CHAPTER SIX
May 23, 2006 As I walk through the halls of Congress, I feel like I’m back in the Catholic churches of my youth. Its scent is rich and pungent, pine tar soap and the kind of pomade that only grandfathers use. It smells of dark oak and echoing halls, rituals and rites, faith and fear. It feels old and comfortable, but also foreign, and as I walk I feel the same way now as I did back then: I do not belong here. It’s unsettling to be in a historic place and witness its everyday use. Reverence is replaced with routine, and the past becomes intertwined with and indistinguishable from the present.
Outside of room 2141 in the Rayburn House Office Building in Washington, D.C., a long line has formed. Congressional staffers and lobbyists wait to ensure they have seats at a hearing by the Subcommittee on Crime, Terrorism and Homeland Security on the Animal Enterprise Terrorism Act. Many people in the crowd are bike messengers who have been hired as line standers. Moments before the hearing begins, the courier in cut-off shorts with grease stains on his messenger bag will swap places with a corporate executive. In the gospel, “Jesus went into the temple of God, and cast out all them that sold and bought in the temple, and overthrew the tables of the moneychangers, and the seats of them that sold doves.” In this temple the money changers have their seats and their tables, and they don’t even need to wait in line for them.
I’m unsure of the protocol at a Congressional hearing, so as soon as I enter the room I walk right up to the other witnesses and introduce myself. Brent McIntosh is a deputy assistant attorney general for the Justice Department. He is the only one to smile. William Trundley, the British vice president of corporate security for GlaxoSmithKline, offers a limp handshake and an up-and-down glance. He wears a pinstriped suit and pinstriped shirt, perfectly pressed. Michele Basso, an animal experimenter from Wisconsin, turns her back to me as I shake hands with the others. I step beside her and introduce myself again, more loudly this time, and she compresses her lips and doesn’t say a word. As the three chat and laugh together, I sit and stare at the rows of microphones in front of me. To my left sits a woman who will transcribe the hearing. We talk about vegetable gardening. I pour water from the pitcher on the table. I straighten the pages of my typed testimony and then fold my hands.
It’s a strange place, Washington, where people discuss terrorism laws over burritos. Four days before the hearing, I had met a former colleague from the American Civil Liberties Union at the burrito cart on the corner of 15th and K, the heart of the lobby district. She said that Republicans wanted to move the Animal Enterprise Terrorism Act forward, and were holding a hearing. Democrats had invited the Humane Society of the United States to testify about the Constitutional concerns they had raised privately with the Justice Department. The Humane Society declined because, in this political climate, opposing an “eco-terrorism” bill would be spun by adversaries as implicit support for illegal tactics. It would tarnish the group’s mainstream reputation and jeopardize a bill to ban horse slaughter—concerns that would prove well founded when the horse industry published full-page ads in Roll Call with a photo of a slaughterhouse on fire and the message, “Animal rights groups will stop at nothing to ban businesses they do not want operating in the U.S.” The Humane Society deferred to the ACLU, and the ACLU’s national security experts responded that they were overloaded. My former colleague knew I had been tracking the bill, so she asked if she could recommend me to the committee. I agreed without hesitation.
I viewed testifying as an honor, both a recognition of my work and an opportunity for it to help shape public discourse. Republicans controlled the committee and selected three of the four witnesses. I would be the lone “opposition” expert witness, selected by Representative Bobby Scott, the senior Democrat on the committee. Scott’s website declared he was “known in Congress as a champion of the Bill of Rights to the U.S. Constitution.” From my tenure at the ACLU, I knew he had a strong civil liberties record. When I spoke with a Congressional staffer who worked for Scott, my perception quickly changed. I was told that Scott supported the bill.
Although he had the opportunity, and responsibility, to select the only dissenting witness, he wanted someone who would not cause problems. I could be somewhat remonstrative, I was told, but I should remember that Scott supported the legislation and I was his witness. I had wanted to believe that members of Congress respected and valued, however begrudgingly, the fourth estate’s autonomous role as a watchdog in democratic processes. I had naïvely thought that lawmakers had invited me to listen to my testimony, ask questions, and then come to their own conclusions. But Republicans and Democrats alike had already been swayed by more influential players. It was becoming clear that I was being invited to appear as a token gesture of dissent in their spectacle of democracy.
I began to second guess my decision. If I challenged the legislation, I would do so as a sacrificial lamb. It was clear that I would not be warmly welcomed, but I began to wonder if the experience could turn out much worse. Would I be smeared as an “animal rights terrorist,” as the Humane Society had feared? Would FBI agents fulfill their promises from years ago and tell members of Congress that I was on a domestic terrorist list? Would the representative from Wisconsin turn to me and ask, “Mr. Potter, are you now, or have you ever been, a vegetarian?”
It had been three years since the FBI threatened me in Chicago, and fear had followed me. It didn’t paralyze me as it had before, but its mere existence, even fleetingly, was a reminder that I had been dishonest with myself. After Chicago I had moved to Washington to cover Congress and politics for another newspaper, and I had continued living a compartmentalized life. There was Activist Will Potter and Journalist Will Potter. Sometimes the lines blurred, such as when I wrote an essay on the SHAC 7 for a progressive website. But for the most part I maintained the borders of my life as if it were a Victorian garden, my professional voice and personal voice each cultivated in clearly defined and separate plots. I had made some small efforts to reconcile the two, such as leaving the “unbiased” newsroom to use my writing for very biased purposes at the ACLU, ghostwriting op-eds and speeches on issues like the Patriot Act. I enjoyed the challenge of writing in another’s voice, but it was no substitute for using my own.
The historian Howard Zinn always advised his students, “You can’t be neutral on a moving train.” The Republicans and Democrats on the committee all supported this dangerous legislation. Corporations had been awaiting this moment for years and wanted nothing more than for their bill to proceed unchallenged. This train is moving, I thought, whether we like it or not. It’s no use feigning neutrality as smoke rises from the engine. The only question is if we’ll safely stay in our seats as the cliff approaches, or if we’ll take action, no matter how small or seemingly futile, to change course. It was time for me to reconcile my personal and professional lives.
Terrorism legislation targeting animal rights activists had been proposed for more than twenty years prior to this Congressional hearing. The chrysalis had been formed on April 16, 1987, when the ALF set fire to a veterinary diagnostic laboratory under construction at the University of California at Davis. Animal rights activists had used arson in England for at least a decade, but this was believed to be the first time the ALF had burned in the United States. At the time, this was the most destructive underground animal rights crime in U.S. history. Davis demonstrated an increasingly sophisticated, bold and effective underground movement that demanded a comparable response.
This was a watershed moment, and it triggered two responses. First, law enforcement changed how it classified and investigated crimes by animal rights and environmental activists. The FBI, for the first time, labeled an animal rights crime “domestic terrorism.” Davis marked the beginning of the ALF’s official classification as a domestic terrorist organization.
Second, corporations and industry groups, which had made that semantic shift long ago, used Davis as the impetus for legislation that carved out special protections for animal enterprises. They began their fight at the state level. Beginning in 1988, two states passed laws specifically crafted to target animal rights activists. Then two more states followed in 1989. Then eight more in 1990. Then eleven more in 1991.
Proponents argued that animal rights activists could not be prosecuted without this new legislation. In the history of the radical animal rights movement in the United States, only nine people had been convicted of animal rights–related crimes, according to government statistics. Only one person, Fran Trutt, had been convicted on federal charges—and she had been set up by the corporation she targeted. There had only been one ALF conviction. On October 25, 1986, Roger Troen drove a car full of lab animals from the University of Oregon psychology department to safe homes. He was convicted in 1988, at age fifty-six, on theft and burglary charges. The judge said that Troen’s role in the transportation of 125 rabbits, hamsters and rats was nothing less than “an act of terrorism,” yet sentenced him to only five years probation.
Through it all, ALF attacks continued. The FBI officially labeled two other incidents in this period as domestic terrorism. On April 3, 1989, the ALF set fire to two University of Arizona buildings in Tucson after removing more than a thousand animals. The arson caused at least $150,000 in damage. On July 4, 1989, the ALF broke into the Texas Tech lab and office of John Orem. Orem had been studying sleep apnea and sudden infant death syndrome by experimenting on cats, bolting electrodes into their skulls and bolting their heads into restraining devices. He had also forced them to balance on a wooden plank over a drum of water to see how they responded to sleep deprivation. ALF activists destroyed about $70,000 worth of Orem’s equipment, rescued five cats, and in three-foot-high letters on the walls spray-painted, “Don’t Mess With Texas Animals.”
There had been talk of federal legislation since the mid-1980s, even before Davis, but it had mostly been only talk. As state-level lobbying gained momentum and ALF crimes continued, federal legislation began to seem feasible. To pave the way for a new national law, proponents used the media and Congressional hearings to label animal rights activists as terrorists; in a study of all New York Times coverage of animal rights issues through 2007, and a similar content analysis of Congressional hearings, Jen Girgen of Florida State University found that the most common claim by adversaries was that “animal rights activists are violent, criminals, and/or terrorists.”
Politicians seized the national attention generated by high-profile crimes to push their legislation. Four days after the Arizona raid, a Democratic senator, Howell Heflin of Alabama, introduced a bill amending the Animal Welfare Act to target people who rescue animals from labs. Soon after the Texas raid, a Democratic representative from Texas, Charles Stenholm, introduced a similar bill.
In 1990, Congress held a hearing in which law enforcement and industry groups called for a new federal law to target animal rights attacks. The bill should have slipped through, greased by the spate of arsons and the sympathetic White House of George H.W. Bush. Instead, the proposal was challenged by an unlikely source: Bush’s own Justice Department. It may be difficult, post-9/11, to fathom the government declining new terrorism powers. For the U.S. deputy assistant attorney general at the time, though, it was a traditional, conservative defense of limited government. “Despite our sympathy to the aims of some of these bills,” Paul L. Maloney said, “the [Justice] Department cannot endorse the creation of new federal criminal legislation, which, in our view, would add nothing to the prosecution of these types of offenses.”
In a highly unusual move, the White House issued a letter rebuking the Justice Department. The Bush administration had not made animal rights crimes a priority, but within the White House was someone who cared deeply. James B. Wyngaarden, a coauthor of the letter, was an associate director in the Office of Science and Technology Policy. He had advocated federal legislation targeting animal rights “terrorists” since 1985, when he was head of the National Institutes of Health. His proposal had gone nowhere, but this new position in the Bush administration offered a better opportunity for his voice to be heard. However, even with pressure coming from the White House, there was still not enough congressional support for the bill, and it stagnated in committee.
Supporters needed lobbying leverage, something to refocus national attention on animal rights terrorists. They needed another Davis.
On February 28, 1992, the ALF raided mink research facilities at Michigan State University, pouring sulfuric acid on research equipment, setting fire to a professor’s office, and destroying more than thirty years of fur farm research. The crimes caused approximately $125,000 in damage. What set the action apart was that it capped a systematic, multi-state attack on fur farms and research that cost the industry millions. The ALF had also set fire to the Northwestern Food Cooperative in Washington, which supplies feed to fur farmers; an experimental mink farm at Oregon State University; and a mink farm in Yamhill, Oregon. Dubbed “Operation Bite Back,” the crimes were led by Rod Coronado, who had been a legend of the environmental movement since 1986 when, as a crew member for the Sea Shepherd Conservation Society, he sank two unmanned Icelandic whaling ships.
Operation Bite Back was national news. Groups like the National Animal Interest Alliance and National Association for Biomedical Research pointed to the crimes as a reminder of the growing threat of animal rights extremists and the need for new laws. That summer of 1992, against the wishes of the Justice Department, Congress passed its first version of animal rights terrorism legislation.
The 1992 Animal Enterprise Protection Act created the crime of animal enterprise terrorism for anyone who “intentionally causes physical disruption to the functioning of an animal enterprise by intentionally stealing, damaging, or causing the loss of, any property,” and causes economic damage exceeding $10,000. The focus was ostensibly on illegal, underground actions by groups like the ALF. The law was meant to deter crimes and lead to more convictions. It failed on both fronts.
A year after its passage, the Departments of Justice and Agriculture released the first in-depth look at crimes by animal rights activists. The report surveyed attacks from 1977 to June of 1993 and found that more than half—160 of 313 documented incidents—were petty vandalism. The second most common activity—77 incidents—was stealing or releasing animals. No incidents involved weapons, none resulted in death or injury.
Most important, the report revealed that leading up to the passage of the Animal Enterprise Protection Act, crimes by animal rights activists had been declining. The number of crimes had steadily increased for most of the 1980s, spiking in 1987 and 1988 and then dropping off a cliff. By 1992, incidents had reached their lowest level since 1986. The underground had been slowing down. Contrary to the message of corporations and industry groups, there was no urgent problem, no need for new legislation.
After the law passed, crimes spiked. There were more crimes in the first six months of 1993 than in all of 1992. The new law was meant to deter underground actions, but instead of diminishing they were on track to double. Instead of retreating from the terrorism rhetoric in fear, underground groups didn’t seem to be paying any attention.
Those who had called the new law essential immediately began calling it inadequate. Before prosecutors had even attempted to use the law, groups like the National Animal Interest Alliance, American Psychological Society and Americans for Medical Progress demanded more. More penalties, more federal regulations, and more terrorism laws.
A bill introduced in 1993 would have amended chapter 13 of title 18 of the United States Code, which deals with civil rights abuses, to include “blocking access to animal enterprises.” That proposal was derailed by the murder of an abortion provider; the very same section of the U.S. code was instead amended by the Freedom of Access to Clinic Entrances Act to include blocking access to abortion clinics.
Efforts to expand the Animal Enterprise Protection Act turned into a long-running campaign. Bills had names like the “Environmental Terrorism Reduction Act,” “Researchers and Farmers Freedom From Terrorism Act,” and “Stop Terrorism of Property Act.” One proposal created a national “eco-terrorist” criminal database. Another, the “Hands Off Our Kids Act,” called on the attorney general to identify animal rights and environmental groups who recruit young people. Many added the death penalty for animal rights crimes. Most failed at the subcommittee or committee level; a few died on the House or Senate floor.
Along the way there were some successes. In 1998, Peter Young and Justin Samuel were indicted under the Animal Enterprise Protection Act for releasing thousands of mink from Wisconsin fur farms. Congress also approved some new penalties and restitution provisions. These were only piecemeal victories, though.
By 2000, animal experimenters and businesses had had enough. Edward J. Walsh, a member of the board of directors of the National Animal Interest Alliance, released an analysis of the law that would guide future legislative efforts. He said the law must be expanded beyond the ALF. It should include “not-so-savage acts” that he said were taking a bigger toll on the industry, including a media stunt popular in the late 1990s: “pies in the face.” Walsh urged readers to sign a petition requesting that Congress hold hearings about animal rights terrorism, and in an eerie forecast of President George W. Bush’s “you’re either with us or against us” rhetoric in the War on Terrorism, he warned politicians who might stand in the way: “Congressmen and women who are sympathetic to the cause of animal rights must be reminded that they are aiding and abetting terrorism when they work to dilute the language of criminal statutes written to protect scientists, businessmen and women, entertainers and farmers, as well as law-abiding citizens in general, from hate-inspired violence.”
A year later, on September 11, 2001, animal enterprises and politicians seized on the tragedy as an opportunity to advance their political objectives. On the day the Twin Towers fell, Don Young, a U.S. Representative from Alaska, told the Anchorage Daily News the attacks might have been the work of the ALF or ELF. “I’m not sure they’re that dedicated, but eco-terrorists—which are really based in Seattle—there’s a strong possibility that could be one of the groups,’’ he said.
The nation was focused on Al Qaeda, though, not animal rights and environmental activists. Congress increased some animal enterprise terrorism penalties in 2002, but momentum had stagnated. Animal enterprises reorganized, solicited the aid of a little-known right-wing lobby group, and moved the front lines of their legislative battle from the federal government back to the states.
The American Legislative Exchange Council was founded in 1973 by Paul Weyrich—a conservative activist who famously coined the term “moral majority” for Jerry Falwell—in order to take his culture war to statehouses. Over time the mission of the organization changed. The focus shifted from winning cultural hot-button issues like abortion to advancing a legislative agenda palatable to corporate benefactors. ALEC evolved into an efficient, well-funded and little-known conservative powerhouse. According to an exposé by the Natural Resources Defense Council and Defenders of Wildlife, ALEC became a Trojan horse used to roll a corporate agenda through statehouse gates undetected.
More than one-third of all state lawmakers are ALEC members. With membership, they receive perks like free trips for spouses and children, Broadway theater tickets, and dinners at expensive restaurants. A 1994 ALEC conference included a golf tournament sponsored by R.J. Reynolds Tobacco Company, skeet and trap shooting sponsored by the National Rifle Association, and a trip to Busch Gardens sponsored by Anheuser-Busch Companies. If state lawmakers need help traveling to ALEC events, they can obtain “scholarships” from corporate sponsors. State lawmakers are short-handed and cash-strapped, with most only paid to work part-time and many with no paid staff, so the luxuries offered by ALEC are alluring. In addition, state legislatures have sparse lobbying disclosure laws and public reporting requirements, so the true extent of ALEC’s junkets and perks goes undetected.
In return, lawmakers pay dues, but not enough to even litter the bottom of ALEC’s coffers. Dues from state legislative members are a token amount of the overall operating budget, contributing about 2 percent of total revenue in 2000. About 97.9 percent of ALEC’s $5.69 million in total revenue that year came from corporations and charitable foundations. Corporations including Philip Morris, R.J. Reynolds, Amoco, Chevron, Shell and Texaco pay nearly all of ALEC’s expenses. The more they pay, the more power they have. Basic membership is $7,000 per year. Joining at increasingly elite levels—the Washington Club, Madison Club, or Jefferson Club—costs up to $50,000.
“Our members join for the purpose of having a seat at the table,” said Dennis Bartlett of ALEC in 1997. “That’s just what we do, that’s the service we offer. The organization is supported by money from the corporate sector, and, by paying to be members, corporations are allowed the opportunity to sit down at the table and discuss the issues that they have an interest in.”
This is the heart of the Trojan horse. Power in ALEC does not come from political acumen, it comes from brute financial force. Corporations buy their way onto one of ALEC’s specialized task forces. There, “legislators welcome their private-sector counterparts to the table as equals,” according to one ALEC publication. Actually, the corporate counterparts are more than equal. They have veto power. No bill is released from a task force without their approval. The results of such an arrangement are predictable. The task force on criminal justice, for example, has been co-chaired by a representative of Corrections Corporation of America, the nation’s largest operator of private prisons. In 1996, ALEC issued model legislation to deregulate utility markets: the legislation was pushed by Koch Industries and Enron.
After corporate members use ALEC to draft dream legislation, the “model” bills go home with state legislators. The ALEC bills are introduced, debated and voted on by other lawmakers who think the proposals are democratic creations. The method is ruthlessly efficient and effective. According to ALEC, it resulted in enactment of 450 state laws during the 1999 and 2000 legislative sessions. Mother Jones described it as a “chain-restaurant approach to public policy, supplying precooked McBills to state lawmakers.”
ALEC is a pay-to-play system, and the pharmaceutical industry has been one of the players willing to pay the most. Johnson & Johnson, Procter & Gamble, Aventis Pharmaceuticals, Bayer, Eli Lilly & Company, GlaxoSmithKline, Pfizer, Wyeth, Merck are all ALEC members. And they, along with other members like Cargill, the National Pork Producers Council, Wendy’s and McDonald’s, all have a vested financial interest in using ALEC to pass legislation labeling activists as terrorists.
In 2003, ALEC issued a report titled “Animal & Ecological Terrorism in America.” The Private Enterprise Board Chairman at the time was Kurt L. Malmgren, a senior vice president of the Pharmaceutical Research and Manufacturers of America. The editor of the report, Sandy Liddy Bourne, would later become vice president for policy and strategy at the Heartland Institute, which calls climate change “scare-mongering.” In a section titled “From Books to Bombs,” the report outlines the history of animal rights and environmental extremism, beginning with Darwin’s publication of The Descent of Man. According to ALEC, the voyage of the Beagle charted a course that led to the Animal Welfare Act and then to the ALF. The next step, the report warns, is physical violence. The authors make this warning repeatedly and dishonestly; the section on the ALF lists all of the group’s guidelines except for the fourth, which is “to take all necessary precautions against harming any animal, human and non-human.” Instead, ALEC says of activists: “If their voice isn’t heard by burning buildings, perhaps it may be heard by cutting throats.”
Federal legislation is too constrained to effectively target these movements, ALEC argues. The Patriot Act’s broad new powers cannot be used, because federal terrorism definitions require death or harm to human beings, “an element not characteristic of eco-terrorists.” In other words, ALEC says that the lack of violence by these allegedly violent groups is what necessitates new laws.
ALEC’s solution is a model bill, the “Animal and Ecological Terrorism Act,” heavily influenced by a similar bill from the U.S. Sportsmen’s Alliance, a pro-hunting group. It includes an ambitious, and likely unconstitutional, list of restrictions and punishments. Among them are three main proposals.
The first is to expand the definition of terrorism to include not only property destruction, but any action intended to “deter” animal enterprises. That includes nonviolent civil disobedience, and witnessing and documenting corporate misconduct. The model bill prohibits “entering an animal or research facility to take pictures by photograph, video camera, or other means with the intent to commit criminal activities or defame the facility or its owner.” Anyone—including journalists—could be labeled a terrorist for exposing activities that industry would rather keep secret.
The second key element of the model bill is to widen the net. A major weakness of existing federal legislation, ALEC says, is that it does not target the financial and ideological structure of eco-terrorist organizations. The model bill outlaws any action that may “publicize, promote or aid an act of animal or ecological terrorism,” language so nebulous that the Sierra Club has said “holding a bake sale to support tree sitters could be a terrorist offense.”
The final element of the plan is to create a “terrorist registry.” Under ALEC’s proposal, anyone who has violated the bill must register with the state attorney general, who shall maintain a public website with name, current address, photograph and signature of each eco-terrorist. The terrorist registry would operate much like a sex offender registry, except that instead of alerting communities to the presence of known pedophiles, it would be a tool for stigmatizing people because of their political beliefs—a blacklist.
Variations of ALEC’s model bill have been introduced across the country by lawmakers who know little of the issue outside of ALEC talking points. Frank Niceley, a member of both the Tennessee House of Representatives and ALEC, introduced the “Tennessee Ecoterrorism Act.” The bill would have created a list within the Tennessee bureau of investigation for “wackos,” as Niceley described them. It also spelled out prohibitions against eco-terrorist weapons—which do not exist—including “guns attached to trip wires or other triggering mechanisms.”
“Eco-terrorists are, I guess, left-wing eco-greenies,” Niceley told the General Assembly. “They don’t have a leader. They’re a leaderless terrorism group. They just kind of spring up sporadically. They do things like turn research animals out on the interstate, turn farm animals loose from semis in the middle of town. They drive spikes in logs going into the saw mill so that it will knock the teeth out of the saw mills. They put sugar in firefighting equipment in the national forest, and just, it’s a different type of terrorism. They don’t have Osama bin Laden leading them.”
It is difficult to precisely determine the impact of ALEC’s model eco-terrorism legislation. Whenever similar bills are introduced, ALEC’s fingerprints have been wiped clean. Sometimes the bills tweak the model, or leave out entire sections. Sometimes they are handed off to non-ALEC members for introduction. When Niceley was questioned by other lawmakers about his bill, he replied that he received his information about eco-terrorism from Rush Limbaugh. That might be the case, but he received his bill from ALEC.
A conservative assessment—relying on ALEC documents, news articles citing ALEC officials, and an investigation of state criminal codes—shows that bills substantially similar to ALEC’s have been introduced in at least sixteen states: Arizona, Arkansas, California, Hawaii, Missouri, Maine, Montana, New York, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, and Texas. There has been mixed success. In Arizona the bill was vetoed by the governor. In some states the bills failed at the committee level or on the floor only to be reintroduced again and again. In Arkansas, California, Missouri, Montana, Ohio, Oklahoma, and Pennsylvania, some variation of the proposal became law.
A focus exclusively on ALEC and its model bill, however, does not reflect the true scope of state eco-terrorism laws. ALEC is a well-funded, corporate-supported organization protecting vested financial interests, but it is one among many. Another key player has been the National Association for Biomedical Research. NABR monitors any and every attempt to restrict the animal experimentation industry. Its “members only” database tracks, for instance, states that have restricted the use of shelter dogs in experiments. The group also tracks all eco-terrorism bills and lobbies for them. The collective effort has had a significant impact on the legal system. By 2010, thirty-nine states had passed laws carving out special protections for animal and environmental enterprises and special penalties for activists.
There have been plenty of failed attempts along the way as well. An Oregon bill, which nearly passed, would have made it a felony for environmentalists to conduct any kind of protest within a quarter mile of a logging site. In Maine, the animal enterprise terrorism law was repealed. In Washington, there was a proposal to revise the state’s criminal sabotage laws (first drafted in 1903 to combat a growing anarchist movement) to specifically include eco-terrorism. No laws stretch quite as far as ALEC’s model, but that’s not the point. Legislative changes are made incrementally, first setting a foundation and then slowly, relentlessly expanding that framework until it changes the nation’s legal infrastructure. Each subsequent law has validated a manufactured threat, making increasingly draconian proposals, such as the Animal Enterprise Terrorism Act, appear quite ordinary and palatable.
Members of Congress and their staff begin to file into the room. Howard Coble takes his seat at the center and top of the tiered rows. He is a Republican from North Carolina and chairman of the committee. His cream-colored seersucker suit contrasts so sharply with the dark wood of the chambers that it appears white.
He speaks with a thick Carolina drawl that shakes his thick jowl, and when he pauses his heavy breath reverberates in the microphone. The Animal Enterprise Terrorism Act was introduced in response to a growing threat of eco-terrorism, he says. He quotes a professor from North Carolina Wesleyan College who says, “Environmentalists work within the system for preservation, and eco-terrorists seem to want to destroy civilization as we know it.”
To stave off these end days, his bill would make a few changes to the existing law. It expands the Animal Enterprise Protection Act to include any business connected to an animal enterprise, which the government calls secondary and tertiary targeting. It also edits the language from “physically disrupting” the operations of an animal enterprise to “damaging or interfering with,” a change that explicitly widens the law’s scope beyond sabotage. Finally, it includes a new clause prohibiting actions that instill a “reasonable fear” in people connected to animal industries.
The first witness is Brent McIntosh of the Justice Department. He immediately delves into the issue I expected him to gingerly avoid—the fact that the existing law has already been used successfully. SHAC adopted secondary targeting techniques, and two months ago the SHAC 7 were convicted of animal enterprise terrorism charges. Meanwhile, more than a dozen activists, including Daniel McGowan, have been indicted for ALF and ELF crimes without any specialized legislation. McIntosh acknowledges this, but simultaneously argues that the government needs more power to go after activists. The U.S. Attorney in New Jersey prosecuted SHAC under a combination of the existing statute and interstate stalking laws; with this new legislation, McIntosh says, SHAC could have been hit harder.
William Trundley of GlaxoSmithKline says executives have been terrorized because of the company’s ties to Huntingdon. In Baltimore, an employee received a hoax telephone call from the morgue, asking her to identify a relative’s body. Another employee’s mail was stolen, and thieves learned that the target’s wife had recently completed an alcohol treatment program. Someone later left a bottle of beer at the front door with a note that said, “Have a drink, bitch.” Trundley shows an image of a leaflet he says has been distributed at animal rights protests. It lists some of the actions committed by underground groups, and warns corporations to stop doing business with Huntingdon. Trundley refers to the leaflet as a “terror card.”
Michele Basso of the University of Wisconsin conducts brain experiments on primates to study Parkinson’s disease. She does not recount incidents like those described by McIntosh or Trundley. Her first encounter with animal rights extremists, she says, was when two organizations tried to purchase a building adjacent to two labs on campus. They wanted to create a memorial museum for primates tortured and killed next door.
Basso says she never had a protest at her home, but at other homes activists used a truck with a video monitor to show undercover footage of animal experimentation. While the video played, activists chanted with bullhorns, distributed fliers and talked to neighbors. Basso says they shouted obscenities and “went and rang the doorbell and ran away and various activity like that.” Basso also says she received more than fifty magazine subscriptions and various books such as Oh, What a Slaughter. At one point, someone wrote “Basso Animal Abuser” outside her home with chalk.
Members of Congress have invited Basso to testify about her firsthand experience with terrorism. These are the incidents she lists. Real estate deals, protests, magazine subscriptions, and sidewalk chalk.
There are a few reporters here today, and I wonder how they will perceive my testimony. As I will acknowledge in my prepared comments, I am not a lawyer, I am not a First Amendment scholar, and I am not a spokesperson for the animal rights movement or underground groups. I am here because of my freelance reporting, although today I’m not covering this story; I’m part of it. If any of them speak to me afterward, I’m sure their first question will be, why is a journalist taking a position?
The ideal of objectivity has become a trademark of modern journalism, and although I respect many colleagues who espouse it, I’ve increasingly felt that there are times when clinging to these professional conventions is a disservice to the public. Too often, journalists report “both sides” as if they are equal, even when one side is riddled with lies and motivated by self-interest. Over-reliance on “official” government and corporate sources, and deference to their word, has taken precedence over critical, investigative reporting that speaks truth to power. Journalists must always strive for fairness and accuracy, and I’m not suggesting a return to yellow journalism or tabloid sensationalism, but at some point there are issues that require a firm stance. The First Amendment is one of them. Eric Newton, the director of Journalism Initiatives at the Knight Foundation, describes this well: “If we ever reach the point in this country where a journalist being in favor of the First Amendment is seen as special pleading and advocacy,” Newton says, “we’re in deep, deep trouble.”
As I listen to the Justice Department spokesman mislead Congress about the need for new legislation, and as I hear the others label speech as terrorism in order to push their agenda, these feelings are reaffirmed. When it’s my turn to speak, I begin by telling the committee that I have closely followed the animal rights and environmental movements, and the corporate-led backlash against them, since 2000. “I have documented an increasingly disturbing trend of terrorist rhetoric, sweeping legislation, grand jury witch hunts, blacklists and FBI harassment,” I say, “reminiscent of tactics used against Americans during the Red Scare. The Animal Enterprise Terrorism Act is a continuation of that trend.”
The broad range of attacks on “subversives” during the Red Scare affected all aspects of American life. Parallel to today’s crackdown on the animal rights and environmental movements, the Red Scare operated on three levels: legislative, legal and a third I would call extralegal, or scare-mongering.
Congressional hearings elevated the perceived threat of subversives, and Congressional legislation rolled back First Amendment protections while expanding government power. The investigations of the House Committee on Un-American Activities led to the blacklisting of the Hollywood Ten. The Internal Security Act of 1950, also known as the McCarran Act, required the Communist Party and so-called front groups to register with the Attorney General (much the way ALEC’s model legislation creates an “eco-terrorist” registry). President Truman called it the greatest threat to civil liberties since the Alien and Sedition Laws of 1798, and said: “We will fail in this, and we will destroy all that we seek to preserve, if we sacrifice the liberties of our citizens in a misguided attempt to achieve national security.” Congress overrode his veto.
Legal efforts in this political climate were frequently less about defendants’ conduct than about their ideology. The Smith Act targeted anyone who “prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety” of revolution. Between 1941 and 1957, hundreds of people were prosecuted. In 1948, twelve board members of the Communist Party were indicted not for attempting to overthrow the government, but—much as with the SHAC defendants—for conspiring to advocate those ideas. In other legal cases, such as the trial and execution of Julius and Ethel Rosenberg, there was evidence of criminal activity. However, the true nature of the threat was lost in the media smear campaign. The Rosenbergs’ son, Robert Meeropol, says the Operation Backfire defendants have been treated much like his parents, tarnished in the press before they had even stepped into a courtroom. “Terrorist” has replaced “communist” as the most powerful word in our language; the term automatically skews public opinion against the accused and makes it impossible to receive a fair trial.
The final component of the Red Scare was by far the most dangerous. It included a wide range of activity outside of Congress and the courts, with the sole intention of instilling fear. It was Senator Joseph McCarthy waving lists of names on camera, and employers requiring loyalty oaths. It was propaganda about the Red Menace, and campaigns urging people to report their neighbors. The word communist was used so relentlessly, so virulently, that it became a political albatross to hang around anyone’s neck. The true meaning of the word melted away; communism became a malleable brand that could fit the enemy of the hour. Court cases and legislation sent people to prison, but these tactics, leveraging the weight of fear, incarcerated many more.
There once was a law that required anyone receiving “communist political propaganda” through the post office to authorize the delivery of each piece of mail. This legislation did not say it was illegal to send or receive communist literature. It just said you had to sign for it. But that has the same effect, does it not? Only the truly fearless or clueless would voluntarily add their name to a list of people who received communist propaganda during the Cold War. So people didn’t do it. The Supreme Court struck down the law. Justice William O. Douglas wrote in Lamont v. Postmaster General: “The regime of this Act is at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.’” Douglas called this a “deterrent effect,” and it would later become the legal concept known as a “chilling effect.” The law was unconstitutional not because it banned subversive speech but because it chilled it, turning the free flow of ideas into a crystallized mass, silent and cold.
Some of today’s extralegal campaigns have been silly, such as the backlash against Hoot, a children’s movie in which teenage protagonists fight a development project that threatens endangered owls. Opposition groups called the movie “soft core eco-terrorism for kids.” Ron Arnold, the self-proclaimed creator of the word eco-terrorism, said “Hoot’s so-called harmless ‘mischief’ is training a generation to look cute while burning homes and cars and stores.” When a new film adaptation of Charlotte’s Web is released, the Center for Consumer Freedom says it promotes animal rights extremism. These comments would be laughable if they weren’t part of a much larger campaign, including a constant barrage of press releases and advertisements. In this post-9/11 climate, it’s impossible to talk about “reasonable fear” as stipulated in the bill, because the unreasonable has become reasonable.
I tell the committee that through my reporting I have already seen the chilling effect of eco-terrorism smear campaigns, and heard the widespread fears of activists that they may soon be labeled terrorists. When you learn that the FBI has surveilled Greenpeace and local peace groups, you start to look more skeptically at those around you. When you learn that the SHAC defendants have been convicted on terrorism charges for running a website, you start to wonder if it could happen to you. And when you learn that nonviolent activists like Adam Durand have received 180 days in jail, plus $1,500 in fines, plus probation, plus 100 hours of community service, all for producing an undercover documentary about a factory farm, you start to wonder if you will be next.
“This legislation will add to this climate of fear and distrust,” I say, “and it will force Americans to ask themselves, is it worth it? Is standing up for my beliefs really worth the risk of being labeled a terrorist? That is not a choice that anyone should have to make.”
Others may soon find themselves facing similar decisions. Targeting animal rights activists as terrorists sets a legal precedent that will be used against other social movements. To use a very non–animal rights analogy, these activists are the canaries in the mine. If they run out of air, others will soon find it difficult to breathe. This has been the historical pattern both within the United States and abroad. Author Naomi Wolf has researched some of the most notorious periods of government repression in world history and identified common patterns. They all followed a similar model. “The state will start by abusing people that no one in the mainstream really identifies with much,” she says. “In Germany it was anarchists, communists, homosexuals . . . then what always happens is that there’s a blurring of the lines, and the noose starts to catch up more and more members of mainstream society, and it’s always the same cast of characters: us.”
Singling out one group of people based on their beliefs puts far too much power in the hands of the government. This should concern every American, regardless of how you feel about animal rights or the ALF. It is a path we have traveled before, and one we should not tread again.
“Public fears of terrorism since the tragedy of September 11th should not be exploited to push a political agenda,” I say in my concluding remarks. “I urge you to reject this bill and ensure that limited antiterrorism resources are used to protect national security and human life, not profits.”
The question-and-answer period proceeds as if it has been rehearsed. Lawmakers ask McIntosh if the Justice Department’s support of the bill is political, and he responds, “We are apolitical in this.” They ask Basso about whether animal experimentation is necessary, and she responds that it is. In 2009, she’ll be suspended for what university officials call a “clear pattern” of animal welfare violations, but today she is asked to explain how much experimenters care for their animals. As I listen to these exchanges, I begin to wonder if my analysis has been too simplistic. My testimony focused on corporate profits, but I begin to wonder if the root motivation of this legislation grows much deeper.
The questions directed at me have a much different tenor. The low point is when Representative Tom Feeney, a Republican from Florida, interrupts to say I need a logic course. The questions I am most dreading, though, come from Bobby Scott. He invited me to testify and, according to his staff, expected me to raise only mild objections to the bill. Instead I called for its complete rejection and said it was a witch hunt reminiscent of the Red Scare. I’m not sure how a congressman who considers himself a champion of civil rights will respond to his actions being compared to such dark days.
Scott asks if I’ve seen the latest discussion draft of the bill. At the last minute, a provision was added that said the bill does not prohibit any activity protected by the First Amendment. I did see the edits, only moments before testifying. I tell him I have read the new version, and he asks if it has addressed my concerns.
“No, it does not, sir.”
“Why doesn’t it?”
“The main changes I saw in the discussion draft were, at the end, the specific exclusion of activity like picketing or lawful demonstrations,” I say. “I’d like to point out that we would hope that would already be included under our conception of protected activities. So to point it out almost implies and acknowledges the overly broad and vague language of this legislation and the true danger it poses to First Amendment activity. And furthermore, that language still does not prohibit the use of this animal enterprise terrorism clause against things like civil disobedience, and perhaps even whistleblowing and undercover investigations.”
Scott is calm. He briefly presses the issue with a few questions about the penalty and definition sections, which I have said are too vague, and then the hearing continues. He does not mention my comparisons to previous eras of government repression, and neither he nor any other committee member addresses the constitutional implications of terrorism rhetoric’s chilling effect. Their silence is more effective than rebuttal.
As Coble concludes the hearing, Bill Delahunt, a Democrat from Massachusetts, asks to make a final comment. All of the crimes Basso and Trundley have listed in the hearing are already crimes under state law. Redundant statutes burden the federal government and shift power from the states, Delahunt says. Federal resources are limited. He says industry groups should instead lobby state officials, because they could address these crimes more efficiently and quickly than their federal counterparts.
After the hearing ends, supporters of the bill don’t take his advice. They already have state legislation. What they want is a new federal law. In support of this, a long list of corporations and associations submit written comments to the Congressional record. The list includes the Biotechnology Industry Organization—the world’s largest biotechnology association—and the California Healthcare Institute, which alone represents 270 biotech and pharmaceutical companies.
One letter of support is from Mark Bibi, general counsel for Huntingdon. He says SHAC’s campaign has been “enormously successful,” and new legislation is needed because the group’s model poses a continued threat to other corporate interests. “The risks posed by SHAC and its ilk should not be underestimated,” Bibi says.
“Imagine the impact if SHAC tactics were used by those opposed to various other industries from defense, to mining, to oil, to timber, to who knows what else.”