Occupation, Arson, And Terrorism

[ Posted Wednesday, January 6th, 2016 – 19:00 UTC ]

Federal land is currently being occupied by protestors. Or, according to some, by domestic terrorists. But pigeonholing these guys with either label isn't quite as easy as it might first seem. There's some history here that needs pondering before anyone decides exactly what to call the group and, more importantly, what to do about them. Because it is a little more complicated than it first might seem, at least for those who care about the concepts of fairness and consistency.

First, there is indeed "terrorism" at the heart of this issue, but from an unexpected angle. The legal case (or cause célèbre) that spurred the protestors' actions hinged on the definition of terrorism, long before any external group even got involved. An informative article from Salon points out the particulars of how the legal concept of terrorism is involved in the case of Lincoln Hammond Jr. and his son Steven Hammond:

The charges against the Hammonds originally accused them of committing arson four different times, including three different fires in 2006, as well as tampering with a witness; an earlier indictment described arson dating back to 1982, though that charge was dropped. When a jury found them guilty on these two arson charges but continued to deliberate on the others, the Hammonds made a deal to plead guilty to those two, but serve the sentences at the same time. The local judge originally sentenced the father to three months, and the son to a year and a day, even though the charge carried a five year mandatory minimum sentence. The government appealed to get the mandatory minimum, and won at the Ninth Circuit. The Hammonds then appealed to the Supreme Court, but the conservative court -- which has been generally unsympathetic to the kind of Eighth Amendment claims the Hammonds made -- did not take their case.

Why such a steep prison term? Because it was arson committed upon federal property. The article explains:

As noted, the mandatory minimums were instituted as part of a bill, the Anti-Terrorism and Effective Death Penalty Act, passed in response to a 1993 al Qaeda-related terrorist attack on the World Trade Center and the 1995 McVeigh anti-government militia attack. Arson on federal property got named a terrorist crime along with a bunch of other crimes that now affect alleged Islamic terrorists more than anyone else.

This is where things start to get muddled for those prone to knee-jerk assessments or condemnations. Because the arson part of this law has been most notably used not against "alleged Islamic terrorists," but against "eco-terrorists" in the late 1990s. This was the era, if you'll recall, of the "Earth Liberation Front," the "Animal Liberation Front," and the concept of "monkeywrenching." The E.L.F. and A.L.F. were radical individual groups in a decentralized organization (or a classic underground "cell" structure). Some of these individual cells drew the line between permissible actions to achieve their political goals and impermissible actions that involved destruction of property and other provocative acts. But for other cells, this line didn't exist, or was drawn in a far different place. A string of arson attacks (and other destruction of property) were attributed to A.L.F. or E.L.F. cells. These included burning both federal property (a ranger station) and private property (a ski resort, a lumberyard, a car dealership), in the name of a political cause.

The F.B.I. treated these as terrorist acts (at one point even identifying them as America's "top domestic terrorist threat") and in 2004 launched Operation Backfire in response. Over a dozen people were indicted. Those that were convicted received long prison sentences (five years or more), sometimes due to being essentially tried as terrorists rather than arsonists. At the time, some on the left decried the long prison sentences as being harsh and unjustified.

Now, burning down a ranger station is obviously more provocative than burning acres of federal wildlife refuge land, or even occupying a ranger station. But the Hammonds faced mandatory minimum sentences because their arson was also treated as terrorism, by the letter of the same law. Should it have been? Should the E.L.F./A.L.F. defendants have been similarly charged? Both debatable subjects, to be sure. But that debate should definitely include how the terrorism laws changed in the 1990s, and how they have been used since.

This brings us to another point of reflection, one that gets glossed over by those either urging immediate action against the occupiers in Oregon or those claiming unfairness in the leniency of how law enforcement is currently treating them. Here's one example, again from Salon:

When peaceful, unarmed protesters tried to make a statement in 2011 with the Occupy movement, their encampments were brutally dismantled by law enforcement. Police didn't hesitate to use tear gas, rubber bullets and batons to clear them out. Nor was there any hesitation to call in the National Guard on Black Lives Matter protesters in Baltimore. So far, the Malheur occupiers are meeting no such resistance.

But this is a bit of rhetorical excess, no matter how much you agree with the sentiments expressed. Occupy Wall Street was indeed "brutally dismantled," but stating that police "didn't hesitate" is just flat-out inaccurate. Occupy Wall Street began on September 17th, 2011. The police cleared it out on November 15th -- almost two full months later. There was obviously quite a bit of hesitation on the part of the authorities, and the occupation was allowed to exist for a fairly long time before the harsh measures were used.

Those who now advocate what seem like commonsense courses of action for the government to take in Oregon might want to consider how they felt about Occupy Wall Street and all its emulators across America. Should the police have formed an impenetrable cordon around the occupied park, and cut off all food and other supplies to the protestors? That is what some are advocating now in Oregon. Should they adopt a "let people freely leave, but nobody else goes in" policy? Again, consider what that would have meant in Zuccotti Park and how you would have felt about it.

The New York City park in question was actually private property, and not federal (or even governmental) land. Occupying it was supposed to be a peaceful protest, but the group never coalesced around any sort of list of concrete demands -- even the word "demands" was rejected by them. "We're here and we won't leave until real changes are made" is kind of a vague thing to protest, when you can't even define what real changes you want made. This is something else to consider when reacting to the Oregon occupiers, who also seem quite vague on what exactly it would take for them to be satisfied enough to end their occupation. They want the return of federal land, it seems, but pinning down exactly what that would mean is a bit hazier, at least as of now. If they're really dedicated to stay until the federal government hands over all its lands in the West, they're going to be there for a very long time, to put it bluntly.

The two cases, obviously, have major differences. Occupy Wall Street happened in a dense urban environment. The Malheur National Wildlife Refuge might be called "the back of beyond," or "the middle of nowhere." The Wall Street occupiers were not armed and did not brandish weapons or make (or even imply) threats to shoot law enforcement officers. The Oregon folks are armed, and have made insinuations as to how hard they'll fight to continue their occupation, against any official who tries to evict them. But, so far, there has been no actual violence. In fact, so far there has been no real response whatsoever from the government. It's hard to aim a weapon at the jack-booted government thugs (so to speak) when they don't even bother to show up.

One other case might be more applicable to the discussion, although it happened less recently. In November of 1969, after several temporary forays, a group calling themselves Indians Of All Tribes occupied Alcatraz Island in the San Francisco Bay. This is one of the most interesting occupations of federal land for political purposes, because the occupiers had a legal rationale to back up their claim. According to them, the 1968 Treaty of Fort Laramie stated that all retired, abandoned, or out-of-use federal land was to be returned to the Native Americans from which it had been originally obtained. Since the Alcatraz prison had closed in 1963 and the land had been declared surplus property in 1964, the Indians claimed the land was fair game. The original occupation only lasted four hours (in March of 1964) and the occupiers generously offered the federal government the same amount for the land that had initially been offered when the government bought it -- 47 cents per acre, a total of $9.40 for the whole island.

The later 1969 occupation, however, lasted for an incredible 18 months. At its height, 400 people were living on the island, supplied by donations brought in by boat. The federal government had announced its intention to make Alcatraz a national park, but the occupiers had a far different idea -- a cultural center to educate the public on the history of Native Americans.

This was occupation in its purest form of political protest. The group wanted the land returned to them as the federal government had promised, so long ago. They felt they had a real and justifiable legal claim to the land. They engaged in peaceful protest to bring about change. Eventually they were forcibly removed from the island, but only after a year and a half of successfully occupying it. However, a few years later, other Native American activists occupied a town (Wounded Knee, South Dakota) for over two months, where gunfire was exchanged with law enforcement.

There are no absolute parallels between what is going on in Oregon and any other confrontations between law enforcement and protestors. Each case is unique. Of course it's a valid point that the racial and ethnic makeup of the protestors is a big factor in the government (so far) basically ignoring the guys in Oregon. Do you think the cops would react differently if the group were made up of African-Americans brandishing weapons on federal property? Or Native Americans? The hardest question to ask in this vein might be: What do you think the public would loudly be demanding right now if it were a group of armed Muslims?

Obviously, the issue would be a lot different as well if the protest were happening inside a populated area -- say, taking over a federal courthouse in a random city, or even (worst case) taking over the United States Capitol. My guess is that even white ranchers would face a lot more blowback if they had attempted occupying such high-profile targets, rather than a mere wildlife refuge.

But those who are quick to label the group domestic terrorists should remain consistent. Were the Occupy Wall Street folks also terrorists? How about the E.L.F. or the occupiers of Alcatraz or Wounded Knee? Does occupation of property define the term, or is it threats of (or acts of) violence? Should this include the original Oregon farmers, for their arson? Where should the line be drawn?

Right now, due to the legislative reaction from the first attack on the World Trade Center, the definition of domestic terrorism is quite broad and stiff mandatory minimum sentences are required for offenders. Should this, however, be reasonably be applied in the sentencing of the ranchers for burning 100-plus acres of federal land? In other words, is that the same thing as firebombing a federal courthouse? Where should the legal line be drawn? When does political protest devolve into terrorism? How should the crime of vandalizing a nuclear missile silo by symbolically pouring blood on it be handled (see: Plowshares Movement)? Terrorism, or legitimate First Amendment protest?

It's a lot easier to fall back on ideological knee-jerk responses to such incidents as it is to have a real debate about the definition of what is acceptable political protest and what should be called terrorism (or even "a prosecutable offense," for that matter). Consistency demands that the tactics used be examined and judged separately from the political motivations of those using them, but it's a lot harder to do so in real life. This is especially true for those advocating how the government should now react to the situation in Oregon. Because advocating for any one plan of action -- whether to ignore them and hope the protest will collapse of its own weight; to cut them off and not allow anyone (or any supplies) in; or to go in guns blazing and reclaim the land -- should mean that that's what you advocate in any similar protest whose objectives you might actually agree with. To put it another way, if it's fair game for a righty protest, then by equal treatment under the law it should also be a valid law enforcement tactic to use against a similar lefty protest.

-- Chris Weigant


Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant


21 Comments on “Occupation, Arson, And Terrorism”

  1. [1] 
    Elizabeth Miller wrote:

    To put it another way, if it's fair game for a righty protest, then by equal treatment under the law it should also be a valid law enforcement tactic to use against a similar lefty protest.

    Why must everything be seen in terms of right versus left and, in so doing, be given false equivalency? It's as though Michale isn't really on holiday. :)

    In the case of the gun-toting anti-government shit disturbers now occupying federal buildings in Oregon, it is worth pondering what would happen to America if everybody decided to settle their grievances in this manner.

    Now is the time to send a clear message to these zealots - if you have legitimate grievances with the government, then put down your precious weapons, end your nonsensical occupation and pursue legal ways to have those grievances addressed.

  2. [2] 
    neilm wrote:

    Switch off the electricity and wait for The Donald to say something asinine that dominates the news cycle for 2-3 days and it is all over.

    The Hammonds have accepted their punishment, and just like a black kid selling a bag of weed and getting a stupid 5 year sentence, their punishment is out of proportion to the crime, but that is what happens when everybody loses their head over terrorism - in fact, this case is a direct example of why the terrorists won in 1993.

    The best lesson to learn from this is that passing laws because of emotion, and using emotionally charged terms like 'terrorism' and 'terrorist' instead of 'crime' and 'criminal' is dumb. We probably have a few decades before we learn this lesson as a country.

  3. [3] 
    neilm wrote:

    Oh, and charge these clowns for any damage they do, and for trespassing after it is all over and they have gone home. Being treated like common criminals is the best thing we can do. Mugshots and petty criminal charges will humiliate them and warn off other such idiots in the future.

  4. [4] 
    Elizabeth Miller wrote:


  5. [5] 
    Paula wrote:

    I do think there is some difference between the Occupy protestors and these guys with respect to the emphasis on weaponry and threats of violence. No, they haven't shot anyone yet but they have threatened violence, which the Occupy folks never did. Nor have Black Lives Matter activists.

    I don't have a problem with the authorities waiting them out but I do have a problem if the authorities stand by and let a whole lot more armed people show up -- if that should happen. I gather these guys hope others will join them but so far there doesn't seem to be much enthusiasm on that front.

  6. [6] 
    neilm wrote:

    The Occupy folks made a mess in the center of major cities, and damaged police cars and cost a lot in police overtime:

    Black Lives Matter should be sponsored by Fox News as they got the most advertising dollars by being permanently outraged for months. Bill O'Reilly should be cutting them a seven figure check himself.

    Perhaps this is the future - Fox News will sponsor 'The New Black Panthers' and help them organize - to paraphrase Howard Hughes: "you provide the cameras and the ditsy blond anchor, I'll provide big black armed guys to scare the Fox News audience" ;)

  7. [7] 
    John From Censornati wrote:

    "if it's fair game for a righty protest, then by equal treatment under the law it should also be a valid law enforcement tactic to use against a similar lefty protest."

    Wow. What a rabbit hole. These terrists are threatening violence. The OWS and BLM movements did and do face hostile law enforcement and arrest although they didn't poach any deer, start any huge wildfires, or take over any government buildings with weapons and threaten to kill law enforcement agents.

    The Bundy posse's point all along has been that the law doesn't apply to them and ignoring their second armed provocation validates that point a second time.

  8. [8] 
    Speak2 wrote:

    As an Oregon resident who would rather not see any protest, legit or not, end in violence and death:

    A strategy that cuts them off from the outside world and an offensive that protects law enforcement but fires no offensive shots, aimed at towing their vehicles (and confiscating them for being used in a crime, as much as I hate civil forfeiture laws) would seem to be a reasonable response strategy that would be effective.

  9. [9] 
    Speak2 wrote:

    For those not in the know, there is a "meme" going around that they can come and go as they please and replenish their supplies as needed.

    They're in a wildlife refuge in Malheur County in the winter. They might, with some work, be able to grab a few rations of yellow beer and a variety of jerky products, but they are a far cry from being able to replenish supplies in any real sense with any ease.

  10. [10] 
    John From Censornati wrote:

    If you are threatening violence in pursuit of your political goals, then you're a terrist. If you're camping in a park and shouting a lot, you're not a terrist. If you're improperly touching an ATM like Denny Hastert, you're not a terrist, but Denny's going to prison. These terrists should join him.

  11. [11] 
    rdnewman wrote:

    @Speak2 [#8]

    ...aimed at towing their vehicles (and confiscating them for being used in a crime, as much as I hate civil forfeiture laws)...

    Just impound and ship their vehicles back to their home state and levy the fees to get them back out of hock would be enough. No forfeiture necessary. Being relatively isolated, facing costs to restore their lives would like be demoralizing enough without having to resort to civil forfeture.

    I live about three hours from Burns (I'm in ID, near Boise). Burns is a welcome food stop on the way to western OR, with lots of friendly people and a couple of decent restaurants. From news reports, it appears the town is responding as I'd expect: while glad that voice is given to frustrations with federal land management, most of the residents appear to want the "militia" to leave though a few openly support them. I'm sure the militia would find people that would happily give departing militia a ride to the nearest Greyhound station to go home (or the Sheriff's office for that matter).

  12. [12] 
    rdnewman wrote:

    (ugh, typos, sorry)

  13. [13] 
    Elizabeth Miller wrote:

    I pardon you.

  14. [14] 
    neilm wrote:

    I like the impound and ship idea - also, if they are claiming that are permanent residents in Oregon, don't they have to file Oregon taxes for last year and register their cars with Oregon plates?

  15. [15] 
    Speak2 wrote:

    You are all right, of course. Impounding is better than forfeiture. In any case, take their trucks. That would really have the effect we're looking for while being a perfectly reasonable (even low key) response.

    Snark Alert: Although now that they reportedly have a horse....

  16. [16] 
    neilm wrote:

    The horse changes everything!

    Now they are just good ole cowboys, hootin' it up.

    I think the locals should throw a big BBQ for them all downtown Burns and get them all to come along. It would be impolite to refuse to meet the new neighbors after all. Then there could be 'the airing of the grievances' :)

  17. [17] 
    Michale wrote:

    Why must everything be seen in terms of right versus left and, in so doing, be given false equivalency? It's as though Michale isn't really on holiday. :)


    I am always here, even if it's in spirit... :D


  18. [18] 
    dsws wrote:

    As I understand it, arson applies only to the burning of buildings, vehicles, and personal property. If the Hammonds burned only grass (which tends to burn anyway, in the natural order of things), then it really shouldn't be described as arson, even though the federal arson statute also covers intentionally-set grass fires on federal land.

  19. [19] 
    Mopshell wrote:

    From CNN:

    Acting U.S. Attorney Billy J. Williams of Oregon gave a starkly different perspective on the arson case.

    "Five years ago, a federal grand jury charged Dwight and Steven Hammond with committing arson on public lands and endangering firefighters," Williams wrote for the newspaper. "Steven Hammond was also found guilty of committing a second arson in 2006."

    He said a teenage relative of the Hammonds testified that Steven Hammond gave him a box of matches and told him to start the blaze. "The fires destroyed evidence of the deer slaughter and took about 130 acres of public land out of public use for two years," the prosecutor wrote.

    "The jury was neither asked if the Hammonds were terrorists, nor were defendants ever charged with or accused of terrorism," Williams wrote. "Suggesting otherwise is simply flat-out wrong."

    It also cost $600,000 to fight the deliberately lit fires and more than two years for the area to recover.

  20. [20] 
    Elizabeth Miller wrote:

    I am always here, even if it's in spirit... :D

    I know it.

    Hope you're having a grand ole time in Mexico. :)

  21. [21] 
    Osborne Ink wrote:

    "the Hammonds faced mandatory minimum sentences because their arson was also treated as terrorism" (STOMPS FOOT) No, Chris, please stop repeating the false RW talking points. The Hammonds were charged with *arson* under a law named for its provisions against *terrorism,* but they were absolutely NOT charged with "terrorism."

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