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Eighty-five years ago, Josef K., a senior bank clerk, was unexpectedly arrested by two mysterious agents who refused to identify themselves or the nature of the crime. Even more curious, K was not jailed. Every attempt K made to find out his crimes or how he might defend himself led him further down a path of mirrors.

The Magistrate wouldn't meet with K. The law was invisible, the Court untouchable. A stranger tells K that not a single defendant has ever been acquitted, and that his best option would be to delay as long as possible before the inevitable guilty verdict. But he couldn't help much; no one knew of what crime K had been accused.

The difference between Franz Kafka's The Trial and Lance Armstrong's story is that one is fiction, the other fact. No crime has been charged against Lance Armstrong. No government authority has stepped forward to charge the cyclist. Though the Drug Enforcement Agency investigates drug trafficking, they have not stepped forward to take responsibility. Indeed, while Agent Jeff Novitzky of the Food and Drug Agency has seemed to be the lead inquisitor, it is not even known if the FDA is behind this peculiar massive federal investigation of an American cyclist's actions while competing in a French bicycle race.

But the trial of Lance Armstrong is filled with the same mystery and innuendo that swirled around Kafka's The Trial. Armstrong's lawyers have met with the government, but have not been informed of what crime he may or may not be charged with. Meanwhile, much of the media has already concluded that Armstrong is guilty of some unspecified crime and most likely will be indicted by January. Consider what the New York Times recently wrote: "Federal prosecutors are seeking an indictment by January, those close to the investigation said, because a statute of limitations for some of the suspected crimes expires that month."

But what are the crimes? So far the government has anonymously floated various possible charges to a willing and largely supportive media: fraud against the team's sponsor, the Postal Service or even an unspecific more general fraud, all somehow related to the vague idea that Armstrong and other riders allegedly took substances that were criminal. But so far these are really no more than legal theories, as mysterious and unsubstantiated as the wispy accusations K could not pin down in The Trial.

Armstrong's guilt is often assumed, as in this paragraph from the same Times article: "Another former Postal rider, who did not want to be identified for fear of retribution from Armstrong, said that every rider on Postal was aware of the doping that occurred on the team -- particularly among the riders who rode the Tour and other top races." That is an astounding shotgun charge by one "anonymous" figure, the sort that would fit easily in the narrative of The Trial. No specifics were offered. But the very next day the Associated Press wrote a story that appeared to contradict the Times, headlined, "If Armstrong doped, teammates say they saw nothing."

Semantics has played a large part in the investigation of Lance Armstrong. The word "dope" broadly conjures up things like heroin. But nothing remotely like that has been involved. Many of the alleged cycling "crimes" involve taking prescription drugs without prescription or undergoing medical procedures that are not drugs at all, raising the question of whether any of it is truly criminal, especially if it happened in France 5 to 11 years ago, during the period Lance Armstrong was one of many members of the U.S. Postal Service Pro Cycling Team.

For example, Floyd Landis has accused Armstrong and teammates of taking pharmaceutical drugs and steroids without prescriptions as well as "blood doping" to improve cycling performance while in France. Are blood transfusions even against the law? Can the U.S. charge an American for something he did in Paris, say consuming a prescription drug or a steroid without a prescription?

In attempting to get some answers, I asked the Drug Enforcement Agency (DEA) in Washington, D.C.:

"Can a U.S. citizen be prosecuted in the U.S. by the Department of Justice for taking (not distributing) a prescription drug (EPO or Erythropoietin) without a doctor's prescription in France? In other words, the U.S. citizen obtains the drug overseas and takes it in France. Does that violate U.S. drug laws and can and have individuals been prosecuted for this?"

I asked the same question about anabolic steroids. The public information officer (PIO) wrote back promptly that "Since this is a legal question" I should pose it to the appropriate contact at the Department of Justice. The public information officer at the DOJ thanked me "for reaching out to us." However, in the same breath she noted, "the department doesn't offer legal opinions on hypothetical situations or sets of facts presented in this fashion. We offer legal opinions in court, through court filings and other approved legal processes."

Despite this bureaucratic non-response from the DOJ, there's no big state secret here: the DEA has no interest in prosecuting users, but instead goes after drug traffickers. I called the DEA again and they sent me excerpts from their mission statement:

"to enforce the controlled substances laws and regulations of the United States and bring to the criminal and civil justice system of the United States, or any other competent jurisdiction, those organizations and principal members of organizations, involved in the growing, manufacture, or distribution of controlled substances appearing in or destined for illicit traffic in the United States..."

No one has suggested that Lance Armstrong was a drug trafficker. What is going on?

As in The Trial, the central tension is that no one will step forward to say what K might have done or before whom he stands accused. "The real question is, who accuses me?" asked K. "What authority is conducting these proceedings? Are you officers of the law?"

To those who haven't read the classic book, The Trial is a metaphor. In the end, K never does discover his crime and never quite undergoes a formal trial.

But his execution was very real.

 

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