Whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.
New Hampshire Constitution Bill of Rights, Article 10
"The message to the community is we will not tolerate acts of violence to affect public
— Federal Judge Ann Aiken
With the hectoring tone of a petty hall monitor, Clinton Judge Ann Aiken let out what the Operation Backfire/Green Scare prosecutions are really about. In an era of state-sponsored terrorism as "liberation," where the United States has over 700 military bases in over 140 countries, a US judge actually deems the minor league violence of a handful of young, misguided idealists "terrorism" and scolds the larger, non-indicted community those activists came from this truly belongs to Orwell, Kafka, Cheney or Gonzales.
Just what "Community" is the judge chastising/profiling? The Eugene, Oregon community of radical environmentalists in particular, eco-activists in general and/or anyone who ever justified destroying the property of those who they viewed as oppressors. We’re not even talking about those like Golda Meir or Osama bin Laden who justified not just property destruction, but attacks on the persons of their enemies. All that ever happened in the Operation Backfire cases is property damage. Not a single person was hurt in any of the arsons.
The SUV-driving, suburban soccer mom-with-six kids judge has made a number of strange comments from the bench. She’s gone so far as to tout Al Gore as an alternative model of activism! She told folks who burned a feral horse slaughtering plant that they "should have started a fund and bought and fed the horses." She told defendants that once they serve their time, they cannot join animal protection or other activist groupsbut, the Sierra Club or Audubon Society would get an exception!
But, none is more telling than her pronouncement putting "the community" on trial. She’s even warned that "Civil Disobedience has no place in a Democracy." Tell it to the Founders.
Traitors or Freedom Fighters?
Speaking of the Founders, don’t we all come grade school get fed the righteous story of the 1773 Boston Tea Party, the most famous case of property damage in an attempt to "affect public debate?" (At least the Green Scare defendants didn’t disguise themselves as an oppressed/occupied minority like Sam Adams and gang.) Yet, a couple centuries later, we now have judges mirroring the Tea Party’s target, King George III, whose response presaged another mad leader named George, "I desire what is good. Therefore, everyone who does not agree with me is a traitor."
But lecturing "the community" on just what the power structure will "tolerate" is but one, and not the most important one, of Judge Aiken’s prejudicial notions. The most important is her determination that ecosabotage constitutes "Terrorism." The determination allows for "upward enhancement" sentences to be handed down. While a simple arson with no personal injuries usually merits a median sentence of 43 months in Federal cases, the "terrorism" determination allows for "enhancement" additions of up to 20+ years! It also means harsher prison conditions for those sentenced.
Ex post facto and bad bargains
Another analogy to the US Revolution is that one of the reasons for the revolt was the use of ex post facto laws by the British. An ex post facto ("from something done afterward") law is one that retroactively changes the legal consequences of acts committed before enactment of the law. Article 1, Sections 9 and 10 of the US Constitution bans retroactive consequences in criminal cases, as does the Fourteenth Amendment.
Yet, the upward enhancement penalties the defendants are sentenced with under the sentencing code found in U.S.S.G. 3A1.4 did not exist when the crimes were committed. Originally, only crimes related to "international terrorism" qualified for the enhancements under the Clinton-signed law. In 2001, the guidelines were adjusted to allow for enhancements if convicted of the "federal crime of terrorism." None of the offenses the defendants have been found guilty of under 18 U.S.C.§§ 844(f)(1), 844(i), and 1366(a) are explicitly "federal crimes of terrorism," nor did they occur after the 2001 amendments.
By the common standard dating back to the landmark case Calder v. Bull, Judge Aiken and the Federal Prosecutors have violated ex post facto as at the time of the arson, these penalties did not yet exist nor was property damage defined as a "federal crime of terrorism." Thus, it qualifies with Justice Chase’s four points defining prohibited ex post facto:
"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition.
1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
2nd. Every law that aggravates a crime, or makes it greater than it was, when committed.
3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive."
— Justice Samuel Chase, Calder v. Bull 1798
"The individual cannot bargain with the State. The State recognizes no coinage but power, and it issues the coins itself."
— Ursula K. Le Guin "The Dispossessed"
The first two defendants to be sentenced by Aiken both got "terrorism enhancements" even though both had cooperated with authorities and named their comrades. Stan Meyerhoff, who participated in many of the arsons, including the burning of SUVs at a dealership, a minor fire at a police substation and a fire at a genetic-engineered tree farm was handed down a 13 year sentence — 30 months less than the "reward" the Feds offered for his snitching, but with the added "enhancement," about 10 years more than the typical arson case.
As a defined "terrorist," Meyerhoff will spend his time in a special high-security prison, where he is likely to face attacks as a first offender and "snitch," — a prospect acknowledged, yet dismissed by the judge who told those in the courtroom to write their legislators and "we all have to become prison reform activists." Some activists, on the other hand, angrily noted, "Stan deserves it," referring to his cooperation.
The second to be sentenced, Kevin Tubbs, received 12 years and seven months — again reduced because he informed on others. Tubbs pleaded guilty to 53 counts of arson and two attempted arsons. Judge Aiken completely dismissed Tubbs’ claim that he acted in urgent desperation given the fate of animals and the environment.
In contrast, Michael Fortier, who participated in the Oklahoma City bombing that killed 168 people, served ten years and is now in the Federal Witness Protection Program. Fortier was ironically released in January 2006 on the same day that many of the eco-sabotage defendants were indicted.
Sentencing will come one by one for the rest of the Eugene informant defendants and the non-cooperating four next week. Out of the 22 charged; one is dead, four on the run and one, top informant Jacob "Jake" Ferguson is free and without any charges, though he participated in more arsons than any of the others.
One major informant, Lacey Phillabaum has begun serving her sentence, the length of which has been left undetermined pending the outcome of her pro-prosecution testimony at the trial of Briana Waters, the sole defendant to fiercely claim innocence and demand a trial. Waters’ trial is the single remaining chance of exposing the government’s shady provocateuring in the case. One of the main reasons for the huge sentences faced is to prevent just such an exposure.
Government Agents and Keystone Terrorists
As one who knows some of the defendants, including some of the informants, I cannot write about this case without expressing my personal feelings or speaking to my experience during those days. Though I find the arsons wrong-headed and extremely counter-productive, I truly believe that the fingerprints of government agents are all over this. I was there when one person who is not amongst the defendants and who has disappeared completely was agitating for ever more violent actions. He, a friend of Ferguson, even claimed many such actions himself–though, all such claims have failed to stand up to any scrutiny. I warned some of the very folks charged to "not get talked into anything stupid." I obviously failed.
That the first ELF action in the US was the arson at the Detroit Ranger Station, in my backyard, where we had already won has always concerned me. At Detroit’s Opal Creek and Breitenbush, the decades-long sustained effort to protect the Ancient Forests there had paid off. Same with the 48-hour-later arson at the Oakridge Ranger Station where activists had just won the battle over logging at Warner Creek. My questions for Ferguson would be "Why were these targets chosen? And, who pointed you towards them?" (Sadly, I believe I already know the answers.)
The bottom line on all this is:
* the forest protection movement which suffered a previous deadly blow on April 2, 1993, has for all practical purposes been finished off;
* same with Earth First! (which is now more concerned with the issues of transsexuals than any eco-issue–I’m not kidding – check their website!);
* "terrorism" has been redefined so as to be meaningless other than as a hammer to smash dissent;
* and, all progressive movements have to now be even more cautious and suspicious within their own ranks–a mind-set that preordains failure.
The Feds say that all these folks are "terrorists," yet can you imagine the Feds cutting the same deal with Muhammad Atta that they did with Jake Ferguson? No charges and an estimated $150,000 in payments to implicate his fellow jihadis? Can you imagine real terrorists (or even a Tony Soprano) allowing a paid informant to walk free in their hometown like Ferguson is in Eugene? Unlike Fortier, Ferguson doesn’t even have to hide out in a protection program. He’s calmly walking the streets. These facts alone should lay to rest the terrorist claims and the on-going insult to all who have suffered at the hands of real terrorists–state-sponsored or otherwise.
Some "terrorists!" Unlike, say the Weather Underground, who hid out (underground, of course) for decades and never snitched on their comrades or silently took their sentences; these folks come off looking, as one of Leonard Peltier’s former attorneys noted to me recently, like "a college club" with no internal discipline, much less incontrovertible basic values.
I understand the frustrations of these folks. I understand their fear for the planet we all love. I’m sure most everyone reading this can understand the underlying sense of desperation. Even so, their actions really made little sense to me–then or now in the case of the informants, given the enhanced sentencing even for those who snitch. But, I can certainly make sense of the Government’s heavy-handed response and their agent provocateuring in the first place.
MICHAEL DONNELLY has long been involved in Forest protection efforts. He has always opposed property damage or personal assaults as means to further the cause. He can be reached at firstname.lastname@example.org