terrorists. Orchids.

That’s right. Orchids.

By March 2004, federal prosecutors were well on their way to turning 66-year-old retiree George Norris into an inmate in a federal penitentiary – based on his home-based business of cultivating, importing and selling orchids.

Mrs. Norris testified before the House Judiciary subcommittee on crime this summer. The hearing’s topic: the rapid and dangerous expansion of federal criminal law, an expansion that is often unprincipled and highly partisan.

Chairman Robert C. Scott, Virginia Democrat, and ranking member Louie Gohmert, Texas Republican, conducted a truly bipartisan hearing (a D.C. rarity this year).

These two leaders have begun giving voice to the increasing number of experts who worry about “overcriminalization.” Astronomical numbers of federal criminal laws lack specifics, can apply to almost anyone and fail to protect innocents by requiring substantial proof that an accused person acted with actual criminal intent.

Mr. Norris ended up spending almost two years in prison because he didn’t have the proper paperwork for some of the many orchids he imported. The orchids were all legal – but Mr. Norris and the overseas shippers who had packaged the flowers had failed to properly navigate the many, often irrational, paperwork requirements the U.S. imposed when it implemented an arcane international treaty’s new restrictions on trade in flowers and other flora.

The judge who sentenced Mr. Norris had some advice for him and his wife: “Life sometimes presents us with lemons.” Their job was, yes, to “turn lemons into lemonade.”

The judge apparently failed to appreciate how difficult it is to run a successful lemonade stand when you’re an elderly diabetic with coronary complications, arthritis and Parkinson’s disease serving time in a federal penitentiary. If only Mr. Norris had been a Libyan terrorist, maybe some European official at least would have weighed in on his behalf to secure a health-based mercy release.

Krister Evertson, another victim of overcriminalization, told Congress, “What I have experienced in these past years is something that should scare you and all Americans.” He’s right. Evertson, a small-time entrepreneur and inventor, faced two separate federal prosecutions stemming from his work trying to develop clean-energy fuel cells.

The feds prosecuted Mr. Evertson the first time for failing to put a federally mandated sticker on an otherwise lawful UPS package in which he shipped some of his supplies. A jury acquitted him, so the feds brought new charges. This time they claimed he technically had “abandoned” his fuel-cell materials – something he had no intention of doing – while defending himself against the first charges. Mr. Evertson, too, spent almost two years in federal prison.

As George Washington University law professor Stephen Saltzburg testified at the House hearing, cases like these “illustrate about as well as you can illustrate the overreach of federal criminal law.” The Cato Institute’s Timothy Lynch, an expert on overcriminalization, called for “a clean line between lawful conduct and unlawful conduct.” A person should not be deemed a criminal unless that person “crossed over that line knowing what he or she was doing.” Seems like common sense, but apparently it isn’t to some federal officials.

Former U.S. Attorney General Richard Thornburgh’s testimony captured the essence of the problems that worry so many criminal-law experts. “Those of us concerned about this subject,” he testified, “share a common goal – to have criminal statutes that punish actual criminal acts and [that] do not seek to criminalize conduct that is better dealt with by the seeking of regulatory and civil remedies.” Only when the conduct is sufficiently wrongful and severe, Mr. Thornburgh said, does it warrant the “stigma, public condemnation and potential deprivation of liberty that go along with [the criminal] sanction.”

The Norrises’ nightmare began with the search in October 2003. It didn’t end until Mr. Norris was released from federal supervision in December 2008. His wife testified, however, that even after he came home, the man she had married was still gone. He was by then 71 years old. Unsurprisingly, serving two years as a federal convict – in addition to the years it took to defend unsuccessfully against the charges – had taken a severe toll on him mentally, emotionally and physically.

These are repressive consequences for an elderly man who made mistakes in a small business. The feds should be ashamed, and Mr. Evertson is right that everyone else should be scared. Far too many federal laws are far too broad.

Mr. Scott and Mr. Gohmert have set the stage for more hearings on why this places far too many Americans at risk of unjust punishment. Members of both parties in Congress should follow their lead.