An Open Letter to Massachusetts Governor Charlie Baker, Concerning the State-Accused Person, Dzhokhar Tsarnaev

From Mary W Maxwell, late of Boston, now in Australia
September 10, 2015

Your Excellency, Dear Governor,
Greetings from the Antipodes. I write to you to propose a few interesting solutions to the Tsarnaev problem.

It has recently come to the notice of many citizens that the Boston Marathon bombing was done by the FBI, the mafia, a Homeland Security contractor, or some seemingly official group.

It must be awkward for you, Governor, that a Massachusetts citizen, Dzhokhar Tsarnaev, is in a federal prison, whilst the folks of Boston have caught on to the above-mentioned issue re the Marathon.

How to relieve the situation? I have a few suggestions.

The first idea that came to my mind was for the governor of Massachusetts to grant a pardon to Tsarnaev for the crime that he is accused of locally, namely the killing of Sean Collier, a campus cop at MIT. My assumption was that this state pardon would up-end the unfair federal conviction.

Can a person be pardoned before he is convicted? We recall how President George HW Bush pardoned several persons on Christmas Eve, 1992. At least one of them, Defense Secretary Caspar Weinberger, had not yet been tried.

I have perused the Constitution of the Commonwealth of Massachusetts, so beautifully drafted by John Adams in 1789. I find, per amended Article VIII, that pardoning someone for a crime for which they have not yet been convicted will not be “availing.” This is a good thing. I did not really like Bush’s pre-trial pardon.

Extradition

So I make two other suggestions regarding the unsolved crime of the murder of Sean Collier. (Assuming it did indeed take place. Last September, in Sydney, we had the case of an alleged assault on a uniformed member of the Australian Defense Force. The excitement about it aided the passage of new anti-terrorism laws, but it was later found to be a ghost case, if I may call it that.)

First, you could do as planned, that is, demand extradition of Tsarnaev from Colorado where he is reportedly in a Supermax prison, but on a rush basis so that he can be tried very soon for the murder of Collier, and the people will not be kept waiting. As there is undoubtedly no evidence to convict him, he would go free.

One could argue that he would then be due back at Supermax but I don’t think so. The information that would come out at a fair trial in Massachusetts would redound to the federal conviction. Actually it could cause an extreme upheaval, could it not?

Treason

My other suggestion similarly requires that Tsarnaev be brought to Massachusetts for trial, but on an altered charge, namely that of treason. As you may know, I am the author of Prosecution for Treason, published in 2011. I seem to be one of only two scholars interested in the topic, the other being Anthony Chaitkin who published in 1994 the wonderful study, Treason in America from Aaron Burr to Averill Harriman.

The killing of a policemen accords, of course, with the classic concept of treason. The Whiskey Rebellion of 1794 involved farmers who harmed the federal tax collectors in Pennsylvania. For this, two men were convicted of treason against the United States.

If Sean Collier was killed while on duty, this could (I think) be treason against the state. I have not located any Massachusetts statute to define this crime, so I presume the common law applies. There is, however, a statute to specify the punishment, viz., Massachusetts Chapter 264, section 2. It says:

“Whoever commits treason against the commonwealth shall be punished by imprisonment in the state prison for life.”

Knowing what I know about the ‘podstava’ to which the Tsarnaev brothers were subject, I feel sure they did not kill, or even go near, Sean Collier. So, I’ll grant it would be slightly an abuse of process to use the law to prove a point. But it would make people think, and we certainly need that.

Of course there is federal law of the crime of treason specified in Article III of the Constitution. It is codifed at 18 UDC 2381:

“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.”

US Supreme Court Justice Antonin Scalia recommended in the case of Jose Padilla, who was said to have been planning to bomb a building in Chicago, that the proper charge would be treason. That is based on Padilla’s “levying war.”

I wish Padilla had come up for treason charge and then the public could see how that differs from the very amorphous charge of terrorism. In Tsarnaev’s case, the charge referring to the exploding of a bomb was the crime of “use of a weapon of mass destruction.”

State Sovereignty

Your Excellency, I have another suggestion for getting past the anomaly that currently appertains, in which we have citizens realizing that a Massachusetts man, Mr Tsarnaev, is in a federal prison based on a wrongful trial. Of course that matter could be, and should be, dealt with in federal court, but here I am only trying to think of what Massachusetts can do.

I might note that I am, like you, a Republican. (I ran for Congress in 2006.) My devotion to states rights is solid. I naturally applaud the decision in the Lopez case of 1995 and the Morrison case of 2000. The expansion of the commerce clause has, in my opinion, been ultra vires, and ultra vires things have the same effect on me as the tines of a fork screeching on a plate.

Yes, I am about to offer a state-sovereignty solution to the ultra vires events of April 19, 2013.

There we saw (and I mean the whole world saw, to its great consternation) an unwarranted imposition of martial law on the people of Watertown. Quite the visual it was, with house-to-house searches, Humvees, and machine guns on the streets.

Announcing That the Emperor Is Unclad

The hour grows late. Maybe we should get it over with. This would entail confronting the strange developments that have been going in the United States since the 1980s. We now have huge police forces, generously budgeted private “security” companies, foreign troops stationed in every state under the National Guard Partnerships for Peace program, and who knows what else.

Ever since a court in Italy declared that the bombing of the Railway Station in Bologna had been done not by the accused leftist radicals but by NATO (for the purpose both of blaming the left and giving the population a bout of terror), we’ve been finding out that such things are “policy.”

Ever since an FBI informant recorded the instructions from his handler, proving that the 1993 bombing of the basement of the World Trade center was a ‘sting’ operation, Americans have had the chance to realize – if they care to – that for the FBI to carry out a bombing is not unusual at all.

Since we can now see that the Marathon event was this type of thing, it may be time to stop all pretense that it is anything else. The trial of Tsarnaev can be just the ticket to straightening out the absurd situation.

I say ‘absurd’ meaning in comparison to our belief in the goodness of government, I don’t really think it’s absurd that the powerful kill the weak, it is the most normal thing in the world. (And oh how the Framers knew that, in 1787.)

What Can Be Done Legally, by Massachusetts

The ability of one of the 50 states, or better yet, a combination of states, to correct the unconstitutional, nay criminal, takeover of the nation by the feds, as seen today is, of course, great.

A Massachusetts governor has power to use force, as specified in Amendment LVII, of Chapter 2 of the state constitution as follows:

“Article VII. The general court [i.e., legislature] shall provide by law for the recruitment, equipment, organization, training and discipline of the military and naval forces. The governor shall be the commander-in-chief thereof, and shall have power to assemble the whole or any part of them… to employ them for the suppression of rebellion, the repelling of invasion, and the enforcement of the laws.”

It is the ‘repelling of invasion” that we are concerned with. I realize it goes against the grain to speak of one’s national government forces as invaders, but as Confucius said, it is the beginning of wisdom to call things by their right names.

Of course it is true that the Framers gave Congress the authority to call forth the militias of the states to repel invasion, meaning invasion by foreign powers or by Indian tribes. Article I, section 8, clause 15 is clear on this. But the state also has the right.

The 1820 case of Houston v Moore held that the president could call out the militias (as he did for the War of 1812), but that the governors of states could call up their own militias when they deemed it necessary, as in cases of invasion.

In 1812, Massachusetts governor Caleb Strong had asked the State Supreme Judicial Court if it was his call, rather than the president’s, to send Massachusetts militia men to war. The court said yes, but Houston v Moore overrode that eight years later.

As I understand it today, you, Sir, can call out the militia (now misleadingly named the National Guard, thanks to Elihu Root, but that’s another story).

The fundamental basis for all of this is that the people are the militia. It is rooted in English law that the people are the best enforcers of law. The people, even when not organized, form the “posse comitatus” the group of able-bodied men who can meet an emergency.

It remains only to ask if it would be legal for a state to act with armed force against an illegal incursion on its territory by national troops. I believe that merely to ask the question is to see the answer. However, I’ll say no more as I realize the very thought is almost unbearable.

Legal Tactics: Prosecutions and Civil Law Suits

If we are facing up to the criminality of, say, the FBI as seen, possibly, on April 15, 2013 at the finish line of the Boston Marathon, we might think both of applying criminal law and of civil action to seek damages.

Again, it is hard to concentrate on such a thing, though if we were advising people in another nation how to do it, it would seem straightforward, and maybe even pleasant.

Various types of court action can be imagined that aim at unwanted incursions by the feds onto state territory. On the lowest rung we find the kind of simple lawsuit that ask for an injunction or restraining order. Presumably one can go to a local court to request that a judge write such an order. I can picture it being filed at a federal court, too.

As for prosecuting a violent crime that a federal agency may have committed against a state or its folks, it does again seem that local courts are the place to begin. The state attorney general can prosecute any party that commits a crime.

Some people think there is a “sovereign immunity” involved. The US government does enjoy immunity from lawsuits, but legislation sometimes limits that immunity, and often the sovereign grants leave to a plaintiff to file suit against it.

In any case this has nothing to do with criminal liability. No member of government is allowed to commit a crime. He or she has no immunity from prosecution. (We may also wonder if a person in a government role who is acting criminally is in fact an impostor. I discuss this in my 2011 book.)

What crimes are we talking about here? Any crime, from assault and battery to murder (as in the murder of Tamerlan Tsarnaev, age 26), and destruction of property. Those who are to be charged could be anyone from the top leaders to the smallest fry.

There is also the set of crimes known as accessory or accomplice. Clearly many media person provided cover-up for the crimes of the Boston Marathon.

Even surrounding the trial of Tsarnaev in April 2015, there was unending deception pouring from the media that had the effect of making the wrong person look guilty. There are also crimes related to obstruction of justice and perjury, of course.

As for normal lawsuits for damages, these are inhibited by the aforementioned doctrine of sovereign immunity.

RICO Law

If ever there were an underused law in the United States, it is the Racketeer influenced and Corrupt Organization Act of 1970, RICO, as codified at 18 USC 1961-1968. It can be used for prosecuting criminal enterprises, and also for civil actions.

When an individual is the plaintiff, she has to show how the racketeers caused her some economic loss, whether large or small.

Your Excellency, I assume the state of Massachusetts could file a RICO suit against an organization such as the FBI, claiming economic loss related to the April 2013 Marathon. There is a two-year statute of limitations in federal RICO, but this tolls from when the loss occurred. Let’s say the deployment of local police outside the Moakley Courthouse in April and May 205 was costly. You would have until May 2017 to file a claim.

Of course the state of Massachusetts can also use RICO law in prosecutorial mode. Individuals cannot use RICO to start a prosecution, but when they file for economic loss they can mention that they hope the judge will cast an eye on the relevant crimes.

In conclusion I thank you for listening. Don’t worry, I do know it all sound crazy. If it turns out that I am imagining things about the FBI and that they are not a criminal organization, that will be wonderful. No one will be more pleased than myself to admit to having misread the situation completely.

Governor Baker, I’d like to send you my new book, Fraud Upon the Court, which rehearses yet anther possible solution to the problem of a Massachusetts boy wrongly incarcerated in Supermax, namely the use of a Writ of Error Coram Nobis. It’s an ancient English writ that Congress has validated federally and that I assume could rest on common law in Massachusetts. It’s just one more of law’s magic ways of helping the human race.

Thank you for all that you have done and will do.

Yours sincerely
Mary Maxwell, PhD, LLB

P.S. Googling for “Podstava, Maxwell” brings up the relevant video on Youtube. My Marathon articles are archived at GumshoeNews.com