Closer Look at Court Ruling on Applying “Terrorism Enhancements” to Activists

by Will Potter on May 22, 2007

in Terrorism Court Cases

“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.

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