In an alarming case, U.S. attorneys exploited post-9/11 counterterrorism policies to pursue and prosecute an environmental activist.
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.
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.
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.
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.”
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.
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.
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 New York — to meet with his former compatriots and record their conversations with a hidden wire. Soon the FBI was knocking on doors across the country.
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.
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.
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.
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.
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.”
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.”
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.
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.
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.
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 Solondz, 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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.)
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.”
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. Phillabaum testified that Waters had borrowed the car that was allegedly used to drive to the scene, and that the incendiary device was built in a garage on the property where Waters was staying at the time.
Phillabaum and Kolar also testified that Waters had met with the arsonists in a Seattle bar on the night of the crime. Phillabaum said they met “early evening”; Kolar said it was “probably around 9 at night, 8 at night.” 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 the described times.
On the witness stand, Waters denied the accusation about the car. She declared that she was not at the Seattle bar that night, never had an alias, never attended the clandestine Book Club meetings, and never saw any fire-starting device being built in or anywhere near her house.
As Waters’ defense attorneys pointed out, the informants’ 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, according to Waters’ defense attorneys.
It was in early January 2006, 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. During the trial, FBI special agent Anthony Torres acknowledged that Kolar had been shown a photo of Waters in mid-January, and had identified her by name. But at the time, she did not say that Waters had been involved. The trial revealed that it wasn’t until early March 2006 that Kolar directly told government officials that Waters was involved.
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.
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. (The judge dismissed the claim.) 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.”
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.
“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.”
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.”
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.
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.) 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.
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.”
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.”
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.”
This story has been corrected since it was originally posted.
Tracy Tullis is a freelance writer from Brooklyn. More Tracy Tullis.
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