CHAPTER NINE
May 15, 2007 The Northwest is a story of extremes. The Cascade mountain range extends down from British Columbia through Washington, and on its way to California it creates two Oregons. The Cascades trap cool, moist air from the Pacific Ocean, creating a maritime rain forest in the western third of the state that is wet and green, dripping with life. It can be gray and it always rains, but the land is lush and alive. The western slopes of these mountains can shed two hundred inches of a snow a year, but cross the summit and the clouds drop only a fraction of that moisture. Travel down the slopes of the Three Sisters or Mount Hood, head down into Redmond and deeper down into the playa, and life withers. The land is rough and bitten. Rocky mountain ash, black cottonwood, sagebrush, chokecherry: the trees are short and the bushes gruff, their needles sharp like devil tongues.
Oregon is Portland, the bicycling capital of the country, and Eugene, the “anarchist capital of the United States,” according to former Mayor Jim Torrey. It is organic produce, vegan restaurants, compost and biodiesel. Interstate 5 is a lefty-liberal corridor established by “Californicators” and hippies, and a road frequently traveled by the most active cells of the Earth Liberation Front as they sabotaged property across the state.
There is another Oregon. Veer off the road and the attitude is less commune and more frontier. The Ku Klux Klan is strong here and so are militias. In 2001, after an extreme drought, the federal government cut off the irrigation water flowing to farmers in the Klamath Basin Irrigation Project. Scarce resources were redirected to Upper Klamath Lake to protect the endangered suckerfish. Militia leaders declared, “We are at war,” and used the Internet to organize convoys of antigovernment protesters from Montana, Nevada, Idaho and beyond. Militia members siphoned water and sabotaged the headgates. When the government repaired them, they were sabotaged again with chain saws and blowtorches. Some militia members threatened bombings and assassinations of federal officials.
This Oregon is not the subject of today’s hearing, though. Militia members who have used ELF-style tactics, and gone even further with threats of physical violence, are not a government priority. Today is about a group of environmentalists who have been labeled “terrorists” from day one. Since their arrest for a string of property crimes in the name of defending the environment, the Operation Backfire defendants have been relentlessly branded eco-terrorists and domestic terrorists in government press conferences, Congressional hearings and the media. Up to this point, use of the word has been for political posturing and public relations purposes. Today in Eugene, though, a federal court will hear arguments about whether the label will follow the defendants into their sentencing hearings and throughout the prison system.
The court’s decisions will have grave implications for the defendants. If the government successfully argues for the application of the “terrorism enhancement” to their crimes, it could add up to twenty years to their sentences, in some cases quadrupling prison time. It could place them in prisons next to more traditional terrorists and allow harsh restrictions on contact with family and friends. It would legally redefine them.
There is no “terrorism” crime on the books. No one is brought before a U.S. court and charged with it. Instead there are more than fifty offenses—such as kidnapping, dispersing biological weapons and attempting to assassinate the president—that, in some circumstances, qualify for additional penalties because of the motivations of the defendant. Over the years, this corner of the law has evolved to reflect cultural perceptions of terrorism. Beginning in 1989, the U.S. sentencing guidelines allowed for an upward departure in sentencing for a crime “in furtherance of a terroristic action,” but terrorist actions were left undefined. That changed in 1994 when Congress created an enhancement for international terrorism, the predecessor of the policy at issue today—but the bombing of the Oklahoma City federal building the following year made clear that the law needed to account for domestic threats as well. As part of the Antiterrorism and Effective Death Penalty Act of 1996, Congress replaced “international terrorism” with the more flexible “federal crime of terrorism.”
Now, a crime qualifies for the terrorism enhancement if the government proves two things. First, prosecutors must show the crime “involved or was intended to promote a federal crime of terrorism.” That phrase, “federal crime of terrorism,” has a specific definition. It has to be one of a laundry list of offenses, such as assassination, kidnapping, torture, bombings and nuclear threats. Second, prosecutors must show that the crime was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” The two-part test for the terrorism enhancement seems straightforward. In practice, the criteria are open to the interpretations of those in the courtroom.
Early in today’s hearing, it becomes clear that one of the key questions is whether the terrorism enhancement should apply to crimes that did not involve violence. In their written arguments, defense attorneys said that the precautions taken to avoid harming people separate these crimes from the heartland of the terrorism enhancement. “A terrorist acts from hate and aims to create fear,” wrote Marc Friedman, the attorney for Kevin Tubbs. “A terrorist’s goal is to cause death, because death is the ultimate tool. Death is the ultimate source of fear.” In the government’s sentencing memorandum, prosecutors acknowledge that the defendants took precautions to avoid harming anyone.
Arson is an inherently dangerous crime, though. The government argues that the defendants were not capable of knowing, without a doubt, that no employee or firefighter would be harmed. Assistant U.S. Attorney Stephen Peifer tells the court that it was “pure luck” that no one was killed.
Defense attorneys call on the only witness in today’s hearing, Dr. Zelda Ziegler. She was one of Stan Meyerhoff’s instructors at Central Oregon Community College. The government says that the ALF and ELF committed 1,200 crimes between 1990 and 2004, with no injuries or deaths. Ziegler performed a statistical analysis, using a random sampling of data. Her conclusion: the probability that this many crimes resulted in no injuries is 1 in 90 septillion, or ten thousand trillion times better than picking all six winning numbers in the lottery. This is an exaggeration, because the government does not specify how many of the 1,200 crimes committed by the ALF and ELF were arsons. However, even if one out of every four of those crimes involved arson, the probability is one in three million. If it is pure luck no one has ever been injured, the ALF and ELF may be the luckiest people on the planet.
As part of her research, Ziegler replicated incendiary devices used in the arsons to determine the risk they posed. Attorneys play a video of her experiment to the court. It shows Ziegler using two small yogurt cups with dimensions proportionate to the five-gallon buckets the defendants used. She fills one with pure gasoline, and the other with a mixture of diesel fuel and gasoline—a mixture chosen by the defendants because it burns slowly. She places unlit matches next to the cups; if the fire spreads, even slightly, the matches will ignite. The flame burns, but the cup does not melt away, the nearby cup of fuel does not ignite, and the unlit matches do not ignite. There is no explosion, no fireball, no mushroom cloud. The government has argued that a propane tank at a crime scene, about twice the size of the large table in the courtroom, could have exploded and harmed someone. Ziegler proves that would not have been possible. “It’s notoriously boring, unfortunately,” she says, referring to the incendiary device she replicated. “We called it the yule log for a while.”
Peifer says that even though the ELF exclusively destroys property, their conduct ultimately targets people such as loggers, researchers and forest service employees. He does not question Ziegler’s statistical analysis but says that these crimes threatened people’s livelihood and, by extension, them.
“The defendants’ argument is there was no injury to human beings, no danger to humans, and therefore, there was no terrorism,” Peifer says. “If that’s the standard, the Ku Klux Klan did not commit terrorism when they traveled in the dark of night, three, four o’clock in the morning, burning black churches in Mississippi. No one was inside the churches, no one was there to be injured. They may not have wanted to injure anybody. They just burned buildings.”
Defense attorneys are not sure what to say. The hearing continues, but later Amanda Lee, one of Daniel McGowan’s attorneys, says she cannot sit quietly. The Klan did not just burn buildings. They burned churches and burned people and held neither of greater value than the other.
On September 15, 1963, the Klan bombed the Sixteenth Street Baptist Church in Birmingham, Alabama. Klansmen had planted nineteen sticks of dynamite outside the basement of the church with a timing device so that it would explode after Sunday school. The explosion shattered stained glass and flicked concrete like hymnal pages. Four teenage girls were murdered as the congregation prepared for a sermon on “The Love That Forgives.”
“There’s a word for this, your honor,” Lee says, “and it’s overreaching. It’s stretching. It’s attempting to force the concept of terrorism to fit a set of facts and a group of people that it does not fit.”
“This is not a political prosecution,” Peifer says. He claims he has never spoken with anyone in the Justice Department about whether to seek the enhancement. Peifer and other prosecutors are tight-lipped, though, about why they seek the terrorism enhancement in some cases but not others.
Stephen John Jordi received it for the attempted arson of an abortion clinic. And Jack Dowell received it for acting as a lookout as some drinking buddies set fire to an IRS building in Colorado Springs, Colorado, and spray-painted “AAR,” for Army of the American Republic.
Yet the government did not seek the terrorism enhancement in the case of Zacarias Moussaoui, convicted of conspiracy in connection to the September 11th attacks.
And in the same district where these ELF cases took place, a self-avowed white supremacist named Jacob Albert Laskey threw swastika-etched rocks through the windows of a Eugene synagogue while members were inside. Among the many charges against him, Laskey also solicited help in murdering a potential witness and called in a bomb threat to a federal courthouse in order to disrupt a grand jury. While he awaited sentencing, Laskey sent a letter to Resistance Magazine advocating for execution cells to break into homes and kill their targets in front of wives and children. He advocated using “shoot and scoot” tactics to kill political officials as they returned home from work, because the televised funerals would amplify the message. Soliciting a bomb threat against the federal courthouse is listed as a federal crime of terrorism, and Laskey admittedly intended to influence the government, but prosecutors never sought the terrorism enhancement.
The government has aggressively pursued the enhancement in Operation Backfire. During plea discussions, prosecutors refused to negotiate on this point. Defense attorneys say they do not know of any pre-9/11 cases in which the government sought the enhancement for property destruction alone. This would mark the first application of the terrorism enhancement to environmentalists.
The impetus for the government’s commitment to the terrorism enhancement is unclear, but some motivations can be ruled out. The first: increasing prison sentences. The enhancement would automatically increase a defendant’s criminal history to the highest level, but prosecutors say they will immediately request an identical decrease due to the plea agreements. Seeking the enhancement is also not a matter of public safety. Jacob Ferguson set more fires than any other defendant. Because he wore a wire and entrapped his friends, he will receive a sentence of no time in prison and five years probation. He will return to Eugene, continue playing in his band Eat Shit Fuckface, and resume his previous life. “I believe that people deserve punishment for their crimes,” Amanda Lee says during the hearing, “and I pray that my government is not making the kind of deals with real terrorists that it made with Jacob Ferguson.”
Regardless of motivation, a few things are clear. In the last several years the rate at which prosecutors seek the terrorism enhancement has been increasing, and when the government asks, it usually receives. An investigation by the National Journal revealed that judges have upheld the terrorism enhancement far more often than they have denied it. Prosecutors successfully obtained the enhancement in twenty-seven of the thirty-five cases reviewed by the National Journal, a success rate of about 75 percent.
Accompanying this increased use of the terrorism enhancement has been the creation of a new, secretive prison facility in Terre Haute, Indiana. Not much is known about the facility except that it is for so-called lower-risk terrorists. The government will not reveal which prisoners are housed there or why. Daniel McGowan fears that if the court labels him a terrorist, he could be locked up in such a facility. He would be hidden from public view and isolated from family and friends, without recourse. The government dismisses these concerns as political scaremongering, but his attorneys argue that it is a real possibility.
“I’ve got to tell you, this concept alone would have boggled our minds a few years ago, and it still boggles my mind,” Amanda Lee tells the court. “It is one thing to say we need a special facility in Florence, Colorado, a supermax facility for the most dangerous terrorists we know of, but now we need a facility for low-risk terrorists. I believe the term is an oxymoron. I don’t know what a low-risk terrorist is, and yet now we have whole new facilities for them. You know, next we are going to have camps for terrorists.”
One week after the terrorism enhancement hearing, U.S. District Court judge Ann Aiken issues her ruling. She’s in a difficult position. She must untangle the meaning of a knotted legislative legal history, and in doing so straighten out a legal definition of the word. If she rules in favor of the defense, she will undoubtedly be labeled “soft on terrorism” and soft on those who have targeted the economic backbone of this region. If she rules in favor of the government, Aiken, a Clinton appointee known as one of the more liberal judges on the federal bench, will tacitly be supporting the expansion of the Bush administration’s War on Terrorism.
In an acknowledgment of her predicament and an attempt to slip out of it, Aiken begins her decision by redefining her role. She says she is not here to determine if the government is using the law to push a political agenda. Her job is not to determine how the word should be applied, nor what most people feel it means. This is not a political case, she says, and it is not a political decision. Aiken treats the most politicized, nuanced word in the language as if it’s straightforward and universal, saying she is “bound by the canons of statutory construction.” This is much like a priest saying he is bound by a literal interpretation of the book of Revelations, albeit less straightforward; these legal canons remain largely unwritten.
Congress has not revisited the law since its creation in 1996. The Supreme Court has never heard a single case involving its application. In situations like this, judges often evaluate lawmakers’ intent when they passed the law.
The Congressional debate that preceded the enhancement focused on the bombing of Pan Am Flight 103, the 1993 attack on the World Trade Center, and a cult’s gassing of the Japanese subway system. Defense attorney William Sharp has catalogued every incident that witnesses and lawmakers said the law should cover, and says no one proposed then that people who solely damage property should be labeled terrorists. “Terrorism is about killing people,” Sharp said during the terrorism enhancement hearing. “That is what our members of Congress thought, and that is what the witnesses before the judiciary committee said. It is not a close call. It is simply not possible for anyone to read this history and come up with any other conclusion.”
In her forty-six-page decision, Aiken answers the question of whether the enhancement applies to environmental saboteurs with a resounding—maybe. It is possible, she says, but the burden will heavily fall on prosecutors to prove during sentencing that the defendants targeted the government. She will weigh the enhancement for each defendant and their crimes individually.
It’s a positive sign to hear Aiken say she might be persuadable. Yet attorneys had expected more from a judge who, in a few months, will strike down part of the Patriot Act dealing with secret searches and surveillance; Aiken will be praised for providing checks and balances on the terrorism powers of the executive branch. Defendants had hoped that, of all possible judges, she would be one of the few willing to rebuke the government for overreaching with terrorism laws. Now all they can do is wait.
June 1, 2007 “Exile” and “Sadie”—Nathan Block and Joyanna Zacher—sit in a Eugene federal courtroom, waiting to find out how many years they will spend behind bars for admittedly torching SUVs and a research facility as part of the ELF. This is the part of the story where the defendants are supposed to see the light, atone for their sins and complete the legal dénouement. Block and Zacher look like they have been typecast for the “eco-terrorist” role: Block with his long, jet-black mane and four-inch black beard, Zacher with red-and-brown streaked hair, pulled back into a bun to look more presentable than the dreadlocks in her mug shot. A cast of cops and prosecutors sits stage left. The case fits the mold of a prime-time courtroom drama, yet something’s missing. Block and Zacher are refusing to behave. The terrorists are not following the script.
Judge Aiken has been through plenty of sentencing hearings, has seen the most defiant defendants cower and beg for leniency. The I-swear-to-God-it-wasn’t-me defendants apologize and talk about the hard life that took them down the wrong path. The maybe-I-did-it-but-it’s-not-my-fault defendants grovel and talk about the lessons they have learned. When the question of prison is no longer if but how long, most people swallow hard and grovel. They cry. They beg. They vow to get their lives on the right track, set things straight.
This is the seventh sentencing of Operation Backfire defendants, and so far the others have followed this model, with a twist. Because of the political nature of these cases, Aiken has been asking for something more than she would of typical defendants. It’s not enough for them to admit their guilt, provide evidence against their friends, and apologize for their actions. She wants them to condemn the radical environmental movement and militant tactics.
When she sentenced Stan Meyerhoff, a lead arsonist in the case, she told him that his actions had given legitimate environmentalists a bad name. For Darren Thurston, she read an excerpt from a book about Thurgood Marshall and spoke about how the Supreme Court justice fought within the legal system, not outside of it. She told him to take classes on U.S. democracy and the proper ways of social change. At the next and final hearing, for Jonathan Paul, she will tell him that as part of his sentence he must read Three Cups of Tea. He must then turn in a book report to the court detailing what he has learned about nonviolent activism.
Aiken’s message is one that corporations and politicians have been sending for years. In October 2001, U.S. Representative Scott McInnis and other Republicans sent a letter to the Sierra Club, Greenpeace, National Wildlife Federation, Earthjustice, World Wildlife Fund, League of Conservation Voters and Natural Resources Defense Council. “As our Nation begins the recovery and healing process following the tragedy of Sept. 11, we believe it is critical for Americans of every background and political stripe to disavow terrorism in all its forms and manifestations,” the letter said. The organizations were told that they must publicly denounce the ALF, ELF and similar groups, which have committed sabotage “no less deplorable” than the World Trade Center attacks. They were given a deadline, and it was implied in press statements that if they declined they would be investigated. The leaders of the national environmental movement all pledged their loyalty oaths.
Some bristled in their responses. Others jumped at the opportunity to show they follow the proper channels. The National Wildlife Federation not only responded to McInnis’s letter, but sent their own to the New York Times urging others to issue condemnations. The Sierra Club had previously offered monetary rewards for information that led to the capture of environmental saboteurs, and Greenpeace has long gone out of its way to condemn underground activists. Representative George Nethercutt, a Republican from Washington and sponsor of eco-terrorism legislation, has perhaps captured this guilt-by-association mentality best. “National environmental groups need to know, you are either with us or against us,” Nethercutt said during a Congressional hearing in 2002. “You need to choose which side you are on, and know we will be watching. Financing and harboring terrorists is no different from directly committing the acts. These dangerous and misguided zealots must be left without aid or comfort. This is the moral framework.”
The moral framework has developed as everyone, it seems, is “going green.” Judge Aiken herself noted in one of the previous sentencing hearings that there are perhaps ten years before an environmental “tipping point,” and Al Gore, one of the most respected and mainstream faces of the environmental movement, has called for lawbreaking, saying, “I can’t understand why there aren’t rings of young people blocking bulldozers.” A report prepared for the Pentagon advised that climate change “should be elevated beyond a scientific debate to a US national security concern,” and these concerns will lead to the establishment of a new Center for the Study of Climate Change at the Central Intelligence Agency. If the state of the planet is indeed so dire, it would logically pose some unsettling questions. If total environmental collapse approaches, is another petition the appropriate response? Is switching to compact fluorescent light bulbs really enough? How far is too far when life on the planet is at stake?
In this political context, being “with us,” as Nethercutt said, means not asking such questions. There is a right way of social change, and a wrong way. The wrong ways—and the radical beliefs that inspire them—are simply not open for discussion. The right ways, the “with us” ways, are conventional, slow, lawful and, above all, nonthreatening. Activists should address the inconvenient truth without overly inconveniencing anybody. Anyone who believes otherwise, or who refuses to condemn those who believe otherwise, is “against us” and will be punished accordingly.
For Block and Zacher, even the most contrived statement and renunciation of radical tactics might knock off months of prison time. Aiken has already ruled in previous sentencings that both of Block’s and Zacher’s crimes qualify for the terrorism enhancement, so a public statement will not help on that front. But Meyerhoff’s political about-face certainly helped him during sentencing. He began a statement to the court by saying, “I apologize to you, victims and fellow citizens, for three years of extremist barbarity.” He condemned the ELF as “thuggish” and concluded by pleading for mercy. Aiken commended his renunciation of direct action. She sentenced him to thirteen years, about two and a half years less than the government offered in his plea deal.
They sit silently. Block, twenty-six, and Zacher, twenty-nine, had planned on not reading a statement, but to Aiken that is not acceptable. She tells the defendants that she wants to hear something, anything, from both of them. Their attorneys look at each other and shuffle papers. Awkward pause. The court will take a long lunch, Aiken says, so the defendants can think about what they have to say.
As they waited for the sentencing hearing to begin this morning, friends of Block and Zacher gathered outside the courtroom, holding hands in some kind of a pagan prayer circle. Their appearance turned heads, even the heads of the other young supporters familiar with activist subcultures—punks, vegan straight-edge hardcore kids, Earth Firsters. They could not quite figure out the prayer circle crowd. Long black ZZ Top beards. Harry Potter spectacles. Facial piercings. Celtic-inspired tattoos. Silver bracelets. Natural fiber vests and tunics in purples, greens and of course black. Grateful Dead meets death metal. All of the defendants have been marginalized and labeled terrorists, and among them the noncooperating defendants are even more isolated because even their friends turned against them. Block and Zacher are the blackest of the black sheep.
Multiple defendants have been labeled “anarchists” in the press and in court documents—their sentencing memorandum declared, “Block and Zacher were dedicated anarchists who, by definition, were anti-government”—and this morning Assistant U.S. Attorney Kirk Engdall made sure these defendants wore their scarlet circle “A.” They met in November 1999 at the World Trade Organization protests. During his sentencing presentation, Engdall showed a video segment from KIRO-TV in Seattle titled “Anarchist Rampage.” People in black clothes, calling themselves the Black Bloc, vandalized corporate chain stores. A very excited female reporter shouted into her microphone, “Oh my gosh! They just broke the Starbucks window!” Block did protest at the WTO, but police never arrested him, and he has said he did not break windows or even witness this scene. Zacher said it’s true she was there, but before the riots and four blocks away. Engdall went on to tell the court that a CD was found at their home with liner notes that said “to hell with property, to hell with the State.” Police also found “anarchist literature.”
Zacher’s attorney, Bill Sharp, has ignored the government’s allegations of reading-while-anarchist and, in an attempt to deflect attention from his client’s silence, poked fun at the excuses made by cooperating defendants. He listed “whiner factors,” justifications made by the others, including “my frontal lobes are undeveloped,” “my love for a conspirator” and “I was sexually abused.” “Buildings don’t burn less when nice people burn them,” Sharp said, so excuses do not matter. Nothing should matter, he said, except the extent of damage, the number of crimes and how long each defendant participated. Stick to the numbers.
This may look good on paper, but the system doesn’t work this way. Aiken wants an apology, an admission of ideological guilt, and she is determined to get it.
After lunch, Block’s and Zacher’s shackled legs hobble back into the courtroom. Here it comes. This is what Aiken has been waiting for. The fear just needed to steep for two more hours.
They take their seats, look at each other and look back at their friends. Block tugs at his forest-green inmate scrubs and fidgets with his beard. Zacher adjusts her knot of hair. They sip water, then force out statements that only last about a minute each. Block says he respects the “sacredness of human life alongside all other life.” Zacher says she “only wants this harrowing chapter of my life to be closed” so she may live sustainably among the air, trees, water and animals, a sly reference to Charles Manson’s “ATWA” and a subtle commentary on the government’s demonization of the pair.
If the defiance surprises prosecutors, they don’t show it. By all accounts, it should. The two should have been the weakest links in the group of co-conspirators the government calls “The Family.” The other defendants sometimes called Block and Zacher, the youngest of the bunch, the “punk kids.” Daniel McGowan wanted to track them down years after the crimes to make sure they kept their mouths shut. Youth and naïveté could have screwed everything up.
Now the punk kids, the young ones, stare down the judge and the prosecutors. They view the entire legal process as a sham, friends and family say, and refuse to cooperate with a corrupt system in any way. One year from now, they’ll release a joint statement from prison about their cooperating codefendants: “Perhaps these vile turncoats deserve compassion, in the same way that all creatures deserve compassion, and indeed they once deserved acclaim for their physical deeds, but now they deserve neither praise nor forgiveness, for in the hour when the struggle returned for them, when the predator had once again become the prey, they failed in spirit and resolve, cowardly breaking long held oaths and begging for mercy from their captors, hoping to gain leniency by offering as a sacrifice to the alter of a perverted ‘justice’ their former friends, trusted colleagues and any dignity they once held.”
Block and Zacher will not budge. Aiken is not happy. She breaks for another recess.
“This has been totally anticlimactic,” says one animal rights activist who has traveled from the Midwest for court, as he walks past the prayer circle crowd holding hands again. “I totally thought a Norse god was going to swoop in and whisk them both away to freedom.”
Block’s dad, Lee, sits in the front row, in a gray houndstooth jacket, gray hair, graying handlebar mustache, arms folded across his chest. He waits quietly for Aiken to return and sentence his son. He turns to one of Block and Zacher’s friends, a pregnant woman in a green shirt with tribal tattoos on her arms and fingers, and shows her the red button on his key chain. “It’s for the rental car. What do you think?”
“I don’t think the panic button is going to help you now.”
Lee Block stands and walks to the press benches on the left side of the courtroom. He begins talking to Bill Bishop, a reporter from Eugene’s Register-Guard, without introducing himself. He wants Bishop to write about the government paying Jacob Ferguson to wear a wire and then letting him walk free even though he was involved with fourteen of the twenty arsons.
His wife Maureen, Block’s mother, grabs the sleeve of his sport coat and snaps at him to sit down. They are not supposed to talk to reporters, or to anyone. Nathan’s orders. Mom and Dad have fierce opinions about the government labeling the ELF—and, by extension, their son—a domestic terrorist threat. But Nathan made it clear that nothing good can come from trying to persuade reporters or from pandering to the court. That has been the strategy all along. Keep your mouth shut and don’t give anyone any rope unless you want to get strung up. All his mom will say on the record is that she’s “proud as punch” of her son.
Aiken returns a few minutes later, dumps a stack of manila folders on her bench, leans back in her chair, puts her bright red eyeglasses on top of her head, rests two fingers from her left hand on her cheek, and glares at the defendants.
She still cannot figure them out. “Your view of the world has stunned me,” she says. They have not used any of the “whiner factors” to explain their actions, so she tries to do the explaining. She says they are not mature. They do not have heroes. They do not understand social change. They are young. She reads some Tennyson: “Ah, what shall I be at fifty / Should Nature keep me alive, / If I find the world so bitter / When I am but twenty-five?”
What upsets friends and family more than anything is when Aiken says Block and Zacher are not well read. “For many of us old people, we read books,” she says. “I wonder if people read. . . .” the last word or two in her thought gets lost in the grumbling, whispering and shifting on the wooden benches. Friends who were unfazed when prosecutors described the arsons nearly become incensed when the judge questions their erudition.
“Really at this moment I don’t understand who you are, what you are, your belief system,” she says. “I don’t think you even really understand what life is about.”
Block and Zacher stare ahead.
“I didn’t hear anyone say they’re sorry,” she says. “I didn’t hear anyone apologize. I didn’t hear anyone say they would work to pay restitution.” Aiken pauses and glares at the defendants. One last chance. One last chance to condemn sabotage and embrace compact fluorescent light bulbs. Pregnant pause. “You could have stood up right now and addressed these things, but I noticed no one is moving.”
More silence, as tense as the seconds of quiet delay between a lightning flash and the thunderclap.
They do not move when Aiken sides with prosecutors on the terrorism enhancement. They do not move when she sentences them to ninety-two months in prison—about seven and a half years, or one quarter of the life they have lived. They barely move through the attorneys’ back-and-forth legalese and fine print.
As Nathan Block is led out of the courtroom, though, he stops and turns toward the rows of benches. In the end, he and Zacher did not fare much worse than the cooperating defendants. Block pauses and stares at his friends, then begins to smile. He crosses an “X” with his forearms, makes two rock-on devil’s horns with pinkies and pointers on each hand, and sticks out his tongue.
June 3, 2007 Down in the Whiteaker neighborhood a teenager with facial tattoos and top hat sprawls out under a tree and a girl in a dirty prom dress and a hoodie dances around him. Over at Sam Bond’s Garage some guys nursing pints talk about early eighties anarchist punk rock. The greasy bar food is organic and the regulars talk about beer like New Yorkers talk about wine. Eugene is still, and always will be, Eugene. But somewhere deep the tectonic plates of this town have shifted, and nothing feels stable anymore.
I had never been to Eugene until these court cases; yet even to an outsider this place feels like it has changed. The activist community is wary of strangers, especially journalists, but after mutual friends vouch for me, no one can stop talking. Everyone remembers where they were when the indictments came down. They are still trying to piece things together, not just what happened then but what happens now.
I’ve been staying with Lauren Regan, the executive director of the Civil Liberties Defense Center and perhaps the most visible spokesperson for the defendants. She has seen strength, the community response to the arrest of their friends. She has also seen fear. The other night there was a house party with bands and a bonfire and tables of food, welcoming all the Earth Firsters who have traveled to town for court. We tried not to stay long—heavy drinking and pot smoking have long been part of Eugene activist culture, but they play a different role now, a perpetual wake. When drunk or high the partygoers turn to Regan, either to vent or to pull her off to a corner and ask quietly: Did my name come up in any court documents?
Many old faces have slunk into the shadows, either because they need to keep a low profile now or because they’re just plain scared. It’s hard to tell which. A young activist with a Food Not Bombs patch on his ball cap says he has had a hard time joining political groups at his college. “People are so distrustful,” he says. “They look at you and wonder where you came from, what you’re doing.” Locals oppose the government’s labeling of environmentalists as terrorists, but don’t want to publicly be associated with Regan or the defendants. Sometimes, after speaking events, people will approach her, slip a wad of bills into her pocket in support of her work, then turn and disappear.
Yesterday a group of Earth Firsters and I went rafting down the Willamette hoping to float away from all of this, for even a few hours. There was cool water and colder beer and a sun that burned without feeling hot. Regan would remind us that nobody is allowed to talk about the case, the crew would paddle a few strokes, and then the conversation would return to the arrests. Today, hiking in Fall Creek with Daniel McGowan was also supposed to be a break, a final chance for McGowan to experience the natural world before prison. Nobody could talk about anything except the case.
We drive down the long winding road to Lauren Regan’s home in unincorporated Franklin, past a trailer that seems to have been abandoned. We’ve passed that trailer at least a dozen times now, and each time Regan says to herself, “I need to talk to the neighbors about that.” We drive under a bridge and on the concrete wall are the words “NO TRESPASSING.” McGowan had spray-painted the warning for her years ago, and she jokes that this is where he practiced his spraycan penmanship.
“The Ranch,” the home of Regan and her partner Jim Flynn, was once the office of the Earth First Journal, when the publication moved to Eugene. It was a crash pad for tree sitters and travelers. Most of the defendants were public activists whom nobody suspected of being involved in clandestine activity. They all had slept at the Ranch at some point. Hadn’t they? Regan and Flynn run down the list and then give up. It’s hard to remember the details from so long ago; it feels like it was a different world then.
One of the most vivid memories of that period that Regan recounts is McGowan meeting her dog, Nakaia. Nakaia is named after a matriarchal tribe of the Pacific Northwest. She has a long snout and thick white fur and regards most humans with indifference. McGowan was determined to win her affection. He spent hours preparing vegan, heart-shaped dog treats from scratch—a peace offering in hopes of wooing a wolf.
Daniel McGowan mingles around the front porch at his farewell party. He smiles and shakes hands with the older Earth Firsters and younger punk rockers. Inside the house, Jenny Synan stands in a corner; the sun has set and she says she can’t stop thinking about tomorrow. She and McGowan argued in the woods because she wanted to spend time alone working on her statement to the court, and McGowan wanted her to say with him. She says she wants to edit the statement because she’s afraid it’s too long. “It’s the only thing I have control over. Just a little bit,” she says. “It’s the only thing that can make a small difference.” Once the sentencing is over, she thinks she’ll be able to focus more on their time together. She’ll have two weeks off work to spend with her husband before he reports to prison. Maybe they’ll stay in the city and find a hotel with a good pool, she says in between sneezes. A chlorinated, allergy-free pool, not a hippie Oregon swimming hole. They might take in a Mets game, or walk Rockaway Beach and then visit the Cloisters.
In the kitchen the host, Shelley Cater, quietly prepares tea. She won’t reveal all of her ingredients. There might be rosemary, an herb for remembering better days while in prison; there might be violets, a flower for remaining faithful, even when tested. She pours from a glass jug with a handmade paper label that says, in fine, black script, “Courage in the face of Adversi-Tea: for strong hearts and steady nerves.” A homeopathic remedy, she jokes, an extra dose of what McGowan will need when sitting before the judge.
Lauren Regan and I leave the party and drive to her law office so she can print press releases. In the back seat is Mike Roselle. Roselle is a cofounder of Earth First, the Ruckus Society, and the Rainforest Action Network, and has had a role in nearly every major campaign of the modern environmental movement. He’s had a few drinks, as most everyone has, and is telling war stories about sit-ins and civil disobedience. This one is about receiving a call from Greenpeace because they had a dangerous media stunt and Roselle was the go-to guy for things like that. He had to smuggle himself into Canada. Or was it out of Canada? Maybe both, he says, grinning. Roselle has been read Oregon’s 1875 Riot Act and has been arrested for “Interfering with an Agricultural Operation” and everything in between. He’s no stranger to jail cells or to government surveillance. When he worked with the Yippies, they found out one of their housemates was a federal agent—but they kept him around because he had a car.
Roselle knew all of the defendants at the time they were committing their crimes, and some even attended his nonviolent direct action trainings. But they were living double lives—he had no idea about their underground personas until his friend William Rodgers committed suicide after his arrest. Years from now, Roselle will condemn the defendants and the ELF in his autobiography, writing, “It takes more courage to sit in front of a bulldozer than it does to burn one.” Tonight, he will not say much about the defendants except that they are all good people, with good hearts, and that it’s a shame they have ended up behind bars.
When we get to the law office, Roselle says he’ll watch the car.
“I don’t go into law offices unless I’m in trouble,” he says, “and I haven’t gotten in trouble tonight yet.”
June 4, 2007 The sun has refused to rise compliantly today, dragging its feet into a gray, threatening sky. McGowan and Synan, perhaps believing that their only protection is in each other, walk without umbrellas in the rain. The rain quietly rails against the new Wayne L. Morse United States Courthouse, five stories of ultra-modern glass and steel. Some environmentalists praised the designers of the courthouse for using the latest green technology when it was built. The U.S. Green Building Council awarded it a gold certification, and the American Institute of Architects would later name it a Top Ten Green Project for 2007. When juxtaposed with its massive façade of steel and glass, though, the building’s recycled and locally produced materials, natural lighting, and native plants seem like more of an acquiescence to the local culture than any real bond with it. It is as if the building itself is saying, “You might have a point with some of this environmental stuff, but you can’t take these things too far.”
McGowan, who always has a story or a joke and dominates most conversations, is silent now. He and his wife walk up the gray concrete steps, push open two sets of glass doors, pass through metal detectors, climb the stairs and enter the courtroom. Outside, the raindrops cling to the building’s façade in streaks that shimmer faintly, like the water in Fall Creek.
Jenny Synan’s eyes redden as she moves through the courtroom. She sits on a wooden pew, the front row of four rows, behind McGowan and his two attorneys. Next to her sits one of McGowan’s sisters and his father. His father’s gray hair is slicked back, with a few hairs starting to pull out of place in the front. He wears thick bifocals, the kind with an extra metal bridge across the top, and on the lapel of his blue sport coat is an American flag.
In the back row, against the wall, sit the parents of Jeff “Free” Luers. Luers’s mother fans herself, although the room is quite chilly. They sit near the door, as far away as possible, perhaps because they’ve been too close to a scene like this already. On the pews between Luers’s parents and Synan sit McGowan’s friends and local activists, shoulder to shoulder, some holding hands. Some sit on padded shipping envelopes taped together, an improvised court cushion. They’ve been through so many court dates that they know a long afternoon is ahead, and the courtroom is stiff and unforgiving.
To the far left, in four miniature rows, sit reporters and two courtroom sketch artists. In front of them is a waist-high wooden wall, and beyond the wall sits an L-shaped formation of prosecutors, FBI agents and local cops.
Judge Aiken enters the room and everyone rises, then sits again. Prosecutors begin a one-and-a-half-hour presentation of Daniel the Terrorist, including a Power Point slide show, twenty minutes of wiretap conversations and eighteen exhibits. Assistant U.S. Attorney Stephen Peifer says McGowan may be funny and witty, but another side comes out at night. He says McGowan has a “Jekyll and Hyde personality.”
Peifer talks about McGowan’s activist history and reads a list of mile markers from his journey underground. The claims are not part of the case, and will not be proven, but prosecutors argue that they show the career of a criminal and the profile of someone worthy of being sentenced as a terrorist.
’97: Broke windows at a Macy’s store protesting the sale of fur.
’98: Threw a crème pie at the president of the Sierra Club for being too soft in the defense of the environment.
’98: Tossed etching fluid on the windows of a Fidelity building because of ties to Occidental Petroleum.
’99: Drew a diagram of an experimental corn crop at UC Berkeley, used by others to destroy the experimental corn.
’99: “Planned” the riots in Seattle against the World Trade Organization meeting.
’00: Became a “full-fledged anarchist.”
And on, and on. There are bits of truth in Peifer’s story, McGowan will later say, and some portions are flat-out wrong. But now is not his time to speak.
The government plays some of the conversations recorded by Jacob Ferguson, the lead arsonist. Ferguson asks McGowan if he’s worried about the connections between all the defendants, whether that makes them vulnerable. No, don’t worry, McGowan says. That’s long in the past. He says the only way they’ll ever get caught is if someone opens their mouth and snitches. “It’s not worth it, man,” McGowan says. “That’s just Judas shit man.”
In sentencings for other defendants, Aiken has already ruled that one of McGowan’s crimes, committed at Jefferson Poplar tree farm, qualifies for the terrorism enhancement because the communiqué mentioned legislation. The other, at Superior Lumber, does not, because it did not have a clear link to government conduct. In all, Aiken applies the terrorism enhancement to five of twenty crimes, and seven of ten defendants. There is little chance she will deviate from her previous analysis, and McGowan expects that he will receive the terrorism enhancement.
Nevertheless, Synan has said that she hopes the statements of her husband’s friends, family and professors will help sway the judge. She has been sitting with her typed statement resting on the floral pattern of her dress, her hands crossed and resting on the statement. She occasionally smooths and straightens the papers. When she has her opportunity, she tells the court about meeting McGowan, going on a date, falling in love.
“I come from an upper-middle-class family and have a respectable education. I have always considered myself a fairly intelligent and compassionate person, but I have learned a lot about compassion from Daniel,” Synan says. “Before I met Daniel, I thought one’s intentions were adequate enough to make one a good person, an exemplary citizen in our society. If you donate to charities and give a homeless person money once in a while, you were doing good. One thing I had never even considered was stepping outside of that comfort zone.”
She says the day of his arrest is a blur. She did not know what was happening. She did not know about his past, and after his arrest she never asked. She waited for him to come to her and explain it all, and he eventually did. “Daniel has talked to me about how he felt about these actions. He has talked to me about how much he regrets everything he did and how it terribly affected all of the people involved. If he could go back and change those years he spent in the Northwest, he would. I would like to say to the victims that despite what you know about Daniel from his crimes against you, despite how much he hurt you, I hope my words can convey to you that he is not that person now and that can mean something to you.”
As the crowd and attorneys disperse for a recess, Synan kisses her husband on the lips and reaches for his hand.
After the recess McGowan takes his seat, whispers back and forth with his attorneys, clears his throat, and leans into the microphone.
“It is hard to hear tapes of conversations I had with Jacob Ferguson, where I speak with false bravado about our past together,” McGowan says. “There are no tapes of some of my most private thoughts, about how I got sick to my stomach before these acts, about the fear and discomfort I hid from my friends and family. None of it is an excuse, but I want you to know, Judge Aiken, that when I became involved in the arsons, it was after being involved in environmental activism for a few years, and at a time when I felt utterly desperate as my attempts to change anything failed almost always.
“Moving to Oregon changed my life, as it is so beautiful and the forests are amazing. There is nothing like it on the planet, and it caused me great pain to see the old-growth forests being logged. I wish I had the answers for how to fix this problem, but I didn’t and I took the easy way out. I allowed myself to choose extreme tactics because I felt the environmental situation in the world was getting more and more dire by the day. Things I spoke about and thought about how to fix seven years ago are being discussed on television and online now, and it gives me some hope. At the time, though, I was feeling quite hopeless. This seems now to be a hollow excuse for my actions. But it is the truth.”
Judge Aiken says she does not believe it. People “are both clay and angel,” she says, and McGowan has shown himself to be more of the former. She says plans to pursue a master’s degree while in prison reflect his “self-absorption.” Professors wrote letters to the court supporting McGowan; Aiken says he should have made those relationships earlier, and asked scholars to teach him the proper way of social change. During the lunch break, she Googled McGowan’s name and saw his media interviews and his website. It makes you look like a celebrity, she says to him, but you are no poster child for the environment, nor are you a martyr or a political prisoner.
She tells him he has the face of Janus, a reference to the Roman god who guarded exits and entrances, beginnings and endings, with two faces looking in opposite directions. Aiken tells him to change his website and tell his supporters that he was a coward for choosing direct action. He must cut off one of his faces, but, as he is sentenced to seven years in prison, as a terrorist, it’s not clear if it’s the one looking to the past or to the future.
Outside the courthouse, McGowan walks down the stairs and pauses for interviews with reporters, then hugs his friends. Synan stands alone. They walk away with cameras flashing behind them. The rain has stopped, and some sunlight flickers through fast-moving clouds. The façade of the courthouse no longer shimmers like running creek water; instead the steel reflects a dozen shades of gray.