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A
Strange and Tragic Legal Journey
The
Case of Sherman Martin Austin
by
Merlin Chowkwanyun
October
18, 2003
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.
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.
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.
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.