Report on District of Oregon Eco-sabotage “Terrorism Enhancement” Hearings

May 16, 2007 socialwar.net

In the new federal courthouse in Eugene, arguments were heard on issues regarding the government’s attempt to apply terrorism enhancements to the District of Oregon eco-sabotage defendants. Whatever is decided on the basis of this hearing, individual defendants may still make their own arguments on the issue at their own upcoming sentencing hearing. No court rulings were made at the conclusion of this hearing.

Assistant U.S. Attorney Stephen Peifer presented opening arguments for the government’s position that the defendants deserve the terrorism enhancement under §3A1.4 of the federal sentencing guidelines. He argued that the purposes of the conspiracy were to coerce or influence government, commerce, private business and the populace, and that the sabotage was dangerous to human life. He claimed that, despite claims of lofty goals, that “this is a classic case of terrorism.” Peifer added that, “it was pure luck that no one was injured.” He stated that the crimes targeted people, not just property. Under the arguments made by defendants, he alleged, arsons by the Ku Klux Klan against churches or by white supremacists against synagogues would not constitute terrorism. Peifer launched into a list of people who had been sentenced under the terrorism enhancement although no person was injured—people who he claims are comparable to the eco-sabotage defendants.

Peifer then addressed what he called the “doomed to the dungeon” argument of defense attorneys, in which it is claimed that those convicted under the enhancement will end up at the maximum-security United States Penitentiary at Terre Haute, IN, or a like facility. He listed the whereabouts of the aforementioned arsonists who qualified for the enhancement, who for the most part ended up in medium-security institutions.

Another defense argument he addressed was that the government was not seeking terrorism enhancements against Washington federal cooperating defendants Jen Kolar and Lacey Phillabaum. He claimed that Kolar is indeed facing the terrorism enhancement for her role in the Oregon crime against the Cavel West horse slaughterhouse, and that Phillabaum will most likely have it applied as well.

“This is not a political prosecution,” Peifer stated, addressing concerns that the terrorism enhancements were politically motivated. He stated that Oregon federal prosecutors had not been directed by Washington, DC to seek the terrorism enhancement.

He addressed defense arguments concerning the timeline of amendments to sentencing guideline §3A1.4 and related statutes, in relation to the timeline of the crimes themselves. He stated that the sentencing guideline was revised in 1996 to include any “federal crime of terrorism.” A “federal crime of terrorism,” defined under 18 USC 2332b(g)(5), has two components. It is (1) “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and (2) falls under one of the criminal acts listed in the Code section. In other words, this section refers to (1) intent and (2) the criminal act itself. He stated that “government” in this situation means more than just the federal government, and can even apply to municipal authorities. He then discussed each individual crime, arguing how it could be seen as an attempt to influence or retaliate against the government—making some dubious assertions, such as that the Vail arson must have been an attempt to retaliate against the government, as that ski resort, even though a privately owned facility, is located on public land. He also stated that the Romania Chevrolet arson was retaliation against the Lane County Circuit Court for trying eco-saboteurs Jeff “Free” Luers and Craig “Critter” Marshall.

Peifer concluded with a statement that if the terrorism enhancement applies to one defendant for one act, it must apply for all of his or her acts.

Kevin Tubbs’ attorney Marc Friedman responded first for the defense, “This is a political case.” The court needs to consider how the enhancement will impact the defendants. Regardless of what the judge decides, the Bureau of Prisons makes its own decisions. He stated that the government has the burden of providing “clear and convincing evidence” (the standard of proof) that each individual defendant committed a federal crime of terrorism. He stated that not all defendants are in the same situation—the length and depth of their involvements differ. The court must understand that these are not the types of people the terrorism enhancement was intended for. It is becoming clear that the government is using defendants’ statements at debriefing against them, which is not admissible. He stated that these were “property crimes, plain and simple” and not terrorist acts. He criticized the government idea of a “mixed motive”—that sabotage could be intended to preserve lynx habitat but also be retaliation against the government, for example—and that the crimes are simply not within the domain of the terrorism enhancement.

Amanda Lee, counsel for Daniel McGowan, cited case law that gave judges the discretion to depart from sentencing guidelines that are no longer mandatory. The terrorism enhancement automatically takes someone with no prior criminal history up to a criminal history of level six, the highest level possible and usually reflecting significant prior criminal convictions. She argued that such an arbitrary value does not reflect any true history of the defendant, instead constituting a non-jury finding of fact, forbidden under the Booker Supreme Court case. McGowan’s attorneys have challenged the constitutionality of the entire 3A1.4 sentencing provision, and if ruled in their favor, would strike this enhancement from the law books altogether. Aiken asked a clarifying question about whether the plea agreement terms waived their ability to make this argument, to which Lee responded that, despite the waiver of a jury trial by defendants, no legal arguments on the constitutionality of the terrorism enhancement had been waived. She proceeded to describe the government’s position in “one word: overreaching.” She said that the government argues that the crimes were focused on people, and in the same breath argues that they focused on government—which is it?

Lee then persuasively described that the government’s comparison of eco-saboteurs and the KKK—who murdered four young girls in a church attack, Medgar Evers, and three civil rights workers, as well as campaigns of physical violence and threats—as reprehensible and appalling.

Lee asserted that the argument is about what terrorism means in these troubled times, not just numbers.

Lee stated that the government’s attitude towards prime informant Jake Ferguson speaks volumes. Ferguson is responsible for 12 of the arsons, but the government knows that he is not a terrorist, he roams free. It is a double standard, therefore, to call the current defendants terrorists. She said, “I am a human being like everyone else in this courtroom, and I believe that people should be punished for their crimes. I sincerely hope that the government is not making the same type of deals with real terrorists.”

She said that USP Terre Haute was created for “low risk terrorists”—“Isn’t this an oxymoron?” Lee recognizes that not every defendant will end up in Terre Haute, but stated that they could serve their time in comparable conditions. Lee argued that deprivation of visitation and contact with humanity makes transition outside prison much less successful. Aiken then interjected that she didn’t need to hear arguments on that subject, saying, “Our recommendations [to the Bureau of Prisons] fall on deaf ears.”

Lee invoked past moments of political panic such as the internment of Japanese Americans during WWII and the fact that the courts allowed such injustices to continue because of “fear, prejudice, and lack of political leadership.” She concluded, “Now there are terrorists everywhere. The person sitting next to you could be a terrorist. We implore you to uphold both the letter and the spirit of the law. We ask you to tell the government that the definition of terrorism cannot be stretched so far.”

Craig Weinerman, attorney for Chelsea Gerlach, followed. He stated that the government has politicized these cases, and that political direction comes not from Eugene or Portland, but from DC. He pointed to the press conference held in December of 2005 by Attorney General Alberto Gonzales to demonstrate the involvement of the Department of Justice in Washington, DC. The government asserts that they only need two prove two things—were the government or interstate commerce targeted, and the nature of the defendants’ motives. Weinerman submitted that the government must prove other things, such as intent of harm or danger to human life. Judge Aiken then stated that the government must be prepared to offer proof of motivation at the individual sentencing hearings.

Joyanna Zacher’s lawyer, Bill Sharp, discussed the legislative history of the enhancement and reviewed congressional hearings on terrorism in 1995, 1996 and 2001, which all led to reformulations of the law. These incidents clarify what is meant by terrorism. In 1995, the PanAm bombing above Scotland, gas attacks in the Tokyo subway and the 1993 first World Trade Center bombing were frequently cited. In 1996, the Oklahoma City bombing was most frequently discussed. In 2001, the “9/11” attacks were a focus. He urged the court to consider the context of the times when laws defining terrorism were amended. Even though 2001 sentencing guidelines may not apply, even what was said that year adds to our understanding of what was meant all along. Terrorism equals “death to people,” or at least the intention of causing this.

Terri Wood, counsel for Stanislas Meyerhoff, called an expert witness, Dr. Zelda Ziegler, to testify about the statistics, chemistry and physics of the arsons. She was not being paid for her appearance but was Meyerhoff’s community college instructor in Bend. A written statistical analysis by Dr. Ziegler of the likelihood of no injuries taking place over the course of 1,200 ALF or ELF actions, was submitted to the court. Her results indicated that it was not, and could not be just luck that caused no injuries or death, but that statistically, caution and planning was the reason that no harm occurred. In order to refute the government allegations that the devices used were explosive or firebombs, Dr. Ziegler conducted scientific studies regarding the devices. She narrated a video demonstrating the non-explosive nature of ELF devices which was played to the court. Finally, she discussed the extremely low chance of propane tanks exploding when exposed to heat due to innovations in design. The National Fire Protection agency required upgrades to tanks for this purpose. After Dr. Ziegler’s strong testimony, Wood contrasted the government treatment of Meyerhoff, to the state’s treatment of a white supremacist tried in the District of Oregon by Judge Hogan who had attacked a synagogue and advocated for racial assassination cells. The terrorism enhancement was not sought in that case.

Nathan Block’s lawyer John Storkel reminded the court that sentencing guidelines from 2001 and beyond cannot be used in relation to his client, as this would constitute an ex post facto application of such guidelines.

Suzanne Savoie’s attorney John Kolego joined in the arguments of all other attorneys.

Shaun McCrea, attorney for Kendall Tankersley, adopted the arguments made by other attorneys, but also claimed that even if the enhancement could apply generally to the defendants, it can’t do so to Tankersley herself. Furthermore, even if it could, it shouldn’t.

Darren Thurston’s attorney, Dan Feiner, claimed, in contrast to other defense lawyers, that Patriot Act definitions apply to his client. This is because Thurston’s final act within the conspiracy—sending a communiqué regarding the Litchfield Horse Corral arson—took place days after the Patriot Act became law. Under Patriot Act definitions, the crimes Thurston participated in are not on the predicate list of acts to which the terrorism enhancement applies.

Marc Blackman, attorney for Jonathan Paul, stated that individual determinations must be made for each act and each defendant. He asked the court to rule on whether the offenses pled to are predicate offenses for application of the enhancement. He stated that today property damage alone does not warrant a terrorism enhancement, and that this was the intent of the law all along. He also said that the criminal code section relating to damage to private property is analogous to the section on government property, which matters because today the government property code section is not a predicate offense for the terrorism enhancement. He raised concerns that real evidence be presented regarding motivation, and that debriefs with defendants cannot be used as evidence against them for application of the enhancement. He argued against vicarious responsibility and “group guilt”.

Peiffer clarified that the government would provide evidence of motive for each defendant. He went on to say that prohibition against using debriefing statements as evidence, was void for the non-cooperating defendants who did not name others. Blackman countered this by citing the relevant law, stating that the mere admission of acting in concert with others unnamed would suffice for protection.

Judge Aiken stated that she does not take all these issues lightly and that she will issue her guidance on these issues in writing by Monday or Tuesday. She also responded to Blackman’s concern that the order of sentencing could disallow supporting arguments from codefendants’ counsel, as once a ruling is made concerning one defendant’s role in a particular sabotage, it could apply to other defendants involved in the act, without their counsel having the opportunity to argue. She mentioned that it might be necessary for lawyers to attend sentencing hearings for more than just their own particular defendant.

Phew! 5 plus hours of court!