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</font><h2><b>Is Briana Waters a
terrorist?</b></h2><font face="Arial, Helvetica" size=2><b>In an alarming
case, U.S. attorneys exploited post-9/11 counterterrorism laws to pursue
and prosecute an environmental activist.</b> <br><br>
</font><font size=3><b>By Tracy Tullis<br><br>
</b></font><font face="times new roman" size=3>Mar. 27, 2008 | In the
early morning hours of May 21, 2001, a group of five men and women
dressed in dark clothing and carrying backpacks crept close to the Center
of Urban Horticulture on the University of Washington campus in Seattle.
One of the intruders cut open a window of a ground-floor office; another
climbed through it and placed a digital alarm clock wired to a 9-volt
battery and a model-rocket igniter in the drawer of a filing cabinet.
Next to the cabinet, he filled plastic tubs with gasoline. He set the
timer and climbed back out the window. <br><br>
Not long after, at about 3 a.m., a university security officer driving on
his rounds saw "billowing smoke and flames" rising from the
building. The building's cedar latticework had acted as kindling and the
fire raced to the roof. From a city park a few miles away, the arsonists
listened to the firefighters on an emergency scanner. <br><br>
It took firefighters two hours to put out the flames. By that time the
office where the fire had started had burned down to the studs, and the
central hall and several botany labs were damaged. Damages were estimated
at $2.5 million. The morning after the fire, agents from the Bureau of
Alcohol, Tobacco and Firearms sifted through the ash but found no
fingerprints. Any hairs that might have yielded a DNA signature had been
incinerated. <br><br>
Ten days later, the Earth Liberation Front, a loose group of underground
activists who had burned a horse-slaughtering plant, logging company
headquarters, SUV dealerships and a luxurious Vail ski lodge built on
mountain lynx habitat, claimed responsibility for the fire. The group
explained that it had targeted the office of Toby Bradshaw, a plant
geneticist who they believed was genetically engineering trees for the
benefit of the timber industry. They said his research would
"unleash mutant genes into the environment" and "cause
irreversible harm to forest ecosystems." <br><br>
Federal and local authorities launched an exhaustive investigation,
code-named Operation Backfire. For nearly two years, the FBI had no real
leads in the Washington case or 16 other ELF arsons. The Earth Liberation
Front is a secretive, amorphous group, with no structure or leaders or
formal membership. It is more of a movement than an organization; anyone
with a rage against ecological destruction and a match can act in the
name of the ELF. The FBI didn't know where to go looking for them.
<br><br>
In spring 2003, FBI agents finally got their first break. They closed in
on Jacob Ferguson, a heroin-addicted drifter who played in a metal band
called Eat Shit Fuckface, and who had insinuated himself into the radical
environmental movement -- no doubt finding a convenient outlet for the
pyromaniacal tendencies he'd exhibited since the age of 8. <br><br>
Ferguson quickly turned informant. He admitted to setting the first fire
attributed to the ELF in the United States, in 1996, and to 12 additional
arsons, mostly in Oregon. Although many ELF "elves" knew only
two or three others, Ferguson knew pretty much everyone. Prosecutors
dispatched him across the country -- from Arizona to Massachusetts -- to
meet with his former compatriots and record their conversations with a
hidden wire. Soon the FBI was knocking on doors across the country.
<br><br>
Most of the suspected arsonists, if convicted, would face at least 30
years in prison. Lured with promises of reduced sentences, friends turned
in friends, boyfriends offered up the names of girlfriends.
Recriminations flew. Those who named names "have dishonored
themselves ... by becoming vicious traitors and tools of the state,"
wrote two non-cooperators in the Earth First! journal. In 2006, the trail
of accusations led the FBI to the door of a quiet 32-year-old violin
teacher in Berkeley, Calif., named Briana Waters. <br><br>
Earlier this month, on March 6, a federal jury in Tacoma, Wash., found
Waters guilty of two counts of arson for serving as a lookout at the
University of Washington fire. According to two women who testified
against her in return for dramatically reduced sentences, Waters hid in a
shrub near the Center for Urban Horticulture with a walkie-talkie, ready
to alert the others if the campus police strolled by. Waters testified
she wasn't even in Seattle that night. <br><br>
Although Waters was on trial for only the University of Washington arson,
Assistant U.S. Attorney Andrew Friedman charged that she was part of a
conspiracy -- a member of a "prolific cell" of the Earth
Liberation Front, responsible for 17 fires set in four states over five
years. Ten conspirators have pleaded guilty and been sentenced; four have
fled the country; three are awaiting sentencing. Waters, the only one of
the accused to have pleaded innocent and therefore the only one to have
stood trial, now faces 20 years in prison. <br><br>
The group's alleged ringleader, William Rodgers, avoided a trial in his
own way. From his jail cell in Flagstaff, Ariz., two weeks after his
arrest in December 2005, he wrote, "I chose to fight on the side of
the bears, mountain lions, skunks, bats, saguaros, cliff roses and all
things wild. But tonight ... I am returning home, to the Earth, the place
of my origins." He placed a plastic bag over his head and suffocated
himself. According to medical records, Rodgers was found with his right
arm raised, his hand held tight in a fist -- the Earth First! symbol of
resistance. <br><br>
Prosecutors celebrated the guilty verdict against Waters as a signal
victory in the campaign against "eco-terror," a mission that
the U.S. Department of Justice has made the centerpiece of its domestic
counterterrorism program. "This cell of eco-terrorists thought they
had a 'right' to sit in judgment and destroy the hard work of dedicated
researchers at the UW and elsewhere," U.S. Attorney Jeffrey Sullivan
declared in announcing Waters' conviction. "Today's verdict shows
that no one is above the law." <br><br>
Civil libertarians draw a different moral from the verdict. For them it
is evidence of how the Justice Department has exaggerated the threat of
eco-sabotage; they see Waters' story as a disturbing example of the
misuse of federal authority and the excessive reach of the American
counterterrorism program in the wake of 9/11. As Lauren Regan, director
of the Civil Liberties Defense Center in Eugene, Ore., remarks:
"There's a question of whether burning property is really the
equivalent of flying a plane into a building and killing humans."
<br><br>
Briana Waters wouldn't seem to fit the profile of a dangerous terrorist.
The daughter of an engineer and a stay-at-home mother, Waters was raised
in suburban Philadelphia and migrated west to attend Evergreen State
College in Olympia, Wash., a magnet for left political activists. She has
long, straw-colored hair and blue-gray eyes, and always seems to hold her
shoulders forward, like a girl who is shy about being tallest in her
sixth-grade class. At Evergreen, she became head of the campus animal
rights organization and led nature hikes through the nearby woods,
teaching people how to identify native plants. <br><br>
In her senior year, she participated in a prolonged campaign to prevent
logging in the old-growth forest on Watch Mountain, part of the Cascade
Mountain range. Her senior project was a documentary film about the
protest, an elegy to the cooperation between Earth First! members and the
residents of a small town, who together climbed into the canopy and
refused to come down for five months, until Congress promised the public
lands would not be handed over to the timber company. The protest saved
28,000 acres of wilderness. <br><br>
Kim Marks, an Evergreen graduate who joined the tree-sit, remembers
Waters playing her violin as she perched in the treetops. "It was
the most amazing thing to be 120 feet up in the canopy and hear this
beautiful fiddle music floating through the forest," Marks says.
<br><br>
Waters certainly brushed up against the radical environmentalist milieu,
even if she was not one of the "elves." Her boyfriend at the
time, fellow Evergreen student Justin Solonz, has been indicted for
building the device that sparked the Center for Urban Horticulture fire,
and she was friendly with others in the ELF underground. <br><br>
But Waters has insisted she had nothing to do with underground
activities. She testified at her trial that in May 2001, the month of the
arson, she was busy promoting her film, showing it to college audiences
on the West Coast. She has no specific recollection of where she was on
the 21st; most likely, she said, she was sleeping at home in Olympia. She
told the jury that the Watch Mountain protest, especially her experience
building bridges between students and locals, and even logging families,
impressed her as a model of sound activism, and confirmed her belief that
more extreme measures, like arson, were "alienating" and
counterproductive. <br><br>
As it turned out, the University of Washington Horticulture building was
a poor target for arson. Among the items destroyed were hundreds of
photographs documenting plant regeneration on Mount St. Helens after the
volcanic eruption, research on wetlands and prairie restoration, and a
collection of rare showy stickseed plants that were being raised to
replenish dwindling wild stocks in the Cascade Mountains. Bradshaw, the
targeted professor, has said that although he had considered doing
genetic engineering, he was not at the time of the fire. Rather he was
conducting basic research on hybrid poplars, a fast-growing species that
could reduce the pressure for logging in natural forests. <br><br>
About a year after the fire, in 2002, Waters left her college town and
moved to Berkeley, where she made her living teaching children violin and
playing in Balkan and Irish folk music groups. She met her partner, John
Landgraf, a carpenter, at a summer music retreat, and had a baby girl,
Kalliope. She had little contact with the radicals she'd met in Olympia,
and was only marginally involved in environmental causes. <br><br>
But while Waters had moved away from the old radical environmental
circles, the hunt for "eco-terrorists" was intensifying. During
the 1990s, the FBI's domestic terrorism division focused on militias,
white supremacists and cults like the Branch Davidians. But after 9/11,
the agency began shifting its priorities. <br><br>
Then-Attorney General John Ashcroft and FBI director Robert Mueller
decided "they were going to restructure the FBI as a terrorism
prevention organization rather than just a crime-fighting
organization," explains Ben Rosenfeld, a civil rights attorney in
San Francisco. The FBI vastly expanded its domestic and international
terrorism capabilities, adding whole new categories of crime to its
terrorism portfolio. Acts once considered property crimes -- like the
arson at the University of Washington -- were now assigned not to the
bureau's criminal division but to the terrorism division. <br><br>
In testimony before a Senate committee in February 2002, James Jarboe,
the FBI's domestic terrorism chief, alerted the public to this new
mission, warning that the ELF and its sister organization, the Animal
Liberation Front, had become a "serious terrorist threat." By
May 2005, agents in 35 FBI offices would be investigating 104 separate
incidents of "animal rights/eco-terrorist activities,"
including the fires set by the ELF in the Pacific Northwest. <br><br>
In the wake of 9/11, federal prosecutors had some new legal tools at
their disposal. Historically, the crime of terrorism has required
civilian deaths. In fact, the State Department defined terrorism as
"premeditated politically motivated violence perpetrated against
non-combatants." But the USA Patriot Act created a new category of
domestic terrorism, which is defined as an offense "calculated to
influence or affect the conduct of government" or "to
intimidate or coerce a civilian population." Under this broad
definition, eco-saboteurs become terrorists if their crime seeks to
change government policy or action. <br><br>
Several Republican members of Congress didn't want to stop there. In a
letter sent to eight mainstream environmental groups such as the Sierra
Club, Colorado Rep. Scott McInnis and six other congressmen demanded that
respectable environmental organizations "publicly disavow the
actions of eco-terrorist organizations." In 2006, Congress passed
the Animal Enterprise Terrorism Act, which imposes severe punishments on
anyone who "intentionally damages or causes the loss of any real or
personal property used by an animal enterprise." <br><br>
During her trial at the Union Station Courthouse in Tacoma, Waters sat
straight in an oversize leather chair, her hair pulled back in a rubber
band. She wore gold wire-rimmed glasses and sometimes bit her nails as
she listened to the proceedings. <br><br>
In his opening statement before the jury, Assistant U.S. Attorney
Friedman described how Rodgers, the unofficial leader of the University
of Washington arsons, organized a series of instructional and
strategizing meetings, which took place in five different cities. The
group shared information on lock picking, reconnaissance, and the
construction of devices that could ignite a fire. They also used the
meetings to select targets and gather recruits for their
"actions." They called their gatherings Book Club meetings
because they communicated with coded messages, using passages from a book
as the key. (At one meeting it was Ursula Le Guin's portentous novel
"The Dispossessed"; at another, "The Only World We've
Got," by environmental philosopher Paul Shepard.) <br><br>
Waters and the other members of the group took "extraordinary
measures," Friedman told the jury, to conceal their identities and
their movements: adopting aliases, meeting in public places not
associated with any of them, building their incendiary devices in a
"clean room" to eliminate DNA evidence. The ELF activists were
"organized in cells so if some are discovered the others can
continue," Friedman explained. "It's a classic structure for a
terrorist or a guerrilla organization." <br><br>
On the witness stand, Waters declared that she never had an alias, never
attended the clandestine Book Club meetings, and never saw any
fire-starting device being built anywhere near her house. The prosecution
argued that Waters had met with the arsonists at 8 p.m. in Seattle on the
night of the crime. Defense lawyers presented a bank card receipt that
shows Waters made a purchase at 7:12 p.m. in Olympia, 60 miles away,
which would have made it difficult for her to have been in Seattle at 8
p.m. <br><br>
The government's case against Waters rested heavily on the testimony of
two informants, a radical journalist named Lacey Phillabaum and a
yacht-racing aficionado with a master's degree in astrophysics named
Jennifer Kolar. Both testified Waters was the lookout on campus that
night. <br><br>
Yet as Waters' defense attorneys pointed out, their initial statements to
the FBI about the University of Washington fire contradicted one another.
Kolar, who worked in high-tech jobs in Seattle and used her expertise to
teach encryption at the Book Club meetings, apparently did not identify
Waters as a co-conspirator the first time she was interviewed by the FBI
in December 2005; instead, she named four others, giving their aliases.
Neither did she identify Waters the next four or five times she spoke
with the authorities. <br><br>
During the trial, FBI special agent Anthony Torres acknowledged that
nearly two months before Kolar named Waters as a participant in the
arson, she'd been shown a photo of Waters and had identified her by name.
But she did not say then that Waters had been involved. It was only
several weeks after Kolar's first FBI interview, during the time she was
seeking to trade information for an advantageous plea deal, that she told
her lawyer that she suddenly "remembered" Waters had been at
the Center for Urban Horticulture that night. A third cooperating
defendant, Stanislas Meyerhoff, who had earlier implicated Phillabaum,
his own fiancée, in the fire, told investigators that he was
"familiar" with Waters but that she was "not
involved" in the arson. <br><br>
During the tense three-week trial, Waters' lawyers accused the
prosecution of misconduct, including falsification of FBI reports to
conceal evidence favorable to her defense. Documents produced in court
reveal that FBI agents taking notes during their first conversation with
Kolar dutifully recorded that she specifically named four collaborators.
None of the four was Waters. A typed version of that interview, admitted
into evidence in the trial, says only that Kolar identified
"Avalon" (the code name of Rodgers) and "some
others." <br><br>
The jury was unconvinced that these inconsistencies constituted
reasonable doubt. Although the jurors could not reach a unanimous
decision on several counts -- including a "destructive device"
charge -- they convicted Waters on two counts of arson, each of which
carries a minimum sentence of five years (running concurrently) and a
maximum of 20. She could spend as much as two decades behind bars for
allegedly holding a walkie-talkie. <br><br>
"Obviously we were thrilled by the verdict," says First
Assistant U.S. Attorney Mark Bartlett. "There is a price for people
to pay for not showing any remorse, for not accepting responsibility. It
will be up to the judge to determine how big a price that is."
<br><br>
Waters' lawyer, Robert Bloom, remains outraged. Prosecutors "used
scare-mongering to get the jury to convict an innocent person," he
says. "This is really a study in American prosecution. It was an
absurdly slanted American prosecution." <br><br>
If Waters encounters the full force of the government's anti-terror zeal,
it will be when she is sentenced on May 30. Prosecutors have not yet
decided whether to seek a "terrorism enhancement" -- a
sentencing rule that was written into the federal sentencing guidelines
in 1995, after the bombings in Oklahoma City and at the World Trade
Center, and would allow the judge to add up to 20 years to her prison
term if her crime can be construed as a terrorist act. <br><br>
Prosecutors sought the enhancement for six of the 10 Operation Backfire
arsonists, who have been sentenced already, a significant departure from
legal convention. (Meyerhoff, despite his cooperation, received a 13-year
sentence.) "Never before has the terrorism enhancement been applied
where there were no deaths," says Lauren Regan of the Civil
Liberties Defense Center. <br><br>
If Waters spends more than the minimum of five years in prison, her
sentence would be disproportionate to punishments received by other
arsonists. "That would be a far harsher standard than fits the crime
in a lot of arsons," says Heidi Boghosian, executive director of the
National Lawyers Guild. James King, for example, a seasonal firefighter,
set two fires in California's Cleveland National Park in the summer of
2001 in order to score some extra paydays. More than 50 acres of pristine
wilderness were razed. King received a jail term of 30 months and a fine;
he was also ordered to retire from the firefighting profession. <br><br>
Today, as Waters sits in the Federal Detention Center in Seattle,
awaiting sentencing, environmentalists and civil libertarians worry that
her conviction may beat a path to more convictions, including of
nonviolent protesters. In recent years, a number of states have passed
laws aimed at eco-sabotage that could implicate law-abiding groups along
with the lawbreakers. The American Legislative Exchange Council, a
right-leaning, corporate-backed association of state legislators, has
written legislation that defines any act of destruction aimed at
protecting animal rights or punishing ecological despoilers as terrorism.
At least 14 states have introduced bills since 2001 based on this model,
and they have passed in Arizona, Ohio and Pennsylvania. The problem with
such laws, says David Willett of the Sierra Club, is they can be used
"to crack down on environmental groups engaged in legitimate
activities as well." <br><br>
Nonviolent protesters have already felt the heat. Documents obtained in
2005 by the ACLU reveal that the FBI has been surveying animal rights and
environmental groups like People for the Ethical Treatment of Animals and
Greenpeace, sending undercover agents to activist conferences and
cultivating inside informants. Some of the documents suggest that the
bureau was also attempting to link those groups with the ELF and ALF. The
National Lawyers Guild reports that it receives calls regularly from
environmental and animal-rights activists all over the country who had
been contacted by the FBI after attending political events. "It has
a chilling effect on free speech," says Guild director Boghosian,
"and that's where the real damage to the Constitution is
happening." <br><br>
On March 3, while jurors in the Waters trial were deliberating, three
luxury houses for sale in a suburban Seattle cul-de-sac called
"Street of Dreams" -- a plot of land surrounded by wetlands --
were destroyed by fire. A banner at the scene pointed to the culprit: the
Earth Liberation Front. The FBI immediately announced that the fire
"is being investigated as a domestic terrorism act." <br><br>
</font><div align="right"><font face="Arial, Helvetica" size=2><b>-- By
Tracy Tullis</b> <br><br>
<br><br>
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