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Does the U.S. Have Political Prisoners?

Does the US Have Political PrisonersDoes the U.S. Have Political Prisoners?

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There is a consensus, for the most part, as to what constitutes a political prisoner. Ideological inclinations, however, often stand in the way of proper categorization. Movements or regimes that subscribe to nondemocratic political religions, such as Communism, Nazism, Fascism, or Islamism, misplace the truth when it comes to this point. The mentioned radical ideologies, when in power, operate without the rule of law and basic civil liberties. Thus, they are rendered mute on this question. But, what about political prisoners in a democracy? Can they exist, or do they exist, for example, in the United States today?

The recent long prison sentences handed down to the leadership of the Proud Boys and the Oath Keepers, who, according to the Biden Department of Justice (DOJ), were at the hierarchical top of the unlawful January 6 (J6) Capitol Building breach, have many people posing the same question. “Seditious conspiracy” was the charge that they faced. This is a criminal indictment underpinned by the premise that there was a premeditated plot to violently overthrow the U.S. government. This code is just one step below "treason,” which potentially carries a death sentence. Henry “Enrique” Tarrio Jr., a mulatto (or black) Cuban American, former chairman of the Proud Boys, and former leader of Latinos for Trump, received a 22-year jail term. Of the other Proud Boys members, Ethan Nordean was sentenced to 18 years, Joseph Biggs to 17 years, Zachary Rehl received 15 years, and 10 years was given to Dominic Pezzola. Oath Keepers founder Elmer Stewart Rhodes III was sentenced to 18 years in jail.  Was this warranted? Historical context will help answer this. 

Who Are the Proud Boys

The Southern Poverty Law Center (SPLC), a far-left advocacy organization, has designated the Proud Boys a “hate” group. Considering the ties the SPLC has with Antifa, an Anarcho-Marxist movement, their customary prejudice against conservative movements in general disqualifies them from labeling anyone, despite the popularity they enjoy with the Left. Moms for Liberty, a grassroots conservative non-profit organization that defends parents’ rights and opposes Marxist-based school curricula, for example, has also been on the SPLC hit list.


The Proud Boys are a controversial fraternal group. Established in 2016, they are self-described as “Western chauvinists” who support “anti-political correctness” and “anti-white guilt” agendas. Overall, they embrace Western civilization and traditional values. Socialists hate them because they are vehemently opposed to socialism. The violence that ultra-left movements such as Antifa and Black Lives Matter (BLM) have inflicted on American cities has often been challenged by the Proud Boys. Immediately following Donald Trump’s 2017 presidential inauguration, the far-left launched an intense street war of “resistance” against the new president. Both Marxist groups mentioned were very active in this destabilizing campaign. Some have concluded that Antifa and BLM were the Left’s popular militias. The Proud Boys’ counterprotests and combative style meant that the Left no longer had a monopoly on violence in the public square.

The death of George Floyd geometrically augmented the violence executed by the mentioned communist terror groups. The spring and summer of 2020 witnessed mass riots, arson, looting, and gruesome attacks on innocent civilians and public security forces, along with demands for police defunding, mass prisoner releases, decriminalizing crime, popular control of urban territory, and overall, a systemic dismantling. This surely resembled an insurrection with Marxist underpinnings. The Proud Boys were one of the more engaged organizations that confronted Antifa and BLM. The Proud Boys became the poster child target of left-wing activists, politicians, and media pundits.

The Seditious Conspiracy 1861 Law

Seditious conspiracy, as written into American law (18 U.S. Code § 2384) states:

“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined or imprisoned not more than 20 years, or both.”

Originally enacted in 1861 during the Civil War, the law has since been revised and amended, yet its foundational pillar of concern remains. The seditious conspiracy legislation was written during a time of war when half the country seceded. This federal law sought to legally bolster the Union’s power to challenge the Confederacy’s advancement in the North. Its application has been rare.

Historical Context

Baldwin v. Franks, an 1887 Supreme Court case involving a seditious conspiracy charge, raised the bar for proving such an act. Anderson v. United States, a 1921 Eighth Circuit Court case, drew on Baldwin and affirmed the difficulty of proving seditious conspiracy. The rarity of a seditious conspiracy case lies not just in crossing the legal threshold to get a conviction. It is seldom used to charge anyone.

Before the J6 cases, the U.S. attempted to prosecute Americans using the seditious conspiracy law in 2010 against nine individuals who belonged to a militia based in Lenawee County, Michigan. Called the Hutaree militia, this small group plotted to kill police officers in the field and at funeral services, as per FBI undercover testimony and recordings. The seditious conspiracy charges were dismissed because the language used by the militia, as despicable as it might have been, was considered by the U.S. District Court for the Eastern District of Michigan to be protected speech under the First Amendment.

Another case involving an attempt to get a seditious conspiracy conviction was in 1940 against seventeen members of the Christian Front. This group, alleged by the U.S. government to have had fascist inclinations, were all dismissed or acquitted of charges. In 1962, Edwin Walker, a former Army Major General, was charged with seditious conspiracy for inciting a segregationist riot. The charges against Walker ended up being dismissed. The 1987 Fort Smith sedition case involving ten individuals considered by the authorities to be “white supremacists” plus four other co-defendants was exonerated of the seditious conspiracy charges.

Far-left movements have also escaped seditious conspiracy convictions. El Ariete Society, a communist organization based in New York State, faced seditious conspiracy charges for their suspected subversive activism in 1920. The three Marxist defendants were acquitted, as the court found that the government could not prove seditious conspiracy. The United Freedom Front, a Marxist organization that committed over 20 bombings, 10 bank robberies, and murder during the 1970s and 1980s, was prosecuted but under different charges, as the seditious conspiracy accusations were, ultimately, in 1989, negotiated away by the parties involved. 

The last successful U.S. government conviction under the seditious conspiracy law was levied on Islamic terrorists for the 1993 World Trade Center bombing. Osama bin Laden was accused in 1996 of seditious conspiracy for his role in plotting terrorist activity against the U.S. This gave the FBI and other agencies broader legal terrain to attempt to bring the Saudi Islamist to justice. As it is easy to surmise, the 1861 seditious conspiracy law that was used to convict the Proud Boys leadership has not been functionally applicable upon historic and contextual review. The empirical evidence demonstrates that in a free republic with constitutionally sanctioned speech, conversation between individuals, even if it insinuates action, has not been sufficient to meet the standard to convict. That has been the case until the Obama-dominated Democratic Party establishment, as figuratively led by Biden, took form.

The Biden DOJ Legal Claim: Selective Justice

The bulk of the DOJ’s seditious conspiracy verdict victory against the Proud Boys, obtained from a left-wing DC jury, rested on two factors. The first was zeroing in on the section of the 1861 law that states, “to prevent, hinder, or delay the execution of any law of the United States” and taking it out of its Civil War context. The claim made by the Biden government that the act of interrupting the process of presidential certification caused by the Capitol Building infringement, a spontaneous, atomized, and non-commanded act of undoubtable mob quality, can in and of itself legally serve as a detonator that would trigger a seditious conspiracy accusation, is bizarrely absurd. The capriciousness in the application of the law by the U.S. government, in strictly and consistently adhering to the “prevent, hinder, or delay” of executing any law in the U.S. principle, is another flaw. The second factor used was the contention that the Proud Boys, particularly, Enrique Tarrios, somehow masterminded the J6 fiasco.

When laws are selectively applied, the walls that sustain the rule of law begin to crack. As the unequal application of legislation becomes more flagrant and brazen, particularly when exposed by ideological adhesion, a two-tier system of justice becomes evident. The law becomes, in a practical and moral sense, an instrument of political oppression. A review of a few similar situations highlights this point.

On May 29, 2020, BLM and Antifa protesters concentrated in Lafayette Park, in front of the White House. For three days, the radical crowd generated mayhem. The historic St. John’s Episcopal Church was set on fire. President Trump had to be evacuated by the Secret Service because of the threat that the ultra-left mobs would breach the White House. The night of May 31 was especially vicious. The ultra-left rioters, in full revolutionary mode, attacked police with Molotov cocktails, incendiary fireworks, and other projectiles. Automobiles and surrounding buildings, private and public, were vandalized, burned, or sacked. According to a U.S. Department of Interior Inspector General Report, over 49 Park Police officers were injured from May 30-31. A House Oversight hearing, in June and July 2020, heard testimony that cited an additional 100 government public safety officers being injured by the communist mobs.

The violent and unlawful actions of BLM and Antifa “hindered” and “delayed” running the executive branch of the U.S. government by their forceful attempts to “seize”, “take”, "possess,” and enter official property. In this case, the residence of the American president. No one was charged with seditious conspiracy, despite the interruption of seminal government policies that are tied to the law and impact national security. Instead, shamelessly and in full complicity with the Marxist activists, Democratic politicians named the impacted area, days after the horrific riot, “Black Lives Matter Plaza.”

The storming of the Oklahoma House of Representatives by BLM activists is another contrasting case where a gross double standard of justice (or injustice) occurred, which mirrors the J6 incident. On April 21, 2021, about two dozen BLM members unlawfully entered the Oklahoma House Chamber and interrupted the lawmaker’s activities. The Marxist demonstrators were escorted out. There were no known arrests and much fewer charges in accordance with the 1861 law than the Proud Boys faced.  

A police line established to secure the Supreme Court confirmation vote of Justice Brett Kavanaugh was broken by largely feminist, left-wing protesters on October 18, 2018. A total of 164 people were arrested by authorities during the protests for "crowding, obstructing, or incommoding." Before the vote but during the Kavanaugh hearings, the Dirksen Senate Office Building was breached by protesters adhering to radical feminist ideology. Arrests were made, but no one faced seditious conspiracy charges, even though the intent was to “hinder” or “delay” the carrying out of official public business.

On the 22nd anniversary of the Islamic attack on the U.S. that killed nearly 3,000 people, left-wing protesters stormed and illegally occupied the office of the House of Representatives Speaker, Kevin McCarthy. The U.S. Capitol Police arrested seven demonstrators. They were charged with “unlawful entry,” but not with seditious conspiracy or anything remotely related to insurrectionist crimes. Examples can continue to be made. The point is that in a free society, speech is protected, particularly political positions. Unlawful acts like breaking and entering, trespassing, vandalism, and destruction of public property are all covered under the criminal code. There is no license to politicize these illegal acts. Unless that is the expressed intent.

Fortifying the Left’s “Insurrection” Lie

Claiming J6 was an “insurrection,” as unfounded and absurd as that belief is when held to strict academic and legal standards, forms an integral part of the more ambitious project of radically transmuting the United States. Obama’s prophetic message in a speech in Columbia, Missouri, almost on election eve in 2008, was clear. “We are five days away from fundamentally transforming the United States of America,” he asserted. If this were said by presidential candidates before 2008, one could safely dismiss the radicalism of this statement as mere words. Obama, however, was and is different. Extreme left-wing politics were something he embraced long ago. Methodically, Obama has operated like a Fabian socialist. Intellectually, however, he is embedded with the ideas of Marx, Engels, Gramsci, Salinsky, and Derrick Bell (father of Critical Legal and Race Theory). This is in addition to personal bonding relationships with key communist figures like Frank Marshall Davis, Jeremiah Wright, and Bill Ayers. 

Joe Biden may be a long-standing career Washington politician, but his presidency is owned by Barack Obama. The Democratic Party of today was institutionally reformulated. It became the party of identity politics, a/k/a/ Neo-Marxism. Obama, like the Fabians preached, believed that through co-optation, gradualism, and molding cultural structures, the U.S. could be rehashed. The footprints of Obama’s presidency were mostly imprinted in the realm of culture. It was in this sphere that Critical Race Theory, Gender Ideology (Transgenderism), Critical Queer Theory, Critical Post Colonial Theory, and Critical Feminist Theory, all Marxist applications in culture, made enormous headway. The notion of “intersectionality” was the bridge that ironed out whatever theoretical differences may have existed between them. Hillary Clinton was supposed to continue the soft power revolution. Trump was the imponderable variable that killed that socialist dream, despite Obama’s heavy-handed meddling in the 2016 elections to help comrade Clinton.

The 2020 election was a do or die for the American Left. Trump galvanized conservatives, blue-collar Democrats, and non-college-degree middle-class bastions across America’s heartland. This was a stop on the socialist march through the institutions. The toxic Marxist Critical Theory doctrines were left naked for Americans to see. They did not appreciate what they saw. Consciousness and activism were raised to levels unseen in peacetime. American exceptionalism was being defended. Biden’s entry into the Oval Office in 2021, a masterful feat involving key institutions (the FBI, DOJ, media, and tech emporiums) that assisted in influencing the outcome, was a core necessity if the U.S. cultural revolution was to continue.        

Biden’s quick and legal branding of conservatives and MAGA Republicans as “domestic extremists,” was needed to thwart any real opposition. J6 had to be labeled an “insurrection” to give beef to actions the FBI and DOJ were already working on. Enemies of the Left’s cultural revolution had to be stopped at all costs. The FBI targeting parents who were opposed to Marxist indoctrination curricula, and traditional Latin mass goers of the Catholic faith are only two examples of this abuse of power. The enormous investment of public funds and human capital that federal law enforcement has made in hunting down and prosecuting trespassers and vandalizers of the Capitol Building on J6 pales in comparison to their effort in bringing to justice BLM and Antifa militia members for their genuine acts of domestic terrorism. These communist activists caused far greater destruction in federal and private property, lives, and civil institutions in the 2020 Marxist-based revolt (the real insurrection).

J6 Breach vs. 2020 BLM/Antifa Marxist Revolt

The Biden regime is, unabashedly, utilizing the legal system to persecute opponents and intimidate potential challengers. To be clear, the repression is targeted specifically against Americans that the Left in power considers capable of stifling the validity of their long-term goals. These confrontations with the legitimacy that they are attempting to institutionalize are at the heart of this illiberal campaign. The horrific difference in legal consequences of what the Left faced for their actions in 2020 and what the Right is facing for J6 affirms this.

J6 was a single incident that lasted less than five hours. The 2020 summer leftist insurrection went on for almost four months and affected over 140 cities. From May 26 through September 12, 2020, there were 637 separate riots, per the U.S. Crisis Monitor and conveyed by The Daily Signal. RealClearInvestigations, a subsidiary of RealClear Media Group, did a comprehensive report comparing the storming of the Capitol Building on January 6, 2021, with the riots that followed the death of George Floyd in 2020. The difference is startling in every sense.

During the Capitol Building attack, 147 police officers were injured or assaulted, compared to 2,047 during the 2020 Marxist violence spree. During the post-Floyd violent unrest, over 20 people died, as opposed to the one single, directly related J6 death, Ashli Babbitt who was shot by a police officer. Over 1,100 Americans have been arrested or brought to trial in connection with J6. The 2020 riots produced 16,241 arrests. Yet, even though 15 times more police officers were injured and 19 times as many people were arrested during the communist-supported, four-month disturbances, 90% of the citations and/or charges levied against the left-wing aggressors were dropped, dismissed, or ultimately, not filed. This includes a number of individuals who faced felony charges for attacking federal courthouses and other buildings but evaded the application of the law. The J6 defendants, however, have not received this lax legal treatment. On the contrary, the Biden DOJ has convicted over 600 individuals for J6 implications. This means that about 55% of the J6 defendants have already been prosecuted. The numbers will be higher, since trials are still pending. Not a single 2020 rioter received a seditious conspiracy charge.

What Constitutes a Political Prisoner?

The academic literature on categorizing what constitutes a political prisoner typically focuses on the nature of the prisoner’s intent or motivation. In other words, was the act that caused the jail sentence a political one? Writing in the Journal of Global Security Studies, Christoph Valentin Steinert penned an interesting article titled “Who Is a Political Prisoner?” Rather than focusing on the essence of the political offense or the motivation behind the act carried out, Steinert argues that the emphasis should be geared towards the prevalent structure and circumstances that convicted the individual. Politically biased trials that result in a conviction and subsequent incarceration are political crimes committed by the government. When the law is selectively applied and politically targeted from the seat of power, due process is absent, and universal human rights are violated. Hence, a political prisoner is also one where the state has abused ethical and customary procedure and trampled on elemental civil, human, and political rights.  

The United States does have, indubitably and unfortunately, political prisoners today. The current administration and their apologists will argue that the J6 defendants were processed according to the “law.” They must be reminded that Cuba, China, Russia, North Korea, and Iran also prosecute as per their legal codes. Selective application, targeting, and interpretation of the law to fit ideological and political ends, pushed from the helm of government, is tyrannical and undemocratic. Most of the J6 defendants have been treated unfairly. A good portion of them have been treated inhumanely while in custody. Some have even faced human rights violations by universal standards. The appalling sentences handed down to the Proud Boys and Oath Keepers leadership, when analyzed comparatively in historical, structural, and ethical context, are an anomaly in U.S. experience. Is the U.S. political prison system's status reversible? Yes, it is. Any future president must issue immediate pardons to equate the same leniency that was extended to far-left militants, who committed far worse crimes, with even more dreadful objectives. 

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J M Shiling autor circle red blue🖋️Author Julio M. Shiling 
Julio M. Shiling is a political scientist, writer, columnist, lecturer, media commentator, and director of Patria de Martí and The CubanAmerican Voice. He holds a master’s degree in Political Science from Florida International University (FIU) in Miami, Florida. He is a member of The American Political Science Association and The PEN Club (Cuban Writers in Exile Chapter).

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