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Nlg Operation Backfire a Survival Guide for Environmental and Animal Rights Activists 2009

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A Survival Guide
for
Environmental and
Animal Rights Activists

national lawyers guild

The Backdrop
In 2004, several separate FBI investigations into the animal
rights and environmental movements were combined into
Major Case #220, also called Operation Backfire. Shortly
after, the FBI’s top official in charge of domestic terrorism announced that “The No. 1 domestic terrorism threat
is the eco-terrorism, animal-rights movement.” As a result,
members of these movements face heightened levels of law
enforcement surveillance, infiltration and harassment. Activists, their families and friends are contacted at their homes
and workplaces, and are often intimidated and pressured by
both local police and FBI agents to share information.
Laws such as the Animal Enterprise Protection Act (AEPA)
and the Animal Enterprise Terrorism Act (AETA) impose
more serious sanctions for certain crimes if committed by
animal rights activists. In some cases, the laws criminalize
traditionally protected First Amendment activities. Prosecutors often request “terrorism enhancements” to extend prison
sentences in cases involving animal rights and environmental
activists. In addition to longer prison terms, those sentenced
under terrorism laws or enhancements face harsher treatment
in prison, including possible placement in highly restrictive
Communication Management Units.

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Federal laws: AEPA and AETA
Both the AEPA (1992), and its successor, the AETA (2006),
create the federal crime of “animal enterprise terrorism” as
a means of prosecuting individuals for politically-motivated
advocacy on behalf of animals. Such legislation creates enhanced penalties in prison sentences and restitution payments
for activists.
In both laws, interstate travel or mail is necessary to make
the actions federal offenses. Under the AEPA, an activist
may be guilty of violating the law if he or she engages in
interstate or foreign commerce and intentionally damages the
property or causes loss of profits of an animal enterprise, or
conspires to do so.
The AETA expands the scope of the AEPA to apply to the targeting of secondary and tertiary businesses affiliated with those
involving animals. Under the new law, individuals must have
the “purpose of damaging or interfering with the operations of
an animal enterprise” and in connection with that purpose:
1. intentionally damage or cause the loss of any real
or personal property;
2. intentionally place a person in reasonable fear
of the death of, or serious bodily injury to that
person, a member of the immediate family of that
person, or a spouse or intimate partner of that person
by a course of conduct involving threats, acts of
vandalism, property damage, criminal trespass,
harassment, or intimidation; or
3. conspire or attempt to do so
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To be charged under the AETA, an animal rights activist
arguably needs only to join in a course of conduct to protest
or boycott an animal-related business. Use of the internet
and traditionally-protected speech like leafleting, sidewalk
chalking, and home protests can become the basis for an
indictment.

The first prosecutions
As of July 2009, the AEPA has been used twice: once against
two activists for releasing animals from fur farms in Wisconsin and once against a group called the SHAC7. However, in
the SHAC7 case, the charge was not that they committed acts
in violation of the AEPA, but that they conspired with others
through their web site and words.
At the time of this publication, there have been two indictments under the AETA. In early 2009, four activists were
arrested on terrorism charges as a result of their participation in protests against the University of California’s animal
research programs. In the second case, two activists were
arrested in connection with the release of hundreds of minks
from Utah fur farms. The alleged criminal activity in both
situations was non-violent and did not meet commonly
accepted notions of “terrorism;” this shows that the AETA
is already being used to restrict free speech and the animal
rights movement.

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Terrorism enhancements
Federal prosecutors who bring these cases to court have frequently argued for “terrorism enhancements.” Created in 1995,
the terrorism enhancement allows judges to increase sentences
by up to 20 years if a crime is (a) targeted at influencing the
government and (b) found on a list 55 specific terrorist acts
provided by Congress. The enhancement can be applied more
broadly, however, because the sentencing guidelines used by
judges allow its application even in the case of a planned act
that was not carried out, as long as it “involved, or was intended to promote, a federal crime of terrorism.” The government
recently sought a terrorism enhancement in the case of Briana
Waters, who was accused of serving as a lookout for a group
that set fire to a University of Washington research facility
despite evidence that she was in a different city at the time.

Treatment in prison
If convicted, animal rights and environmental activists should
be prepared to be treated differently in prison. Environmental activist Daniel McGowan and SHAC7 member Andrew
Stepanian were unexpectedly transferred to highly restrictive
and isolated Communication Management Units (CMU). CMU
facilities block most forms of contact with the outside world,
such as regular visitation and telephone privileges, and, until
now, have been reserved for inmates who are considered highly
dangerous.

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How to Assert your rights
If an FBI agent or police officer knocks at your door
Do not open the door. State that you are going to remain silent.
Do not answer any questions, or even give your name. Anything you say, no matter how seemingly harmless or insignificant, can be used against you or others. Ask the agents to slide
their business cards under the door and tell them that your
lawyer will contact them. If the agent or officer gives a reason
for contacting you, take notes and give the information to your
lawyer. Lying to an agent or officer is a crime. Do not pretend
you are someone else or in any way misrepresent the truth.

If an agent or officer asks to search your home or office
You can refuse a search unless the agent or officer has a warrant. State, “I do not consent to a search,” but do not interfere
if they begin to search anyway. If you live with your parents,
they can consent to a search of the home, including your
space. If you live with roommates, they can only consent to
the search of common spaces. Your employer can consent to
a search of your workspace without your permission.

If an agent or officer has a warrant
Ask him or her to slide the warrant under the door so you can
read it. Search warrants should include the correct address,
date, places to be searched, and items to be taken. Arrest warrants should include the date issued and correct name of the
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person to be arrested. In either case, if any of this information is missing or incorrect, the warrant is void. Not complying with or interfering with a search warrant will probably
result in your arrest. If they have a warrant, ask if you can
observe the search; if they allow it, consider taking notes
including identifying information of the agent (e.g. name,
badge number, gender, height). When he or she is done with
the search, ask for the receipt page of the warrant and a list
of all items seized.

If an agent or officer stops you on the street
Ask, “Am I free to go?” If the answer is yes, consider just
walking away. If the answer is no, state, “I have nothing to
say. I want to talk to a lawyer. I do not consent to a search.”
If the police say you are not under arrest, but are not free to
go, then you are being detained. You do not have to answer
any questions. You do not have to open bags or any closed
container. The police can, however, pat down the outside
of your clothing if they have reason to suspect you might
be armed and dangerous. If they search more than this,
state clearly, “I do not consent to a search.” They may keep
searching; if this happens, do not resist because you can be
charged with assault or resisting arrest.

If you are asked to show identification
While you have more protections and do not need to reveal
this information if contacted at home, if you are away from
home the laws vary from state to state. Some require you to
give your name and/or identification if asked, while others
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do not. You should familiarize yourself with the requirements
for your state. If you are approached by an agent or officer
and are unsure of your state’s policy, make a decision based
on your comfort level and your particular situation.

If you are stopped in a car
Keep your hands where the police can see them. If you are
the driver you must show your license, registration and proof
of insurance. You do not have to consent to a search but the
police may have legal grounds to search your car anyway.
State clearly that you do not consent to the search. If officers
separate passengers and drivers in order to question them, no
one has to answer questions.

If an agent or officer asks for a sample of your DNA
You may be asked for permission to do a cheek swab to collect DNA. In this situation you can, and should, refuse the
request. While the police and FBI can ask for a DNA sample,
this falls into the same category as a search of your home—
unless they present a warrant, you have the right to say no.
If you are arrested by federal agents, even before being
charged with a crime, they can take a DNA sample and send
it to the CODIS (Combined DNA Index System) database.
The authority of local police, however, varies from state to
state. The following states give police the power to collect a
DNA sample if you are under arrest: Alaska, Arizona, California, Kansas, Louisiana, Minnesota, New Mexico, North
Dakota, Tennessee, Texas and Virginia.
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If a DNA sample is taken when you are charged with a crime
but you are never convicted, you may be able to have your
record removed from the CODIS database. Laws vary from
state to state—some states allow for the removal of your
DNA profile upon presentation of a court order confirming
the dismissal of charges against you. You should familiarize
yourself with your state’s laws.

If you have already spoken to an agent
You can choose to remain silent at any time, even if you have
already spoken to police and answered some questions. You
should state, “I have nothing to say. I want to talk to a lawyer.”

If an agent approaches you about becoming an informant
The NLG has received calls about agents pressuring activists
to become informants. If you have been approached, you
should call the NLG Green Scare Hotline at 888-NLG-ECOL
(888-654-3265) immediately. Agents may intimidate or pressure you into acting as an informant. They may promise that
doing so will reduce your own sentence, should you be connected to an illegal action. They may even offer you money
and other incentives. If you succumb to their pressure tactics
and say yes, know that you have the right to change your
mind at any time. It is extremely important that you contact
a lawyer for assistance and advice if you find yourself in this
situation.

8

If you receive a grand jury subpoena
A grand jury subpoena is a written order for you to go to
court and testify about information you may have. You are
not allowed to have a lawyer present and can be required
to answer questions about your activities and associations.
Because of the witness’s limited rights in this situation, the
government has frequently used grand jury subpoenas to
gather information about activists and political organizations.
It is common for the FBI to threaten activists with a subpoena in order to elicit information about their political views
and activities and those of their associates. There are legal
grounds for stopping subpoenas, and receiving one does not
necessarily mean that you are suspected of a crime. If you
do receive a subpoena, call the NLG Green Scare Hotline at
888-NLG-ECOL (888-654-3265) or a criminal defense attorney immediately.
The federal government regularly uses grand jury subpoena
power to investigate and seek evidence related to politically-active individuals and social movements. This practice
is aimed at prosecuting activists and, through intimidation,
discouraging continued activism.
Federal grand jury subpoenas are served in person. If you
receive one, it is important that you retain the services of a
progressive attorney, preferably one who understands your
goal of defending the political movement and friends. Most
lawyers are trained to provide the best legal defense, often
at the expense of others. Beware lawyers who advise you to
cooperate with grand juries, testify against friends, or cut off
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contact with your friends and political activists. Cooperation
usually leads to others being subpoenaed and investigated.
You also run the risk of being charged with perjury, a felony,
should you omit any pertinent information or should there be
inconsistencies in your testimony. Frequently prosecutors will
offer “use immunity,” meaning that the prosecutor is prohibited from using your testimony or any leads from it to bring
charges against you. If a subsequent prosecution is brought,
the prosecutor bears the burden of proving that all of its evidence was obtained independent of the immunized testimony.
You should be aware, however, that they will use anything
you say to manipulate friends into sharing more information
about you by suggesting that you have betrayed confidences.
If you appear before the grand jury you do not have the same
protections as in a trial: you have no 5th Amendment right to
remain silent (if you invoke your right to remain silent you may
be held in contempt) and no 6th Amendment right to counsel although you can consult with one outside of the grand jury room.

Grand jury non-cooperation
If you receive a grand jury subpoena and elect to not cooperate, you may be charged with civil contempt. There is a possibility that you may be jailed or imprisoned for the length
of the grand jury, in an effort to convince you to cooperate.
(Regular grand juries sit for a basic term of 18 months, which
can be extended up to a total of 24 months.) It is lawful to
hold you in order to coerce your cooperation, but unlawful
to hold you as a means of punishment. In rare instances you
may face criminal contempt charges.
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After contact with an agent
Immediately call your attorney. If you don’t have one,
contact your local National Lawyers Guild chapter (listed on
www.nlg.org). After an agent or officer contacts you, alert
your relatives, friends, co-workers and others so that they
will be prepared if they are contacted as well.

standing up for free speech
Operation Backfire, the passage of domestic anti-terrorism
legislation and the use of terrorism sentencing enhancements
all hinge on the exploitation of fear. Some activists, along
with prosecutors, judges and juries have bought into the
FBI’s new rubric of fear:
1. some activists have turned informants or provided
false information about other activists to avoid government reprisal
2. many jurors—fearful, gullible or uninformed—simply disregard the law by convicting defendants
regardless of the lack of evidence against them
The largest casualty of this misinformation campaign is the
First Amendment’s fundamental right to free speech and
association. The government’s crusade against politically-active individuals discourages the exercise of time-honored free
speech activities, such as boycotts, protests and grassroots
organizing. In creating unnecessary and often unconstitution11

al legislation that punishes statutory offenses more seriously
if committed by animal rights and environmental activists,
individuals are being branded terrorists and free speech is
chilled for all.
Remember that you have the right (some movement lawyers
and activists would say that you have a moral imperative) to
stand up to FBI agents and other law enforcement officials.
In case after case, informed resistance to intimidation tactics
has brought positive results—sometimes just saying that your
lawyer will contact them is enough to stop future visits or inquiries. Grand jury non-cooperation has often resulted in no
additional subpoenas being issued. Every activist who takes a
courageous stand makes future resistance easier for all.

disclaimer
This booklet is intended as an introduction to new laws and
practices specifically created to target animal rights and
environmental activists. It is not a substitute for legal advice.
You should contact an attorney if you have been visited by
the FBI or other law enforcement officials.

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NLG Green Scare Hotline
(888) NLG - ECOL
(888) 654-3265

national lawyers guild
132 Nassau Street, Rm. 922
New York, NY 10038
www.nlg.org
ISBN-13: 978-0-615-30785-5

 

 

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