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Code Green 

by Chris Barker & r & & r & & lt;span class= & quot;dropcap & quot; & I & lt;/span & t was 3 am, and Nicholas Patterson, a 23-year-old construction worker and amateur guitarist with "Carpe Diem" tattooed across his back, was in a quandary. Patterson stood in the entryway of a controversial McDonald's restaurant under construction in Sisters, Ore. It was a midsummer night in 2005, and he was trying to figure out the best way to burn it down.





Eyeing an opening above the door that led into the restaurant, Patterson had an idea. He ran back to his 1995 Subaru Legacy, which was parked behind the restaurant and out of view of Highway 20. He grabbed a plastic jar of uncooked jasmine rice from the backseat and dumped the contents into the car. Patterson walked back to the doorway and began throwing rice containers of gasoline through the opening.





Fighting fumes that almost caused him to pass out, Patterson managed to hurl about 5 gallons into the restaurant, according to a Deschutes County search warrant. Then, Patterson spilled a trail of gas down the restaurant's gravel driveway and threw down a burning piece of paper to ignite the makeshift fuse.





The fire didn't take, so Patterson next tried to light it with a clove cigarette. Presumably frustrated, Patterson finally lit a paper bag and threw it in the restaurant entryway.





Patterson -- not exactly the Osama Bin Laden of "eco-terror" -- was arrested two days later after his roommate turned him in. Among items seized by detectives were a gas soaked hoodie that Patterson wore during his appearance on a Wal-Mart security video (he bought gas cans in Bend the night of the fire); jasmine rice grains found in the back window deck of his Subaru; a Bic lightert; and three bottles of prescription pills -- which, it turned out, had been used to treat his persistent mental illness.





By way of explanation for the crime, which caused $860,000 in damage to the McDonald's, Patterson told detectives: "It was upsetting that corporations move into small towns and ruin them so people can make a buck." In addition, according to the sheriff's affidavit, "Patterson said he used to sit around and bitch about it but he had decided to finally take some action."





The Sisters High School graduate wasn't the first person to come to that conclusion.





Other, more sophisticated crimes committed in central Oregon in the name of the environment include the 1997 arson of the Cavel West meatpacking plant in Redmond and the 1999 toppling of a Bonneville Power Administration electric transmission tower southeast of Bend.





It is the ongoing prosecution of those crimes and a host of others across the Pacific Northwest -- a coordinated FBI effort code-named "Operation Backfire" which has caught the attention of civil liberties advocates.





So far, eight defendants have pleaded guilty to crimes ranging from arson to conspiracy. Four other defendants in Oregon and one in Washington plan to take their cases to trial, and a handful of others have not been captured by authorities. One defendant, William Rodgers, of Prescott, Ariz., committed suicide in jail last year.





The crimes named in the FBI indictments range from those committed in the Bend area to the destruction of facilities at the University of Washington that grew genetically engineered crops to the 1998 arson at Vail Ski Area in Colorado, in which activists destroyed $12 million worth of property. Different defendants have been charged with a smorgasbord of crimes that took place between 1996-2001.





In their guilty pleas, some of the defendants acknowledge they "sought to influence and affect the conduct of government, private business and the civilian population through force, violence, sabotage, mass destruction, intimidation and coercion," according to a U.S. Department of Justice news release.





But critics say the federal government effort, which included dozens of FBI agents, numerous grand juries, wiretapping of potential defendants and the use of expanded search and seizure laws allowed under the Patriot Act, is a "cure" that's turning out to be worse than the disease.





They see Operation Backfire as a heavy-handed government investigation that leveraged plea bargains by threatening defendants with unprecedented sentences for property crimes. Although most mainstream groups take pains to distance themselves from eco-sabotage, some government critics equate the government's case to a politically motivated attack on an environmental movement that has been gaining ground in recent years.





"It's about unconstitutionally prying open a large and successful political movement and attempting to completely destroy it as they have with other movements like the American Indian Movement and the black power movement," said Lauren Regan, of the Eugene-based Civil Liberties Defense Center.





Defense attorney Amanda Lee, who represents Backfire defendant Daniel McGowan, has taken criticism of the federal prosecution one step further. She filed a 34-page brief in August requesting information that may have been gathered on her client through the use of warrantless federal wiretapping -- a Bush administration anti-terror initiative exposed this year and subsequently ruled unconstitutional by a federal judge. The U.S. attorney's office has yet to fully respond to her query.





"Mr. McGowan was already on the counter-terror radar of government agencies before he became a suspect in this case," Lee wrote, in her request. "Common sense, reason, and appreciation of the lessons of monitoring campaigns gone by teaches that a person such as Mr. McGowan would fall within the scope of a warrantless monitoring scheme now."





Target: Central Oregon


In early 1997, an investigative story describing how a federal program aimed at saving wild horses and burros actually led them to slaughter was published by the Associated Press.





The story showed that horses adopted under the federal program were sold to slaughterhouses that then shipped the meat to places like Belgium for human consumption. Many of the horses that were killed were less than 10 years old, and a significant percentage were younger than 5, according to the story.





Pascal Derde of the Cavel West slaughterhouse in Redmond was quoted in the story. Derde explained that many BLM horses processed at the facility were sent to Belgium.





"Killed on Friday, processed Monday, Thursday we load the truck and then it's flown to Europe," Derde was quoted as saying. "Monday it's sold in Belgium, Tuesday eaten, Wednesday it's back in the soil."





In July of that year, Cavel West paid a price for its participation in the program.





Kevin Tubbs, Jonathan Paul, Joseph Dibee and Jacob Ferguson -- all named in Operation Backfire -- allegedly scouted the Redmond plant on a night in mid-July, according to a U.S. District Court information. The foursome located a staging area in the desert outside of Redmond and Paul, and aided by Jennifer Kolar, another Backfire defendant, prepared a batch of "vegan jello," a volatile mix of soap and petroleum products, to be used in the attack on the plant.





On the night of July 21 -- dressed in dark clothing, wearing masks and gloves -- the five, part of a group of saboteurs calling themselves "The Family," drove to the staging area and dug a hole where they could bury evidence after setting the firebombs.





After a two-way radio check and a test to confirm their police scanner was working, all five traveled to the plant. Dibee drilled holes through the wall of the slaughterhouse, the fuel was poured in and time-delayed incendiary devices were set, according to the U.S. attorney's information.





Back at the staging area, the group removed their clothes and shoes, placed them in the hole and poured acid over the pile before burying the evidence.





The fire caused $1.2 million in damage to the slaughterhouse, according to a Deschutes County District court filing by One Beacon Insurance Company, which insured the Cavel West facility.





Five days later, a communiqu & eacute; sent out by a Portland man attributed the fire to the Animal Liberation Front (ALF) and a group called the Equine and Zebra Liberation Front.





Other acts attributed to "The Family" include the arson of a U.S. Forest Service ranger station in Oakridge in 1996, a BLM horse and burro facility near Burns in 1997, and the U.S. Department of Agriculture's Animal and Plant Health Inspection Service in Olympia, Wash., in 1998. In addition, defendants Chelsea Gerlach and former Bend resident Stanislas Meyerhoff, both 29, pleaded guilty to helping plan one of the most ambitious acts of eco-terrorism or vandalism in the history of the environmental movement -- the destruction of the Two Elk Lodge at Vail Mountain in 1998. The blaze leveled the lodge and caused an estimated $12 million in damage to lifts and buildings, including the ski patrol headquarters, atop Vail Mountain. Rodgers, who authorities said killed himself in jail after his arrest, was thought to be the ringleader of the Vail action, which was undertaken in the name of Canada Lynx habitat days before a planned expansion of the ski area's back bowls.





Meyerhoff, Gerlach, Ferguson and a woman named Josephine Overaker were charged with removing bolts and toppling an electric power line east of Bend on Dec. 30, 1999, a crime that was originally thought to be linked to Y2K, according to a Deschutes County Sheriff's report and the U.S. District Court information.





Finally, in 2000 and 2001, several targets of Operation Backfire met in what they termed "book club" meetings in Sisters, Eugene, Tucson and Santa Cruz, Calif., according to the U.S. District Court information. The meetings were classes in which people were instructed in making timing devices for firebombs, reconnaissance, lock-picking and computer security.





Threatened, Turned


In 2004, federal authorities -- stymied in their hunt for those responsible for the myriad crimes -- caught a break.





Jacob Ferguson, a former Eugene resident who allegedly participated in several of the arsons under investigation, including the burning of Cavel West in Redmond, reportedly turned on his fellow activists. Ferguson was the informant referred to anonymously as a cooperating witness in an FBI affidavit detailing the sting, according to a defense attorney who identified him in court and several publications.





From Dec. 10, 2004, through April 1, 2005, Ferguson engaged in 17 conversations with fellow activists while wearing a body-recording device supplied by the FBI, according to the federal affidavit. Those conversations, which detailed raids carried out by the alleged saboteurs, were then used to intimidate others into turning state's evidence, according to the National Lawyers Guild, which has condemned the federal government's tactics as unconstitutional.





In a story published last spring, Ferguson told The Seattle Times that he had been threatened with life in jail if he didn't cooperate.





After the federal government announced indictments, some legal groups decried the FBI tactics. Many in the activist community began referring to Operation Backfire as "The Green Scare," an echo of Sen. Joseph McCarthy's infamous anti-Communist hearings in the 1950s.





"Life sentences for property damage offenses where the actor has no intent to harm an individual are simply unconstitutional -- the punishment does not fit the crime," said Heidi Boghosian, executive director of the National Lawyers Guild, in a press release rolling out a legal hotline for activists charged with crimes.





Regan, whose Civil Liberties Defense Center monitors and defends civil liberties of those who express dissent to the government, agrees. She said some defendants in Operation Backfire were initially threatened with life in prison plus 300 years, and two were threatened with life in prison plus more than 1,000 years. The median federal sentence in 2001 for those serving time for arson, firearms or explosives was six years, according to the Federal Bureau of Prisons.





Some defendants agreed to plea deals with prosecutors that amounted to far less than the sentences first threatened. Meyerhoff, for instance, agreed to a sentence of 15 years and eight months. Gerlach cut a deal for a sentence of 10 years. Since defendants still must be formally sentenced by a judge, their actual time in jail could still change, Regan said.





The U.S. Attorney's office in Eugene, which is prosecuting Operation Backfire, declined to answer questions about the methods of the investigation. In an e-mail, an assistant U.S. attorney said, "It would be inappropriate for us to make such comments about a pending criminal case."





Still, some express little surprise over the government's aggressive pursuit. The Alabama-based Southern Poverty Law Center, which typically tracks domestic terrorist groups in the vein of Oklahoma City bomber Timothy McVeigh as well as violent white power groups, has lately been keeping tabs on animal rights groups. Those groups, including the Animal Liberation Front and the Earth Liberation Front (ELF), have been taking violent cues from their more radical European counterparts, according to Mark Potok, editor of the center's Intelligence Report.





"There's absolutely no doubt that the federal government is coming down extremely hard on so-called eco-terrorists," Potok said. "They've been smashing them. I don't think it's a great thing, but on the other hand, the animal rights movement and environmental extremists most certainly are going to kill someone, and it's going to be soon. There's absolutely no question that these people have become more bloody and more violent."





Terrorists?


Civil libertarians who are fretting over such government prosecution tactics are not only overwrought -- they're ignoring the law, says Ron Arnold, a long-time conservative chronicler of eco-sabotage and a founder of the so-called "wise-use" movement.





When a group burns down a building to make a political point, they are committing a crime of terrorism, Arnold says. Therefore, it's the prosecution's obligation to let defendants know they could face harsher sentencing under federal law.





"It is perfectly constitutional for a prosecutor to tell a defendant what to expect in the event they lose a trial," Arnold says. "There's nothing intimidating about it."





The federal laws that govern penalties for domestic terrorism were enhanced in the 1990s, giving the government the ability to add 20 years to 50 years to a federal sentence, says Regan of the Civil Liberties Defense Center. In addition, the definition of domestic terrorism has been modified since the 9/11 attacks.





The USA PATRIOT Act created a new crime, defining domestic terrorism as "acts dangerous to human life that are a violation of the criminal laws of the U.S. or any other state" and that "appear to be intended to influence the policy of a government by intimidation or coercion." In addition, U.S. Department of Justice guidelines issued in 2002 by former Attorney General John Ashcroft allow law enforcement authorities to initiate a terrorism investigation based on a "reasonable indication" that a federal law has been or will be committed. This new standard, the guidelines note, is "substantially lower than probable cause."





High-ranking FBI officials drove home the Justice Department's new emphasis on so-called eco-terror -- twice testifying before Congress that those committing crimes on behalf of animals or the environment were the number-one domestic terrorist threat. While Potok of the Southern Poverty Law Center believes that radical animal rights activists are harming the larger, legitimate movement by stepping up arson attacks and, in some cases threatening people, he said the new government priority is misguided.





"I have to say that's ludicrous on its face," Potok said. "They have killed no one and [meanwhile] we have seen over 60 major domestic terrorism plots come out of the radical right since 1995 [when the Oklahoma City federal building was bombed]."





One of those plots, hatched by a small Ku Klux Klan group in Texas in 1997, could have killed up to 30,000 people by blowing up a natural gas processing plant, Potok said.





Regan was more strident. The continual labeling of animal rights saboteurs as "eco-terrorists" by the media and the federal government has demonized groups that have taken pains not to endanger people with their crimes, she said. Targeting activists is a political move unrelated to protecting the public, she adds.





"When the Bush Administration couldn't find any real terrorists and the FBI couldn't protect the country from threats of real violence, they chose to conduct a P.R. campaign to convince the public that arson was somehow akin to killing thousands of human beings," Regan says.





Operation Backfire isn't a big deal in the context of the larger environmental movement, says Steve Pedery, healthy rivers coordinator for Oregon Wild, formerly known as the Oregon Natural Resources Council. His group, which was an early proponent of spotted owl habitat protection and which pioneered the use of litigation to stop timber sales, is neutral on the issue of direct action, a term for eco-sabotage, he says. In fact, one member of the group even offered a reward for information about the arson of the Oakridge Ranger Station, he adds.





Emphasizing the government prosecution of eco-saboteurs deflects attention from more important issues, Pedery says, such as the recent decision by a federal judge to restore a Clinton-era ban on road-building on 58 million acres of forestland.





"In some ways," says Pedery, "I think the administration has tried to turn it into a distraction from what's going in the West with road-building, the oil and gas industry and other issues."





Andy Kerr, a former executive director of the Oregon Natural Resources Council and a longtime advocate for the protection of old-growth forests, predicted that Operation Backfire would have no effect on the environmental movement.





Kerr, an Ashland resident who was once described by Oregon Northwest Magazine as the timber industry's "most hated man in Oregon," has little sympathy for the defendants in the government prosecution.





"These are criminal acts -- it doesn't make any difference what they were [carried out] for, they were criminal acts," Kerr says. "Mainstream environmental groups don't engage in criminal acts. The guys who did these things -- it's not like they did it and took responsibility."





As for the prospect that the federal government's case may have benefited from warrantless wiretapping, Kerr strikes a fatalistic tone.





"I'm concerned about wireless wiretapping as an American, not because I'm an environmentalist," Kerr says. "I used to joke that we should always assume our phones are bugged. During the Bush administration, it's not a joke -- I always assume our phones are bugged. Since I have nothing to hide, I'm not worried about it."





Tapping Dissent


On Dec. 16, 2005, The New York Times dropped a bomb on page one. President Bush, in the aftermath of 9/11, authorized the National Security Agency to eavesdrop on Americans without first securing court-approved warrants, which had been previously required.





The story, the first of a series that earned reporters Eric Lichtblau and James Risen the Pulitzer Prize for investigative reporting, was only the beginning of a string of disturbing revelations.





In May of this year, USA Today reported that the NSA had harvested phone records of "tens of millions of Americans." Although the paper later corrected a portion of the story, which contended that some of the nation's largest phone companies had handed over private records to the government, editors stood behind the main thrust of the story.





New Yorker reporter Seymour Hersh followed with a May 29 story. In "Listening In," Hersh reported that a major telecommunications company had set up a clandestine circuit between its main computer and a government intelligence center.





Around the same time, AT & amp;T technician Mark Klein let fly with a startling public statement. Klein said an NSA-hired technician constructed a secret room in an AT & amp;T facility in San Francisco in January 2003. Equipment known to be used by government spy agencies was installed in the room, Klein said.





"Based on my understanding of the connections and equipment at issue, it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet -- whether that be people's e-mail, Web surfing or any other data," Klein wrote, in a statement published in Wired magazine. "Given the public debate about the constitutionality of the Bush administration's spying on U.S. citizens without obtaining a warrant, I think it is critical that this information be brought out into the open, and that the American people be told the truth about the extent of the administration's warrantless surveillance practices, particularly as it relates to the Internet."





Predictably, a lawsuit filed against AT & amp;T by the Electronic Frontier Foundation, a civil liberties group, followed. A federal judge in July refused a government request to dismiss the case on the grounds that it might harm national security interests. Other lawsuits filed by the ACLU are also pending.





Against this tapestry of domestic spying revelations, Seattle-based attorney Lee wants to know if Operation Backfire was helped along by Bush's warrantless spying program.





Lee's client McGowan is facing 16 criminal counts for various acts of arson and sabotage that occurred in the Pacific Northwest. She filed the lengthy brief asking the federal government if it engaged in warrantless wiretapping of her client, and if indeed it did, what was learned from that process.





Assistant U.S. attorneys in Eugene responded to Lee's brief, saying they were unaware of such surveillance. But Lee contends they likely wouldn't have been in the loop.





"The reality is that the ELF and the ALF were avowedly high-priority targets for terrorism investigators," Lee wrote. "It is either probable, or at least reasonable to believe, that NSA surveillance resources were devoted to investigating the string of unsolved incidents that the FBI traces back to 1993."





Lee couldn't be reached for comment. But Regan, of the Civil Liberties Defense Center, said a more complete answer to Lee's filing is expected in November. If it is proven that McGowan or other defendants were subject to warrantless wiretapping, their cases could be thrown out, Regan said.





Wasted Lives?


Without question, those who commit crimes in the name of the environment draw attention to their cause. But it's nearly impossible to determine if their "direct actions" lead to policy change. This summer, 10 years after firebombs gutted Cavel West in Redmond, the U.S. House of Representatives voted to ban the butchering of horses for human consumption. The bill faces an uncertain future in the Senate.





At Vail, where the massive Two Elk restaurant and several lifts were burned down in 1998, it took two years for the first phase of the planned expansion that sparked the fires to be completed. The new runs added 19 percent to what was already North America's largest ski mountain. Two Elk was rebuilt in spectacular fashion, a 29,000-square-foot monument to well-heeled skiing glitterati that required the importation of massive Canadian lumber beams.





Meanwhile William Rodgers, whom authorities believe masterminded the high-profile crime, died in an Arizona jail cell on the winter solstice last year with a plastic bag over his head.





"Certain human cultures have been waging war against the Earth for millennia," Rodgers wrote, in a note left behind to his friends and family. "I chose to fight on the side of bears, mountain lions, skunks, bats, saguaros, cliff rose and all things wild. I am just the most recent casualty in that war. But tonight I have made a jail break -- I am returning home, to the Earth, to the place of my origins."





In Bend, Nicholas Patterson's foray into environmental crime also ended in ignominy.





Patterson, who has been diagnosed with manic bipolar disorder, was declared "guilty except for insanity" by a Deschutes County judge in June of this year. He was sentenced to up to 20 years in the Oregon State Hospital after experts found that he suffered delusions that contributed to his decision to spark the fire.





The McDonald's was rebuilt and a community-wide debate over whether to limit the construction of future fast-food chains is over. (The Sisters City Council had voted against a proposed ban before Patterson set his fire.)





In his statement to sheriff's detectives, Patterson took pains to explain his motivations, born of a powerless feeling in the wake of faceless growth.





"According to Patterson, he is an idealist and he wanted to live in a world where we are one with nature," the sheriff's office affidavit states. "Patterson said he would like to wake up to a world where you don't see Wal-Mart and McDonald's. Patterson would like to wake up to a garden. Patterson believes everyone is just out to make money, and he posed a question: "'Is this the way we were supposed to live, like this?'"





This article originally appeared in Bend, Oregon's alternative weekly, The Source.
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