On Wednesday, Sept. 3, 2003, Sherman Martin Austin began serving one year in federal prison under terms of a plea agreement for which he was sentenced on Aug. 4, 2003.
Austin, the 20-year-old African-American founder and former webmaster of the anarchist website www.raisethefist.com, pleaded guilty to “distribution” of information about making or using explosives with the “intent” that the information “be used for, or in furtherance of, an activity that constitutes a Federal crime of violence.” Such was deemed illegal under a relatively obscure federal statute, 18 U.S.C. 842 (p)(2)(A), pushed through Congress by Democrat Sen. Dianne Feinstein in the late 1990s. The offending material, which Austin repeatedly has emphasized he did not author, was housed on an isolated section of Austin’s web server, and a small portion of it contained amateurish instructions on how to assemble simple explosives.
Now, as Austin and the increasing number of people analyzing his case count down the days to his freedom, new facts about his case are coming to light. Gathered from court records, law enforcement documents, and interviews, these new details reveal a sloppy federal investigation of Austin, one of inconsistencies and dubious evidence that nonetheless resulted in an armed raid of Austin’s 950-sq. foot Sherman Oaks, CA home, a nightmarish 13-day detention in two cities, and ultimately, a year-long federal prison sentence handed down by a Reagan-appointed federal judge.
The new details also show the egregious politicization of Austin’s case by federal prosecutors and the judge who sentenced Austin. They show the FBI, during its investigation, engaging in questionable conduct that make parallels to COINTELPRO quite apt. And above all, the new information elevates Sherman’s case beyond its obvious–and obviously important–free speech implications and demonstrates just how low the bar is for authorities to cobble together an affidavit for easy approval (and a warrant) from a judge.
THE BACKGROUND
For those who have not followed Austin’s case, here follows the basic chronology.
On the afternoon of Jan. 24, 2002, Austin awoke from a nap and found around 25 FBI and Secret Service armed agents surrounding his home. Over the course of the afternoon and evening, they proceeded to seize computer equipment, protest signs, political books, and other miscellaneous items from the premises by using a warrant supported by an FBI affidavit that contained two suspected charges–[1] “distribution” of explosives information with the “intent” that the information “be used for, or in furtherance of, an activity that constitutes a Federal crime of violence” (hereafter referred to as “distribution of information with intent”) and [2] alleged illegal computer activity that included defacement of web pages.
Agents questioned Austin at length but ultimately left the premises without making an arrest. A few days later, Austin, in his 1981 Toyota, drove to the New York City anti-World Economic Forum protests, held through the first few days of February 2002. Shortly upon arrival, Austin was snatched by the NYPD on Feb. 2, 2002 with around 25-27 other activists before he even marched. Later, while waiting for someone to pick him up from a courtroom, Austin instead found himself arrested by FBI agents and then detained in a federal maximum-security prison. The criminal complaint and warrant for this FBI arrest, dated Feb. 4, 2002, contained an additional charge–possession of an unregistered firearm, and as insinuated by the FBI affidavit supporting the warrant, in this case, an explosive. This second warrant, however, did not contain the charge related to computer activity found in the first warrant used during the Jan. 24, 2002 raid.
Austin’s prison once housed, among others, terrorists involved in the African embassy bombings. At a Feb. 7, 2002 detention hearing, Austin’s lawyer, Susan Tipograph, who voluntarily represented Austin at the time, spoke of his prison conditions.
“Every time I’ve seen him, he’s been sneezing, coughing, or shivering, judge. This is not right He’s not been given a shower for four days,” Tipograph said at the hearing.
After having spent 11 days in two New York facilities, Austin was transferred to a Bureau of Prisons facility in Oklahoma, where he stayed for two additional days before returning by plane to Los Angeles.
Months then passed without any legal incident stemming from the Jan. 24, 2002 raid or the February 2002 arrest and detainment in New York–no indictments, no arrests, no more raids, no interrogations. The two charges that appeared on a criminal complaint filed against Austin in the U.S. District Court’s Central District of California while he was held in New York–for distribution of information with intent and for possession of an alleged explosives — were dropped in mid-February.
But Austin has said that local authorities in Long Beach, CA, where he moved after returning from New York, would still regularly follow and stop to intimidate and harass him, asking questions about his political activities and identifying him by name.
In the first week of August 2002, Austin’s legal troubles resurfaced. Before entering any new charges, federal prosecutors offered Austin a plea agreement that, if accepted, would have him plead guilty to only one charge, distribution of information with intent. Additionally, according to this plea agreement, prosecutors would not charge Austin for illegal explosives possession or illegal computer activity, the two other alleged felonies listed on the prior warrants. If Austin accepted the agreement, federal prosecutors would recommend a sentence of one month in prison, three months in a community correctional facility, and three years of supervised release.
Austin did not initially accept the plea and originally intended to go to trial on principle. But he later learned that this might mean facing a 20-year sentencing enhancement if convicted under a United States Sentencing Commission guideline created in the mid-1990s and the scope of which expanded greatly after passage of the 1996 Anti-Terrorism and Effective Death Penalty Act and the 2001 USA Patriot Act.
Thus on Sept. 30, 2002, Austin entered the courtroom of federal Judge Stephen V. Wilson, a Republican Reagan appointee, to plead guilty.
But Judge Wilson rejected the plea deal, arguing that Assistant United States Attorney Rodrigo Castro-Silva’s recommended sentence of one month in prison was too light. He forced both prosecutors and the defense back to the drawing board.
Months later, in late February 2003, both sides returned with another binding plea agreement that would restrict Wilson’s sentence to 6 to 12 months, a range later upgraded to 8 to 14 months after Austin became involved in a minor traffic violation (broken headlight) during which he had driven with an unrenewed license because, he says, he had never received a renewal notice of such in the mail.
Again, the agreement had Austin plead guilty to only one charge, distribution of information with intent.
His sentencing hearing on Jun. 30, 2003 set off a series of farcical twists that culminated in an eventual sentence. Upon hearing prosecutor Castro-Silva’s upgraded recommendation of four months in prison and four months in a community correctional facility, Wilson again lashed out at both him and Austin’s federal public defender, Ronald O. Kaye, calling their recommended sentences overly lenient (Kaye asked for a month in prison). Judge Wilson suspended sentencing for a month until Castro-Silva contacted the Justice Department and FBI for its recommendation.
On Jul. 28, 2003, Austin returned to the courtroom expecting his sentence, and instead learned that the clerk had forgotten to enter his sentencing hearing into the daily proceedings, which required Austin to return back on Aug. 4, 2003.
Then, Judge Wilson finally sentenced him to a year in federal prison and three years of very restrictive supervised release that will govern his computer access and association with political groups upon release.
THE AUTHORSHIP QUESTION (AND DISTORTION)
Much misinformation about the origins of the offending material on Austin’s website–from which sprung the only felony count to which he plead guilty — has spread through Internet postings, news articles and local TV broadcasts, as well as official documents of the FBI and the United States Attorney’s Office. Sorting and filtering through it requires some knowledge of how Austin administered raisethefist.com, which he founded on President’s Day in 2000.
Austin’s anarchist site, which still operates today and is maintained by a group of volunteers, contains articles and sub-sections about a hodgepodge of topics, including protest announcements, police brutality, and anarchist theory. It also features what is known as an open publishing newswire, made famous by the indymedia.org network of sites, that allows users to submit text and photographs that instantly appear on the newswire at the push of a button. Additionally, Austin provided free web storage space–or hosting space, to use proper Internet terminology–to activists who asked for it. Activists who took up Austin’s offer could, independently of Austin, and at their leisure and will, post, remove, and alter web pages they themselves created and authored.
In other words, if you were to ask Austin for hosting space, and he granted it to you, he would “host” your page, and you would be able to author web pages and place them on his server for public view without Austin’s necessarily knowing their exact contents or what subsequent alterations you might make (unless, of course, he vigilantly policed your pages regularly for changes).
Other non-political websites like www.tripod.com or www.geocities.com provide a similar service. For example, on his or her designated area of the tripod.com web server, a user who signs up for free web hosting space on tripod.com can post web pages visible to an entire Internet audience. Services like tripod.com and geocities.com act as “hosts,” but typically do not have the time to screen the contents of all the web pages they host for thousands of users.
It is Austin’s offering of this service that led to the sole charge on his guilty plea, which resulted in the one-year sentence. One user who asked for free hosting space on Austin’s site used a portion of it to house a tract called the Reclaim Guide. Prepared originally for a September 2001 IMF protest that never occurred due to 9/11, and colored by amateurish rhetorical bombast, the Guide contains, among other things, protest tactics, notes on how to avoid trouble with law enforcement at political events, and a small section with recipes for explosives. Its latter part appears cobbled together from and inspired by instructions on explosives freely available on countless websites accessible by simple Google searches, as well as published books. They do not appear very detailed, or for that matter, effective.
For example, the entirety of the Guide’s “Smoke Bomb” recipe, one of the shorter entries, read as follows:
“Mix 4 parts sugar with 6 parts salt peter. Heat this over a low flame until it melts, stirring well. Pour into a container. When pouring place a few wooden matches into it for a fuse. About a pound of this will smoke up an entire block.”
Silly stuff, though from reading certain accounts about these instructions, one gets two very erroneous impressions–that, one, they actually were of serious pyrotechnic merit, and two, that Austin authored them, which he did not.
For one, Austin says he told FBI agents at least seven times during the raid, while questioned, that he did not author the Reclaim Guide and its materials on explosives. Yet mainstream media and subsequent FBI documents may suggest incorrectly that he played a far more proactive role in the Guide’s presence on his server than he actually did.
These materials primarily use two verbs, “post” and “author,” to describe Austin’s involvement, neither of which is accurate.
For example, A New York Post article published on Feb. 5, 2002, days after Austin’s NYC arrest, read: “A would-be teen terrorist, wanted by the FBI for allegedly posting a how-to-blow-things-up Web site, was nabbed during World Economic Forum demonstration” The article then stated that Austin’s site contained a “litany of methods” for “urban thuggery.”
At a detention hearing two days later, federal prosecutor Victor Hou of the United States Attorney’s Office (USAO) of the Southern District of New York quoted one of the Reclaim Guide’s instructions and then claimed Austin authored the line.
“He instructed others how to make fuel fertilizer bombs and encouraged people to make more devastating Molotov cocktails on his web site. He instructed them Just stuff the bottle with this mixture and light the fucker–this is what the defendant’s own words dictate,” Hou said.
Two FBI affidavits filed in this case–one used to support the warrant served on Jan. 24, 2002 at the original Sherman Oaks, CA raid, and a second one, signed on Feb. 4, 2002, used to justify Austin’s detention in New York City by federal authorities — were authored by the lead FBI investigator on the case, Special Agent John I. Pi.
Pi, in his second affidavit, specifically used the verb “author” to describe Austin’s role in the explosives instructions.
And yet FBI documents indicate that Pi and the FBI may have known before the Jan. 24, 2002 raid that Austin had not authored the material, and certainly knew such by summer of 2002, before prosecutors decided to revive their case against Austin.
One FBI internal report used in the case, dated July 24, 2002, indicates that agents visited the home of an affluent Orange County, CA-area white teenager who actually authored the material and uploaded it to Austin’s site. There, according to the FBI’s own report, agents interviewed the teenager to whom Austin had granted free web hosting space — space the teenager later used for posting the Reclaim Guide to http://www.raisethefist.com/EXIT, the address where his content could be accessed.
The FBI report indicates that FBI agents showed the teenager printouts of the page and that “[Name withheld for privacy] stated that he did author this website AUSTIN hosted this website on WWW.RAISETHEFIST.COM for XXXX. XXXX had direct access to EXIT via File Transfer Protocol (FTP) server on AUSTIN’s computer via the Internet. XXXX also explained that Austin showed him how to use FTP.”
FTP is a standard means of electronic file transfer on the Internet, used to send, receive, and update web pages and files.
The FBI report specifically cites the Reclaim Guide, which contained the explosives instructions, and indicates that the teenager admitted to the FBI agents that he had authored the material.
“XXXX was shown a copy of the webpage, WWW.RAISETHEFIST.COM/EXIT/RECLAIM.HTML XXXX stated that he did code this webpage and all the associated webpages based on the content of a written document, called the RECLAIM GUIDE, provided to him by another individual, Joey LNU [Last Name Unknown].”
Additionally, the report contains a copy of an e-mail sent by the teenager on Sept. 8, 2001–long before the Jan. 24, 2002 raid–from his CompuServe account. In the e-mail, the teenager provides the Internet address to the site.
The e-mail reads: “Please spread the word to get this site out before the DC action later this month! Also, much thanks to Sherman who is letting us host this site on his server. http://www.raisethefist.com/exit/reclaim.html TRASH DC!”
Agents did not arrest the teenager, nor was he ever charged with any crimes. Both he and his parents have refrained from public comment, which Austin’s mother, Jennifer Martin, believes is irresponsible.
“They really should have come forward in Sherman’s defense and said something about this and explained the situation,” Martin said. “They never should have allowed this to happen by turning their backs on it.”
In previous media interviews, Austin has consistently maintained that he not only did not author the material, but that he also only gave its contents a cursory glance. All Austin did, he has said, was provide some clickable courtesy web links to the teenager’s material from the central raisethefist.com site that he himself ran and actively maintained and updated. The current incarnation of raisethefist.com still does this today, and the documents discussed above, which both prosecutors and the FBI possessed, seem to substantiate Austin’s claims.
Yet Pi used the verb “author” in his second affidavit, which led to Austin’s nearly two weeks of federal detention in New York and Oklahoma, to connect Austin with pages on “Draino Bombs,” “Molotov Cocktails,” and “Smoke Bombs,” as well as the Reclaim Guide’s general page on weapons and explosives.
But in his first affidavit, Pi merely noted the presence of the explosives instructions as a subsection on the raisethefist.com domain and did not use the verb “author.”
Meanwhile, printout copies of Reclaim Guide web pages that FBI agents showed Austin during the raid on his home indicate that Austin initialed the printouts, but that they contained clauses stating he “implemented” the web pages. “Implement” is a far more vague and broad verb that could encompass activities such as passive hosting of another person’s web pages–that is, providing storage space for them–but not necessarily the authorship Pi would claim later in his second affidavit of February.
The pre-sentencing report of the Probation Office for the U.S. District Court’s Central District of California also stated that Austin “authored” the materials. Austin said that the Probation Office was supposed to have removed and not used that verb.
Shortly before the scheduled sentencing hearing on Jun. 30, 2003, later delayed, Austin’s public defender Ronald O. Kaye and prosecutor Rodrigo Castro-Silva issued sentencing positions, documents in which each issued recommendations on sentencing to Judge Wilson.
Kaye’s sentencing position contained Austin’s “factual objection” to the section of the Probation Office’s pre-sentencing report that uses the verb “author.”
“Although the agents may have perceived that Mr. Austin admitted to ‘authoring’ the written materials at issue on his web site, he did not ‘author’ these materials, but exclusively permitted these materials to be posted on the web site,” read the factual objection.
And yet Castro-Silva’s sentencing response subtly conflated web hosting with authorship. In his response, Castro-Silva requested that the defense’s factual objection concerning authorship be overruled entirely, although much evidence existed to substantiate Austin’s factual objection.
The federal statute itself employs vague language–“distribution” with intent — that should make ISPs and web hosting service providers weary, especially those that host activist or other potentially volatile websites. Like the verb “implement,” “distribute” covers a wide range of activities that may be out of the service provider’s control and do not have to include authorship. If a user with web hosting space on an overtly political web hosting service, such as riseup.net, or even a politically neutral one like geocities.com, decided to upload explosives instructions similar to the Reclaim Guide material, might a situation arise in which riseup.net or geocities.com’s administrators would be charged for distribution with intent? Would hosting a site qualify for “distribution” and de facto intent? After all, the central pages of riseup.net and geocities.com, which are overseen by those sites’ respective administrators, contain links to pages hosted on riseup.net and geocities.com servers — but that were authored and updated independently and out of those providers’ daily purview.
As the case did not go to trial, or if necessary, further appeal, such questions and precedents were not answered and set.
MAD, MAD, MAD JUDGE WILSON
Transcripts of court hearings also show the degree to which Judge Wilson politicized his courtroom and the hostility he showed towards Austin throughout the case.
For example, at the original Sept. 30, 2002 sentencing hearing, where both parties recommended a one-month prison sentence, five months in a community corrections facility, and three years of supervised release, Wilson’s statements after hearing the recommended sentences hint at recurring themes throughout his hearings.
“What kind of message is a disposition like this extending to the society at large?” asked Wilson.
After prosecutor Castro-Silva told Judge Wilson that “the message here is that Mr. Austin is certainly not a terrorist,” Wilson grew indignant.
“Why are you setting the bar so high?” Wilson asked the prosecutor. “Apparently he’s [Austin] admitted to posting instructions as to how to make incendiary devices for those whose philosophy instructed them to disrupt international economic meetings, World Trade meetings, or whatever. Why should someone at 19, who, arguably, has some misguidance on some geo-political issues be given a pass?”
Wilson’s verb choice–“post”–suggests that he may not have understood the true nature of Austin’s involvement with the explosives instructions, which entailed Austin’s first granting free web storage space to the teenager who authored and posted the information and then offering courtesy links from raisethefist.com, as Austin did for other sites he hosted. Wilson’s use of the verb may have stemmed partially from the use of the verb “post” in the plea agreement authored by the prosecutors.
“For instance, defendant posted instructions on how to make and use Molotov cocktails,” reads the plea’s factual basis.
“Defendant also posted instructions on how to make and use other destructive devices such as smoke bombs, pipe bombs, and soda bottle bombs,” reads another section of the plea agreement.
In the context of web hosting and authoring, the verb “post” is very non-specific. Does hosting a site as Austin did and then providing a link to information amount, de facto, to “posting” that information? Or is the person who actually transfers the web pages to his or her free hosting space the one who “posts”? Use of “post” potentially exaggerates the role Austin played in the instructions’ presence on his servers and likely led to Wilson’s more outlandish statements.
“Why do you say that he ought to get some leniency because he’s not a terrorist? Isn’t what he admitted to doing tantamount to being a terrorist?” asked Wilson, shortly before he rejected the first plea bargain and sent both sides back to the drawing board.
Austin, meanwhile, decided to post a disclaimer on those sections of the site that he hosted for others but that he did not author, maintain, or update.
“The information, views and opinions contained within the information on RaisetheFist.com website and the domain names RaisetheFist.com are not those of the owner or the site host, neither are they necessarily those of the maintainer or the contributor,” reads the disclaimer.
In late February 2003, Austin accepted and entered a new plea and awaited sentencing on Jun. 30, 2003. Both parties returned to the sentencing hearing with the understanding that Wilson could sentence Austin to anywhere between 8 and 14 months under terms of the plea agreement.
Defense attorney Kaye recommended one month in prison and three months in a community corrections facility, while prosecutor Castro-Silva’s recommended four months in prison and four months in a community corrections facility.
Both proposed sentences set Wilson off.
“You think giving this sentence–this defendant four months or a month is supposed to be a deterrence to some other revolutionary who wants to change the world according to his or her own views by the use of websites and teaching people how to blow up other people?” asked Wilson.
Again, Wilson’s use of the word “teach” suggests that Austin played a proactive role in the Reclaim Guide’s presence, and that the site overwhelmingly consisted of material on explosives, which it never did.
During the hearing, Kaye referenced results of a psychological profile of Austin that he had commissioned and presented to Wilson.
According to her report, the psychologist examining Austin applied a standard test that compares test subjects to “habitually violent offenders.” Noting Austin’s non-violent personal history, the profile stated that Austin showed “no indication of psychopathic thinking” and that he was “unlikely to use violence himself.”
“Were he to behave violently, it is likely to be only when he perceived himself to be under attack and even then his propensity to use direct physical force appears less than average for the general population,” concluded the psychological profile.
Wilson underplayed the results.
“I don’t view the case simply as one where I have to make some psychological analysis of this defendant and try to gauge whether or not he fully appreciates the potential of his conduct,” said Wilson, who later labeled the introduction of the psychological profile “Freudian.”
Wilson ended the Jun. 30, 2003 by delaying sentencing for a month and instructing Castro-Silva to consult with the Justice Department and FBI for the federal agencies’ respective views on sentencing for this case.
On Aug. 4, 2003, both parties returned to the courtroom for Judge Wilson’s sentence. Wilson opened by asking Castro-Silva whether he had fulfilled the instructions from the last sentencing hearing.
Castro-Silva responded that he had, and that he had not changed his proposed sentence.
But even with the Justice Department’s agreeing to Castro-Silva’s original sentence of four months in prison, four months in a community corrections facility, Wilson sentenced Austin to one year in prison, three years of supervised release and a $2,000 fine.
After prison, Austin’s conditions of supervised release, imposed by Wilson, will not allow him to own or use a computer without approval of a probation officer. Additionally, Austin will only be able to use Internet services and passwords that have been pre-approved. His computers will be subject to scheduled and unscheduled searches and seizures, and he will not be able to modify them without permission.
He will also have to turn over billing records for all communications-related services if requested by the probation officer.
And finally, Austin cannot, in Wilson’s words, “negotiate with any organization or any member thereof which espouses violence or physical force as a means of intimidation or achieving economic, social, or political change.”
Such could prove problematic for Austin given the increasingly broad and flexible criteria for classifying “physical force” or “violence.” Groups that advocate peaceful mass gatherings, picketing, direct action or civil disobedience, such as the blocking of street corners, may fall under these restrictions. The Probation Office’s pre-sentencing report refers to “anarchists” as groups that “advocate violence as a means of disrupting order and achieving social, economic, and political change,” even though many, if not most, anarchists do not engage in or advocate such activity.
CURIOUS WARRANTS AND AFFADAVITS
Despite their apparent sloppiness, some of which has been referenced above, Agent Pi’s two affidavits managed to convince a judge to sign off on warrants that led to the raid on Austin’s home and his later detention in New York.
Some of the affidavits’ problems are trivial but still show a surprising lack of care. For example, in the first affidavit, there is a reference to “Edison, Texas,” a city in Texas that does not exist today. In fact, the city is spelled “Addison,” and the print shop referenced in the affidavit and located in “Edison, Texas” is in fact in Dallas, which is close to Addison.
More disturbing, however, is the low standard used to justify the charges on the affidavits. For instance, in the first FBI affidavit, much of the support for allegations of illegal computer activity stem from recollections made to the FBI by three interviewees, all of whom met regularly in the same few chatrooms, and one of whom is referenced not by name but the anonymous label “cooperating witness” in Agent Pi’s affidavit. Additionally, this first affidavit cites chatroom statements in which Austin allegedly bragged about computer hacking exploits and abilities.
The original chat room where the three interviewees would meet regularly, along with many others, was a UFO chat room that Austin also began visiting around 1997 or 1998.
Austin said he visited the UFO room initially because he was interested in UFOs, but that he soon discovered most of its members were of a right-wing political bent opposite his.
“I used to be read up on UFOs a lot,” Austin said of his experiences in the UFO room. “A lot of political debates were going on there. People didn’t really like me there because of my politics, but there’s a few people in there all for protecting civil liberties, and then there are right-wing whackos.”
The chatroom, which still exists today, is part of Internet Relay Chat (IRC), a popular network of Internet chatrooms. IRC users can join existing chatrooms, or if one catering to their interests does not exist, can create one themselves. They can also communicate directly with other users outside of chatrooms over the network. Users choose their individual nicknames with each sign-on to IRC and usually use that name regularly with each subsequent visit. But unlike other chat services, such as AOL Instant Messenger, IRC users cannot typically reserve their nicknames permanently. Thus if a user on one nickname logged off IRC, a different person could log on and assume that same nickname.
Austin believes that the statements attributed to him in Pi’s affidavit–excerpted from chat room logs (plain text transcripts of chat room conversations) provided by the interviewees–were a result of this IRC nickname characteristic. The rooms in which Austin allegedly made the statements cited in Pi’s affidavit were called “FREEDOMGUARD” and “FREEDOMFIGHTERS.”
Austin said that he would rarely enter “FREEDOMFIGHTERS” and usually only if someone invited him to do so. He could not recall having entered “FREEDOMGUARD” but also added that many years have passed since he used IRC frequently.
When shown a chat log of conversation in “FREEDOMGUARD” made under his normal IRC nickname, “Ucaun,” Austin said that he did not make those statements and that he had sometimes logged onto IRC and seen someone already using his normal nickname.
“I look through a lot of the conversations, and I don’t even remember having them,” Austin said.
Additionally, the primary IRC chat log used by Pi for his affidavit shows that someone using the “Ucaun” nickname logged onto IRC’s “FREEDOMGUARD” room using the Pacific Bell Internet service, which both Austin and his mother say they have never used. Prior to their installation of high-speed DSL Internet service in 1999, they say that they used Earthlink.
Austin also denied ever having launched a Denial of Service (DoS) attack on anyone’s computer, as claimed by one of the interviewees. “DoS” is a broad term that references a computer attack in which a computer system’s resources are so overwhelmed by external traffic from other computers that the target system’s functions are compromised. The origins of DoS attacks are often hard to track because unsuspecting Internet users with insecure systems can be used as “middlemen” through which an attack on a target computer can take place. The attack sometimes then appears to originate from the “middleman” computer.
Reading the affidavit, one sees that, in fact, the overwhelming majority of the supporting evidence for computer fraud is of the “he said this, she said that” variety. In one section of many similar sections, for example, Pi references an interviewee who told the FBI that he had “spoke[n] to others” about Austin’s alleged activities. Another passage states that an FBI interviewee recalled from memory that “Austin began hacking when he was about 13 years of age” and “had done numerous computer intrusion activities on the Internet”
And, as mentioned, the affidavit is peppered with excerpts from chat room statements allegedly made by Austin under his nickname.
But as an astute Sept. 23, 2002 Internet commentary on the web blog Media Geek (www.mediageek.org) noted, IRC chat logs do not seem like very rigorous evidence for an FBI affidavit, particularly one that led to an armed raid on Austin’s home.
“I’m no lawyer, but most of that seems pretty thin — almost hearsay. Really, anyone who’s been on IRC knows that a lot of shit gets talked there, and, like barroom bragging, you can’t take much of it too seriously,” wrote Media Geek. “Plus, who’s to stop someone from impersonating Austin on a channel? IRC’s pretty anonymous.”
On Internet message boards, much has also been made out of a small section of the first affidavit that discusses, in Pi’s words, a “program” called troop.cgi found on at least three web servers belonging to others. The program, claims Pi in his affidavit, “contained a program code designed to return data back to another CGI script” at Austin’s IP address [personally identifiable numbers assigned to computers on the Internet]. The affidavit also claims the program contained code that attempted to connect to a military computer system.
But the “program” was a CGI script. CGI scripts are written in a computer language called Perl, and when run, they can perform a multitude of functions, typically related to websites. Functions can be as simple as website counters that clock numbers of visits to programs that process order information for online vendors.
The scripts are easily alterable files written in raw text. Someone wishing to author or alter a CGI script would need no special software apart from a simple word processing program. A version of the script obtained by this reporter through an Internet search does not contain Austin’s IP address, though it is unknown whether this version is an original, or if not, how much it differs from the original. And the program also does not appear to even function when run on a computer system designed to process CGI scripts.
It is unclear what connection Agent Pi attempted to make by referencing troop.cgi, as he did not state directly that it was used to deface websites, that it actually could infiltrate any computer systems, or that it even worked. He did not even bother mentioning it in his final summary of facts in support of illegal computer activity, found at the end of his first affidavit.
Citing AOL Instant Messenger statements made under his online nickname, a Jan. 30, 2002 article in the Washington Post’s Newsbytes online tech news service did state that Austin admitted to defacing websites.
But Austin has said that this resulted either from misinterpretation or statements made under his AOL Instant Messenger nickname by someone who had compromised his account.
A few days later, another article at Newsbytes noted that Austin’s AOL Instant Messenger nickname appeared online while he was incarcerated in New York. Austin said this happened regularly after the raid and throughout 2002.
At any rate, the criminal complaint entered into court shortly after Austin’s New York arrest did not include a computer charge, and both prosecutors and Austin’s public defender said it was unlikely he would have been prosecuted for computer malfeasance had he chosen to go to trial.
Furthermore, e-mails from Austin’s DSL Internet Service Provider, Speakeasy, show that through 2001, Austin’s computers were extremely insecure. One e-mail to Austin from Speakeasy described his system as ” a linux server that is wide open to attacks.”
Austin has said that he caught people entering his machine and attempting to use it as a proxy or “middleman” to intrude into other computers. Such intrusions, if successful, would show Austin’s computer and IP address as the origin.
“I had my Linux machine. Back then Linux had more holes in it. I even caught people in my machine right there installing scripts and rebooting the machine and then just logging back in again and using them to break into other servers,” he said.
Austin said that he patched up his system by fall of 2001.
Some Internet commentaries have suggested that Austin chose not to go to trial because he feared prosecution on possible illegal computer activity, a theory dismissed completely by Austin, who in hindsight said he would have gone to trial, even if it meant facing all three charges.
“I know how weak their evidence is and what our key points of defense could be to challenge that,” he said.
As for the defaced websites themselves, they contained a replacement front page left and substituted by the culprit. At least three versions of this replacement page seem to have existed, though they are all similar and read more like far-right militia cant than the contents of raisethefist.com. The top of these sites reads, “U.C.A.U.N./
Underground Counteractive Assemblage / Universal Network.”
Austin denied having authored any of the material on the replacement pages or facilitating their appearances. He said that although “Ucaun” was the nickname he used on IRC and on AOL Instant Messenger, he did not think of it as an acronym, and that its use as such on the defaced pages was by someone else.
The HTML code of one replacement page left on some defaced pages contained an external image link to a picture housed on Austin’s raisethefist.com site. Web pages are authored in HTML, a series of textual commands that can be written in any word processing program. When processed by a web browser such as Netscape or Microsoft Internet Explorer, HTML files will appear as a web page with text and graphics. This process happens each time users visit websites.
External image links in HTML code point to images located on other websites that the web author wishes to incorporate into his or her web page. If web authors wish to do this, they must type out the address of the external website as well as the image’s file name. For example, if one visited the indymedia.org website and wished to incorporate an image on that site into his or her web page, he or she could write an external image link that would contain the name of the image file and the indymedia.org domain. One does not need to be affiliated with the external website (in this example, indymedia.org) in any way to incorporate an external link to its images.
It would appear, then, that whoever designed the defacement page incorporated an external link to an image housed on Austin’s raisethefist.com server–a feature that anyone designing a website can take advantage of.
Austin has said that his server logs have indicated that many people with websites externally linked to images on his site. He also said that it was possible that whoever authored these replacement pages did so in an attempt to make him look like the culprit, though he did not have any specific guesses as to possibilities.
Along with the interviews and chat logs discussed earlier, Agent Pi, in his affidavit, used the external image link in the replacement pages on the defaced sites and the presence of “U.C.A.U.N/Underground Counteractive Assemblage / Universal Network” at the top of them to support allegations of computer fraud.
Rodrigo Castro-Silva, who prosecuted the case, would not comment on the quality or rigor of the evidence for computer crimes.
“I’m not going to characterize it as good evidence or bad evidence. Ultimately, a jury decides whether the evidence is good or bad,” said Castro-Silva.
He also said that Austin’s status as a juvenile at the time these computer crimes supposedly occurred would have made a prosecution on that charge unlikely.
THERE GO THE MOLOTOV COCKTAILS AND PECULIAR FBI BEHAVIOR
There has also been much distortion over the alleged Molotov cocktails removed during the Jan. 24, 2002, raid on his home. From reading various official statements by law enforcement officials at various agencies, one does not sense that any of them reached a consensus on exactly how much of what Austin supposedly possessed.
Filed in the U.S. District Court’s Central District of California shortly after Austin’s February 2002 arrest at the anti-WEF protests, Agent Pi’s second affidavit, for example, contained the following (emphasis added): “During the search of AUSTIN’s bedroom, the FBI Special Agents discovered, among other things, the following items: a. Two glass bottles both of which contained gasoline or petroleum-based products. One of these two glass bottles had a metal screw top in which a hole had been punched. The other glass bottle contained a long white material with burnt marks.”
From this description, which a judge read and from which she based her authorization of a warrant for Austin’s arrest in New York, it would appear as if Austin actually possessed two glass bottles containing “gasoline or petroleum-based products.”
Yet an internal FBI report summarizing the Jan. 24, 2002, raid, and written a little more than a week before Pi’s second affidavit, describes only one bottle with liquid inside it and the other as only having a certain “smell.”
“During THE SEARCH of AUSTIN’s house, Agents discovered two glass bottles one of which contained fluid that had the smell of a petroleum product,” reads the report. “The other one bottle contained a piece of white material with burnt marks and had the smell of a petroleum product as well,” but not, according to any mention in the report, any fluid.
Whether either of these would have even legally constituted a Molotov cocktails is not known because the case did not go to trial.
But at the New York detention hearing shortly after Austin’s arrest, federal prosecutor Victor Hou of the USAO’s Southern District of New York office referred to the bottles as “Molotov cocktails,” which even the FBI report and Pi’s second affidavit do not do.
Among Hou’s comments (note the plural): “This is a case about the defendant’s possession of destructive devices and the posting of instructions about how to make bombs”
“They found the Molotov cocktails I mentioned,” Hou said shortly after.
The New York Post, in a Feb. 5, 2002, article chimed in and stated that “iced-tea bottles filled with flammable material” were removed during the Jan. 24, 2002 raid.
Meanwhile, the criminal complaint filed in California against Austin claimed “one fully functional Molotov cocktail.”
But at the detention hearing, Hou vaguely described “two Molotov cocktails” in “various states of finality.”
Hou also referenced an alleged 60+ bottles removed from Austin’s room, presumably to imply that Austin had a do-it-yourself explosives factory of some sort operating in his bedroom.
“They found bottles, over 60 bottles. They found the Molotov cocktails I mentioned,” Hou said, followed not much later by another reference to the bottles.
Austin and his mother, Jennifer Martin, both say that he would regularly drink beverages out of bottles and keep them in his room, sometimes causing the latter to request Austin remove and throw out the bottles.
“My bedroom was next to Sherman’s. I was in and out of his room. Sherman was not making Molotov cocktails in his room. I would have known,” Martin said. “I have a nose like a bloodhound. I can’t stand pumping gas. I would have known if my son was making Molotov cocktails.”
Hou’s presentation at the detention hearing, among other things, also made ominous references to items found after a search in Austin’s 1981 Toyota, which he drove cross-country to the WEF protests just days after the Jan. 24, 2002 raid on his home. Items referenced by Hou included electrical wiring, an empty bottle of gasoline, and facial masks commonly worn at protests, especially when tear gas is expected.
Austin has maintained that the bottled gasoline was an essential item for anyone taking a cross-country trip in an old car.
“Who wouldn’t have a gasoline canister on them when driving 3,000 miles across country?” said Austin in a prior interview that appeared on Counterpunch in mid-August. The electrical wiring, he said, was part of a stereo he had previously tried to install in his car.
Additionally, Hou referenced items seen through the windows of Austin’s car on the day of the Jan. 24, 2002 raid by FBI agents whose warrant did not authorize search of car.
These items, referenced by Hou, included bottled gasoline, electrical wiring, and a bag of what he described in the courtroom as “fertilizer,” even though the bag was never removed from the car for analysis on the day of the raid. Alternating between the singular and the plural, Hou also referenced a remote control car controller that he and the FBI claimed had been converted into, in Hou’s words, a “remote control bomb detonating device.”
Austin characterized such claims as ludicrous.
“I’ve always been into electronics and taking things apart. Even now, I like to take things apart and build things. I always liked doing that since I was 6 or 7 years old,” he said. “One of the reasons why I also really wanted to take it to trial at first was because I wanted them to prove how the remote control car was a detonator.”
Finally, Hou’s request for a temporary order of detention also suggested Austin in his 1981 Toyota was on the road to destruction in New York and possibly the Salt Lake City Olympics on the way back.
“He still drove his car three thousand miles from California to New York, determined to carry out his plan. This wasn’t a misguided youth, Your Honor. This was a man on a mission,” Hou said of Austin.
And moments earlier, according to Hou: “He indicated he wanted to burn the Olympics, and he wanted to fuck the corporate playground.”
This hearing resulted in a temporary order of detention that, in total, resulted in Austin’s spending a total of 13 days in custody in two states before he finally returned to Southern California.
Just a week after the hearing, despite Hou’s courtroom hysterics and hyperbole, the United States Attorney’s Office decided not to indict Austin on either of the two charges for which it filed a criminal complaint earlier.
Austin did not hear from the federal prosecutors again for about half a year. But the office’s decisions and that of the FBI on the day of the raid suggest that the evidence against Austin was likely pretty weak.
For one, the FBI, even with its later mentions of gasoline canisters, fertilizer, more than 60 bottles, at least one “fully assembled” Molotov cocktail, and a remote control detonator, did not arrest Austin during the Jan. 24, 2002 raid of his home, during which they supposedly found these items.. Why, if Austin were the imminent danger and “man on a mission” that prosecutor Hou would later describe after Austin’s New York arrest about a week later, would the FBI simply leave his home, without any subsequent attempt to make an immediate arrest, especially knowing that the WEF protests were but a week away and especially when the first FBI affidavit made references to WEF protest information on Austin’s site?
Similar questions were raised by Susan Tipograph, Austin’s defense counsel during his New York detention.
“They don’t arrest him on January 24th. They don’t arrest him on January 25th. T hey don’t arrest him on January 25th, 27th, 28th, 29th, 30th, or 31st. They don’t arrest him on February 1st, but on February 2nd he’s arrested with twenty-seven other people for unlawful assembly and disorderly conduct in New York,” Tipograph said.
She also noted that the criminal complaint filed by the FBI in Los Angeles and the second FBI affidavit that resulted in a warrant for Austin’s arrest were not dated until two days after his arrest in New York by NYPD.
“It wasn’t signed on January 24th when they allegedly find a Molotov cocktail in house,” Tipograph said. “It’s not signed on the 25th, the 26th, the 27th, the 28th, the 29th, the 30th, the 31st, the 1st, 2nd, 3rd.”
This despite, to invoke Hou’s words, Austin’s having supposedly “indicated he wanted to burn the Olympics.”
She also noted that the “man on the mission” voluntarily allowed a search of his car.
And further, even when the USAO office of the Central District of California decided to revive its case against Austin in August 2002, it did not indict him but offered him a plea of only one month in prison and three months in a community detention center. And the plea was for only one of the three charges previously raised and arguably the most nebulous of them–distribution of explosives information with intent. This would seem like quite a de-escalation for someone portrayed previously by a USAO attorney as a mad anarchist “on a mission” with explosives, gas masks, Molotov cocktails, remote detonators, and electrical wire and a website they alleged encouraged others to do the same.
The above actions raise the question of why prosecutors would offer Austin such a light plea bargain and not go to trial if they actually had conclusive and irrefutable evidence against him that matched up to the portrait provided by the federal prosecutor at the February 2002 detention hearing.
As for the supposed Molotov cocktails, their description in documents was gradually downgraded from two and one (alternately, depending on who you heard and what you read) to mere possession of “components of a Molotov cocktail,” as worded in sections of Austin’s plea bargain and the pre-sentencing report that discussed the charges the government would not file against Austin.
MORE ON THAT COOPERATING WITNESSES: THE FBI AND THE MILITIA MEMBER
At the detention hearing, Tipograph also noted that although the FBI was granted a warrant on Jan. 16, 2002, the agency waited eight days before executing it.
What was the FBI doing during those eight days?
Internal FBI documents provide at least one answer.
The documents show that the FBI cooperated with a right-wing self-proclaimed militia member from Huntington Beach, CA as part of a failed attempt to entrap Austin into making self-incriminating statements via e-mail.
The militia member, who is in his late 20s and lives with his mother, is referenced anonymously in an internal FBI report and in Agent Pi’s first affidavit as a “cooperating witness.” He is one of the interviewees who told the FBI about Austin’s alleged remarks over IRC regarding computer hacking and defacements, remarks cited throughout the affidavit.
Although this reporter has learned his identity and spoken to him, the cooperating witness’s name is being withheld for his privacy.
An FBI report shows that just days before the raid, an FBI agent had the cooperating witness author an e-mail to Austin, dated Jan. 22, 2002, that appears to have been an attempt to provoke self-incriminating statements from Austin.
One section of the FBI report reads: “[Name withheld] drafted and sent another email to Austin under the supervision of an investigating agent. The email included an attachment of a political cartoon depicting FBI figures urinated (sic) on a a document entitled ‘Bill of Rights.'”
The actual e-mail itself contained the political cartoon described and the following text to Austin’s address written from the militia member’s e-mail address, which still functions today. Spelling and grammatical errors remain intact.
The e-mail began: “I just found this funny picture that would be great to put on your raisethefist.com site, I thought it was really funny, or use the picture on the t-shirt so that we can use it at the protest and another way to raise money for our cause :)”
Another paragraph read: “Also I was looking at your website, there always something new on your site, it really awesome information to open people eyes to the truth. I wonder where ya get the information on the Defensize Weapons. I think I have seen something like that before.”
The e-mail closed with: “Another thing I saw on your site with the new information on protesting against the Olymplics, and I wonder if you were planning on going to the protest in Salt Lake City, and I wonder if there was a way I can go, if not, that cool, keep up the good work on the movement against the Capitalist pigs.”
Austin says that when he received this e-mail, he immediately had suspicions about it and does not recall responding.
“I get this e-mail from him saying that he wants to go with me to the Olympics to smash capitalism and do all this radical anti-capitalist stuff–like it wasn’t him at all,” said Austin, who initially met this cooperating witness in the UFO IRC chat room. “The first thing I thought when I read that e-mail was FBI.”
Two days later, the FBI raided Austin’s home, even though it had been authorized to do so for eight days up to that point.
Austin said that on the day of the raid, shortly before it took place, he received a phone call from the cooperating witness, who left a voice mail message suggesting the two “hang out.” His mother said that a few days after the raid, she received a voice mail message from the same person inquiring about Austin’s welfare.
The first FBI affidavit indicates that the agency visited the cooperating witness on at least one other occasion in mid-November.
When provided with his name, Austin confirmed that the two had met through chat rooms and had never met in person.
“He was this right-wing, McCarthyist militia guy,” Austin said. “I would debate with him a lot of the time. He was obviously a capitalist, very right-wing, like the ‘Commies are going to take over.’ I met him through a debate.”
Additionally, Austin says that the individual would attempt to rope him into various projects.
“A lot of times when he would contact me, he would always be trying to get me to do hacking stuff for him. I’d just brush it off,” Austin said.
In a telephone interview, the cooperating witness said that he was indeed a member of a militia and that he knew Austin only through chat rooms. He claimed that the FBI only visited him once, though the FBI’s records seem to indicate otherwise.
“They came to the doors, knocking on the doors when I was planning to leave for work,” he said. “I told them that he [Austin] hacked things, but that’s all I know that he does. I had no clue what was going on afterwards.”
Both Austin and the individual said they did not speak to one another with much regularity, and Austin said that prior to the suspicious e-mail he received two days before the raid, he had not talked to the person for many months. Austin also said that information provided to the FBI by the individual that appeared on the affidavit was false.
When asked about the e-mail and the political cartoon that FBI records indicate he sent with the agency’s supervision, the cooperating witness would only say that he sent it because he “thought it was hilarious.”
He also claimed that he called Austin on the day of the raid because he had “friends within the government finding out there was supposed to be a raid,” and he wanted to warn Austin, whom he described as an online friend. Austin contests the characterization.
“Despite the fact that we obviously had very different politics, he would try to get me to join him in helping me to do stuff,” Austin said of the person who, FBI records seem to indicate, attempted to assist in entrapping him two days before the raid. “I kept saying, ‘No, this is stupid. I don’t agree with your politics. I don’t like your California militias and stuff like that.’ But even despite that, he’d always keep coming at me with, ‘Yeah, we need to join,’ things like that.”
The cooperating witness and militia member denied having ever tried to rope Austin into his endeavors.
“He’s [Austin’s] the opposite of what we believe in. He’s a communist, and we believe in the Republic and the Constitution of the United States. There’s a little difference,” he said.
Publicly available material on the Internet indicates that the cooperating witness is a member of a group calling itself The State Medical Command of the California State Militia and that his “rank” is that of “first lieutenant.” His public writings on message boards are typical militia rhetoric. Additionally, there exist numerous posts on Internet boards and websites with his e-mail addresses that hawk get-rich-quick schemes.
A footnote: on one of the defacement pages, there is a reference to the now-defunct IRC channel “FREEDOMFIGHTERS.” Austin has said that the cooperating witness created this room and would occasionally invite him. The cooperating witness, however, maintains the opposite, and claims that Austin created the room.
Most recently, on Aug. 21, 2003, the cooperating witness posted to the Internet USENET message board misc.activism.militia a message soliciting participation in a public access TV program entitled “PATRIOT NEWS NETWORK” that, among other things, “promises local patriot news to interview people, gun owners, the local government, exposing the evil cops, illegal aliens takeover, China take over…”
Such was one half of a partnership designed to entrap Austin into making self-incriminating statements two days before the raid–and that apparently failed.
THE TRIAL THAT COULD AND SHOULD HAVE BEEN?
Some observers have questioned whether Austin should have accepted a plea bargain that, with its sentencing range of 8 to 14 months, resulted in his receiving a one year prison sentence, eight months more than the prison sentence recommend by the federal prosecutor, the defense, and the probation officer who consulted on sentencing in the case.
But Ronald Kaye, Austin’s federal public defender who is under some scrutiny and criticism from some of Austin’s supporters, maintains that the plea bargain was the wisest route to have taken in this case because of a 20-year terrorism enhancement that could have been applied to Austin from the United States Sentencing Guidelines. The Guidelines and the terrorism enhancement in particular were greatly broadened after the 2001 USA Patriot Act to cover additional crimes. Further, a report prepared by the Probation Office indicated that there existed a 2001 case in the Sixth Circuit Court of Appeals whose reasoning could have allowed for the application of the terrorism enhancement to Austin’s case.
“With the jury pool and the kind of writings that were highlighted from the website, I thought there was a very high chance of Sherman getting convicted,” Kaye said. “For the dissemination of information, there was a chance by sentencing guidelines of at least 20 years.”
Kaye maintains, however, that he would have gone to trial had Austin wished to do so.
“If it wasn’t for the 20 years, I would much more have rather gone to trial than sit there,” Kaye said. “I always said to Sherman Austin, ‘This is your decision. Your testimony is going to be the critical component in this case. This case in many ways if you should lose is your life. If you want to go to trial, I’m 100% behind you. I’ll work until all hours in the morning, all the time.'”
But Jennifer Martin, who initially researched private defenders only to find out that their fees were not feasible, said that Kaye did not share enough information and documents with her about her son’s case.
“Had I been given these packages [of documents] early on and sat there and looked through them, I would have seen how weak and inconsistent their evidence was,” Martin said. “As Sherman’s mother and as his advocate, I was told by Sherman’s lawyer from the beginning that he’s not used to having someone else in his office who’s not his client with his client.”
She said that her son, though legally an adult when these events unfolded, was still naive at the time about some of the legal matters at hand and their ramifications.
And she feels that Kaye did not emphasize certain critical points in the courtroom, such as the difference between posting the material in question and merely linking to and hosting it.
Kaye, however, maintains that he did share an adequate amount of information with Austin’s mother.
“That I have an obligation to give her documents is absurd. He’s an adult. He’s charged with an adult felony. He has a powerful political message that he felt fully responsible for and that he was not ashamed of and he was making decisions,” Kaye said. “I have never had a parent more involved in a case than this in my eight years as a federal public defender.”
He added that courtroom conduct in a plea situation differs from that of a trial and that the judge could have rejected the plea at any moment.
“It’s a whole different tact when you take the case to a plea. If you’re taking your case to a plea, and you have your greatest ally as the government, are you going to spit in their eye continuously? You are getting this ‘gift’ from the government to avoid the potential for catastrophe,” Kaye said.
But he added that if there had been a trial, he would have vigilantly highlighted inconsistencies and explained subtleties such as the differences between posting and linking, authorship and implementing.
“It wasn’t like I was reluctant to throw myself into the inner workings of the computer to show the difference between posting and authoring,” he said. “It’s not like I didn’t want to show the nuances of bomb manufacturing to show how it was potentially ludicrous to consider these bottles as Molotov cocktails.”
Austin himself said that he is on “good terms” with Kaye, but in hindsight, wishes he had gone to trial, especially after receiving a sentence that substantially exceeded the recommendation of prosecutor Castro-Silva, the Probation Office, and Kaye.
“He told me straight up that, ‘Honestly, I don’t think we’re going to win,'” Austin said of Kaye.
Castro-Silva, meanwhile, said he had no objections to Judge Wilson’s one-year prison sentence.
“I was neither surprised nor did I think it was an unfair or an unjust sentence. I thought that the sentence within the range the parties had agreed to was an appropriate sentence, and the judge just chose to sentence the defendant to the high end,” Castro-Silva said. “I had recommended the low end.”
As for Kaye, he said that he was “very disappointed” with Judge Wilson’s sentence and noted that both he and the USAO worked for months negotiating the final plea bargain.
“The level of negotiation in this case was uncommon, possibly unprecedented. It was several meetings between myself, Castro-Silva, his supervisors, several more meetings with Sherman and his mother,” he said.
But he said that, despite Wilson’s sentence on the “high end,” the outcome of a trial could have been far worse.
“I didn’t choose this job to get on my knees to roll over. But there are cases that you fight, and there are cases that you negotiate,” he said. “Sherman Austin’s case on a scale of 1-10 was a 10.”
PRELUDE OF THINGS TO COME? CONSTITUTIONAL IMPLICATIONS, CHALLENGES AND THE FUTURE
That Austin had his home raided, was imprisoned for a total of 13 days and eventually pleaded guilty to a then-obscure federal statute with vague language ripe for opportunistic political use did not seem to interest most of the press, both mainstream and self-proclaimed “progressive.” Outlets providing consistent coverage were KPFK, the Pacifica affiliate in Los Angeles, and the LA Weekly. On the Internet, the Washington Post’s Newsbytes, which has since been restructured, and Indymedia also issued regular updates on the case, as did the tech news bulletin board slashdot.org. But overall, interest from both media and the broader “progressive” community, up until recently, has not been as high as one might think.
Jennifer Martin believes this might have much to do with Kaye’s strongly discouraging her and her son from going public.
“Had we not listened, had we gone public, had we drummed up support, I’m pretty confident a progressive lawyer would have come forward to fight this,” she said. “When I see all the people that are contacting me now and all the great pieces of information I’m getting and all the support–that could have happened early on, and I think this would have been handled differently.”
She also thinks that much misinformation about the case and the stigma of her son’s politics may have kept some people away.
“Sometimes progressive community people are afraid to align themselves with anarchists, number one. Number two, there was all this other stuff coming out sprinkled here and there–about Molotov cocktails, serious hacking charges. People don’t have time to read everything,” she said. “They probably didn’t read thoroughly and realize that they said he had Molotov cocktails but yet after they raided his house, they left him there.”
Shortly after Austin’s New York arrest, some of Austin’s friends contacted the ACLU of Southern California to little effect. The organization rebuffed them, claiming that they did not handle criminal cases.
But progressives and civil liberties advocates might want to start paying attention. On the day Austin began his prison sentence, Senator Dianne Feinstein, who helped push through the federal statute to which Austin ultimately pleaded guilty, issued a Sept. 3, 2003 press release lamenting that Austin’s conviction is only the first under the law, which has been on the books for a few years. The press release excerpted a letter Sen. Feinstein sent to Attorney General John Ashcroft hoping for more.
“However, I remain concerned by reports that federal prosecutors may not be taking this important anti-terrorism tool seriously,” wrote Feinstein to Ashcroft. “Thus, I write to request your assistance in ensuring that DOJ [Dept. of Justice] personnel know about section 842(p) and are aggressively enforcing it.”
The letter also indicates that FBI Director Robert Mueller, at Feinstein’s request, recently sent out a memo to FBI field offices “encouraging awareness and enforcement” of the statute.
And just a few weeks ago on Aug. 28, 2003, a home in San Diego was raided by FBI. The warrant for the raid invoked 842(p) and called for seizure of a videotape that allegedly contained footage of controversial environmental activist Rod Coronado explaining to an audience how to make an incendiary device.
San Diego activist Michael Cardenas, who shot the footage, and who used to live in the raided home where his girlfriend now resides, said that he had invited Coronado to “Revolution Summer,” a summer-long series of San Diego teach-ins on miscellaneous topics that Cardenas helped organize. Cardenas says that someone in the audience randomly asked Coronado how to build such devices, and that the latter proceeded to explain.
Cardenas is not sure how the FBI knew of his videotaping.
“It seems like the intent is to silence political activists through intimidation. The worst part is not when the FBI just cause into your house but they’re probably listening to your phone calls, following you around. The subsequent feeling of being watched is really bad,” he said.
Cardenas also said he thinks he ran out of tape by the time Coronado began speaking about explosives.
To Austin, it’s a sign of an emerging pattern.
“I can see this happening more and more. More and more people are going to get targeted and raided,” Austin said.
In some ways, 18 U.S.C. 842 (p), which makes it illegal to “teach,” “demonstrate” or “distribute” information on explosives and other incendiary devices 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” or to “teach,” “demonstrate,” or “distribute” such to a person who “intends” to do the same, is reminiscent of the 2002 movie “Minority Report.”
In the movie, set many decades in the future, the government, through a program called Pre-Crime, arrests citizens before they even commit any crimes on the basis of analysis performed by three “precogs.” That one could predict or prove something as abstract as the “intent” described in the statute seems questionable.
Or compare 18 U.S.C. 842 (p)’s wording with the Smith Act of 1940, later used to prosecute Communists and Trotskyists, and the increasing parallels made by contemporary critics to McCarthyism don’t seem like such a stretch.
Among other things, the Smith Act made it illegal “with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence”
Meanwhile, numerous white supremacist sites host explosives instructions, such as those of the “White Resistance Manual,” which contains instructions far more detailed than anything to be found in the Reclaim Guide. The White Resistance Manual contains instructions on “arson,” “assassination,” “booby traps and mines,” in addition to instructions on building weapons and explosive devices. In a prior interview published here last month, Austin saw a double standard.
“They’re not being prosecuted for it,” he said. “To me, it [the statute] makes it better for them because that way they can use that as a form of selective enforcement on whom they want to bring charges against with that type of charge and whom they just want to let by and let off the hook.”
As he serves out his sentence, Austin, his mother and a growing number of supporters are thinking about filing motions to withdraw the plea bargain and possibly challenge the constitutionality of the statute.
Many law reviews that have analyzed the statute have suggested its constitutional longevity might be endangered by the 1969 United States Supreme Court case Brandenburg vs. Ohio, in which the court ruled that violent speech, so long as it was not likely to produce “imminent lawless action,” was protected by the First Amendment.
University of Southern California Professor of Law Erwin Chemerinsky says the statute may not stack up to constitutional precedent.
“The Supreme Court has said a person can be convicted of incitement if there’s a likelihood of imminent harm and the speech is directed at causing imminent harm. Those requirements are not present in the statute,” Chemerinsky said. “I think the difficulty with this is what’s the standard for intent.”
Ultimately, Austin’s case is more than just a free speech issue. The quality of the affidavits used to secure warrants in this case indicates the bar is very low and the standard for evidence not high for activist arrests, federal detentions, and full-scale armed raids these days. Activists would do well to consider Austin’s case an alert, but not a warning or a deterrent. Just a week before entering prison, Austin said the experience would only solidify his commitment to political activism.
“If I go into prison for a year, if they think it’s going to silence me or silence anyone else, I think they’re wrong,” Austin said. “If anything, it’s going to motivate me and motivate many other people to do things within the community and keep organizing.”
His experience will not likely be the only one.
To find out more on how to help Sherman, visit la.indymedia.org, http://www.carlagirl.net/activism.html and www.raisethefist.com.
To send letters, contact and mail Jennifer Martin 12115 Magnolia Blvd. #155, North Hollywood, CA 91607 or jmi46@sbcglobal.net
MERLIN CHOWKWANYUN is a NYC-based journalist and student at Columbia University and can be reached at mc2028@columbia.edu. He hosts a radio show on WBAR 87.9 FM NYC (www.wbar.org) on Sundays from 2-4 PM EST.”