A federal judge sentenced Jonathan Paul to four years and three months in prison for his role in a 1997 fire that destroyed the Cavel West horsemeat packing plant in Redmond, Ore. He had confessed to helping make the diesel and soap mixture, the s0-called “vegan Jell-O,” that was used, and acting as a lookout.

Paul is the last of a group of 10 activists sentenced recently for a string of arsons in the NW in the name of defending the environment. Many received “terrorism enhancement” penalties for their crimes, which resulted in no injuries.

In yet another odd twist in these cases, Judge Aiken ordered Paul, labeled by the FBI as an “eco-terrorist,”

…to read the book “Three Cups of Tea,” an autobiographical account of the life of Greg Mortenson, who has been working to build schools in remote areas of Pakistan and Afghanistan. Describing the book as an inspirational message against violence, she ordered Paul to submit a book report before he begins his prison term.

Bill Bishop from the Register Guard reports:

In earlier statements he said he rejected arson after helping burn down the Cavel West horse meat packing plant in Redmond in 1997. He became a volunteer firefighter/medical technician and went on more than 2,000 calls in Southern Oregon – once treating a man whom he knew was a bear poacher, another time rescuing a three-week-old kitten on a highway.

On Wednesday he said arson defiles the belief that all life is sacred and violates the tenet of nonviolence embraced by the environmental movement. Even though no one has been injured in 25 years since the underground groups Earth Liberation Front and Animal Liberation Front first employed arson, Paul said fire can change that record in an instant and the risk is not acceptable.

“Terrorism enhancement” penalties may apply to a group of activists charged with property crimes in the name of protecting the environment and animal rights, a U.S. District Court judge ruled Monday. But the burden will be heavily on the government to “present clear and convincing evidence” during sentencing in order for the T-word to apply.

The opinion by Judge Ann Aiken in Eugene, Ore., goes step by step through a variety of arguments used by defense attorneys against the terrorism enhancement, and generally dismisses them. In taking such a strict, methodical approach to the enhancement, though, she misses the forest for the trees (or, more to the point, misses the forest for the logging company’s bulldozers).

Defining the Debate

To qualify as a “federal crime of terrorism” an offense must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and it also must be one of a series of crimes listed.

That’s the strongest thing going for the defendants, it seems. The defense attorneys argued that, through anonymous communiqués, the defendants showed they clearly intended to impact corporations, not government conduct (of course, the line between the two is quite fine these days).

Aiken notes:

As stated during argument, the court cannot determine conclusively whether the offenses were intended to influence,
affect, or retaliate against government conduct until relevant evidence is presented at the defendants’ sentencing hearings. At the same time, defendants point is well taken; the definition of “federal crime of terrorism” explicitly requires an intent “to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Thus, the government must establish that the defendants targeted government conduct rather than the conduct of private individuals or corporations.

Danger to Human Life

Most people think of terrorism as flying planes into buildings, or carrying bombs into crowded markets. But Aiken says that to qualify for “federal crime of terrorism” an action “does not require a substantial risk of injury.”

It may defy logic and public opinion, but Aiken says it’s by the books, because other crimes listed as qualifying for the enhancement “do not need to involve substantial injury.”

Missing the Forest

Aiken prefaces her decision by attempting to excise the terrorism enhancement debate from any political context. “…for purposes of these proceedings, the debate is about the defendants’ criminal conduct – not their political beliefs.”

But at a time when the government labels the environmental and animal rights movements the “number one domestic terrorist threat,” and the government holds press conferences labeling activists as “eco-terrorists,” and corporations take out full-page scare-mongering ads, it’s impossible to divorce legal issues from the cultural and political climate in which they exist.

At the terrorism enhancement hearing, for instance, the government compared these activists, who never harmed anyone and who took precautions against harming anyone, to the KKK.

Yes, the KKK.

“This is a classic case of terrorism, despite their protests of lofty humane goals,” Assistant U.S. Attorney Stephen Peifer said in court. “It was pure luck no one was killed or injured by their actions.”

“If that is the standard, then the Ku Klux Klan did not commit terrorism” when they burned empty black churches during the civil rights upheaval in the South in the 1960s, Peifer said.

Not Over Yet

This isn’t a done deal, though: “Outstanding factual disputes preclude the court from determining conclusively whether the terrorism enhancement applies to any particular defendant; these issues must be resolved at each defendant’s sentencing hearing.” In other words, the terrorism enhancement may apply, in most cases it looks like, but Aiken makes a point of noting that the burden of proof is heavily on the government to show that it should apply in each specific case at sentencing.

Aiken notes a few points that indicate the government doesn’t have the smooth ride it might have hoped for:

• “If, as defendants strenuously assert, the government is overreaching due to political considerations, either the enhancement will not apply to defendants’ offenses or defendants will be eligible for a downward departure because their conduct is outside the ‘heartland’ of terrorism offenses.”
• “…the enhancement more than doubles the length of the sentence authorized by the initial sentencing guideline range for all defendants. These factors alone warrant a higher burden of proof. Thus, the government must present clear and convincing evidence that defendants’ offenses of conviction involved or were intended to promote ‘federal crimes of terrorism’”

To make its case, the government is going to have to do a whole lot better than hyperbolic comparisons of environmentalists to the KKK.

A U.S. District Judge in Oregon just ruled that “terrorism enhancement” penalties may apply to environmental and animal rights activists in the “Operation Backfire” cases.

I’m sifting through all this now and hope to post more tonight. Stay tuned.

They’ve been “terrorists” from day one. Since their arrest for a string of property crimes against corporations they believed were destroying the planet, a group of environmental activists from the Northwest have been relentlessly branded “eco-terrorists” and “domestic terrorists” in government press conferences, Congressional hearings and in the media. On Tuesday, though, in federal court in Eugene, Ore., the government will try to take the T-word one step further.

It’s not just semantics. If the government successfully argues for “terrorism enhancement” penalties, it could add up to 20 years on the sentences, and in some cases quadruple prison time. It could place defendants in cells next to more traditional “terrorists.” And it could allow harsh restrictions on contact with family and friends.

But Tuesday’s court date is about more than these 10 defendants who never harmed anyone but caused about $40 million worth of property damage. And it’s about more than whether the government can put a notch on its “War on Terrorism” bedpost, which hasn’t seen much action lately, to justify the massive investigation and expense of “Operation Backfire.”

It’s about the meaning of a word that, with every mention, can hit Americans harder and deeper than perhaps any other. The word has come to symbolize planes flying into buildings, family and friends murdered, and lives that will never be the same. The “terrorism enhancement” hearing will test how much political mileage the administration can get out of that pain.

“Terrorism is terrorism”

For over a decade, and especially since the Seattle WTO protests in 1999, activists have fiercely debated whether property destruction is “violence” or “direct action.” Ask activists how they feel about breaking windows, gluing locks and burning bulldozers, and some may tell you it only makes John Q. Public less receptive to the issues. Others may tell you that those actions stop the “real” violence: and besides, can you be violent towards an SUV?

Beyond that, even if you do believe that destroying an empty building is violence, there is an even bigger question: is it terrorism?

The FBI doesn’t see a grey area. A crime is either terrorism or it is not. You are “either with us or against us.”

“Terrorism is terrorism — no matter what the motive,” said FBI director Robert Mueller at a press conference announcing the indictments. “The FBI is committed to protecting Americans from all crime and all terrorism…”

The government hasn’t been committed to labeling all crimes “terrorism,” though. It didn’t seek “terrorism enhancement” in the Alabama church arson cases. It didn’t seek “terrorism enhancement” in the case of a firefighter who set 28 fires because she wanted overtime pay. And it hasn’t sought “terrorism enhancement” for the murder of abortion doctors.

According to Congressional Quarterly, the Department of Homeland Security does not even list right-wing terrorists on a list of national security threats. Those groups have been responsible for the Oklahoma City bombing, the Olympic Park bombing in Atlanta, violence against doctors and admittedly creating weapons of mass destruction. But animal rights and environmental activists still top the “domestic terrorist” list.

The government has singled out these property crimes for “terrorism enhancement” because of the politics of the crime. Motive matters. The defendants didn’t harm anyone, and they didn’t seek to benefit from the crimes, but they committed an even deadlier sin: targeting corporate profits.

“He closed the door”

The crimes didn’t cause any deaths, any injuries, or any substantial risk of death or injury, but make no mistake: these were very serious crimes nonetheless. They often involved arson, which immediately puts the actions on another level, separate from petty vandalism like graffiti or slashing the tires of SUVs. The defendants have accepted responsibility for their actions, and it’s clear they’re heading to prison.

But it’s critical to note in a debate about “terrorism enhancements” that the defendants went to great lengths to make sure they didn’t harm anyone. That’s a concern not shared by suicide bombers and anthrax mailers.

“A terrorist acts from hate and aims to create fear,” says Kevin Tubbs’ attorney in his sentencing memo. “A terrorist’s goal is to cause death, because is the ultimate tool. Death is the ultimate source of fear.”

The government admits as much. In a 148-page document, prosecutors spell out how some of the defendants set fire to the Vail ski resort and caused $24.5 million in damage. During that action, William “Bill” Rodgers had “opened a door and observed two hunters sleeping. He closed the door and did not set that building on fire.”

Daniel McGowan’s attorneys say in “terrorism enhancement” memo that the many precautions taken to “honor human life” separate these activists from what most reasonable people consider “terrorists.”

It is “perhaps the most compelling reason why none of them should be branded a terrorist, why none of them should bear conditions of confinement that are not only degrading and punitive, but that are affirmatively damaging to their mental health, and why none of them should be permanently catalogued in our nation’s history books alongside the names of Mohammed Atta, Theodore Kaczynski, Timothy McVeigh, or Eric Rudolph.”

These cases don’t fit most people’s ideas of “terrorism.” They don’t neatly fit the legal definition, either. To qualify for the “terrorism enhancement,” the government must show that an action “involved or was intended to promote a federal crime of terrorism.” A “federal crime of terrorism” has a specific definition. It has to be one of a laundry list of specific offenses, including presidential assassination, use of weapons of mass destruction, and arson of property used in interstate commerce. It also has to be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”

That last part is the kicker. The actions targeted corporations and aimed to stop environmental destruction, not influence the government.

Anti-corporate rhetoric permeates the communiqués written about the crimes, like the one for arson at Superior Lumber that labels the company a “typical earth raper contributing to the ecological destruction of the Northwest” and calls for tactics against “capitalism and industry.” Another, for arson at Jefferson Poplar tree farm, shows that these crimes weren’t meant to influence government, because the defendants had lost all faith that government could be influenced. Instead, they targeted the bottom line.

The court will decide technical matters like this at the hearing on Tuesday. But the push for “terrorism enhancement” penalties should ultimately pose more questions than it answers.

Since 9/11, the T-word has been stretched and pulled and hemmed and cuffed and torn and mended to fit a growing body of political whims. This hearing is ultimately about how far the government can push its political tailoring. It’s also about the point at which we’ve outgrown the rhetoric, and we decide to stop wearing the past.

Will Potter is an award-winning reporter who focuses on how lawmakers and corporations have labeled animal rights and environmental activists as “eco-terrorists.” Will has written for publications including The Chicago Tribune, The Dallas Morning News and Legal Affairs, and has testified before the U.S. Congress about his reporting. He is the creator of GreenIsTheNewRed.com, where he blogs about the Green Scare and history repeating itself.