The Case of Sherman Austin
Muzzled Activist in an Age of Terror
By JOSHUA FRANK
and MERLIN CHOWKWANYUN
On the afternoon of January 24, 2002, approximately 25 federal agents, guns in hand, stormed the home of Sherman Austin, a Sherman Oaks, California activist who founded raisethefist.com, an online site that hosted many political activists' websites. The federal agents, who had been monitoring Austin's Internet activities for several months, seized his computers and other personal belongings, including anti-war and anti-globalization literature.
"They showed me a search warrant, and I just glanced at it They just went into the house. They searched all the rooms in the house. They knew where my room was. They went back there, looked at all the computers, asked me to come in and tell them what all the computers were for specifically so they knew how to dismantle the network I had been running," Austin recalled. "They searched the garage, pretty much everywhere with their guns still out and drawn. They still had people surrounding the house with their weapons drawn."
When the agents later left Austin's home, his room had been ransacked, but they failed to charge him with a crime. Austin, bewildered by the search, still planned on driving to New York City to protest the World Economic Forum in early February 2002.
Upon arriving in New York, though, Austin was quickly apprehended by city police. "While I was in jail, they handcuffed me and took me to a backroom, where a detective from the FBI and a Secret Service agent were, and they interrogated me for about three or four hours," Austin said. "During this whole time, I kept noticing more and more FBI agents walking in and out of the room. They asked me stupid questions like whether I was a terrorist or involved in any terrorist organizations. I told them, 'No,' and it's funny, one of the agents looked at me like I was seriously a terrorist and that I was lying to him."
So what was the charge?
"They said I was being arrested for distribution of information related to explosives over the Internet [My] site [was linked] to another site, which wasn't affiliated with raisethefist.com, but which was hosted on the same server because I gave hosting space to different people who wanted some free hosting. I just provided the link to that site. It was called the Reclaim Guide. It was just a general protest guide that went over security culture and stuff like that. A small portion of that guide dealt with explosives information. This information was just pathetic compared to the type of stuff you could find in any library or any other website. There's so much detailed information out there on explosives and how to use and build explosives that you can find on the Internet. If someone wanted to use explosives for illegal purposes, I don't think they would rely on raisethefist.com to get their information.
"There's something on the Internet called the White Resistance Manual. It's pretty much for white supremacists to carry out a large-scale guerilla campaign through means of assassination, threats, obtaining funds through fraud, everything from firearms to explosives. I've seen, not surprisingly, no action taken against those people, but here I am, an anarchist website, not even close to what that is, not even close to what else you can find on the Internet.
"While they were at my house, interrogating me, they asked me about seven times if I authored the Reclaim Guide. I told them seven times I didn't author it. In the arrest warrant that they had written after the raid when they arrested me in New York, it says that I told them I authored the Reclaim Guide. It's funny how they try to slip it by and build a whole fraudulent case against you with things that you didn't do."
Austin was later sentenced for "distribution" of information about making or using explosives with the "intent" that such information "be used for, or in furtherance of, an activity that constitutes a Federal crime of violence." This vaguely worded crime is banned under 18 USC. 842 (p)(2)(A), successfully pushed through Congress in the late 1990s after years of effort by Democratic Senator Dianne Feinstein. Consequently, Austin received and spent one year in a federal prison. Although the worst of his nightmare in the judicial system is over, Austin will continue to face new challenges now that he is out of prison.
"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 web sites. 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.
Before the now well known Patriot Act there was The Antiterrorism and Effective Death Penalty Act, which was signed into law following the Oklahoma City bombing that took place on August 19, 1995, prompted the worst assaults on civil liberties the United States had seen in decades.
"Members of Congress immediately felt tremendous pressure to pass antiterrorism legislation," write Georgetown law professor David Cole and James X. Dempsey in Terrorism and the Constitution. "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 Antiterrorism and Effective Death Penalty Act of 1996."
"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 US 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 US 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 upon civil liberties. Speaking of the legacy of these breaches in the guarantee of civil liberties, Clinton himself admitted to making "a number of ill-advised changes in our immigration laws, having nothing to do with fighting terrorism."
Fast-forward now to Sherman Austin's trying 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 misguidance 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 thanks to 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."
Most recently, in February 2004, Martin attempted to recover computer equipment seized by the FBI when they raided Austin's house on January 24, 2002. Although those computers were later returned, the hard drives containing Austin's data had been removed. When Martin asked for an explanation for the removal of Austin's hard drives, FBI Agent John I. Pi, who headed the Austin investigation, offered her several contradictory explanations. Initially, Pi explained that Austin's data needed to be destroyed. At a later date, however, he claimed that the data needed to be handed over to local prosecutors for possible state charges. As of October 2004, questions concerning the hard drives-including their location and whether they will be returned-remain unanswered. Austin learned in early November 2004, however, that he would not face any state charges.
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 by Pi 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, and one that 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 e-mails to Austin, unsuccessfully attempted to provoke him into writing self-incriminating replies.
"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," Austin recalled shortly before he entered prison. "The first thing I thought when I read that e-mail 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."
Sadly, media outlets of both mainstream and leftist persuasions continue to ignore Austin's case and its implications for the fate of civil liberties in the United States. Despite increasing criticism of the USA Patriot Act, few commentators from the left- including magazines like The Nation and organizations like the ACLU, MoveOn-mentioned Austin's case or Clinton's Antiterrorism and Effective Death Penalty Act in any of their writings on recent civil liberties infringements. However, the Electronic Frontier Foundation, a smaller-budgeted and more radical civil rights group, did offer their services. But perhaps the collective ignorance concerning Austin's ordeal by mainstream liberal publications and organizations stems from the fact that Democratic congressional leaders, including Austin's own California senator, penned and supported the very legislation that helped seal Austin's unfortunate fate.
"The statute that [Democratic] Senator Dianne Feinstein sponsored and wrote just goes to show that this has been happening for a while," says Sherman.
*For those interested in helping or learning more about Sherman Austin's ongoing case, please visit freesherman.org.
Joshua Frank is the author of the forthcoming book, Left Out!: How Liberals Helped Reelect George W. Bush, to be released in early 2005 by Common Courage Press. He can be reached at: [email protected]
Merlin Chowkwanyun is a student at Columbia University in New York. He hosts a radio show on WBAR NYC 87.9 FM, wbar.org.