|
Weekend
Edition
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 la.indymedia.org,
http://www.carlagirl.net/activism.html
and www.raisethefist.com.
To send letters, contact and mail Jennifer
Martin 12115 Magnolia Blvd. #155, North Hollywood, CA 91607 or
jmi46@sbcglobal.net
Merlin Chowkwanyun is a NYC-based journalist and student at Columbia
University and can be reached at mc2028@columbia.edu.
He hosts a radio show on WBAR 87.9 FM NYC (www.wbar.org)
on Sundays from 2-4 PM EST."
Weekend
Edition Features for Sept. 26 / 28, 2003
Tim Wise
The
Other Race Card: Rush and the Politics of White Resentment
Peter
Linebaugh
Rhymsters
and Revolutionaries: Joe Hill and the IWW
Gary Leupp
Occupation
as Rape-Marriage
Bruce
Jackson
Addio
Alle Armi
David Krieger
A Nuclear 9/11?
Ray McGovern
L'Affaire Wilsons: Wives are Now "Fair Game" in Bush's
War on Whistleblowers
Col. Dan Smith
Why Saddam Didn't Come Clean
Mickey
Z.
In Our Own Image: Teaching Iraq How to Deal with Protest
Roger Burbach
Bush Ideologues v. Big Oil in Iraq
John Chuckman
Wesley Clark is Not Cincinnatus
William S. Lind
Versailles on the Potomac
Glen T.
Martin
The Corruptions of Patriotism
Anat Yisraeli
Bereavement as Israeli Ethos
Wayne
Madsen
Can the Republicans Get Much Worse? Sure, They Can
M. Junaid Alam
The Racism Barrier
William
Benzon
Scorsese's Blues
Adam Engel
The Great American Writing Contest
Poets'
Basement
McNeill, Albert, Guthrie
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