Oct 11, 2010
There has been some confusion about this case, leading some commentators to believe that the reference to John Irish’s “association” with Oath Keepers was in some other document, rather than in the affidavit relied on by the Court’s Order. Alex Jones’ site, in an effort to protect the privacy of the family, posted excerpts from two different documents, leading some to question where the reference actually was.
To clear that up, below you will find an embedded PDF which contains the full (though redacted) versions of the following documents: the two Petitions (one pertaining to each parent), the Court’s Ex Parte Order, the Affidavit of Dana Bickford which was attached, the Motion for Change of Venue, and lastly, the Notice to Accused Parent, explaining the legal process. We have highlighted in yellow all text where the Petitions or the Court Order refers to the Affidavit which contains reference to Oath Keepers.
By looking at the below documents, you will be able to see from the two Petitions, the Order, and Affidavit item #7, in that order, that:
1. Both Petitions state: “7. Details or Details or facts of abuse/neglect (attach separate sheet if necessary): See affidavit filed with the Concord Family Court.”
2. The Court’s Ex Parte Order states:
“Findings of Fact:
There is reasonable cause to believe that the child is in such circumstances or surroundings as would present an imminent danger to the child’s health or life, which require the immediate placement of the child for the following reasons:
- A d v e r t i s e m e n t
See attached affidavit”
Thus, the Court’s Order does, in fact, refer to, and adopt all of the reasons given in the Affidavit as being the reasons for the order.
3. The Attached Affidavit, referenced by the Petitions and adopted by the Court as its findings of fact, includes, at #7: “The Division became aware and confirmed that Mr. Irish associated with a militia known as the, “Oath Keepers,” and had purchased several different types of weapons, including a rifle, handgun and taser.”
This is how all such petitions are done. The same goes for a restraining order. The petition is supported by affidavit laying out the reasons, and then if the judge finds those reasons sufficient, he or she issues the order. Such orders always rely on the affidavit attached to the petition. And in this case, the Order explicitly states that the reasons in support are listed in the “attached affidavit.”
We have posted these documents with the permission of both parents, but we redacted (blacked out) all the personal information and allegations that do not pertain to Oath Keepers or gun ownership. This was done in part to respect the privacy of the family, including the kids. It is out of such concerns that family court proceedings are usually closed to the public and I think it would be improper to post the entirety of the affidavit for the same reason. If the parents choose to post a non-redacted version, they can do it themselves (we left in their address because they have given that information out in several interviews, asking for donations to their defense fund),
More to the point, we also blacked out the parts unrelated to Oath Keepers and to gun ownership because my focus in this case is on the illegitimate listing of a father’s political affiliations and his gun ownership as a reason to take his daughter away from him and also away from her mother. That the Court relied on an affidavit that explicitly lists the father’s association with Oath Keepers to issue that order makes it important to all ten thousand dues paying members of Oath Keepers (many of them current serving police and military), and also makes it important to the estimated thirty thousand people (and growing) who have “associated” with Oath Keepers in the past, or still do, on several social media sites, such as Facebook, Myspace, Twitter, on our email alert list, in the comments section of our main site, in our free state forums, or in person at our many meetings across the country, and the many additional tens of thousands who have “associated” with us at various rallies, summits, and forums across the nation.
This use of a father’s political association and his gun ownership is also important to many other Americans who don’t even associate with Oath Keepers because what happens in this case can impact the free speech and association rights of all of us, across the nation, of whatever political or social orientation. And that is why we must stand firm, now.
RALLY FOR THE FIRST AMENDMENT! This Thursday, October 14, Dover, NH
We will be holding a rally in support of the First Amendment protected right of freedom of association, to be held this Thursday, October 14, at the Rochester Family Division Court, 259 County Farm Rd, Dover, NH 03820-6016. I will be there, and I am calling on all Oath Keepers, all who “associate” with us, and on all other organizations that stand for the Constitution and for liberty to be there for a peaceful gathering in support of both the due process rights of the parents (who have a hearing there, on that day), but also to stand in support of the rights of free speech and association, free from persecution, for ALL Americans. I will post more details later today. Please join us!
Please read the relevant sections of the documents below, and then I will have additional comments on the other side. – Stewart Rhodes, Founder of Oath Keepers
ADDITIONAL COMMENTS BY STEWART:
As is clear from the documents, the reasons given to the Court in the Petitions, and the reasons adopted by the Court when it adopted the entirety of the attached Affidavit, included John Irish’s association with Oath Keepers. Certainly it was not the only reason, nor are we even arguing that it was the principle or dominant reason (I can’t get inside the judge’s head, and unless the judge elaborates, we don’t know).
But the fact that the political association of the father with Oath Keepers, and his gun ownership, were even among the reasons given for the taking of this baby takes this case beyond the realm of your mundane family court matter and turns it into something that could affect the rights of us all, nation-wide. Such a listing of a parent’s political associations as one of the reasons to remove a child from her parents should not happen in any case, regardless of whatever else is going on.
Whether it is a criminal or a civil proceeding, the political affiliations of the accused are both irrelevant and prejudicial. For example, if I had a criminal defense client accused of beating his wife, what relevance would his NRA membership have to the question of whether he beat his wife? And what relevance would there be if he were a Tea Party member, or belonged to a 912 group, or was a member of Rush Limbaugh fan club, or a member of Glen Beck’s “Insider Extreme” which includes a message board? Or what if he were a member of the ACLU, or Answer, or ACORN, or Code Pink, etc.? What relevance would any such associations have to the question of whether he assaulted his wife? The political associations of the accused in a child endangerment case are no less irrelevant to the question of whether he or the mother are guilty or whether the child is endangered.
In addition to a relevancy problem, it would also be prejudicial for the finder(s) of fact to hear testimony on the suspect’s political association, especially when such may be with an unpopular group. Say, for example, you have a conservative, pro-drug war jury in a theft case and the defendant turns out to be a member of NORML (which advocates legalizing marijuana). Should the jury be able to hear evidence of that membership? Or imagine a liberal jury, with jurors who are anti-gun. Should the jury be able to hear evidence that the accused was an NRA member, or, perhaps even a member of the far more hardcore Gun Owners of America? Mention of the defendant’s associations in either case would not only be irrelevant but also potentially prejudicial. Even if some twisted argument convinced the judge to find those associations relevant, their prejudicial effect would outweigh any such relevance. See Rule 403, Federal Rules of Evidence.
Yes, it is true that in family court one does not get the same level of due process as in a criminal trial, but that only makes it a more likely system to be abused to target political undesirables. The lower the threshold of due process protection, the more ripe it is for arbitrary abuse.
The Chilling Effect: Making People Afraid to Speak Out and Associate
And in this case the problem is not just a possible violation of the due process rights of these particular parents, but also the very real chilling effect this case will have not just on their speech but also on the free speech of potentially millions of other American parents who will, if this is allowed to stand, thereafter have to worry that their political affiliations will be listed among the reasons for taking their children in some future run-in with CPS.
A law or government practice that targets people for their speech and association, based on the content of their speech, or that MAY be used in such a way, is unconstitutional and harms not just that individual, but also all others who thereafter are “chilled” or dissuaded from engaging in similar speech or associations.
The chilling works even if it is rarely applied since just the knowledge that it can be done will chill speech and association. All the government needs to do is make an example out of one person, and others will refrain from sticking their necks out.
If it can be done to someone who is “associated” with Oath Keepers just by posting on an open social networking site (In this case John Irish was not even a dues paying member, but merely a forum user on the Oath Keepers Ning forum system, which was open to the general public to “join” for free, even on a whim) then it can happen to anyone from any group which particular authorities may look down upon.
Let’s flip the political paradigm: Imagine the same thing being done in a case involving members of PETA, Earth First, or the Anti-War Committee (AWC) which recently had their homes and offices raided by the FBI. Would it be acceptable for Child Protective Services to list those affiliations when investigating potential child abuse or neglect, or would that be both irrelevant, and prejudicial? And would it not also chill free speech, making people afraid to join those groups?
Think back to how the very arbitrary “no-fly list” was used by the Bush Administration to punish critics and political opposition, including journalists. Such power is always subject to abuse. And especially so when the list is secret, and the criteria used to put you on it is secret. Talk about arbitrary power! But even there, it was not openly and honestly used to target people because of their political associations. That was the wink, wink, nudge, nudge, we all knew was happening, but the Bush Admin knew better than to state it publicly. But it still had a chilling effect (as was likely intended), because we all knew what was really going on when some journalist critic of the President just happened to make the list.
In this case, it is openly acknowledged that the political association of the father is one of the reasons for taking the child (again, the Court’s Order adopted the entire affidavit as its findings of facts). Ditto for his perfectly legal gun ownership. Over half the people in this nation own guns. Imagine the chilling effect on them.
You Defend the Constitution for Everyone, Regardless of Innocence or Guilt, Regardless of Virtue or Vice
One last point: Too many people are asking “but did he do it.” In constitutional law, what counts is not whether the particular defendant was an angel or a “dirtbag” – whether he is innocent or committed the underlying offense at issue. What counts is whether the Constitution is protected.
For example, Ernesto Miranda was suspected of kidnapping and raping of an 18-year-old girl. Because of the Supreme Court ruling, which ruled his confession inadmissible, his first conviction was overturned. But then the case was retried, leaving out the tainted confession, and Miranda was convicted and served 20 years. A dirtbag? You bet. He was a filthy rapist. Guilty? Yes, so found by a jury of his peers. He raped the girl and was rightfully convicted and locked up. But it was still wrong to coerce his confession, and his case gave us the procedural protection of our “Miranda” rights, which helps to give meaningful effect to our right to remain silent and to not incriminate ourselves, as well as our right to have counsel present at questioning.
The same goes for the case of Jose Padilla, the alleged “Chicago dirty bomber.” A dirtbag? Likely. He as both a former gang member and liked to hang out with Al Qaeda types. But that still did not make it OK to black bag him with no due process and throw him in a military brig on secret evidence, without indictment, without a lawyer, without a jury trial, for over two years. That was unconstitutional even if he “did it.” (he was later convicted in a jury trial of aiding Al Qaeda). Even though a dirtbag, he still had procedural rights that were violated, and those violations set a dangerous precedent for the rest of us. Now, according to the Fourth Circuit (who’s decision still stands as “good law”), that can be done to any of us. What happens even to “bad guys” can and will affect our rights too. Rules of due process and protections of free speech and association apply to EVERYONE, not just those who are pure as the driven snow.
Sadly, so dumbed down is the average American that many just cannot grasp these elemental concepts. In this case, they ask whether the parents are “guilty,” as if that would make it OK to list their political associations or gun owner status as evidence of why they are unfit parents. If people cannot understand why this cannot be allowed to happen, then how can we restore our Republic? That is why, regardless of whether the parents are guilty of any of the alleged abuse; the listing of their association with Oath Keepers is illegitimate and must be fought. And it will.
We Oath Keepers and our many allies will fight this regardless of the supposed validity of the other allegations against the parents. This use of political associations as evidence is wrong in every case, and in any case. It is the “weaponization” of CPS – turning it into a weapon against political undesirables. And that weapon will be used to silence and suppress those who might otherwise speak out, and to silence and suppress those who already have spoken out. It will thus chill speech even when not used (just by the implied threat that you may be paid a visit by CPS if you get “uppity”), and it will punish speech when used against dissidents who still dare to speak out.
Either you defend the Constitution for everyone, or we may as well just scrap it and let government agencies and judges do whatever they want to those they deem bad, using whatever arbitrary “reasons” they want, like in some third world junta. The choice is yours. I hope to see you in New Hampshire, the “Live Free or Die” state on Thursday.