The Big Chill

Will the terrror label stifle activism?

Are you a terrorist?

Exactly who a “terrorist” is has become a little confusing lately. A federal judge ruled this month that a couple of South Eugene High School graduates who burnt buildings but never physically hurt a person fall into that category, as would protestors who blocked entrance to a circus or a rodeo.

FBI “consensual recordings” for Operation Backfire – the Bureau’s name for the investigation into environmentally motivated arsons in the Northwest – included names of local activists engaged in above-ground attempts to stop logging in national forests. In the recordings, some of which took place in Eugene, the “consent” in “consensual” was on the part of the person wearing the recording wire, Jake Ferguson, not on the part of the people he spoke to, who included passersby and at least one child in addition to the Backfire defendants.

Eugene activists protest at PC Market of Choice before being removed by police.

However, those people have no way of knowing if the mention of their names in those recordings is enough to deem their activities “related to terrorism.”

Is your name one of the approximately 325,000 names on the “Consolidated Terror Watchlist” maintained by the FBI’s Terrorist Screening Center (TSC)?

If your name is on the watchlist and has been entered into the Terrorist Screening Database (TSDB), you won’t know about it. According to the FBI website, “the TSC cannot reveal whether a particular person” is in the database.

Under Homeland Security Presidential Directive 6 signed by President Bush in September 2003, the TSC was created to provide what the FBI calls on its webpage “one-stop shopping” for “an airport screener, an embassy official issuing visas overseas, or a state or local law enforcement officer on the street” to find and track supposed terrorists.

The TSC will not reveal how it got all the names. Some came from the FBI, some from the CIA and a number of other federal agencies. And some, according to a 2006 article in the Washington Post, may have come from warrantless wiretaps on U.S. citizens.

In order to be included on the list, you must be “known or appropriately suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism.”

Precedents such as the recent “terrorism enhancement” given to the Operation Backfire arsonists set the stage for any number of political actions to be deemed terrorism. Recent laws such as the Animal Enterprise Terrorism Act (AETA) do the same. Many activists wonder if the terror label will have what Alejandro Queral of the Northwest Constitutional Rights Center called a “chilling effect on political speech and acts of civil disobedience.”

Action is to Arson as Activism is to Terrorism

During the sentencings of the 10 arsonists in the Operation Backfire case, the prosecution repeatedly equated the word “action” to “arson.” U.S. Attorneys Kirk Engdall, Stephen Peifer and John Ray referred to the arsons at Romania Chevrolet, Vail, the Cavel West horse slaughter plant and others as actions.

Activists and others used the phrase “direct action” to refer to pressure on a government entity, business or community that is directly effective, as opposed to actions through constitutional processes. Such processes, such as elections, take longer and are more indirectly effective.

A direct action might be anything from a tree-sit to a sit-in to a release of laboratory animals. The term “direct action” originated with the labor movement in the early 1900s. Union strikes were, and are, a form of direct action.

Local activist Janine Nilsen has worked to stop old-growth logging both by negotiating with the Forest Service and timber companies and by aiding tree-sits. She said her participation in direct actions like tree-sits comes when “we aren’t getting our voices heard.”

In Martin Luther King Jr.’s “Letter from Birmingham Jail,” he wrote, “nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored.”

But according to John E. Lewis, deputy assistant director of the FBI’s Counterterrorism Division, “‘direct action’ generally occurs in the form of criminal activity designed to cause economic loss or to destroy the victims’ company operations or property.”

Would King then be considered to be a terrorist in today’s political climate? The participants in the Boston Tea Party? Some say that under AETA even Oprah Winfrey might be a terrorist.

Oprah, AETA and the Terrorism Enhancement

In 1996, Winfrey ran a 10-minute segment on her show on the beef industry and mad cow disease. During that segment she spontaneously said, “It has just stopped me cold from eating another burger!”

Winfrey was promptly sued by the Texas Beef Group, which claimed the ensuing $12 million drop in cattle prices was a direct result of her broadcast.

Winfrey was found not liable, but Eugene civil liberties attorney Lauren Regan wonders if Oprah could now be deemed a terrorist under the Animal Enterprise Terrorism Act (AETA).

An offense under the AETA is one that “intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise.”

The act refers to “economic damages” repeatedly. So, according to Regan, AETA “really does punish words and free speech” if words like Winfrey’s could be proven to affect a corporation’s profits.

“The government, legislators and the prosecutors are all in business to protect corporations,” Regan said.

The prosecutors in the Operation Backfire sentencings opened their arguments in favor of the terrorism enhancement by stating, “This is not a political case.” Judge Ann Aiken said, as she applied the terrorism enhancement, “This is not meant to label you a terrorist.”

A press release from the District of Oregon’s U.S. Attorney’s Office included this statement from Attorney General Alberto R. Gonzales: “Today’s sentence is a fitting culmination to the largest prosecution of environmental extremists in U.S. history. These defendants were responsible for a broad campaign of domestic terrorism that spanned five states, included roughly 20 arsons or attempted arsons, and caused more than $40 million in property damage.”

Gonzales referred to the cases as “domestic terrorism” before the sentencings were finished. At the time the release was issued, Jonathan Paul, who participated in the Cavel West arson, had not received his sentence. He will not be sentenced for at least three more weeks.

Shasta Kearns Moore, sister to the convicted Chelsea Gerlach, responded to the terrorism enhancement’s application to her sister via email. “I think there’s room in our judicial system to make the distinction between ideological property damage and mass murder.”

Gerlach herself issued this statement: “The Bush Administration can’t promote its anti-environmental agenda through rational discourse, so it has resorted to name-calling. It’s unfortunate the term is being applied so broadly, but it certainly is not going to stop me from working for peaceful, sustainable change in society.”

Local Effect

With legislation such as the AETA in place and judges applying the terrorism enhancement to arsons that caused no injuries, will Eugene activists continue to engage in civil disobedience and direct action, or has the word “terrorist” begun to have its predicted chilling effect?

Eugene has a history of activism. Several of the Backfire defendants were local to Eugene and it appears that Eugene was the epicenter of the arsons. During the World Trade Organization protests, much of the blame for property damage was laid by the media at the feet of “Eugene anarchists.” Eugene was also the staging point for the Warner Creek campaign (see EW’s 2006 series “Flames of Dissent”), a successful attempt to block the salvage logging of a burned area of forest.

Warner Creek was brought up repeatedly at the Backfire sentencings by the prosecution to show that the defendants had background in illegal or suspicious activities. Protestors at Warner held loggers at bay until the Clinton administration called a halt to the logging.

Local videographer Tim Lewis’ documentary of Warner Creek, Pickaxe, was used both by the prosecution and the defense at the sentencings. Concerning the terrorism enhancement and its future applications, Lewis says, “That’s what it’s meant to do — throw people into a fear mode.”

The prosecution also brought up activities such as Daniel McGowan’s pie throwing with the “Biotic Baking Brigade.” U.S. Attorney Peifer used as evidence a communiqué sent by McGowan signing himself “Agent Key Lime.” This and the other name McGowan used (Agent Tart Classique) were referred to by Peifer in serious tones as aliases.

Eugene-based prison support activist Brenton Gicker expressed dismay at what he called “exaggerations” by the prosecution at the sentencings.

The prosecution indicated that seemingly above-ground activities such as participation at the UO’s Public Interest Environmental Law Conference (PIELC) were suspicious. Backfire defendant Gerlach had presented at PIELC, and several of the defendants would sometimes meet during the conference. PIELC has also featured speakers such as Robert F. Kennedy Jr., Winona LaDuke and Ralph Nader.

There are already signs of chilled speech. For this article many local activists who once participated in acts of civil disobedience and direct action were not comfortable speaking with EW about their past participation in peaceful direct actions such as tree-sits and blocking forest roads. Others, citing concern at being linked to the arsons and the word “terrorism,” would speak only under conditions of anonymity.

The Future of Activism

Some activists, such as Josh Schlossberg, see the recent turn to the terror label as a call to action. “We need to make our voices louder and clearer than ever before,” he said.

The terror watchlist does not bother him. “You can pretty much assume that you’re going to be on the list,” he said, “so don’t worry about it.”

Schlossberg and his group, Cascadia’s Ecosystem Advocates, have reinvigorated a campaign against Umpqua Bank. In a recent press release, the group alleges that “the Umpqua board of directors is personally responsible for clearcutting and herbiciding hundreds of thousands of acres of Oregon’s forests.”

They have been targeting PC Market of Choice grocery stores for banking with Umpqua and recently entered several of the stores bearing “Spotted Owl Sampler Plates,” featuring feathers and what Schlossberg called “a fleshlike substance.”

Schlossberg said if PC Market were to pull out of Umpqua Bank, the bank would stand to lose over $100 million.

He said, “Some of us are trying to be radicals in the system — completely legal.”

But he noted that if legislation similar to AETA were targeting natural resource-based businesses rather than animal enterprise, he too might find himself labeled a terrorist.

Gicker, who works to support eco-prisoner Jeff “Free” Luers, whose more than 20-year sentence for burning three SUVs has been remanded for resentencing, said, “Though tactics like arson are not appropriate, breaking the law has to be part of social change movements — the law is not always right.”

Others agree. Janine Nilsen, outraged that a bill to allow the hounding of cougars and bear baiting has passed in the Oregon Legislature, said the new legislation is “wrong. And has twice been voted down by the people.”

She thinks people are willing, she said, “to be called a terrorist” if that is the label the current political climate has for those who “ask the government to hear our voice.”

“What choice do you have,” she asked, “when the people aren’t being heard, and it’s a public agency being paid for by the taxpayers?”

Tim Lewis pointed out that even as defendant Kevin Tubbs was being sentenced to more than a decade in prison for environmentally motivated crimes, he still drew attention to the unresolved issues that had motivated him.

Tubbs spoke of the “extreme cruelty and disregard for all animals and lifeforms prevalent today.” He said, “We are blind to the suffering of millions of animals around us.”

“We all know who the real terrorists are — the whole world does,” said Lewis. “The only people who seem not to are the judges and the court system.”

The Sentences

The National Lawyers Guild has established a hotline for people arrested or subpoenaed for environmental or animal activist offenses: 888-NLG-ECOLAW

Daniel McGowan

1. Stanislas Gregory Meyerhoff (age 29) 13 years, received the terrorism enhancement

2. Kevin Tubbs (age 38) 12 years, 7 months, received the terrorism enhancement

3. Chelsea Dawn Gerlach (age 30) 9 years, received the terrorism enhancement

4. Nathan Fraser Block (age 26) 7 years, 7 months, received the terrorism enhancement

5. Joyanna L. Zacher (age 29) 7 years, 7 months, received the terrorism enhancement

6. Suzanne Nichole Savoie (age 29) 4 years, 3 months, received the terrorism enhancement

7. Kendall Tankersley (age 30) 3 years, 8 months

8. Darren Todd Thurston (age 37) 3 years, 1month

9. Daniel Gerard McGowan (age 33) 7 years, received the terrorism enhancement

10. Jonathan Mark Christopher Paul (age 41) Judge Ann Aiken began to sentence Paul to 4 years, 3 months, but an objection from his attorney has postponed the sentencing to an as yet unknown date.

To be sentenced in the Western District of Washington: Lacey Phillabaum and Jennifer Kolar

Still at large: Joseph Mahmoud Dibee, Josephine Overaker, Justin Franchi Solondz, Rebecca J. Rubin

Unsentenced: Jacob Ferguson

Going to trial: Briana Waters

Deceased: William Rodgers

Unknown status: Ian Wallace, named in McGowan’s sentencing as part of a “Midwest ELF Cell” still under investigation.

“Identified but not indicted” participant in the Childers Meat Co. arson in Eugene.

For detailed information on the arsons, see “Flames of Dissent: Part IV: The Bust,”EW, 12/7/2006