[Ppnews] Is Briana Waters a terrorist?

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http://www.salon.com/news/feature/2008/03/27/briana_waters/print.html

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Is Briana Waters a terrorist?

In an alarming case, U.S. attorneys exploited 
post-9/11 counterterrorism laws to pursue and 
prosecute an environmental activist.

By Tracy Tullis

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.

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 
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.

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 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.

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."

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.

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.

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.

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.

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."

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.) "Never 
before has the terrorism enhancement been applied 
where there were no deaths," says Lauren Regan of 
the Civil Liberties Defense Center.

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."

-- By Tracy Tullis




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