What the Stand Off in Oregon is Distracting Us From
On April 24, 1996, President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act into law. This act was introduced by Senator Bob Dole, and it had bi-partisan support. It passed the Senate with a vote of 91 to 8 and passed in the House of Representatives with a vote of 293 to 133. Not unlike the Patriot Act, this act was introduced and passed in response to terror attacks, both the bombing of the World Trade Center in 1993 and the Oklahoma City bombing of the Alfred Murrah building in 1995. The stated purposes of the act are to “deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes.”
In the years between the two bombings, the panic-inducing rhetoric was in full swing over home-grown, right-wing extremist, anti-government terrorism (not unlike today). Of course, Timothy McVeigh played into that perfectly with a Ryder truck with home-made fertilizer bombs in the back. It is easy to see, after that bombing, how law makers on all sides would want to be viewed as doing their part to fight terrorism.
Since 1996, the existence of this law, and its use, seems to have been largely under-reported. I have not been able to find out just how often it has been used in prosecution to date. David Cole, lawyer and Georgetown University Law Professor, in an interview on Democracy Now discussing possible revisions to the Patriot Act in 2009 said:
This law was passed, as you indicated, in 1996, but it really was left unenforced until September 11th. Since September 11th, however, it’s been a favorite tool of the government. There have been over a hundred prosecutions. And the reason it’s the favorite tool is precisely because it doesn’t require the government to prove up that an individual actually is connected to any kind of terrorist activity. It allows them to paint with a broad brush.
It is a very broad brush indeed.
In 2012, the Bureau of Land Management (BLM) filed charges against Dwight and Steven Hammond, a father and son and long time residents and ranchers in Harney County, Oregon. The Hammonds were prosecuted under the Anti-Terrorism and Effective Death Penalty Act. What was this act of terror committed by the Hammonds? Well, Dwight and Steven Hammond were charged with, and they admitted to, setting two fires on their land which subsequently spread to federal land. Admittedly, there is a lot of background to this case, including questions surrounding the two fires and a long history of protests and threats, and I am working on another post that will go into greater detail on those. But, for now, lets look at the two fires in question, and consider how these acts qualified the Hammonds for prosecution under this broad law.
At trial, historical data and testimony established a long-standing plan between the Hammonds and their BLM range conservationist to burn off invasive species on the “School Section” of the Hammonds’ property. ER-316-18. Fire is a tool regularly used by the BLM to rehabilitate grazing lands.
Defendants had acknowledged intentionally setting a fire on September 30, 2001 to burn off invasive species on the School Section, which then spread to approximately 139 acres of adjacent public land (the “Hardie-Hammond Allotment”). ER-287, 243.
At trial, the government presented evidence that the fire was set in
a manner designed to spread on to the public land, and had endangered members of the Hammonds’ party.
Nearly 11 years after the fact, Dusty Hammond recalled for a jury Wednesday in a U.S. District Court how he stumbled through juniper and sagebrush to escape a fire bearing down on him, a fire he helped set.
Hammond, 24, softspoken and clean cut, explained how his first-ever deer hunt near Frenchglen turned to arson after his uncle Steve Hammond passed out boxes of strike-anywhere matches to the four-man hunting party.
“Light the whole countryside on fire,” Dusty said his uncle told him. “I started lighting matches.”
Afterwards, he said, over lunch his grandfather and uncle instructed him to “keep my mouth shut; nobody needed to know anything about the fire.”
It has been reported that this fire was started to cover up evidence of poaching on federal land by the Hammonds.
The second fire that plays a role in the Hammonds’ case was lit in 2006. This fire is said to have been started as a back burn to protect the Hammond’s winter feed from fires that were ignited by lightning. Court documents say:
The facts of this fire are straight forward. The Ninth Circuit stated:
In August 2006, a lightning storm kindled several fires near where the Hammonds grew their winter feed. Steven responded by attempting back burns near the boundary of his land. Although a burn ban was in effect, Steven did not seek a waiver. His fires burned about an acre of public land.
(5) the term “domestic terrorism” means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
A federal indictment charges the pair with nine counts, including conspiracy and setting illegal fires on federal grazing land, fires that coincided or contributed to the Hardie Hammond, Lower Bridge Creek and Krumbo Butte fires.
One count alleges witness tampering, a charge Papagni [prosecutor in the Hammonds’ case] said stems from a confrontation in Frenchglen between Steve Hammond and Joe Glascock, a rangeland conservation manager who suspected the Hammonds of setting rangeland fires. Hammond in 2006 told Glascock: ‘This could get ugly, and this could be a sticky situation,’ the prosecutor told jurors. ‘You set those fires, not me.’
This July 2015 article states:
BLM pressed charges for the above-mentioned fires, citing endangerment of human lives and damage to federal property. However, the district court found that no one had been endangered by the fires, and that the fires had caused minimal damage. In fact, the court found, the fire had arguably increased the value of the land for grazing.
In determining the Hammonds’ sentences, Judge Hogan had decided that applying the “mandatory minimum” of five years cited in the Antiterrorism and Effective Death Penalty Act would ‘shock the conscience…’ He referenced the Eighth Amendment of the Constitution, which states, ‘Excessive bail shall not be required…nor cruel and unusual punishments inflicted.’
To call for five years’ imprisonment, he said, ‘would result in a sentence which is grossly disproportionate to the severity of the offenses here…’ He said that Hammonds’ actions ‘could not have been conduct intended under [the Anti-terrorism and Effective Death Penalty Act]…’ Judge Hogan used his discretion under the Eighth Amendment to sentence Dwight (now 74) to three months in prison, followed by three years’ “supervised release.” Dwight’s son Steven (45), father of three, was sentenced to one year and one day in prison—also to be followed by three years’ “supervised release.”
The Hammonds were ordered to surrender their firearms, and Dwight Hammond’s pilot’s license was revoked. In a separate settlement, they were fined $400,000.00 by the BLM for damages and they had their grazing permits withheld. However, for the US Department of Justice, this wasn’t enough.
Judge Hogan’s decision to sentence the Hammonds to prison time of less than five years challenged the federal government’s mandatory minimum sentencing structure. It challenged the use of the anti-terrorism act to prosecute the ranchers. The prosecutor in the case, Assistant US Attorney Frank Papagni, said this:
“Congress decided that this particular offense should carry a mandatory, statutory minimum term of five years,” Papagni wrote in the government’s sentencing memo. “The evidence of defendants’ guilt was substantial. The jury’s verdict of guilt for this particular offense mandates imposition of the required statutory minimum term, as the statute constrains this court’s discretion.”
In the comment section of the same article, I found the following two comments to be especially interesting.
Has an appellate court ever decided that a particular sentence under the USSG [United States Sentencing Guide] is grossly disproportionate to the crime? I don’t think so. It would open a huge can of worms and possibly undermine the entire federal sentencing scheme. I think that it being the judges last day and that these were decent white ranchers had more to do with this decision than anything else.
From the government’s point of view, assuring that judges obey MM’s [mandatory minimum] is a paramount interest. That’s why it will appeal this. To do otherwise is to virtually send the other district judges a gold-plated invitation to deviate from the MM when they want to.
The US Department of Justice appealed the ruling, and the Ninth Circuit Court of Appeals remanded the case back to the Oregon US District Court. In the appeal, according to this article, the government admits it doesn’t have to prove that someone is committing acts of terror when they state:
“the fact that they are ranchers who set fire to rangeland and not terrorists adds nothing to the analysis.”
Also in the appeal, the government uses the following disturbing examples of mandatory minimum sentences as justification: 25 years for the theft of three golf clubs; 50 years to life for stealing nine videotapes; 40 years for possession of nine ounces of marijuana with the intent to distribute; life sentence for obtaining $120.75 under false pretenses (what?!); 430 months for using arson in commission of a felony; and so on. Because let’s see, one, two, three…many wrongs make a right, right?
Chief Judge Ann Aiken over-ruled Hogan’s sentence, and declared the Hammonds would have to return to prison and serve what remained of the mandatory minimum sentence of five years.
Dwight and Steven Hammond have returned to prison, but the re-sentencing sparked a protest rally in Burns, Oregon on Saturday, January 2, 2016. The peaceful protest was subsequently over-shadowed by a takeover of the Malheur National Wildlife Refuge headquarters by non-local militia members who claim to have done so to demand that the Hammonds be released and the refuge lands be returned to the area ranchers. You can read my thoughts on this take-over and stand off here, as well as a similar perspective here.
In the vast majority of the reporting and social media noise about this situation, very few are talking about the use of the Anti-Terrorism and Effective Death Penalty law in the prosecution of the Hammonds. In my opinion, this case has demonstrated the government’s willingness to expand the use of this law in its efforts to shut down dissent of federal policies. Ranchers angry over the increasing restrictions on their livelihood, pushed to the point of what has sometimes been destructive and threatening protest, can effectively be sentenced as terrorists. And, as we know, terrorists are very, very scary.
The take-over of the Malheur refuge has created a distracting and extremely divisive debate here in America. In public opinion it seems that protests over police killings, which have also involved arson in the past, are acceptable because it involves racism and is a matter of authorities violating the rights of African Americans (and I 100% agree that rights are not just being violated, but entirely obliterated, racism is a problem, and I do support those protest movements) while the protests of frustrated ranchers over perceived violations of their land use rights by Federal authorities is unacceptable and labeled as terrorism. In fact, both are about the violations of the rights and freedoms of Americans. Consider a comparison different than the one the media is currently pushing with this quote from a 2001 article:
“They [rural land owners] are neglected by the state and by the federal government, and they’re mad,” says Eric Herzik, a political scientist at the University of Nevada. “They’re out of the loop; decisions get made for them. It’s not unlike inner cities, whose needs don’t get heard until there’s violence.”
While we argue and call names loudly over this stand off and those involved in it, the government has quietly set a precedence of using its very broad anti-terrorism law and its ability and willingness to set and enforce mandatory minimum sentences under that law. Regardless of who is sentenced, and for what.
Consider the following from an ACLU report as you think about that.
There is a pall over our country. In separate but related attempts to squelch dissent, the government has attacked the patriotism of its critics, police have barricaded and jailed protesters, and the New York Stock Exchange has revoked the press credentials of the most widely watched television network in the Arab world. A chilling message has gone out across America: Dissent if you must, but proceed at your own risk.
Government-sanctioned intolerance has even trickled into our private lives. People brandishing anti-war signs or slogans have been turned away from commuter trains in Seattle and suburban shopping malls in upstate New York. Cafeterias are serving “freedom fries.” Country music stations stopped playing Dixie Chicks songs, and the Baseball Hall of Fame cancelled an event featuring “Bull Durham” stars Tim Robbins and Susan Sarandon, after they spoke out against the war on Iraq.
Compounding the offense is the silence from many lawmakers. There is palpable fear even in the halls of Congress of expressing an unpopular view.
No matter how you feel about the presence of those scary guns at the Malheur Refuge, and no matter how you feel about environmental stewardship, and no matter how you feel about inner city people or rural people or race or racism, it is time to look beyond all that and look at the underlying problems we are all facing. It is past time to admit we have allowed our government to step way out of its boundaries. Each time we ignore cases like the Hammonds’, every time we give up rights of our own or others, we slide a little closer to fascism.