Revolutionary Worker #1217, October 26, 2003, posted at rwor.org
It was January 2002 when the government first came after Sherman Austin because of his political activism. On September 3, 2003, they locked him up for it.
Sherman is the first person to be charged under 18 U.S.C. 842(p), a 1997 "anti-terrorism" law authored by California Senator Dianne Feinstein. This federal law mandates up to 20 years in prison for anyone convicted of "distribut[ing] bombmaking information with the knowledge or intent that the information will be used to commit a violent federal crime" [emphasis added].
Distributing such information is not illegal; in fact, it's widely available through libraries, bookstores, universities, and the Internet. What is illegal, under this law, is for someone to pass on such publicly available information with the "knowledge" or "intent" that it will be used to commit a "violent federal crime." But how can someone who runs a website (or a library or bookstore) possibly know what some anonymous visitors are going to do with the information that is available at those locations? Put plainly, the target of this law is "thought crime."
On August 4, Federal District Court Judge Steven V. Wilson sentenced Sherman Austin to one year in federal prison and three years probation. The overtly political terms of the probation include the following: Austin cannot possess or access a computer of any kind without prior approval of his probation officer; if he gets that approval, the equipment is subject to monitoring and to search and seizure at any time, without notice; he must surrender his phone, DSL, electric, and satellite bills to his probation officer; and he cannot associate with any person or group--environmental, social justice, political, or economic--that seeks to change the government in any way!
A little background about the political persecution of Sherman Austin underscores the seriousness of the situation--for him and for anyone who dares to speak out against injustice--and the ominous intentions of a ruling class determined to silence opposition.
Sherman Austin, a young Black anarchist, is probably best known for the activist anarchist website he hosted, RaiseTheFist.com. The site was visited by hundreds of people every day. It had also been monitored by government agents for at least four years before they made their move on Sherman.
As a service to the movement, Sherman provided space on his server to people who wanted free hosting for their website. This simply means that Sherman allowed other people to put up links to their website on RaiseTheFist.com. He did not author, monitor, or censor any of the sites he hosted.
One of those who took advantage of Austin's free hosting policy was a suburban white youth from a well-to-do, politically conservative family. This person had written something he called "The Reclaim Guide," which provided crude bomb-making information. A couple of years ago, this person posted a link to his "Guide" on Austin's RaiseTheFist.com website. Government agents had interviewed the author of the "Guide," so they knew who had actually written it. But the posting of the link to the "Guide" provided the pretext for one of the government's first "anti-terrorism" raids after the passage of the U.S. Patriot Act--a raid not on the author of the "Guide" but on Sherman Austin.
On January 24, 2002, the Los Angeles Joint Terrorism Task Force led a small army of FBI, Secret Service, LAPD and L.A. Sheriffs in a military-style invasion of the suburb where Sherman Austin, then 18 years old, lived with his mother and sister. Brandishing machine guns, the feds and L.A. police surrounded Austin's house, barricaded the garage, and approached the front door with a battering ram. For over six hours they interrogated Sherman about his friends, his relationships, and mainly about his politics and his website. They ransacked Sherman's room and confiscated all of his political literature, taking everything from independent newspapers to leaflets announcing upcoming demonstrations. When they left, they took with them just about the entire contents of his room and every computer in the house.
The government's 29-page search warrant--containing what they claimed to be "evidence" to justify the raid--was jam-packed with references to Sherman Austin's politics. The warrant accused RaiseTheFist.com of containing "anti-government (primarily the United States), anti-capitalism, and militant messages that promoted communism." It described Sherman's participation in protests and demonstrations and contained information about him from when he was 14 years old!
Less than two weeks after this raid, Sherman was in New York City to participate in anti- globalization protests against the World Economic Forum. On the way to a rally, he was among a group of demonstrators who were singled out by the police for attack and arrest. Two days later, while still in custody, a felony bench warrant for his arrest under 18 U.S.C. 842(p) was issued from California. The very next morning, articles containing inflammatory attacks on Sherman appeared in the New York Times , New York Post , and Los Angeles Times.
At a detention hearing later that week, the government prosecutor openly ignored the constitutional concept of "innocent until proven guilty" by declaring, "[A]ll the factors [in this case] inexorably lead to the conclusion that this defendant will be convicted...." He characterized Sherman as "a man on a mission" and listed his previous arrests at political demonstrations and his possession of "anarchist literature" as key reasons why he should be detained.
Less than two weeks later, the federal charges against Sherman Austin were dropped, and he was released from custody. At that time, a spokesman for the U.S. attorney's office stated, "We have opted not to seek an indictment at this time. We are continuing to investigate the matter...." Sherman's attorney responded, "The government arrested him out of the blue and then reversed themselves out of the blue. Who knows what they're going to do next?"
About 7 months later, federal prosecutors told Austin's lawyer that they hadn't found anything on the computers seized in the raid on Sherman's house--but they didn't want to "let him off the hook." So they charged him under 18 U.S.C. 842(p).
The government had no actual evidence that Sherman Austin had any "knowledge" or "intent" that the information contained in the "Guide" would be used for a "violent federal crime." So the government maintained that Sherman's politics "proved" intent--both the prosecutor and the judge repeatedly pointed out that RaiseTheFist.com was critical of U.S. government policy, police brutality, globalization, and racism.
In a conscious effort to set him up, the judge, the prosecutor, the FBI, and the mass media all kept repeating the lie that Sherman Austin had written "The Reclaim Guide"-- even though they all knew that it was not Sherman but someone else who had written it . This lie was constantly repeated in official court documents by the judge and the prosecutor, and there has been a concerted effort by the media to portray Sherman as the author.
The prosecutor offered a pre-indictment plea bargain of 1 month in jail, 5 months in a halfway house, and 3 years supervised probation in exchange for a felony conviction.
Sherman said no. He wanted to fight the case in court on the basis of his political principles. Then he was threatened with Patriot Act "enhancements" and told he could end up with a sentence of 20 years if convicted. A Black youth without financial resources to hire a lawyer who'd listen to him and fight for his interests, Sherman was stuck with a court-appointed attorney who basically told him that there was no way he could win this case and that it would be best for him to accept the plea bargain.
Sherman didn't want to accept any plea bargain, so he tried to get guidance from other sources he thought he could rely on for good legal advice--sources who'd tell him how he could stand up and fight these bogus and obviously political charges. Instead, he was told again that the best thing he could do was keep quiet and accept the plea bargain. It was not explained to him that a plea bargain would set a very bad and dangerous precedent for the entire resistance movement.
Sherman knew he was being framed, but he was under extreme pressure to cop a plea. When it seemed to him that there was no other way to go, he went to court to enter the plea bargain. But Judge Wilson rejected it--on the grounds that the punishment was too light--and set a trial date.
Then Austin, his lawyer, and the federal prosecutor agreed to a second plea bargain of 4 months in jail, 4 months in a halfway house, and 3 years probation. On the day of the rescheduled sentencing hearing, Attorney General Ashcroft released a memo telling federal prosecutors to monitor which judges imposed lenient sentences, so that they could be put on a watch list! When Sherman went to court, his name had mysteriously disappeared from the court's docket, and his hearing had to be rescheduled.
Returning to court the next week, Austin's attorney began making his appeal for the new plea agreement. Judge Wilson interrupted him: "I must tell you I see this case differently. I'm rather surprised the government hasn't taken this case more seriously."
The judge then demanded to know from the prosecutor, "Has your recommendation been cleared with the Justice Department?" Surprised, the prosecutor began, "I don't need their approval..." The judge interrupted the prosecutor and announced that he was postponing sentencing and ordering the prosecutor to contact the head of the Justice Department and FBI Director Robert S. Mueller for their recommendations about Sherman's sentence. Telling the courtroom that Austin's case has "national and international overtones," the judge said that he wanted to make an example of Sherman. He asked what kind of message would four months in jail send to "some other revolutionary who wants to change the world."
It's clear that the government's intent from the beginning of this case has been to get a conviction under an "anti-terrorism" law--and they were determined to get Sherman to plead guilty rather than fight the bogus charges against him in open court. To a certain extent, the length of the sentence imposed on Sherman was not their main concern, because they had another agenda. Federal prosecutors called Austin a "man on a mission." In fact, the government had a sinister mission-- to set up a precedent of a conviction under a law which allows the government to go after people for thought crimes.
Shortly after Sherman's sentencing, Senator Feinstein wrote a letter to Attorney General John Ashcroft pushing for more prosecutions using the same law: "I was pleased to learn recently that Sherman Austin was sentenced earlier this month.... However ... [i]t is dismaying that there has only been one conviction under section 842(p) in the four years that the law has been on the books.... I write to request your assistance in ensuring that [Department of Justice] personnel know about 842(p) and are aggressively enforcing it."
Stephen Rohde, a constitutional law attorney and past president of the ACLU of Southern California, told the RW : "I think the prosecution and conviction of Sherman Austin is very dangerous.... There is a statute, the Communications Act of 1996, which actually creates an immunity for a web provider when they are not involved in creating or developing in full or in part the content that is the subject of the charge or the civil liability. Sherman didn't create the content that was linked to the site.... It's such a dangerous precedent because you are criminalizing ...someone's intent rather than their conduct, rather than anything they actually did.... The notion that the circulation of information by itself without any other criminal activity can itself be a crime is a very dangerous precedent...." Rohde added that the law is also dangerous because it is "about cataloguing someone's political beliefs and then making those evidence of a crime...."
Sherman Austin began serving his sentence on September 3. About 50 people came out to show him their love and give him a fitting send-off. Jennifer Martin Ruggiero, Sherman's mother, shared her thoughts with the RW : "This has been a very eye-opening experience for me, to see the injustices in our justice system.... If they can lie and cheat and steal and misconstrue and create these elastic conditions and twist things around, if they can do this, what the hell are they doing in Iraq?! What are they doing in Afghanistan? What are they doing with all the political prisoners in Guantánamo Bay? This is a very global thing. This is not just about Sherman, and I want to make that very clear to everybody. I'm passionate about this not just because it's my son, but because it's an extreme injustice that needs to be corrected.
"And I want to say to Middle America, `Wake the fuck up!' If this can happen to me, it can happen to anybody. I'm a schoolteacher. I'm a single parent. I pay my taxes. I vote. I've never committed a crime in my life. If you think you are so far removed from something like this happening to one of your kids, or that even you could say the `wrong' thing at the wrong time, think about it.... Don't turn your back on this, because it could happen to you."
When it was time for Sherman to turn himself in, Jennifer told the crowd, "I sit and wonder how a justice system, my justice system, could commit such acts of violence by sending an innocent young man to prison.... And then I remember. I remember the pictures of the Iraqi children, their bodies maimed and bleeding, and I recall the bombing and murder of thousands of Afghani families in the name of freedom, the round-up and deportation of thousands of immigrants in the name of national security. I see the looks on their faces, the look of fear and rejection, the look of great wanting for basic needs...."
Sherman told the RW he wanted to send a message to the people: "I want to tell people that...they can come down on me as much as they want, but I'm not gonna stay silent, they're not going to stop me from what I'm doing. My message to people is this: don't be discouraged and don't be intimidated. Just keep on fighting, do whatever it takes."
Sherman was sent to a facility in San Bernardino known to house many members of the Aryan Brotherhood. On September 6, Sherman was placed in protective custody (isolation) because of death threats being made against him in jail by white supremacists after the Aryan Brotherhood put a price on his head. Deluged by phone calls, emails, faxes, and messages of support for Sherman, the prison authorities announced that they were transferring him to a safer facility. And then he disappeared--his family and friends did not know where the authorities had taken him.
Two weeks later, Sherman's girlfriend received a letter from a jail in Oklahoma. He said he'd been thrown into segregation for no reason, was not being allowed to call his lawyer, and could make only one phone call every 30 days. As of early October, the word is that he's being transferred to a federal prison closer to home.
A response to Feinstein's letter to Ashcroft is in the works--in the form of a letter of support for Sherman Austin which is being circulated broadly for signatures. Several legal and advocacy groups are closely examining the case. Sherman is considering all his legal options.
The prosecution of Sherman Austin has taught all activists and social justice advocates some hard lessons. As Jennifer Martin said, "Sherman was railroaded into that plea. Basically, we were told to keep quiet, don't talk to reporters, don't go public, don't fight it. That's the wrong strategy! I'd never do it that way again. Their agenda is to do everything behind closed doors so no one will know what's going on. My advice is, don't remain silent! We have to challenge the system!"