Muzzled Activist in the Age of Terror

“It was such a weird charge because it’s almost like thought crime. How do you prove that someone has intent? I can go to tons of other websites that have [information about] explosives—especially white supremacy websites. We obviously know they have intent because they’ve used that type of information before against people. They’re not being prosecuted for it.” 

Austin intended to fight the charges, but eventually pled guilty after his federal public defender, Ronald Kaye, advised him to do so, fearing that new “terrorism enhancements” in the federal sentencing guidelines would earn Austin an extra 20 years in prison. The severity of the United States Sentencing Commission guidelines, which was created in the mid-1990s, expanded greatly after passage of President Clinton’s 1996 Antiterrorism and Effective Death Penalty Act and the USA PATRIOT Act passed under President Bush in 2001. 

The 1996 Antiterrorism and Effective Death Penalty Act was signed into law following the Oklahoma City bombing on August 19, 1995. It prompted the worst assaults on civil liberties the United States had seen in decades. “The act was wide-ranging, dealing with everything from the making of plastic explosives to trading in nuclear materials,” writes George- town law professor David Cole and James X. Dempsey in Terrorism and the Constitution . 

“Members of Congress immediately felt tremendous pressure to pass antiterrorism legislation,” Cole and Dempsey recall. “It did not matter that the proposals in the President’s initial bill were directed largely against international terrorism, while the Oklahoma bombing was the work of homegrown discontents…. Eager to get the bill on the President’s desk by the April 19 anniversary of the Oklahoma City bombing, the Senate adopted the conference report on April 17 in a 91-8 vote. The next day, the House also adopted the report by a vote of 293-133.” On April 24, President Clinton signed the Act. 

“To make the death penalty effective,” explains civil liberties expert Elaine Cassel in The War on Civil Liberties , “meant making it harder to appeal convictions of capital offenses.” Clinton’s law, says Cassel, also “[made] it a crime to support even the lawful activities of an organization labeled as terrorist…[authorized] the FBI to investigate the crime of ‘material support’ for terrorism based solely on activities protected under the First Amendment…[freezes] assets of any U.S. citizen or domestic organization believed to be an agent of a terrorist group, without specifying an ‘agent’…[expanded] the powers of the secret court…[repealed] the law that barred the FBI from opening investigations based solely on activities protected under the First Amendment…[and allowed] the Immigration and Naturalization Service (now called the U.S. Citizenship and Immigration Services) to deport citizens (mostly Muslims) upon the order of INS officials.” 

Of course, these are but a few of the ways in which the Clinton administration infringed on civil liberties. Speaking of the legacy of these breaches in the guarantee of civil liberties, Clinton admitted to making “a number of ill-advised changes in our immigration laws, having nothing to do with fighting terrorism.” 

In the wake of September 11, it was not surprising that Bush, along with then-Attorney General John Ashcroft, legislated additional infringements on civil liberties in the name of patriotism and national security. Spun as such, the legislation enjoyed overwhelming support—so much so that Democrat Senator Russell Feingold of Wisconsin, one of a handful of Democrats who reached across the aisle to confirm Ashcroft following the tremulous 2000 election, was the only member of the Senate to vote against the legislation. Many Democrats—including John Kerry, who voted for Clinton’s 1996 bill and boasted that he “authored a provision of the PATRIOT Act that added several money laundering crimes as potential predicate offenses”—co- authored parts of the PATRIOT Act. 

Fast-forward now to Sherman Austin’s case. In hearings leading up to the eventual one-year sentence, which was three times the length recommended by federal prosecutors, federal judge Stephen Wilson made critical statements about Austin’s political beliefs such as: “Why should someone at 19, who, arguably, has some mis- guidance on some geo-political issues, be given a pass?” 

Faced with three years of supervised release and probation, Austin is now subject to having his computer access monitored and his equipment inspected with or without prior notification. He is allowed to associate with activists and political groups—save for those that, in the words of the probation department, “espouse violence or physical force as a means of intimidation or achieving economic, social, or political change.” There is of course one minor problem: how to determine whether groups that, say, employ civil disobedience or street protest fall under such language. 

Austin’s troubles, meanwhile, have proven to be quite trying for his family and loved ones, most notably his mother, who lost her job because of her son’s ordeal. “It has depleted my finances,” says Jennifer Martin. “Any money that was donated was used for organizing—and used for his commissary and visiting him. This organizing campaign has been extremely expensive and time consuming. It’s like someone took my life, put the pieces in a bucket, and scattered them in a 20-acre field.” 

Given the highly questionable circumstances surrounding Austin’s case, it should come as no surprise that FBI conduct in Austin’s case came under sharp criticism. Affidavits written for judges to authorize the FBI raid and Austin’s subsequent arrest one week later contained many factual errors, including the claim that Austin authored the bomb-making instructions, which the FBI and federal prosecutors continued to make even after speaking to the actual author, a teenage boy from Orange County, California, who confessed authorship to FBI agents. Agents also enlisted the help of a right-wing militia member, who, in emails to Austin, unsuccessfully attempted to provoke him into writing self-incriminating replies. 

“I get this email from him saying that he wants to go with me to the Olympics to smash capitalism and do all this radical anti-capitalist stuff,” Austin recalled shortly before he entered prison. “The first thing I thought when I read that email was [that it had to be from the] FBI.” 

Later, with the help of grassroots activists, Martin spoke out about her son’s case at public panels throughout 2003 and 2004. “The positive thing about this,” she explained, “is that there’s a passionate community out there that has offered me their undying support. On a spiritual level, I feel I have evolved tremendously. I have met some amazing people, especially young people. I really feel this world has a chance for surviving,” Martin said. “These kids are good people. They are trying so hard to create change in our world.”