[News] Sherman Austin released to halfway house

[News at freedomarchives.org]

Sherman Austin arrived at the Tucson airport Monday morning itching to get 
home back to LA. Two members from the Dry River collective in Tucson met 
Sherman and gave him a couple care packages for the plane ride home.

Sherman will have to spend about a month at a halfway house in LA until he 
can live on his own.

Thankfully, the state of California has not decided to press any further 
charges against Sherman.

For updated info on Sherman, check out 
<http://freesherman.org/>http://freesherman.org/

http://arizona.indymedia.org/news/2004/07/20334.php


Link: 
<http://www.infoshop.org/inews/portal.php?url=http%3A%2F%2Ffreesherman.org%2F&what=T_IndexLinks&rid=32110>http://freesherman.org/
Source: 
<http://www.infoshop.org/inews/portal.php?url=http%3A%2F%2Farizona.indymedia.org%2F&what=T_IndexLinks&rid=32112>http://arizona.indymedia.org/


October 11 / 13, 2003


A Strange and Tragic Legal Journey


The Case of Sherman Martin Austin

By MERLIN CHOWKWANYUN

On Wednesday, Sept. 3, 2003, Sherman Martin Austin began serving one year 
in federal prison under terms of a plea agreement for which he was 
sentenced on Aug. 4, 2003.

Austin, the 20-year-old African-American founder and former webmaster of 
the anarchist website www.raisethefist.com, pleaded guilty to 
"distribution" of information about making or using explosives with the 
"intent" that the information "be used for, or in furtherance of, an 
activity that constitutes a Federal crime of violence." Such was deemed 
illegal under a relatively obscure federal statute, 18 U.S.C. 842 
(p)(2)(A), pushed through Congress by Democrat Sen. Dianne Feinstein in the 
late 1990s. The offending material, which Austin repeatedly has emphasized 
he did not author, was housed on an isolated section of Austin's web 
server, and a small portion of it contained amateurish instructions on how 
to assemble simple explosives.

Now, as Austin and the increasing number of people analyzing his case count 
down the days to his freedom, new facts about his case are coming to light. 
Gathered from court records, law enforcement documents, and interviews, 
these new details reveal a sloppy federal investigation of Austin, one of 
inconsistencies and dubious evidence that nonetheless resulted in an armed 
raid of Austin's 950-sq. foot Sherman Oaks, CA home, a nightmarish 13-day 
detention in two cities, and ultimately, a year-long federal prison 
sentence handed down by a Reagan-appointed federal judge.

The new details also show the egregious politicization of Austin's case by 
federal prosecutors and the judge who sentenced Austin. They show the FBI, 
during its investigation, engaging in questionable conduct that make 
parallels to COINTELPRO quite apt. And above all, the new information 
elevates Sherman's case beyond its obvious--and obviously important--free 
speech implications and demonstrates just how low the bar is for 
authorities to cobble together an affidavit for easy approval (and a 
warrant) from a judge.



THE BACKGROUND

For those who have not followed Austin's case, here follows the basic 
chronology.

On the afternoon of Jan. 24, 2002, Austin awoke from a nap and found around 
25 FBI and Secret Service armed agents surrounding his home. Over the 
course of the afternoon and evening, they proceeded to seize computer 
equipment, protest signs, political books, and other miscellaneous items 
from the premises by using a warrant supported by an FBI affidavit that 
contained two suspected charges--[1] "distribution" of explosives 
information with the "intent" that the information "be used for, or in 
furtherance of, an activity that constitutes a Federal crime of violence" 
(hereafter referred to as "distribution of information with intent") and 
[2] alleged illegal computer activity that included defacement of web pages.

Agents questioned Austin at length but ultimately left the premises without 
making an arrest. A few days later, Austin, in his 1981 Toyota, drove to 
the New York City anti-World Economic Forum protests, held through the 
first few days of February 2002. Shortly upon arrival, Austin was snatched 
by the NYPD on Feb. 2, 2002 with around 25-27 other activists before he 
even marched. Later, while waiting for someone to pick him up from a 
courtroom, Austin instead found himself arrested by FBI agents and then 
detained in a federal maximum-security prison. The criminal complaint and 
warrant for this FBI arrest, dated Feb. 4, 2002, contained an additional 
charge--possession of an unregistered firearm, and as insinuated by the FBI 
affidavit supporting the warrant, in this case, an explosive. This second 
warrant, however, did not contain the charge related to computer activity 
found in the first warrant used during the Jan. 24, 2002 raid.

Austin's prison once housed, among others, terrorists involved in the 
African embassy bombings. At a Feb. 7, 2002 detention hearing, Austin's 
lawyer, Susan Tipograph, who voluntarily represented Austin at the time, 
spoke of his prison conditions.

"Every time I've seen him, he's been sneezing, coughing, or shivering, 
judge. This is not right He's not been given a shower for four days," 
Tipograph said at the hearing.

After having spent 11 days in two New York facilities, Austin was 
transferred to a Bureau of Prisons facility in Oklahoma, where he stayed 
for two additional days before returning by plane to Los Angeles.

Months then passed without any legal incident stemming from the Jan. 24, 
2002 raid or the February 2002 arrest and detainment in New York--no 
indictments, no arrests, no more raids, no interrogations. The two charges 
that appeared on a criminal complaint filed against Austin in the U.S. 
District Court's Central District of California while he was held in New 
York--for distribution of information with intent and for possession of an 
alleged explosives -- were dropped in mid-February.

But Austin has said that local authorities in Long Beach, CA, where he 
moved after returning from New York, would still regularly follow and stop 
to intimidate and harass him, asking questions about his political 
activities and identifying him by name.

In the first week of August 2002, Austin's legal troubles resurfaced. 
Before entering any new charges, federal prosecutors offered Austin a plea 
agreement that, if accepted, would have him plead guilty to only one 
charge, distribution of information with intent. Additionally, according to 
this plea agreement, prosecutors would not charge Austin for illegal 
explosives possession or illegal computer activity, the two other alleged 
felonies listed on the prior warrants. If Austin accepted the agreement, 
federal prosecutors would recommend a sentence of one month in prison, 
three months in a community correctional facility, and three years of 
supervised release.

Austin did not initially accept the plea and originally intended to go to 
trial on principle. But he later learned that this might mean facing a 
20-year sentencing enhancement if convicted under a United States 
Sentencing Commission guideline created in the mid-1990s and the scope of 
which expanded greatly after passage of the 1996 Anti-Terrorism and 
Effective Death Penalty Act and the 2001 USA Patriot Act.

Thus on Sept. 30, 2002, Austin entered the courtroom of federal Judge 
Stephen V. Wilson, a Republican Reagan appointee, to plead guilty.

But Judge Wilson rejected the plea deal, arguing that Assistant United 
States Attorney Rodrigo Castro-Silva's recommended sentence of one month in 
prison was too light. He forced both prosecutors and the defense back to 
the drawing board.

Months later, in late February 2003, both sides returned with another 
binding plea agreement that would restrict Wilson's sentence to 6 to 12 
months, a range later upgraded to 8 to 14 months after Austin became 
involved in a minor traffic violation (broken headlight) during which he 
had driven with an unrenewed license because, he says, he had never 
received a renewal notice of such in the mail.

Again, the agreement had Austin plead guilty to only one charge, 
distribution of information with intent.

His sentencing hearing on Jun. 30, 2003 set off a series of farcical twists 
that culminated in an eventual sentence. Upon hearing prosecutor 
Castro-Silva's upgraded recommendation of four months in prison and four 
months in a community correctional facility, Wilson again lashed out at 
both him and Austin's federal public defender, Ronald O. Kaye, calling 
their recommended sentences overly lenient (Kaye asked for a month in 
prison). Judge Wilson suspended sentencing for a month until Castro-Silva 
contacted the Justice Department and FBI for its recommendation.

On Jul. 28, 2003, Austin returned to the courtroom expecting his sentence, 
and instead learned that the clerk had forgotten to enter his sentencing 
hearing into the daily proceedings, which required Austin to return back on 
Aug. 4, 2003.

Then, Judge Wilson finally sentenced him to a year in federal prison and 
three years of very restrictive supervised release that will govern his 
computer access and association with political groups upon release.

THE AUTHORSHIP QUESTION (AND DISTORTION)

Much misinformation about the origins of the offending material on Austin's 
website--from which sprung the only felony count to which he plead guilty 
-- has spread through Internet postings, news articles and local TV 
broadcasts, as well as official documents of the FBI and the United States 
Attorney's Office. Sorting and filtering through it requires some knowledge 
of how Austin administered raisethefist.com, which he founded on 
President's Day in 2000.

Austin's anarchist site, which still operates today and is maintained by a 
group of volunteers, contains articles and sub-sections about a hodgepodge 
of topics, including protest announcements, police brutality, and anarchist 
theory. It also features what is known as an open publishing newswire, made 
famous by the indymedia.org network of sites, that allows users to submit 
text and photographs that instantly appear on the newswire at the push of a 
button. Additionally, Austin provided free web storage space--or hosting 
space, to use proper Internet terminology--to activists who asked for it. 
Activists who took up Austin's offer could, independently of Austin, and at 
their leisure and will, post, remove, and alter web pages they themselves 
created and authored.

In other words, if you were to ask Austin for hosting space, and he granted 
it to you, he would "host" your page, and you would be able to author web 
pages and place them on his server for public view without Austin's 
necessarily knowing their exact contents or what subsequent alterations you 
might make (unless, of course, he vigilantly policed your pages regularly 
for changes).

Other non-political websites like www.tripod.com or www.geocities.com 
provide a similar service. For example, on his or her designated area of 
the tripod.com web server, a user who signs up for free web hosting space 
on tripod.com can post web pages visible to an entire Internet audience. 
Services like tripod.com and geocities.com act as "hosts," but typically do 
not have the time to screen the contents of all the web pages they host for 
thousands of users.

It is Austin's offering of this service that led to the sole charge on his 
guilty plea, which resulted in the one-year sentence. One user who asked 
for free hosting space on Austin's site used a portion of it to house a 
tract called the Reclaim Guide. Prepared originally for a September 2001 
IMF protest that never occurred due to 9/11, and colored by amateurish 
rhetorical bombast, the Guide contains, among other things, protest 
tactics, notes on how to avoid trouble with law enforcement at political 
events, and a small section with recipes for explosives. Its latter part 
appears cobbled together from and inspired by instructions on explosives 
freely available on countless websites accessible by simple Google 
searches, as well as published books. They do not appear very detailed, or 
for that matter, effective.

For example, the entirety of the Guide's "Smoke Bomb" recipe, one of the 
shorter entries, read as follows:

"Mix 4 parts sugar with 6 parts salt peter. Heat this over a low flame 
until it melts, stirring well. Pour into a container. When pouring place a 
few wooden matches into it for a fuse. About a pound of this will smoke up 
an entire block."

Silly stuff, though from reading certain accounts about these instructions, 
one gets two very erroneous impressions--that, one, they actually were of 
serious pyrotechnic merit, and two, that Austin authored them, which he did 
not.

For one, Austin says he told FBI agents at least seven times during the 
raid, while questioned, that he did not author the Reclaim Guide and its 
materials on explosives. Yet mainstream media and subsequent FBI documents 
may suggest incorrectly that he played a far more proactive role in the 
Guide's presence on his server than he actually did.

These materials primarily use two verbs, "post" and "author," to describe 
Austin's involvement, neither of which is accurate.

For example, A New York Post article published on Feb. 5, 2002, days after 
Austin's NYC arrest, read: "A would-be teen terrorist, wanted by the FBI 
for allegedly posting a how-to-blow-things-up Web site, was nabbed during 
World Economic Forum demonstration" The article then stated that Austin's 
site contained a "litany of methods" for "urban thuggery."

At a detention hearing two days later, federal prosecutor Victor Hou of the 
United States Attorney's Office (USAO) of the Southern District of New York 
quoted one of the Reclaim Guide's instructions and then claimed Austin 
authored the line.

"He instructed others how to make fuel fertilizer bombs and encouraged 
people to make more devastating Molotov cocktails on his web site. He 
instructed them Just stuff the bottle with this mixture and light the 
fucker--this is what the defendant's own words dictate," Hou said.

Two FBI affidavits filed in this case--one used to support the warrant 
served on Jan. 24, 2002 at the original Sherman Oaks, CA raid, and a second 
one, signed on Feb. 4, 2002, used to justify Austin's detention in New York 
City by federal authorities -- were authored by the lead FBI investigator 
on the case, Special Agent John I. Pi.

Pi, in his second affidavit, specifically used the verb "author" to 
describe Austin's role in the explosives instructions.

And yet FBI documents indicate that Pi and the FBI may have known before 
the Jan. 24, 2002 raid that Austin had not authored the material, and 
certainly knew such by summer of 2002, before prosecutors decided to revive 
their case against Austin.

One FBI internal report used in the case, dated July 24, 2002, indicates 
that agents visited the home of an affluent Orange County, CA-area white 
teenager who actually authored the material and uploaded it to Austin's 
site. There, according to the FBI's own report, agents interviewed the 
teenager to whom Austin had granted free web hosting space -- space the 
teenager later used for posting the Reclaim Guide to 
http://www.raisethefist.com/EXIT, the address where his content could be 
accessed.

The FBI report indicates that FBI agents showed the teenager printouts of 
the page and that "[Name withheld for privacy] stated that he did author 
this website AUSTIN hosted this website on WWW.RAISETHEFIST.COM for XXXX. 
XXXX had direct access to EXIT via File Transfer Protocol (FTP) server on 
AUSTIN's computer via the Internet. XXXX also explained that Austin showed 
him how to use FTP."

FTP is a standard means of electronic file transfer on the Internet, used 
to send, receive, and update web pages and files.

The FBI report specifically cites the Reclaim Guide, which contained the 
explosives instructions, and indicates that the teenager admitted to the 
FBI agents that he had authored the material.

"XXXX was shown a copy of the webpage, 
WWW.RAISETHEFIST.COM/EXIT/RECLAIM.HTML XXXX stated that he did code this 
webpage and all the associated webpages based on the content of a written 
document, called the RECLAIM GUIDE, provided to him by another individual, 
Joey LNU [Last Name Unknown]."

Additionally, the report contains a copy of an e-mail sent by the teenager 
on Sept. 8, 2001--long before the Jan. 24, 2002 raid--from his CompuServe 
account. In the e-mail, the teenager provides the Internet address to the 
site.

The e-mail reads: "Please spread the word to get this site out before the 
DC action later this month! Also, much thanks to Sherman who is letting us 
host this site on his server. http://www.raisethefist.com/exit/reclaim.html 
TRASH DC!"

Agents did not arrest the teenager, nor was he ever charged with any 
crimes. Both he and his parents have refrained from public comment, which 
Austin's mother, Jennifer Martin, believes is irresponsible.

"They really should have come forward in Sherman's defense and said 
something about this and explained the situation," Martin said. "They never 
should have allowed this to happen by turning their backs on it."

In previous media interviews, Austin has consistently maintained that he 
not only did not author the material, but that he also only gave its 
contents a cursory glance. All Austin did, he has said, was provide some 
clickable courtesy web links to the teenager's material from the central 
raisethefist.com site that he himself ran and actively maintained and 
updated. The current incarnation of raisethefist.com still does this today, 
and the documents discussed above, which both prosecutors and the FBI 
possessed, seem to substantiate Austin's claims.

Yet Pi used the verb "author" in his second affidavit, which led to 
Austin's nearly two weeks of federal detention in New York and Oklahoma, to 
connect Austin with pages on "Draino Bombs," "Molotov Cocktails," and 
"Smoke Bombs," as well as the Reclaim Guide's general page on weapons and 
explosives.

But in his first affidavit, Pi merely noted the presence of the explosives 
instructions as a subsection on the raisethefist.com domain and did not use 
the verb "author."

Meanwhile, printout copies of Reclaim Guide web pages that FBI agents 
showed Austin during the raid on his home indicate that Austin initialed 
the printouts, but that they contained clauses stating he "implemented" the 
web pages. "Implement" is a far more vague and broad verb that could 
encompass activities such as passive hosting of another person's web 
pages--that is, providing storage space for them--but not necessarily the 
authorship Pi would claim later in his second affidavit of February.

The pre-sentencing report of the Probation Office for the U.S. District 
Court's Central District of California also stated that Austin "authored" 
the materials. Austin said that the Probation Office was supposed to have 
removed and not used that verb.

Shortly before the scheduled sentencing hearing on Jun. 30, 2003, later 
delayed, Austin's public defender Ronald O. Kaye and prosecutor Rodrigo 
Castro-Silva issued sentencing positions, documents in which each issued 
recommendations on sentencing to Judge Wilson.

Kaye's sentencing position contained Austin's "factual objection" to the 
section of the Probation Office's pre-sentencing report that uses the verb 
"author."

"Although the agents may have perceived that Mr. Austin admitted to 
'authoring' the written materials at issue on his web site, he did not 
'author' these materials, but exclusively permitted these materials to be 
posted on the web site," read the factual objection.

And yet Castro-Silva's sentencing response subtly conflated web hosting 
with authorship. In his response, Castro-Silva requested that the defense's 
factual objection concerning authorship be overruled entirely, although 
much evidence existed to substantiate Austin's factual objection.

The federal statute itself employs vague language--"distribution" with 
intent -- that should make ISPs and web hosting service providers weary, 
especially those that host activist or other potentially volatile websites. 
Like the verb "implement," "distribute" covers a wide range of activities 
that may be out of the service provider's control and do not have to 
include authorship. If a user with web hosting space on an overtly 
political web hosting service, such as riseup.net, or even a politically 
neutral one like geocities.com, decided to upload explosives instructions 
similar to the Reclaim Guide material, might a situation arise in which 
riseup.net or geocities.com's administrators would be charged for 
distribution with intent? Would hosting a site qualify for "distribution" 
and de facto intent? After all, the central pages of riseup.net and 
geocities.com, which are overseen by those sites' respective 
administrators, contain links to pages hosted on riseup.net and 
geocities.com servers -- but that were authored and updated independently 
and out of those providers' daily purview.

As the case did not go to trial, or if necessary, further appeal, such 
questions and precedents were not answered and set.

MAD, MAD, MAD JUDGE WILSON

Transcripts of court hearings also show the degree to which Judge Wilson 
politicized his courtroom and the hostility he showed towards Austin 
throughout the case.

For example, at the original Sept. 30, 2002 sentencing hearing, where both 
parties recommended a one-month prison sentence, five months in a community 
corrections facility, and three years of supervised release, Wilson's 
statements after hearing the recommended sentences hint at recurring themes 
throughout his hearings.

"What kind of message is a disposition like this extending to the society 
at large?" asked Wilson.

After prosecutor Castro-Silva told Judge Wilson that "the message here is 
that Mr. Austin is certainly not a terrorist," Wilson grew indignant.

"Why are you setting the bar so high?" Wilson asked the prosecutor. 
"Apparently he's [Austin] admitted to posting instructions as to how to 
make incendiary devices for those whose philosophy instructed them to 
disrupt international economic meetings, World Trade meetings, or whatever. 
Why should someone at 19, who, arguably, has some misguidance on some 
geo-political issues be given a pass?"

Wilson's verb choice--"post"--suggests that he may not have understood the 
true nature of Austin's involvement with the explosives instructions, which 
entailed Austin's first granting free web storage space to the teenager who 
authored and posted the information and then offering courtesy links from 
raisethefist.com, as Austin did for other sites he hosted. Wilson's use of 
the verb may have stemmed partially from the use of the verb "post" in the 
plea agreement authored by the prosecutors.

"For instance, defendant posted instructions on how to make and use Molotov 
cocktails," reads the plea's factual basis.

"Defendant also posted instructions on how to make and use other 
destructive devices such as smoke bombs, pipe bombs, and soda bottle 
bombs," reads another section of the plea agreement.

In the context of web hosting and authoring, the verb "post" is very 
non-specific. Does hosting a site as Austin did and then providing a link 
to information amount, de facto, to "posting" that information? Or is the 
person who actually transfers the web pages to his or her free hosting 
space the one who "posts"? Use of "post" potentially exaggerates the role 
Austin played in the instructions' presence on his servers and likely led 
to Wilson's more outlandish statements.

"Why do you say that he ought to get some leniency because he's not a 
terrorist? Isn't what he admitted to doing tantamount to being a 
terrorist?" asked Wilson, shortly before he rejected the first plea bargain 
and sent both sides back to the drawing board.

Austin, meanwhile, decided to post a disclaimer on those sections of the 
site that he hosted for others but that he did not author, maintain, or update.

"The information, views and opinions contained within the information on 
RaisetheFist.com website and the domain names RaisetheFist.com are not 
those of the owner or the site host, neither are they necessarily those of 
the maintainer or the contributor," reads the disclaimer.

In late February 2003, Austin accepted and entered a new plea and awaited 
sentencing on Jun. 30, 2003. Both parties returned to the sentencing 
hearing with the understanding that Wilson could sentence Austin to 
anywhere between 8 and 14 months under terms of the plea agreement.

Defense attorney Kaye recommended one month in prison and three months in a 
community corrections facility, while prosecutor Castro-Silva's recommended 
four months in prison and four months in a community corrections facility.

Both proposed sentences set Wilson off.

"You think giving this sentence--this defendant four months or a month is 
supposed to be a deterrence to some other revolutionary who wants to change 
the world according to his or her own views by the use of websites and 
teaching people how to blow up other people?" asked Wilson.

Again, Wilson's use of the word "teach" suggests that Austin played a 
proactive role in the Reclaim Guide's presence, and that the site 
overwhelmingly consisted of material on explosives, which it never did.

During the hearing, Kaye referenced results of a psychological profile of 
Austin that he had commissioned and presented to Wilson.

According to her report, the psychologist examining Austin applied a 
standard test that compares test subjects to "habitually violent 
offenders." Noting Austin's non-violent personal history, the profile 
stated that Austin showed "no indication of psychopathic thinking" and that 
he was "unlikely to use violence himself."

"Were he to behave violently, it is likely to be only when he perceived 
himself to be under attack and even then his propensity to use direct 
physical force appears less than average for the general population," 
concluded the psychological profile.

Wilson underplayed the results.

"I don't view the case simply as one where I have to make some 
psychological analysis of this defendant and try to gauge whether or not he 
fully appreciates the potential of his conduct," said Wilson, who later 
labeled the introduction of the psychological profile "Freudian."

Wilson ended the Jun. 30, 2003 by delaying sentencing for a month and 
instructing Castro-Silva to consult with the Justice Department and FBI for 
the federal agencies' respective views on sentencing for this case.

On Aug. 4, 2003, both parties returned to the courtroom for Judge Wilson's 
sentence. Wilson opened by asking Castro-Silva whether he had fulfilled the 
instructions from the last sentencing hearing.

Castro-Silva responded that he had, and that he had not changed his 
proposed sentence.

But even with the Justice Department's agreeing to Castro-Silva's original 
sentence of four months in prison, four months in a community corrections 
facility, Wilson sentenced Austin to one year in prison, three years of 
supervised release and a $2,000 fine.

After prison, Austin's conditions of supervised release, imposed by Wilson, 
will not allow him to own or use a computer without approval of a probation 
officer. Additionally, Austin will only be able to use Internet services 
and passwords that have been pre-approved. His computers will be subject to 
scheduled and unscheduled searches and seizures, and he will not be able to 
modify them without permission.

He will also have to turn over billing records for all 
communications-related services if requested by the probation officer.

And finally, Austin cannot, in Wilson's words, "negotiate with any 
organization or any member thereof which espouses violence or physical 
force as a means of intimidation or achieving economic, social, or 
political change."

Such could prove problematic for Austin given the increasingly broad and 
flexible criteria for classifying "physical force" or "violence." Groups 
that advocate peaceful mass gatherings, picketing, direct action or civil 
disobedience, such as the blocking of street corners, may fall under these 
restrictions. The Probation Office's pre-sentencing report refers to 
"anarchists" as groups that "advocate violence as a means of disrupting 
order and achieving social, economic, and political change," even though 
many, if not most, anarchists do not engage in or advocate such activity.

CURIOUS WARRANTS AND AFFADAVITS

Despite their apparent sloppiness, some of which has been referenced above, 
Agent Pi's two affidavits managed to convince a judge to sign off on 
warrants that led to the raid on Austin's home and his later detention in 
New York.

Some of the affidavits' problems are trivial but still show a surprising 
lack of care. For example, in the first affidavit, there is a reference to 
"Edison, Texas," a city in Texas that does not exist today. In fact, the 
city is spelled "Addison," and the print shop referenced in the affidavit 
and located in "Edison, Texas" is in fact in Dallas, which is close to Addison.

More disturbing, however, is the low standard used to justify the charges 
on the affidavits. For instance, in the first FBI affidavit, much of the 
support for allegations of illegal computer activity stem from 
recollections made to the FBI by three interviewees, all of whom met 
regularly in the same few chatrooms, and one of whom is referenced not by 
name but the anonymous label "cooperating witness" in Agent Pi's affidavit. 
Additionally, this first affidavit cites chatroom statements in which 
Austin allegedly bragged about computer hacking exploits and abilities.

The original chat room where the three interviewees would meet regularly, 
along with many others, was a UFO chat room that Austin also began visiting 
around 1997 or 1998.

Austin said he visited the UFO room initially because he was interested in 
UFOs, but that he soon discovered most of its members were of a right-wing 
political bent opposite his.

"I used to be read up on UFOs a lot," Austin said of his experiences in the 
UFO room. "A lot of political debates were going on there. People didn't 
really like me there because of my politics, but there's a few people in 
there all for protecting civil liberties, and then there are right-wing 
whackos."

The chatroom, which still exists today, is part of Internet Relay Chat 
(IRC), a popular network of Internet chatrooms. IRC users can join existing 
chatrooms, or if one catering to their interests does not exist, can create 
one themselves. They can also communicate directly with other users outside 
of chatrooms over the network. Users choose their individual nicknames with 
each sign-on to IRC and usually use that name regularly with each 
subsequent visit. But unlike other chat services, such as AOL Instant 
Messenger, IRC users cannot typically reserve their nicknames permanently. 
Thus if a user on one nickname logged off IRC, a different person could log 
on and assume that same nickname.

Austin believes that the statements attributed to him in Pi's 
affidavit--excerpted from chat room logs (plain text transcripts of chat 
room conversations) provided by the interviewees--were a result of this IRC 
nickname characteristic. The rooms in which Austin allegedly made the 
statements cited in Pi's affidavit were called "FREEDOMGUARD" and 
"FREEDOMFIGHTERS."

Austin said that he would rarely enter "FREEDOMFIGHTERS" and usually only 
if someone invited him to do so. He could not recall having entered 
"FREEDOMGUARD" but also added that many years have passed since he used IRC 
frequently.

When shown a chat log of conversation in "FREEDOMGUARD" made under his 
normal IRC nickname, "Ucaun," Austin said that he did not make those 
statements and that he had sometimes logged onto IRC and seen someone 
already using his normal nickname.

"I look through a lot of the conversations, and I don't even remember 
having them," Austin said.

Additionally, the primary IRC chat log used by Pi for his affidavit shows 
that someone using the "Ucaun" nickname logged onto IRC's "FREEDOMGUARD" 
room using the Pacific Bell Internet service, which both Austin and his 
mother say they have never used. Prior to their installation of high-speed 
DSL Internet service in 1999, they say that they used Earthlink.

Austin also denied ever having launched a Denial of Service (DoS) attack on 
anyone's computer, as claimed by one of the interviewees. "DoS" is a broad 
term that references a computer attack in which a computer system's 
resources are so overwhelmed by external traffic from other computers that 
the target system's functions are compromised. The origins of DoS attacks 
are often hard to track because unsuspecting Internet users with insecure 
systems can be used as "middlemen" through which an attack on a target 
computer can take place. The attack sometimes then appears to originate 
from the "middleman" computer.

Reading the affidavit, one sees that, in fact, the overwhelming majority of 
the supporting evidence for computer fraud is of the "he said this, she 
said that" variety. In one section of many similar sections, for example, 
Pi references an interviewee who told the FBI that he had "spoke[n] to 
others" about Austin's alleged activities. Another passage states that an 
FBI interviewee recalled from memory that "Austin began hacking when he was 
about 13 years of age" and "had done numerous computer intrusion activities 
on the Internet"

And, as mentioned, the affidavit is peppered with excerpts from chat room 
statements allegedly made by Austin under his nickname.

But as an astute Sept. 23, 2002 Internet commentary on the web blog Media 
Geek (www.mediageek.org) noted, IRC chat logs do not seem like very 
rigorous evidence for an FBI affidavit, particularly one that led to an 
armed raid on Austin's home.

"I'm no lawyer, but most of that seems pretty thin -- almost hearsay. 
Really, anyone who's been on IRC knows that a lot of shit gets talked 
there, and, like barroom bragging, you can't take much of it too 
seriously," wrote Media Geek. "Plus, who's to stop someone from 
impersonating Austin on a channel? IRC's pretty anonymous."

On Internet message boards, much has also been made out of a small section 
of the first affidavit that discusses, in Pi's words, a "program" called 
troop.cgi found on at least three web servers belonging to others. The 
program, claims Pi in his affidavit, "contained a program code designed to 
return data back to another CGI script" at Austin's IP address [personally 
identifiable numbers assigned to computers on the Internet]. The affidavit 
also claims the program contained code that attempted to connect to a 
military computer system.

But the "program" was a CGI script. CGI scripts are written in a computer 
language called Perl, and when run, they can perform a multitude of 
functions, typically related to websites. Functions can be as simple as 
website counters that clock numbers of visits to programs that process 
order information for online vendors.

The scripts are easily alterable files written in raw text. Someone wishing 
to author or alter a CGI script would need no special software apart from a 
simple word processing program. A version of the script obtained by this 
reporter through an Internet search does not contain Austin's IP address, 
though it is unknown whether this version is an original, or if not, how 
much it differs from the original. And the program also does not appear to 
even function when run on a computer system designed to process CGI scripts.

It is unclear what connection Agent Pi attempted to make by referencing 
troop.cgi, as he did not state directly that it was used to deface 
websites, that it actually could infiltrate any computer systems, or that 
it even worked. He did not even bother mentioning it in his final summary 
of facts in support of illegal computer activity, found at the end of his 
first affidavit.

Citing AOL Instant Messenger statements made under his online nickname, a 
Jan. 30, 2002 article in the Washington Post's Newsbytes online tech news 
service did state that Austin admitted to defacing websites.

But Austin has said that this resulted either from misinterpretation or 
statements made under his AOL Instant Messenger nickname by someone who had 
compromised his account.

A few days later, another article at Newsbytes noted that Austin's AOL 
Instant Messenger nickname appeared online while he was incarcerated in New 
York. Austin said this happened regularly after the raid and throughout 2002.

At any rate, the criminal complaint entered into court shortly after 
Austin's New York arrest did not include a computer charge, and both 
prosecutors and Austin's public defender said it was unlikely he would have 
been prosecuted for computer malfeasance had he chosen to go to trial.

Furthermore, e-mails from Austin's DSL Internet Service Provider, 
Speakeasy, show that through 2001, Austin's computers were extremely 
insecure. One e-mail to Austin from Speakeasy described his system as " a 
linux server that is wide open to attacks."

Austin has said that he caught people entering his machine and attempting 
to use it as a proxy or "middleman" to intrude into other computers. Such 
intrusions, if successful, would show Austin's computer and IP address as 
the origin.

"I had my Linux machine. Back then Linux had more holes in it. I even 
caught people in my machine right there installing scripts and rebooting 
the machine and then just logging back in again and using them to break 
into other servers," he said.

Austin said that he patched up his system by fall of 2001.

Some Internet commentaries have suggested that Austin chose not to go to 
trial because he feared prosecution on possible illegal computer activity, 
a theory dismissed completely by Austin, who in hindsight said he would 
have gone to trial, even if it meant facing all three charges.

"I know how weak their evidence is and what our key points of defense could 
be to challenge that," he said.

As for the defaced websites themselves, they contained a replacement front 
page left and substituted by the culprit. At least three versions of this 
replacement page seem to have existed, though they are all similar and read 
more like far-right militia cant than the contents of raisethefist.com. The 
top of these sites reads, "U.C.A.U.N./

Underground Counteractive Assemblage / Universal Network."

Austin denied having authored any of the material on the replacement pages 
or facilitating their appearances. He said that although "Ucaun" was the 
nickname he used on IRC and on AOL Instant Messenger, he did not think of 
it as an acronym, and that its use as such on the defaced pages was by 
someone else.

The HTML code of one replacement page left on some defaced pages contained 
an external image link to a picture housed on Austin's raisethefist.com 
site. Web pages are authored in HTML, a series of textual commands that can 
be written in any word processing program. When processed by a web browser 
such as Netscape or Microsoft Internet Explorer, HTML files will appear as 
a web page with text and graphics. This process happens each time users 
visit websites.

External image links in HTML code point to images located on other websites 
that the web author wishes to incorporate into his or her web page. If web 
authors wish to do this, they must type out the address of the external 
website as well as the image's file name. For example, if one visited the 
indymedia.org website and wished to incorporate an image on that site into 
his or her web page, he or she could write an external image link that 
would contain the name of the image file and the indymedia.org domain. One 
does not need to be affiliated with the external website (in this example, 
indymedia.org) in any way to incorporate an external link to its images.

It would appear, then, that whoever designed the defacement page 
incorporated an external link to an image housed on Austin's 
raisethefist.com server--a feature that anyone designing a website can take 
advantage of.

Austin has said that his server logs have indicated that many people with 
websites externally linked to images on his site. He also said that it was 
possible that whoever authored these replacement pages did so in an attempt 
to make him look like the culprit, though he did not have any specific 
guesses as to possibilities.

Along with the interviews and chat logs discussed earlier, Agent Pi, in his 
affidavit, used the external image link in the replacement pages on the 
defaced sites and the presence of "U.C.A.U.N/Underground Counteractive 
Assemblage / Universal Network" at the top of them to support allegations 
of computer fraud.

Rodrigo Castro-Silva, who prosecuted the case, would not comment on the 
quality or rigor of the evidence for computer crimes.

"I'm not going to characterize it as good evidence or bad evidence. 
Ultimately, a jury decides whether the evidence is good or bad," said 
Castro-Silva.

He also said that Austin's status as a juvenile at the time these computer 
crimes supposedly occurred would have made a prosecution on that charge 
unlikely.

THERE GO THE MOLOTOV COCKTAILS AND PECULIAR FBI BEHAVIOR

There has also been much distortion over the alleged Molotov cocktails 
removed during the Jan. 24, 2002, raid on his home. From reading various 
official statements by law enforcement officials at various agencies, one 
does not sense that any of them reached a consensus on exactly how much of 
what Austin supposedly possessed.

Filed in the U.S. District Court's Central District of California shortly 
after Austin's February 2002 arrest at the anti-WEF protests, Agent Pi's 
second affidavit, for example, contained the following (emphasis added): 
"During the search of AUSTIN's bedroom, the FBI Special Agents discovered, 
among other things, the following items: a. Two glass bottles both of which 
contained gasoline or petroleum-based products. One of these two glass 
bottles had a metal screw top in which a hole had been punched. The other 
glass bottle contained a long white material with burnt marks."

 From this description, which a judge read and from which she based her 
authorization of a warrant for Austin's arrest in New York, it would appear 
as if Austin actually possessed two glass bottles containing "gasoline or 
petroleum-based products."

Yet an internal FBI report summarizing the Jan. 24, 2002, raid, and written 
a little more than a week before Pi's second affidavit, describes only one 
bottle with liquid inside it and the other as only having a certain "smell."

"During THE SEARCH of AUSTIN's house, Agents discovered two glass bottles 
one of which contained fluid that had the smell of a petroleum product," 
reads the report. "The other one bottle contained a piece of white material 
with burnt marks and had the smell of a petroleum product as well," but 
not, according to any mention in the report, any fluid.

Whether either of these would have even legally constituted a Molotov 
cocktails is not known because the case did not go to trial.

But at the New York detention hearing shortly after Austin's arrest, 
federal prosecutor Victor Hou of the USAO's Southern District of New York 
office referred to the bottles as "Molotov cocktails," which even the FBI 
report and Pi's second affidavit do not do.

Among Hou's comments (note the plural): "This is a case about the 
defendant's possession of destructive devices and the posting of 
instructions about how to make bombs"

"They found the Molotov cocktails I mentioned," Hou said shortly after.

The New York Post, in a Feb. 5, 2002, article chimed in and stated that 
"iced-tea bottles filled with flammable material" were removed during the 
Jan. 24, 2002 raid.

Meanwhile, the criminal complaint filed in California against Austin 
claimed "one fully functional Molotov cocktail."

But at the detention hearing, Hou vaguely described "two Molotov cocktails" 
in "various states of finality."

Hou also referenced an alleged 60+ bottles removed from Austin's room, 
presumably to imply that Austin had a do-it-yourself explosives factory of 
some sort operating in his bedroom.

"They found bottles, over 60 bottles. They found the Molotov cocktails I 
mentioned," Hou said, followed not much later by another reference to the 
bottles.

Austin and his mother, Jennifer Martin, both say that he would regularly 
drink beverages out of bottles and keep them in his room, sometimes causing 
the latter to request Austin remove and throw out the bottles.

"My bedroom was next to Sherman's. I was in and out of his room. Sherman 
was not making Molotov cocktails in his room. I would have known," Martin 
said. "I have a nose like a bloodhound. I can't stand pumping gas. I would 
have known if my son was making Molotov cocktails."

Hou's presentation at the detention hearing, among other things, also made 
ominous references to items found after a search in Austin's 1981 Toyota, 
which he drove cross-country to the WEF protests just days after the Jan. 
24, 2002 raid on his home. Items referenced by Hou included electrical 
wiring, an empty bottle of gasoline, and facial masks commonly worn at 
protests, especially when tear gas is expected.

Austin has maintained that the bottled gasoline was an essential item for 
anyone taking a cross-country trip in an old car.

"Who wouldn't have a gasoline canister on them when driving 3,000 miles 
across country?" said Austin in a prior interview that appeared on 
Counterpunch in mid-August. The electrical wiring, he said, was part of a 
stereo he had previously tried to install in his car.

Additionally, Hou referenced items seen through the windows of Austin's car 
on the day of the Jan. 24, 2002 raid by FBI agents whose warrant did not 
authorize search of car.

These items, referenced by Hou, included bottled gasoline, electrical 
wiring, and a bag of what he described in the courtroom as "fertilizer," 
even though the bag was never removed from the car for analysis on the day 
of the raid. Alternating between the singular and the plural, Hou also 
referenced a remote control car controller that he and the FBI claimed had 
been converted into, in Hou's words, a "remote control bomb detonating device."

Austin characterized such claims as ludicrous.

"I've always been into electronics and taking things apart. Even now, I 
like to take things apart and build things. I always liked doing that since 
I was 6 or 7 years old," he said. "One of the reasons why I also really 
wanted to take it to trial at first was because I wanted them to prove how 
the remote control car was a detonator."

Finally, Hou's request for a temporary order of detention also suggested 
Austin in his 1981 Toyota was on the road to destruction in New York and 
possibly the Salt Lake City Olympics on the way back.

"He still drove his car three thousand miles from California to New York, 
determined to carry out his plan. This wasn't a misguided youth, Your 
Honor. This was a man on a mission," Hou said of Austin.

And moments earlier, according to Hou: "He indicated he wanted to burn the 
Olympics, and he wanted to fuck the corporate playground."

This hearing resulted in a temporary order of detention that, in total, 
resulted in Austin's spending a total of 13 days in custody in two states 
before he finally returned to Southern California.

Just a week after the hearing, despite Hou's courtroom hysterics and 
hyperbole, the United States Attorney's Office decided not to indict Austin 
on either of the two charges for which it filed a criminal complaint earlier.

Austin did not hear from the federal prosecutors again for about half a 
year. But the office's decisions and that of the FBI on the day of the raid 
suggest that the evidence against Austin was likely pretty weak.

For one, the FBI, even with its later mentions of gasoline canisters, 
fertilizer, more than 60 bottles, at least one "fully assembled" Molotov 
cocktail, and a remote control detonator, did not arrest Austin during the 
Jan. 24, 2002 raid of his home, during which they supposedly found these 
items.. Why, if Austin were the imminent danger and "man on a mission" that 
prosecutor Hou would later describe after Austin's New York arrest about a 
week later, would the FBI simply leave his home, without any subsequent 
attempt to make an immediate arrest, especially knowing that the WEF 
protests were but a week away and especially when the first FBI affidavit 
made references to WEF protest information on Austin's site?

Similar questions were raised by Susan Tipograph, Austin's defense counsel 
during his New York detention.

"They don't arrest him on January 24th. They don't arrest him on January 
25th. T hey don't arrest him on January 25th, 27th, 28th, 29th, 30th, or 
31st. They don't arrest him on February 1st, but on February 2nd he's 
arrested with twenty-seven other people for unlawful assembly and 
disorderly conduct in New York," Tipograph said.

She also noted that the criminal complaint filed by the FBI in Los Angeles 
and the second FBI affidavit that resulted in a warrant for Austin's arrest 
were not dated until two days after his arrest in New York by NYPD.

"It wasn't signed on January 24th when they allegedly find a Molotov 
cocktail in house," Tipograph said. "It's not signed on the 25th, the 26th, 
the 27th, the 28th, the 29th, the 30th, the 31st, the 1st, 2nd, 3rd."

This despite, to invoke Hou's words, Austin's having supposedly "indicated 
he wanted to burn the Olympics."

She also noted that the "man on the mission" voluntarily allowed a search 
of his car.

And further, even when the USAO office of the Central District of 
California decided to revive its case against Austin in August 2002, it did 
not indict him but offered him a plea of only one month in prison and three 
months in a community detention center. And the plea was for only one of 
the three charges previously raised and arguably the most nebulous of 
them--distribution of explosives information with intent. This would seem 
like quite a de-escalation for someone portrayed previously by a USAO 
attorney as a mad anarchist "on a mission" with explosives, gas masks, 
Molotov cocktails, remote detonators, and electrical wire and a website 
they alleged encouraged others to do the same.

The above actions raise the question of why prosecutors would offer Austin 
such a light plea bargain and not go to trial if they actually had 
conclusive and irrefutable evidence against him that matched up to the 
portrait provided by the federal prosecutor at the February 2002 detention 
hearing.

As for the supposed Molotov cocktails, their description in documents was 
gradually downgraded from two and one (alternately, depending on who you 
heard and what you read) to mere possession of "components of a Molotov 
cocktail," as worded in sections of Austin's plea bargain and the 
pre-sentencing report that discussed the charges the government would not 
file against Austin.

MORE ON THAT COOPERATING WITNESSES: THE FBI AND THE MILITIA MEMBER

At the detention hearing, Tipograph also noted that although the FBI was 
granted a warrant on Jan. 16, 2002, the agency waited eight days before 
executing it.

What was the FBI doing during those eight days?

Internal FBI documents provide at least one answer.

The documents show that the FBI cooperated with a right-wing 
self-proclaimed militia member from Huntington Beach, CA as part of a 
failed attempt to entrap Austin into making self-incriminating statements 
via e-mail.

The militia member, who is in his late 20s and lives with his mother, is 
referenced anonymously in an internal FBI report and in Agent Pi's first 
affidavit as a "cooperating witness." He is one of the interviewees who 
told the FBI about Austin's alleged remarks over IRC regarding computer 
hacking and defacements, remarks cited throughout the affidavit.

Although this reporter has learned his identity and spoken to him, the 
cooperating witness's name is being withheld for his privacy.

An FBI report shows that just days before the raid, an FBI agent had the 
cooperating witness author an e-mail to Austin, dated Jan. 22, 2002, that 
appears to have been an attempt to provoke self-incriminating statements 
from Austin.

One section of the FBI report reads: "[Name withheld] drafted and sent 
another email to Austin under the supervision of an investigating agent. 
The email included an attachment of a political cartoon depicting FBI 
figures urinated (sic) on a a document entitled 'Bill of Rights.'"

The actual e-mail itself contained the political cartoon described and the 
following text to Austin's address written from the militia member's e-mail 
address, which still functions today. Spelling and grammatical errors 
remain intact.

The e-mail began: "I just found this funny picture that would be great to 
put on your raisethefist.com site, I thought it was really funny, or use 
the picture on the t-shirt so that we can use it at the protest and another 
way to raise money for our cause :)"

Another paragraph read: "Also I was looking at your website, there always 
something new on your site, it really awesome information to open people 
eyes to the truth. I wonder where ya get the information on the Defensize 
Weapons. I think I have seen something like that before."

The e-mail closed with: "Another thing I saw on your site with the new 
information on protesting against the Olymplics, and I wonder if you were 
planning on going to the protest in Salt Lake City, and I wonder if there 
was a way I can go, if not, that cool, keep up the good work on the 
movement against the Capitalist pigs."

Austin says that when he received this e-mail, he immediately had 
suspicions about it and does not recall responding.

"I get this e-mail from him saying that he wants to go with me to the 
Olympics to smash capitalism and do all this radical anti-capitalist 
stuff--like it wasn't him at all," said Austin, who initially met this 
cooperating witness in the UFO IRC chat room. "The first thing I thought 
when I read that e-mail was FBI."

Two days later, the FBI raided Austin's home, even though it had been 
authorized to do so for eight days up to that point.

Austin said that on the day of the raid, shortly before it took place, he 
received a phone call from the cooperating witness, who left a voice mail 
message suggesting the two "hang out." His mother said that a few days 
after the raid, she received a voice mail message from the same person 
inquiring about Austin's welfare.

The first FBI affidavit indicates that the agency visited the cooperating 
witness on at least one other occasion in mid-November.

When provided with his name, Austin confirmed that the two had met through 
chat rooms and had never met in person.

"He was this right-wing, McCarthyist militia guy," Austin said. "I would 
debate with him a lot of the time. He was obviously a capitalist, very 
right-wing, like the 'Commies are going to take over.' I met him through a 
debate."

Additionally, Austin says that the individual would attempt to rope him 
into various projects.

"A lot of times when he would contact me, he would always be trying to get 
me to do hacking stuff for him. I'd just brush it off," Austin said.

In a telephone interview, the cooperating witness said that he was indeed a 
member of a militia and that he knew Austin only through chat rooms. He 
claimed that the FBI only visited him once, though the FBI's records seem 
to indicate otherwise.

"They came to the doors, knocking on the doors when I was planning to leave 
for work," he said. "I told them that he [Austin] hacked things, but that's 
all I know that he does. I had no clue what was going on afterwards."

Both Austin and the individual said they did not speak to one another with 
much regularity, and Austin said that prior to the suspicious e-mail he 
received two days before the raid, he had not talked to the person for many 
months. Austin also said that information provided to the FBI by the 
individual that appeared on the affidavit was false.

When asked about the e-mail and the political cartoon that FBI records 
indicate he sent with the agency's supervision, the cooperating witness 
would only say that he sent it because he "thought it was hilarious."

He also claimed that he called Austin on the day of the raid because he had 
"friends within the government finding out there was supposed to be a 
raid," and he wanted to warn Austin, whom he described as an online friend. 
Austin contests the characterization.

"Despite the fact that we obviously had very different politics, he would 
try to get me to join him in helping me to do stuff," Austin said of the 
person who, FBI records seem to indicate, attempted to assist in entrapping 
him two days before the raid. "I kept saying, 'No, this is stupid. I don't 
agree with your politics. I don't like your California militias and stuff 
like that.' But even despite that, he'd always keep coming at me with, 
'Yeah, we need to join,' things like that."

The cooperating witness and militia member denied having ever tried to rope 
Austin into his endeavors.

"He's [Austin's] the opposite of what we believe in. He's a communist, and 
we believe in the Republic and the Constitution of the United States. 
There's a little difference," he said.

Publicly available material on the Internet indicates that the cooperating 
witness is a member of a group calling itself The State Medical Command of 
the California State Militia and that his "rank" is that of "first 
lieutenant." His public writings on message boards are typical militia 
rhetoric. Additionally, there exist numerous posts on Internet boards and 
websites with his e-mail addresses that hawk get-rich-quick schemes.

A footnote: on one of the defacement pages, there is a reference to the 
now-defunct IRC channel "FREEDOMFIGHTERS." Austin has said that the 
cooperating witness created this room and would occasionally invite him. 
The cooperating witness, however, maintains the opposite, and claims that 
Austin created the room.

Most recently, on Aug. 21, 2003, the cooperating witness posted to the 
Internet USENET message board misc.activism.militia a message soliciting 
participation in a public access TV program entitled "PATRIOT NEWS NETWORK" 
that, among other things, "promises local patriot news to interview people, 
gun owners, the local government, exposing the evil cops, illegal aliens 
takeover, China take over..."

Such was one half of a partnership designed to entrap Austin into making 
self-incriminating statements two days before the raid--and that apparently 
failed.

THE TRIAL THAT COULD AND SHOULD HAVE BEEN?

Some observers have questioned whether Austin should have accepted a plea 
bargain that, with its sentencing range of 8 to 14 months, resulted in his 
receiving a one year prison sentence, eight months more than the prison 
sentence recommend by the federal prosecutor, the defense, and the 
probation officer who consulted on sentencing in the case.

But Ronald Kaye, Austin's federal public defender who is under some 
scrutiny and criticism from some of Austin's supporters, maintains that the 
plea bargain was the wisest route to have taken in this case because of a 
20-year terrorism enhancement that could have been applied to Austin from 
the United States Sentencing Guidelines. The Guidelines and the terrorism 
enhancement in particular were greatly broadened after the 2001 USA Patriot 
Act to cover additional crimes. Further, a report prepared by the Probation 
Office indicated that there existed a 2001 case in the Sixth Circuit Court 
of Appeals whose reasoning could have allowed for the application of the 
terrorism enhancement to Austin's case.

"With the jury pool and the kind of writings that were highlighted from the 
website, I thought there was a very high chance of Sherman getting 
convicted," Kaye said. "For the dissemination of information, there was a 
chance by sentencing guidelines of at least 20 years."

Kaye maintains, however, that he would have gone to trial had Austin wished 
to do so.

"If it wasn't for the 20 years, I would much more have rather gone to trial 
than sit there," Kaye said. "I always said to Sherman Austin, 'This is your 
decision. Your testimony is going to be the critical component in this 
case. This case in many ways if you should lose is your life. If you want 
to go to trial, I'm 100% behind you. I'll work until all hours in the 
morning, all the time.'"

But Jennifer Martin, who initially researched private defenders only to 
find out that their fees were not feasible, said that Kaye did not share 
enough information and documents with her about her son's case.

"Had I been given these packages [of documents] early on and sat there and 
looked through them, I would have seen how weak and inconsistent their 
evidence was," Martin said. "As Sherman's mother and as his advocate, I was 
told by Sherman's lawyer from the beginning that he's not used to having 
someone else in his office who's not his client with his client."

She said that her son, though legally an adult when these events unfolded, 
was still naive at the time about some of the legal matters at hand and 
their ramifications.

And she feels that Kaye did not emphasize certain critical points in the 
courtroom, such as the difference between posting the material in question 
and merely linking to and hosting it.

Kaye, however, maintains that he did share an adequate amount of 
information with Austin's mother.

"That I have an obligation to give her documents is absurd. He's an adult. 
He's charged with an adult felony. He has a powerful political message that 
he felt fully responsible for and that he was not ashamed of and he was 
making decisions," Kaye said. "I have never had a parent more involved in a 
case than this in my eight years as a federal public defender."

He added that courtroom conduct in a plea situation differs from that of a 
trial and that the judge could have rejected the plea at any moment.

"It's a whole different tact when you take the case to a plea. If you're 
taking your case to a plea, and you have your greatest ally as the 
government, are you going to spit in their eye continuously? You are 
getting this 'gift' from the government to avoid the potential for 
catastrophe," Kaye said.

But he added that if there had been a trial, he would have vigilantly 
highlighted inconsistencies and explained subtleties such as the 
differences between posting and linking, authorship and implementing.

"It wasn't like I was reluctant to throw myself into the inner workings of 
the computer to show the difference between posting and authoring," he 
said. "It's not like I didn't want to show the nuances of bomb 
manufacturing to show how it was potentially ludicrous to consider these 
bottles as Molotov cocktails."

Austin himself said that he is on "good terms" with Kaye, but in hindsight, 
wishes he had gone to trial, especially after receiving a sentence that 
substantially exceeded the recommendation of prosecutor Castro-Silva, the 
Probation Office, and Kaye.

"He told me straight up that, 'Honestly, I don't think we're going to 
win,'" Austin said of Kaye.

Castro-Silva, meanwhile, said he had no objections to Judge Wilson's 
one-year prison sentence.

"I was neither surprised nor did I think it was an unfair or an unjust 
sentence. I thought that the sentence within the range the parties had 
agreed to was an appropriate sentence, and the judge just chose to sentence 
the defendant to the high end," Castro-Silva said. "I had recommended the 
low end."

As for Kaye, he said that he was "very disappointed" with Judge Wilson's 
sentence and noted that both he and the USAO worked for months negotiating 
the final plea bargain.

"The level of negotiation in this case was uncommon, possibly 
unprecedented. It was several meetings between myself, Castro-Silva, his 
supervisors, several more meetings with Sherman and his mother," he said.

But he said that, despite Wilson's sentence on the "high end," the outcome 
of a trial could have been far worse.

"I didn't choose this job to get on my knees to roll over. But there are 
cases that you fight, and there are cases that you negotiate," he said. 
"Sherman Austin's case on a scale of 1-10 was a 10."

PRELUDE OF THINGS TO COME? CONSTITUTIONAL IMPLICATIONS, CHALLENGES AND THE 
FUTURE

That Austin had his home raided, was imprisoned for a total of 13 days and 
eventually pleaded guilty to a then-obscure federal statute with vague 
language ripe for opportunistic political use did not seem to interest most 
of the press, both mainstream and self-proclaimed "progressive." Outlets 
providing consistent coverage were KPFK, the Pacifica affiliate in Los 
Angeles, and the LA Weekly. On the Internet, the Washington Post's 
Newsbytes, which has since been restructured, and Indymedia also issued 
regular updates on the case, as did the tech news bulletin board 
slashdot.org. But overall, interest from both media and the broader 
"progressive" community, up until recently, has not been as high as one 
might think.

Jennifer Martin believes this might have much to do with Kaye's strongly 
discouraging her and her son from going public.

"Had we not listened, had we gone public, had we drummed up support, I'm 
pretty confident a progressive lawyer would have come forward to fight 
this," she said. "When I see all the people that are contacting me now and 
all the great pieces of information I'm getting and all the support--that 
could have happened early on, and I think this would have been handled 
differently."

She also thinks that much misinformation about the case and the stigma of 
her son's politics may have kept some people away.

"Sometimes progressive community people are afraid to align themselves with 
anarchists, number one. Number two, there was all this other stuff coming 
out sprinkled here and there--about Molotov cocktails, serious hacking 
charges. People don't have time to read everything," she said. "They 
probably didn't read thoroughly and realize that they said he had Molotov 
cocktails but yet after they raided his house, they left him there."

Shortly after Austin's New York arrest, some of Austin's friends contacted 
the ACLU of Southern California to little effect. The organization rebuffed 
them, claiming that they did not handle criminal cases.

But progressives and civil liberties advocates might want to start paying 
attention. On the day Austin began his prison sentence, Senator Dianne 
Feinstein, who helped push through the federal statute to which Austin 
ultimately pleaded guilty, issued a Sept. 3, 2003 press release lamenting 
that Austin's conviction is only the first under the law, which has been on 
the books for a few years. The press release excerpted a letter Sen. 
Feinstein sent to Attorney General John Ashcroft hoping for more.

"However, I remain concerned by reports that federal prosecutors may not be 
taking this important anti-terrorism tool seriously," wrote Feinstein to 
Ashcroft. "Thus, I write to request your assistance in ensuring that DOJ 
[Dept. of Justice] personnel know about section 842(p) and are aggressively 
enforcing it."

The letter also indicates that FBI Director Robert Mueller, at Feinstein's 
request, recently sent out a memo to FBI field offices "encouraging 
awareness and enforcement" of the statute.

And just a few weeks ago on Aug. 28, 2003, a home in San Diego was raided 
by FBI. The warrant for the raid invoked 842(p) and called for seizure of a 
videotape that allegedly contained footage of controversial environmental 
activist Rod Coronado explaining to an audience how to make an incendiary 
device.

San Diego activist Michael Cardenas, who shot the footage, and who used to 
live in the raided home where his girlfriend now resides, said that he had 
invited Coronado to "Revolution Summer," a summer-long series of San Diego 
teach-ins on miscellaneous topics that Cardenas helped organize. Cardenas 
says that someone in the audience randomly asked Coronado how to build such 
devices, and that the latter proceeded to explain.

Cardenas is not sure how the FBI knew of his videotaping.

"It seems like the intent is to silence political activists through 
intimidation. The worst part is not when the FBI just cause into your house 
but they're probably listening to your phone calls, following you around. 
The subsequent feeling of being watched is really bad," he said.

Cardenas also said he thinks he ran out of tape by the time Coronado began 
speaking about explosives.

To Austin, it's a sign of an emerging pattern.

"I can see this happening more and more. More and more people are going to 
get targeted and raided," Austin said.

In some ways, 18 U.S.C. 842 (p), which makes it illegal to "teach," 
"demonstrate" or "distribute" information on explosives and other 
incendiary devices with the "intent" that the "teaching, demonstration, or 
information be used for, or in furtherance of, an activity that constitutes 
a Federal crime of violence" or to "teach," "demonstrate," or "distribute" 
such to a person who "intends" to do the same, is reminiscent of the 2002 
movie "Minority Report."

In the movie, set many decades in the future, the government, through a 
program called Pre-Crime, arrests citizens before they even commit any 
crimes on the basis of analysis performed by three "precogs." That one 
could predict or prove something as abstract as the "intent" described in 
the statute seems questionable.

Or compare 18 U.S.C. 842 (p)'s wording with the Smith Act of 1940, later 
used to prosecute Communists and Trotskyists, and the increasing parallels 
made by contemporary critics to McCarthyism don't seem like such a stretch.

Among other things, the Smith Act made it illegal "with the intent to cause 
the overthrow or destruction of any government in the United States, to 
print, publish, edit, issue, circulate, sell, distribute, or publicly 
display any written or printed matter advocating, advising, or teaching the 
duty, necessity, desirability, or propriety of overthrowing or destroying 
any government in the United States by force or violence"

Meanwhile, numerous white supremacist sites host explosives instructions, 
such as those of the "White Resistance Manual," which contains instructions 
far more detailed than anything to be found in the Reclaim Guide. The White 
Resistance Manual contains instructions on "arson," "assassination," "booby 
traps and mines," in addition to instructions on building weapons and 
explosive devices. In a prior interview published here last month, Austin 
saw a double standard.

"They're not being prosecuted for it," he said. "To me, it [the statute] 
makes it better for them because that way they can use that as a form of 
selective enforcement on whom they want to bring charges against with that 
type of charge and whom they just want to let by and let off the hook."

As he serves out his sentence, Austin, his mother and a growing number of 
supporters are thinking about filing motions to withdraw the plea bargain 
and possibly challenge the constitutionality of the statute.

Many law reviews that have analyzed the statute have suggested its 
constitutional longevity might be endangered by the 1969 United States 
Supreme Court case Brandenburg vs. Ohio, in which the court ruled that 
violent speech, so long as it was not likely to produce "imminent lawless 
action," was protected by the First Amendment.

University of Southern California Professor of Law Erwin Chemerinsky says 
the statute may not stack up to constitutional precedent.

"The Supreme Court has said a person can be convicted of incitement if 
there's a likelihood of imminent harm and the speech is directed at causing 
imminent harm. Those requirements are not present in the statute," 
Chemerinsky said. "I think the difficulty with this is what's the standard 
for intent."

Ultimately, Austin's case is more than just a free speech issue. The 
quality of the affidavits used to secure warrants in this case indicates 
the bar is very low and the standard for evidence not high for activist 
arrests, federal detentions, and full-scale armed raids these days. 
Activists would do well to consider Austin's case an alert, but not a 
warning or a deterrent. Just a week before entering prison, Austin said the 
experience would only solidify his commitment to political activism.

"If I go into prison for a year, if they think it's going to silence me or 
silence anyone else, I think they're wrong," Austin said. "If anything, 
it's going to motivate me and motivate many other people to do things 
within the community and keep organizing."

His experience will not likely be the only one.

To find out more on how to help Sherman, visit 
<http://la.indymedia.org/>la.indymedia.org, 
http://www.carlagirl.net/activism.html and 
<http://www.raisethefist.com/>www.raisethefist.com.

To send letters, contact and mail Jennifer Martin 12115 Magnolia Blvd. 
#155, North Hollywood, CA 91607 or 
<mailto:jmi46 at sbcglobal.net>jmi46 at sbcglobal.net

Merlin Chowkwanyun is a NYC-based journalist and student at Columbia 
University and can be reached at 
<mailto:mc2028 at columbia.edu.>mc2028 at columbia.edu. He hosts a radio show on 
WBAR 87.9 FM NYC (<http://www.wbar.org/>www.wbar.org) on Sundays from 2-4 
PM EST."


The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
(415) 863-9977
www.freedomarchives.org 
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