7 Years in Jail on the Basis of Secret Evidence

Back in the late 1970s, Jim Ridgeway and I wrote a novel called “Smoke: Another Jimmy Carter Adventure.” It was not well received by the public, for the usual reason that the public was kept in darkness about its existence by the publisher, who neglected to print more than a couple of hundred copies, which swiftly found their way into the refuse bins of the book-reviewing trade.

This is just as well, since under present interpretations of U.S. laws this volume could be construed as a terrorist document. The main purpose of the work was to thrust President Carter and Vice President Walter Mondale into the harsh glare of ridicule. But in the interests of adding tension and of carrying the reader forward, we included some mild sex scenes involving the chairman of the Federal Reserve, plus a detailed plan for paralyzing the energy infrastructure of the United States, commencing with a detonation at a natural gas pipeline in the Southwest.

Judging by the deference with which our great newspapers approach the person of the present chairman of the Federal Reserve, anything less than an effusive subservience is apparently deemed an act of terrorism liable to imperil the financial security of the republic. But most certainly the outline of how to shut down America would have dispatched the authors to the penitentiary, had the Justice Department decided to act.

In 1978, when the book was being written, the Foreign Intelligence Surveillance Act passed into law. Under the terms of this law, prosecutors could have submitted to a judge warrants for surveillance and searches whose terms could be held secret from the defendants and their attorneys forever. There might, for example, have been telephone intercepts of conversations between me and my mother in Ireland provided by the British, with explanatory FBI glosses alerting the judge from whom the warrants were being sought that seemingly innocent chat about “tomatoes” and “broad beans” had a sinister, coded connotation.

Cockburn and Ridgeway could have been hit simultaneously with criminal infraction of a 1917 law concerning possession of papers in aid of a foreign government. The papers in question would have been publicly available documents put out by agencies of the U.S. government, describing gas pipeline infrastructure and analyzing the vulnerability of this infrastructure to attack.

That this could have happened is evidenced by the case of Richard Clark Johnson, now in federal prison in Allenwood, Pa. In 1989, Johnson and others were charged with violating the Arms Export Control Act in a conspiracy to destroy British helicopters. The evidence against him was obtained, under the terms of the 1978 law, through electronic surveillance, for which the government got authorizations based on evidence to which the defendants never had access. He also was charged under the 1917 statute. In his trial, the FBI presented a home movie it had made, designed to impress the jury with what might have happened had the sort of weapon Johnson supposedly participated in constructing gone off.

Johnson got 10 years, twice the term recommended for his type of offense under sentencing guidelines. Appeals as far as the Supreme Court have been made (and turned down), though neither Johnson nor his lawyers have, to this day, been able to review materials used by the prosecution to secure his conviction.

Alan Dershowitz, head of the team that conducted Johnson’s appeal, has said that Johnson is a political prisoner. The charges against him violated the 1st, 4th and 5th amendments.

At last there is a glimmer of light. After Frederic Whitehurst, a chemist at the FBI crime lab, blew the whistle on years of sloppy or willfully fraudulent work and mendacious testimony, Inspector General Michael R. Bromwich issued a devastating report saying that at least 55 cases might now have to be reopened. Johnson’s is one of them.

Johnson’s persecution was secret, with the charges, as the appeal put it, “presented in a sealed black box into which he is not permitted to look,” a box that can only be inspected in renewed secrecy by a judge. And Johnson is a U.S. citizen, unlike permanent residents and visitors who are now, under the terms of the recent antiterrorism bill, unable to review evidence mustered in support of charges against them.

Johnson has served seven years, with each day advertising an outrage against the U.S. Constitution and the imperative for his speedy release.