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Buying the pot-a "nuclear option" in direct action legal cases

This piece describes an all-out, "doomsday option" for dealing with courts and prosecutors in direct action legal cases and in political situations. In buying the pot you use yourself as a hostage, backed up by the actions of others on the outside. Neither give nor accept quarter!
In politics it is common to use "game thoery" to describe rational courses of behavior for dealing with a particular circumstance. It can be applied to law as well, as in the infamous "prisoner's dilemma" game of snitch-don't snitch. In that so-called "game," two people have been arrested. If neither one talks, both get a short jail term on minor charges the state can prove without testimony. If either one snitches, he walks free and the person he snitched on gets 20 years. If both of them blab, however, both get five years in prison. Analysis of the situation shows that if both of them cooperate, both get a short jail term, but if they cannot cooperate with each other both will server five years as each tries to fink on the other.

This is because the rational move in both cases is the same for each party, so either both snitch or neitehr one snitches if both are rational players. If you consider only yourself in this case, it is always in your interst to snitch, whatevber your codefendant does. The problem with this approach is that this is also true for your codefendant,so if you are even suspected of thinking this way you will surely be snitched on as well, guaranteeing both of you five years in prison in this scenario. Only by agreeing in advance to cooperate with each other can you beat hte five year sentence! This is why the Mafia has Omerta, why everyone from drug dealers to MS 13 to the IRA severely punishes snitches-and why all of us activists must accept that you do not participate in, nor seek to elarn about, any action where you would feel obliged to snitch on someone else to save your own ass if called before a grand jury.

OK, that's simple enough, and there is no "prisoner's dilemma" anyway for people regarded by Bushoco as terrorists anyway. This is because there have been repeated cases of, among other defendants, ALF people turning informer only to have prosecutores go back on the deals and sock them with long prison sentences anyway. If snitching as a way out of prison is ruled out, what else can be done? This discussion is based on the assumption of a defendant not willing under any circumstance to simply sit in prison, yet also unwilling to become a traitor by informing.

To explain a strategy I have used myself and seen repeatedly used by others in situations both big and small, I am going to use gambling and poker as an analogy. In gambling, one high-risk but effective strategy is to "buy the pot." This means to escalatge the risks beyond what your opponnent is willing or able to match, causing him to fold and therefore forfeit whatever is in the pot to the user of the strategy. This works when you are far more motivated to win than your opponent.

The reason a casino or a skilled poker player does not risk too much of the bankroll on any one hand is that the odds cannot be controlled in a small "sample size." Just as the maximum bet a casino would accept on any one spin of the wheel will be small relative to teh size of the casino's bank account, so will the amount a poker player bnets on any one hand be kept relatively low. In this way, the odds over time always favor the casino, the house, or any other advantage player.

Buying the pot is a strategy related to but not the same as bluffing, wher you assume you will lose if your hand is called. In both bluffing and in buying the pot, you use a large bet to intimidate your opponent. In a bluff, you must be able to afford to lose the bet.You might try this after winning several hands in a row and then gettign a pair of deuces, for instance.

Buying the pot differs form bluffing in that you have somethign you can deliver upon, but that ability is not played as part of the hand itself. It is based instead on the inability of your opponent to match your bet. No casino will stay in any had of poker requiring it to bet the deed to the property! One scenario here in cards is you raise your bet until your opponent must bet his car, his home, or take out a marker he knows he cannot pay. An advantage player, the kind you will not otherwise beat, will now fold his hand. A stupid player may stay in the game and then chance will decide the outcome. In essence, this allows someone with far more motivation to win to force his opponent to yield, for one hand only. In a bluff, if your opponent calls the hand you lose. If you buy the pot, both sides must risk losing everything. In cards there is still a winner and a loser but in the scenarios I will describe both sides lose if the government calls the hand.

How does this relate to legal cases stemming from direct action? Well, consider the prosecuting attorney to be a card player, and as he is the house I will consider him to be the dealer as well.The courtroom I will consider to be a casino, as American "justice" is so often a crapshoot anyway. Shit-no lawyer ever trusts any jury trial to be 100% reliable anyway, no matter what the evidence. The jury is the cards themselves, as evidenced by the constant attempts to "stack the deck" in jury selection. This is how prosecutors win most death penalty cases and why most wealthy defendants walk. The legal system is also as corrupt as any Mafia-owned casino ever was, and being on the inside allows cops and prosecutors a free hand to cheat. As an example I will cite the supression of video proving a defendant not guilty, a gambit I have seen with my own eyes.

Why is a courtroom a casino? Because resources(usually money), tactics, and strategy are as much or a greater determinent of the outcome than actual guilt or innocence. Usually, it is the prosecution doing the bluffing, offering say, a moderate jail term for a plea bargain vs a 20 year terrorist enhancement if you are convicted in a trial. Few defendants will risk calling the delaer's ahnd in a bet of this magnitude. This is how Sherman Austin, who has committed no crime, was intimidated into signing a plea bargain givign him a year in prison when he had not even been indicted for anything!

There are, however, several situations where this situation breaks down utterly. An obvious example is a defendant preferring death to any term of incarceration combined with a prosecutor unwilling or unable to offer a no-jail deal. Yhe same is true if the defendant values to issue at stake more than his/her own life or freedom. Such defendants cannot be bluffed, and the prosecution has nothing to bargain with.

Now the defense can buy the pot if the defendant's death or incarceration would create adverse consequences for the state. This is done by rejecting all plea bargains and creating a deliverable threat of adverse consequences of anything happens to the defendant. The essence of buying the pot is the use of yourself as a hostage to force the opposition's hand, operating on the assumption that the government has to mantain some veneer of due process and cannot be seen openly killing protestors. It will not work in such hellholes as Burma.

The most famous example here is Gandhi, whose hunger strikes in custody threatened to unleash the entire Indian subcontinent in an explosion of rioting and armed struggle the British could not defeat. They so feared this they yielded to Gandhi's demands. Similarily, if the FBI had tried to imprison Martin Luther King on bogus felony charges King would have had the same option, again backed by overwhelming force. This may be what limited the FBI to spreading scurrilious rumors instead of arresting and holding MLK on trumped-up charges.

In both King's and Gandhi's cases, the governments knew damned well what would happen if either one was killed, and the threats were delivered upon in both cases when they were killed anyway. In King's case, I suspect the government decided the riots were prefeerable to a sucessful linkage of labor issues to the Vietnam War.

I have been in a situation myself that required buying the pot.Years ago, I was in a tumultous protest at an infamous fur-selling department store. About halfway through the protest, the entire crowd of about 400 people suddenly turned and stormed the building. After security batoned us all out, several windows were smashed. Nobody was arrested at that point, as the cops claimed to have seen little. Half an hour later, a victory chant rose form a growing crowd by the broken windows of "For the Mink, for the fox, smash the windows glue the locks!" As soon as I joined in the growing chant, the cops suddenly turned on me, cornered me, and after a club-swingijng fight with teh crowd I was arrested and charged with felonly inciting to riot.

Prosecutors had no case as this charge in this jurisdiction requires incitation followed by damage, but the chants happend after the alleged riot. Prosecutors were bluffing, threatenign me at one point with 30 years in prison. At this point something happened they did not expect: I refused to plea bargain, and the very first thing I told the public defender in the cellblock was "no deals."

With their bluff called,the prosecution decided to cheat. Unable to win a conviction in court, the grand jury either was never presented with the case or declined to convict(this is very unusual). In this way they kept the case alive and then attempted to initiate proceedings against me for not providing urine samples for drug testing(I cannot pee in a motherfucking cup!)They though they could win this, playing for close supervision until a trial date that would presumably never be set. They no doubt hoped I would serve repeated short jail terms for defying ever-strictor release conditions.

Now it way my turn to play hardball and buy the pot. I made it known to those around me that I would not attempt to survive in captivity and would refuse to eat jail food if held. This was pre-9/11, and in a time of a lot of "activity" in my area, including several serous direct actions within a month of the demo.Speculation was allowed to develop about just how far the people would go if I dies in custody, and as intended soon reached the ears of the many snitches in the movement. Now the possiblity of a dead defendant had to be weighed against the risk to area fur retailers if the ALF struck back. I was all-in, and if the prosecution wanted to stay in the game the "marker" would be paid by area fur shops if the "game" went against them.

The example of Barry Horne in Britain was invoked, and this was not too long after one of his hunger strikes led to warnings to every animal-torture business in the UK to look out if he died. Shit-to this day the ALF still dedicates actions to the memory of Barry Horne.

At this point, the stakes exceeded what the "casino" was willing to play for, with the safety of several of their investors now at stake. The prosecution did the sensible thign and folded their hand. They did not bring the case jacket to the drug-test contempt hearing, and an outraged judge seening only drug testing on a protest case threw out all the release conditions. Two weeks later the entire case was dropped.

Since that time I have not allowed the cops to catch me in the many mass arrests and other dirty tricks I've seen in such protests as the RNC actions in New York City. In one case I rode my bicycle between two moving busses to force three bicycle cops to back off. After all, the fox is running for his dinner, the rabbit is runnign for his life!

This was also the strategy used on a far larger scale by the U'wa indigenous tribe in Colombia when faced with the loss of their land for oil drilling. The Colombian government was glad to sell drilling "rights" they did not ahve to Occidental Petroleum(Oxy), and the tribe had neither legaql nor military options available that could stop the drilling. If as is usual in oil extraction on NAtive Americn land teh land was rendered worthles for anything else, every man, womany, and child would have to choose between starvation and migration to the cities to work in sweatshops. Unwilling to accept this, the entire tribe invoked the "Masada option"-mass suicide.

If the U'wa had been forced to carry out their threat, the incredible bad publicity would have been ruinous to Oxy, bringing the danger of permanent boycotts of their brands in North America. After Exxon Valdez, many Exxon station owners reported that their sales dropped 20% and never recovered. An "Indian Massacre", even as a mass suicide, would have been still worse publicity,and nobody could guarantee that it would not bankrupt Oxy. Once again, the deed to the casino would have to go in the pot to stay in the game, and Oxy folded. Although the Colombian government is still trying to sell drilling "rights"
on U'wa land, nobody has dared to offer one penny as of this writing-the stakes are just too high!

Buying the pot is not a strategy ised in a normal "game" but rather in one where you will have nothing left to lose if you are defeated. It changes the situation from one which is won by the party with the most resources to one which is won by the most motivated party,often the one with the least to lose. If both sides lose if the hand is called, the one that has the least to lose has the least incentive to fold.
 
 


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