TALKLEFT has picked up on the story that I linked below regarding a man sentenced to prison for linking to bomb-building information on his website. There’s this bit, which was also in the earlier story that I linked, but which I didn’t play up: “Austin said he took a plea bargain because he feared his case was eligible for a terrorism enhancement, which could have added 20 years to his sentence.”

The news stories don’t say, but I believe the statute in question is 18 U.S.C. sec. 842(p)(2), which provides (key bit in italics):

(2) Prohibition. –

It shall be unlawful for any person –

(A)

to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence;

Hmm. The “intent” part doesn’t fit these stories, but who knows what evidence they have. Still, this seems quite dubious to me — in order to meet the Brandenburg test you would have to show both the intent that such criminal use would happen, and the likelihood that it would happen. And such criminal use would have to be “imminent.” (Yes, this is a rather simplistic analysis, but I think it’s correct in its essentials. I’d be interested in hearing what Eugene Volokh thinks.)

You also see in this case the way in which threats of “terrorism” are allowing prosecutors to extract plea bargains in dubious cases. One consequence is that when the Justice Department gets a plea bargain, you can’t automatically assume that it’s proof the underlying case was especially good, just that the accused was afraid to roll the dice.

Of course, this sort of thing applies in most other federal prosecutions, too, where the threat of drastic sentence enhancements produces plea bargains in quite flimsy cases at times.

UPDATE: Some of TalkLeft’s commenters link to what are supposed to be mirrors of the site. It’s pretty lame. Does it rise to the level of incitement? It’s possible that it does, because of the combination of the explosives content with the rhetoric about fighting police, etc. It looks rather puerile and harmless to me — unless you try to follow some of its bomb-making advice, which seems naive and unsound in places. This report suggests that the District Judge in the case took a rather active role:

But when Ron Kaye, Austin’s federal public defender, began making his appeal for the new plea agreement, Wilson’s stone-faced demeanor changed: He looked away or fiddled with his glasses whenever Kaye spoke. Before long, an agitated Wilson made it clear he thought even the latest arrangement was too lenient.

“I must tell you,” he interrupted Kaye,
“I see this case differently. I’m rather surprised the government hasn’t taken this case seriously.”

By “taking the case seriously,” Wilson said, he meant setting an example to deter other would-be revolutionaries. He hinted that he favored an 8-to-10-month sentencing range. “Maybe I’m just living in another world,” he said of the plea deal. “I just don’t understand it.”

Then Wilson turned to the federal assistant prosecutor, Rob Castro-Silva: “Has your recommendation been cleared with the Justice Department? I just find it shocking.”

“I don’t need their approval —” the prosecutor began.

“How old are you?” the judge suddenly inquired.

“Thirty-eight,” the surprised prosecutor replied.

“You look younger,” Wilson pronounced, before telling the court that Austin’s case “has national and international implications.”

Wilson then announced he was postponing sentencing until July 28 and ordered Castro-Silva to contact the Justice Department and FBI Director Robert S. Mueller for their views on the plea arrangement.

Filing out of the courtroom, Castro-Silva was heard to mutter, “Well, I have my marching orders.”

Interesting. There’s more background here.