Bill Bishop / The Register-Guard – 2007-05-14 01:16:19
(May 13, 2007) — A federal judge will hear legal arguments Tuesday on which label applies to the 10 co-defendants rounded up in Operation Backfire, the name given to the nation’s largest ever investigation of radical environmentalists who destroyed property to promote their ideology.
The decision will be more than a mere label to the defendants. If they are “terrorists,” the so-called federal “terrorism enhancement” sentencing law could add 20 years to each of their sentences, although that will be up to the judge. A label of terrorist also means the defendants would spend their terms in the nation’s harshest high-security federal prisons.
But the ruling by U.S. District Judge Ann Aiken in Eugene will have a much larger audience than the individual defendants.
It will be heard in the highest reaches of the federal government, where U.S. Department of Justice officials already have declared the defendants and their front groups – the Earth Liberation Front and the Animal Liberation Front – the nation’s most dangerous domestic terrorist groups.
The ruling also will be heard by underground activists. If Aiken decides the co-defendants are indeed terrorists, then other activists might stand warned that even their least destructive “direct action” could be prosecuted in federal court as terrorism, with a possible 20-year prison term.
“I think people are well aware of what the federal government is capable of doing to people,” says Dr. Jerry Vlasak, a trauma surgeon who serves as a press officer for ALF.
Radical activists are conducting a growing number of low-level “direct actions” – such as vandalism with paint and threats of arson against targets they deem to be contributing to environmental decay or animal suffering, Vlasak says. But there are many fewer dramatic, headline-catching actions such as those described in criminal charges against the Backfire defendants, he says.
Never before has the terrorism law been applied to any crime claimed by ALF or ELS, says Terri Wood, a Eugene lawyer representing one of the defendants.
Mainstream activists are worried about the federal government applying the terrorism label to nonviolent acts, says Lauren Regan, a lawyer and director of the Civil Liberties Defense Center in Eugene. No one has ever been injured in a “direct action” by ALF or ELF, and both groups urge activists to take care to avoid possible injuries, she says.
The terrorism label – if a judge applies it to the Backfire defendants – may serve as a precedent to allow harsh prosecution of public tactics typically employed by peace and anti-nuclear demonstrators, Regan says.
“This enhancement could certainly be applied to any movement, although, historically it hasn’t been applied to the right wing,” she says. “A lot of anti-war and anti-nuclear activists would certainly be falling within those standards. It could easily be applied to them.”
Law’s Scope at Issue
The federal definition of terrorism is at the heart of the legal argument to be heard Tuesday.
Federal prosecutors argue that Congress expanded international terrorism laws specifically to cover acts of domestic terrorism.
Meanwhile, defense lawyers for Backfire defendant Stanislas Meyerhoff base their legal argument on the evolution of the law, its maze of revisions and varying terms that may exclude the Backfire defendants from its potentially harsh penalties.
Under agreement by all parties, the terrorism enhancement issue will be settled in Meyerhoff’s case and then applied to all the remaining defendants, all of whom have pleaded guilty to conspiring to commit arsons.
Significantly, federal prosecutors are not overtly asking Aiken to impose the harsher penalty if she rules the Backfire defendants are “terrorists.” Instead, prosecutors are adhering to the sentences they earlier bargained individually with defendants in return for guilty pleas.
Under federal law, however, the sentence for each is ultimately up to Aiken regardless of any plea bargains or even her own ruling on the terrorism enhancement.
So, lawyers are free to employ a variety of arguments. Meyerhoff’s lawyers, for example, are emphasizing his background as an abused and neglected child whose misguided search for peer acceptance led him into the underground.
They are asking Aiken for the minimum mandatory five-year term for arson conspiracy instead of the more than 15 years that Meyerhoff agreed to in his plea bargain. Under the anti-terrorism law, his maximum sentence could be life plus 20 years.
Assistant U.S. Attorney John Ray declined to discuss the government’s sentencing proposal in advance of Tuesday’s hearing.
In summary, the prosecutors’ legal argument is that the terrorism enhancement plainly applies to the case.
In court documents, they argue the law covers any felony or conspiracy that involved or intended to promote an offense calculated to affect the conduct of government either by intimidation, coercion or retaliation. The law lists a number of crimes that potentially qualify as terrorism, including arson of government property or arson of property used in interstate commence, the prosecutors wrote.
Intent to Injure?
Defense lawyers counter that the terrorism law was meant to cover only those defendants who knowingly created a risk of injury in their crimes.
“Individuals who resorted to arson in a vain and misguided attempt to save the environment are not, by that motive alone, rendered vastly more dangerous than individuals who engage in a series of arson for motives such as profit or revenge,” Meyerhoff’s defense lawyer, Terri Wood, wrote.
Wood argues that if the terrorism law were interpreted as the government desires, then it could be applied to relatively minor crimes. As an example, Wood offered the case of someone who burned an American flag belonging to an interstate truck stop with the stated intent to retaliate against the government for allowing windfall oil profits. It might apply also to someone who burned an empty county-owned vehicle to retaliate for the county’s enactment of a new tax, she wrote.
Wolf noted also that federal prosecutors in Washington state are not seeking the enhancement for two defendants there who allegedly participated in crimes along with those indicted in the Backfire case.
Among environmental activists, the case is playing out on several levels, says Regan, who works with activists and with lawyers for the Backfire defendants.
An overriding belief among activists is they are being painted with the broad brush of terrorism for political reasons because they oppose Bush administration environmental policies, Regan said. The move further undermines trust in government, she said.
“The government – not necessarily the local U.S. attorneys – has done a lot of guilt-by-association throughout this case,” she said.
“Nobody is trying to say these aren’t crimes and shouldn’t be punished. The environmental movement is millions strong. We’re talking about a dozen people (who committed crimes) a decade ago. If the terrorism label can be applied to Jon Paul for burning down a horse slaughterhouse, how can citizens be confident in the government searching for real terrorists?”
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