As Australian Parliamentarians are about to legislate for a new three-person panel to review our terrorism laws, they could do no better than contemplate an American case where the US Patriot Act delivered ‘justice’ gone mad.
The case also highlights the sometimes unwitting ramifications of a plea bargain in the US system.
Tamera Jo Freeman was on a Frontier Airlines flight to Denver USA in 2007 when her two young children quarreled over the window shade and then spilled a Bloody Mary into her lap.
She spanked each of them on the thigh with three swats. It was a small incident, but one that would eventually have enormous ramifications for Freeman and her children.
A flight attendant confronted Freeman, who responded by hurling profanities and throwing what remained of a can of tomato juice on the floor.
That ultimately led to Freeman’s arrest and conviction for a federal US felony offence defined as an act of terrorism under the Patriot Act, the controversial US federal law enacted after the 2001 aircraft attacks in New York and Washington.
“I had no idea I was breaking the law,” said Freeman, 40, who spent three months in jail before pleading guilty.
The costs of a conviction can be enormous. In Freeman’s case, they included custody of her children.
The confrontation on the Frontier Airlines flight to Denver was particularly harsh, recalled Amy Fleming, the flight attendant who told Freeman to stop spanking her children. In a recent interview, Fleming called Freeman the most unruly passenger she had seen in 11 years on the job. “Absolutely she deserved a felony conviction,” she said.
But at least one passenger, John Carlson, a defence attorney sitting near Freeman, said there was no threat. “There was a nasty, loud exchange,” Carlson said. Then Freeman “capitulated and offered no resistance. My sympathy shifted to her.”
After three months in jail, Freeman agreed to plead guilty in exchange for being released on probation. A court-appointed attorney told her that a plea deal was the fastest way to see her children, who had been taken back to Hawaii and put into foster care.
But her probation conditions required her to stay in Oklahoma City, where she grew up, and prohibited her from flying. Meanwhile, legal proceedings in Hawaii began to allow the children’s foster parents to adopt them. Freeman has been denied permission to attend custody hearings in Maui over the past six months, court records show.
“I have cried. I have cried for my children every day,” Freeman said. “I feel the system is failing me.”
The pie-in-the-sky justice system appears to be entirely arbitrary. In 2008, a Boston man who took off his clothes and attempted to open an emergency exit during a flight to Los Angeles was not charged with a crime, even though the plane was forced to make an unscheduled landing in Oklahoma City.
Freeman is one of at least 200 people on US flights convicted under the terrorism law. In most cases, passengers had not tried to hijack the airplane or physically attack flight crew. Many simply involved raised voices, foul language and drunken behavior.
Some security experts say use of the law by airlines and their employees has run amok, criminalising incidents that did not start as a threat to public safety, much less an act of terrorism.
In one case, a couple was arrested after an argument with a flight attendant, who claimed the couple engaged in “overt sexual activity”. An FBI affidavit said the two were “embracing, kissing and acting in a manner that made other passengers uncomfortable.” Carl Persing and Dawn Sewellnever left their seats during the 2006 incident aboard a Southwest flight to Raleigh, North Carolina, that led to their arrests and four days in jail.
According to the Transactional Records Access Clearinghouse, a Syracuse University program, the US Government has obtained 208 felony convictions for disrupting flights since 2003, when data first became available.
There has been one single case of actual terrorism, which involved Briton Richard Reid, now serving three life sentences. Reid was subdued by passengers and flight attendants on a 2001 flight from Paris to Miami after he tried to ignite explosives in his shoe.
– from an LA Times story, by Ralph Vartabedian and Peter Pae, 20 Jan 09