Is it a criminal offense to irritate a U.S. attorney? Apparently so. If the case of Siobhan Reynolds is any indication, it’s a serious offense that can cost a person a lot of money as well as her freedom to speak in public — without ever being charged with a conventional crime.
That’s not how the civic books said it was supposed to work in America. Something is gravely wrong.
Until late last year Reynolds was president of the Pain Relief Network, (PRN) which tried to defend chronic, severe pain patients from a government intent — in its obsession with narcotics — on intimidating doctors into underprescribing pain medication. The Drug Enforcement Administration does this by putting doctors in fear of prosecution as drug pushers — a charge that could bring decades-long prison terms — if their treatment policies displease DEA’s so-called experts. This of course interferes with the practice of medicine. (See The Freeman: “The Myth of Available Pain Care,” by Frank Fisher and “Another Victim of the Drug War,” by Radley Balko.)
Reynolds had personal knowledge of how government drug policy makes hell of pain sufferers’ lives: Her late former husband saw the innovative drug treatment that relieved his chronic pain stopped cold when the government convicted his doctor of drug trafficking.
Reynolds’s latest travails began when the government went after a Wichita, Kansas, doctor and his nurse wife. In 2007 Dr. Stephen and Linda Schneider were indicted on 34 drug counts, and as often happens, the prosecution essentially tried the case in public long before it got into court. (They were eventually convicted and sentenced to 30 and 33 years, respectively. The case is under appeal.)
Gag Order Requested
Reynolds and PRN sprang into action, holding protest rallies, writing op-eds, buying billboard space, and more, which teed off U.S. Attorney Tanya Treadway. In 2009 Treadway asked a judge for a gag order to stop Reynolds, Treadway said, from prejudicing potential jurors. Treadway failed but didn’t give up. Harvey Silverglate, the great defender of civil liberties and author of Three Felonies a Day: How the Feds Target the Innocent, describes what happened next:
Undeterred, Treadway filed … a subpoena demanding a broad range of documents and records, obviously hoping to deter the peripatetic pain relief advocate, or even target her for a criminal trial of her own. Just what was Reynolds’ suspected criminal activity?
“Obstruction of justice” is the subpoena’s listed offense being investigated….
Silverglate pointed out, however, that some material subpoenaed was unrelated to the charge. But no matter. The harassment apparently designed to stop Reynolds from exercising her free speech rights on behalf of the Schneiders was on.
The subpoena, which included emails, phone records, and even Facebook statuses, came as part of a grand-jury investigation against Reynolds. Writing in Slate, Radley Balko, the indefatigable chronicler of State crimes against the innocent, picked up the story:
Complying cost Reynolds tens of thousands of dollars and hundreds of hours of labor. With help from the ACLU, Reynolds sued to have the subpoena quashed. She lost. A second judge, Julie A. Robinson, hit her with a $200 fine for contempt each day she didn’t comply.
Reynolds went to the federal appeals court to challenge the subpoena but lost, and not only that — the record was sealed from public view, including the friend-of-the-court brief submitted by the Institute for Justice (IJ) and Reason Foundation, although they contained only material already in the public realm. The U.S. Supreme Court then decline to take the case, despite a supporting brief from the Reporters Committee for Freedom of the Press. According to the Committee, “The petition asked the high court to decide when those exercising their First Amendment rights should be protected from overreaching subpoenas and when a prosecutor’s demand for information could be found to be in less than ‘good faith.’ It would also have required the Supreme Court to address the issue of how much secrecy is tolerated in filings before the court.”
As Balko commented:
While we can’t read the [appellate] ruling, the justification for the seal is ostensibly the secrecy afforded to grand jury investigations. But that secrecy is supposed to protect the people the grand jury is investigating. In this case, the person being investigated wants it made public. Reynolds feels the subpoena is harassment and wants to shed some light on it. Treadway and the courts are hammering Reynolds with the very secrecy that is supposed to protect her.
Balko notes that a New York Times reporter who read part of the sealed order “said one of its reasons for keeping the brief secret was to keep IJ and the Reason Foundation from discussing Reynolds’ pain advocacy agenda in public” (emphasis added).
The outrageous irony is that U.S. attorneys routinely leak information about grand juries to the news media when leaks benefits them. That’s against the law, but the feds need not fear that this law will ever be used against them.
Thus what was supposed to be bulwark of individual liberty – the grand jury — has become a tool of State oppression. “Grand juries are supposed to act as a buffer between prosecutors and those they accuse of committing a crime,” Balko writes. “They’re intended to protect us from having our reputations ruined by reckless and meritless allegations. In reality, grand juries have been captured by prosecutors…. In the wrong hands, grand juries can even become a tool for harassing a prosecutor’s political enemies.”
With her resources depleted, Reynold had to close the Pain Relief Network, a true loss for pain sufferers and doctors who wish to help them without DEA agents looking over their shoulders. The government will say it is only trying stop doctors from provide narcotics to addicts, but that wouldn’t be happening if the State didn’t violate the right to self-medication.
Our civil liberties have taken a beating in recent years thanks to the so-called “war on terror” and boundless “homeland security.” But the disregard of basic freedoms has an earlier source: the “war on drugs,” which took a quantum leap in the 1980s during the Reagan years. Today, in the name of thwarting drug sellers and consumers, government agents at all levels routinely violate the freedom of peaceful individuals. SWAT teams break down doors every day, using force with reckless abandon. Police regularly injure and kill people, many of whom weren’t even targets of investigation. Meanwhile, doctors practice medicine in the shadow of a DEA ready to pounce if the “wrong person” is prescribed a controlled substance or if the dose is larger than drug agents permit.
Now even speaking out against such injustice can subject a person to criminal investigation and bank-breaking harassment. Privacy is virtually gone. Now free speech is in jeopardy.